EXHIBIT 4.(i)B
FARMLAND INDUSTRIES, INC.
AND
COMMERCE BANK, NATIONAL ASSOCIATION
TRUSTEE
SUBORDINATED INDENTURE
Dated as of December 4, 1997
Providing for Issuance of Subordinated Debt Securities in Series
FARMLAND INDUSTRIES. INC.
Cross Reference Sheet Showing the Location in the Indenture of the
Provisions Inserted Pursuant to Section 310 through 318(a) Inclusive
of the Trust Indenture Act of 1939
SECTION NUMBER OF TRUST
INDENTURE ACT OF 1939 INDENTURE SECTION
SEC. 310 - ELIGIBILITY AND DISQUALIFICATION OF TRUSTEE
(a)(1)............................Sec. 6.03
(2)............................Sec. 9.01
(3)............................Not applicable
(4)............................Not applicable
(b) .............................Sec. 9.14
SEC. 311 - PREFERENTIAL COLLECTION OF CLAIMS AGAINST OBLIGOR
(a) ............................Sec 9.15
(b) ............................Sec. 9.15
SEC. 312 - BONDOWNERS' LISTS
(a) ............................Sec. 7.01
(b) ............................Sec. 7.02(b)
(c) ............................Sec. 7.02(c)
SEC. 313 - REPORTS BY INDENTURE TRUSTEE
(a) ............................Sec. 7.03
(b) ............................ 7.03
(c) ............................ 7.03
(d) ............................ 7.03
SEC. 314 - REPORTS BY OBLIGOR; EVIDENCE OF COMPLIANCE WITH INDENTURE
PROVISIONS
(a) ............................Sec. 7.04; 7.05
(b) ............................Not applicable
(c)(1)............................Sec. 16.06
(c)(2)............................Sec. 16.06
(c)(3)............................Not applicable
(d) ............................Not applicable
(e) ............................Sec. 16.06
SEC. 315 - DUTIES AND RESPONSIBILITY OF THE TRUSTEE
(a) ............................Sec. 9.02; 9.03; 9.04
(b) ............................Sec. 8.02
(c) ............................Sec. 9.02
(d) ............................Sec. 9.04
(1)...........................Sec. 9.04(a); 9.04(b)
(2)...........................Sec. 9.04(c)
(3)...........................Sec. 9.04(d)
(e) ............................deemed contained in Indenture
pursuant to Trust Indenture
Act
SEC. 316 - DIRECTIONS AND WAIVERS BY BONDOWNERS; PROHIBITION OF IMPAIRMENT
OF HOLDER'S RIGHT TO PAYMENT
(a) ............................Sec. 8.06
(1)...........................Sec. 8.06
(2)...........................Sec. 8.06
(b) ............................Sec. 8.05
(c) ............................deemed contained in Indenture
pursuant to Trust Indenture Act
SEC. 317 - SPECIAL POWERS OF TRUSTEE; DUTIES OF PAYING AGENTS
(a) ............................Sec. 8.04
(1)...........................Sec. 8.04
(2)...........................Sec. 8.04
(b) ............................Sec. 6.04; 9.09
SEC. 318 - EFFECT OF PRESCRIBED INDENTURE PROVISIONS
(a) ............................Sec. 16.08
(c) ............................Sec. 16.08
TABLE OF CONTENTS
Page
RECITALS........................................................1
ARTICLE ONE.....................................................2
DEFINITIONS.....................................................2
Section 1.01 Definitions. ....................................2
ARTICLE TWO.....................................................9
SECURITY FORMS..................................................9
Section 2.01. Forms Generally. ...............................9
Section 2.02. Form of Trustee's Certificate of
Authentication. .....................................10
Section 2.03. Uncertificated Securities .....................11
ARTICLE THREE..................................................12
THE SECURITIES.................................................12
Section 3.01. Amount Unlimited; Issuable in Series. .........12
Section 3.02. Denominations. ................................16
Section 3.03. Execution, Authentication, Delivery and
Dating. .............................................16
Section 3.04. Temporary Securities. .........................17
Section 3.05. Registration, Transfer and Exchange. ..........18
Section 3.06. Replacement Securities. .......................20
Section 3.07. Payment of Interest; Interest Rights
Preserved. ..........................................22
Section 3.08. Cancellation. .................................23
Section 3.09. CUSIP Numbers. ................................24
ARTICLE FOUR...................................................24
REDEMPTION BY ASSOCIATION......................................24
Section 4.01. Securities Subject to Redemption. .............24
Section 4.02. Notice of Redemption. .........................25
Section 4.03. Securities Payable on Redemption Date. ........25
Section 4.04. Securities Redeemed in Part. ..................26
ARTICLE FIVE...................................................26
REDEMPTION BY HOLDER...........................................26
Section 5.01. Redemption by Holder. .........................26
Section 5.02. Securities Redeemed in Part. ..................27
Section 5.03. No Set-Aside. .................................27
ARTICLE SIX....................................................27
PARTICULAR COVENANTS OF THE ASSOCIATION........................27
Section 6.01. Payments of Principal and Interest. ...........27
Section 6.02. Maintenance of Office or Agency. ..............28
Section 6.03. Appointment of Trustee. .......................28
Section 6.04. Appointment of Duties of Paying Agent. ........28
Section 6.05. Report to Trustee. ............................29
Section 6.07. Securities Subordinated to Senior
Indebtedness. .......................................30
ARTICLE SEVEN..................................................37
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND ASSOCIATION..........37
Section 7.01. Association to Furnish Trustee Names and
Addresses of Holders. ...............................37
Section 7.02. Preservation of Information, Communications
to Holders. .........................................38
Section 7.03. Reports by Trustee. ...........................38
Section 7.04. Reports by the Association. ...................39
Section 7.05. Annual Review Certificate. ....................39
ARTICLE EIGHT..................................................40
REMEDIES IN EVENT OF DEFAULT...................................40
Section 8.01. Event of Default Defined. .....................40
Section 8.02. Trustee to Notify Holder of Defaults. .........41
Section 8.03. Acceleration Upon Default. ....................42
Section 8.04. Right of Trustee to Sue Association Upon
Default. ............................................43
Section 8.05. Right of Holder to Receive Payment or Sue. ....44
Section 8.06. Right of Holders to Direct Time, Method and
Place of Conducting Proceeding for Remedy
Available to Trustee. ...............................44
Section 8.07. Notice of Defaults. ...........................45
ARTICLE NINE...................................................46
CONCERNING THE TRUSTEE.........................................46
Section 9.01. Qualification of Trustee. .....................46
Section 9.02. Acceptance and Undertaking of Trustee. ........46
Section 9.03. Examination of Evidence by Trustee. ...........46
Section 9.04. Trustee not Relieved of Liability for Own
Negligence or Willful Misconduct. ...................47
Section 9.05. Trustee May Rely on Recitals of Fact. .........49
Section 9.06. Right of Trustee to Rely on Certain
Documents. ..........................................49
Section 9.07. Trustee Not Responsible for Approval of Any
Expert. .............................................49
Section 9.08. Right of Trustee to Become Owner or Pledgee
of Securities. ......................................50
Section 9.09. Monies Received by Trustee to be Held in
Trust. ..............................................50
Section 9.10. Compensation of Trustee. ......................51
Section 9.11. Enforcement by Trustee of Right to
Compensation. .......................................51
Section 9.12. Trustee May Rely Upon Certificate of
Association. ........................................54
Section 9.13. Right of Trustee to Give Notice of Action. ....55
Section 9.14. Conflicting Interest of Trustee. ..............55
Section 9.15. Duties of Trustee if it Becomes Creditor of
Association. ........................................56
Section 9.16. Resignation and Discharge of Trustee. .........57
Section 9.17. Removal of Trustee. ...........................57
Section 9.18. Filling Vacancy. ..............................58
Section 9.19. Duties of Successor Trustee. ..................59
Section 9.20. Merger or Consolidation of or with Trustee. ...60
Section 9.21. Duties of Trustee Governed by Laws of
Missouri. ...........................................61
ARTICLE TEN....................................................61
CONCERNING THE HOLDERS.........................................61
Section 10.01. Proof of Action by Holders. ..................61
Section 10.02. What Constitutes a Writing. ..................62
Section 10.03. Holder Named in Certificate Treated as
Absolute Owner. .....................................62
Section 10.04. Securities Owned by Association to be
Disregarded in Computing Requisite Amount of
Securities. .........................................62
Section 10.05. Holders May Revoke Prior Action. .............63
ARTICLE ELEVEN.................................................63
HOLDERS MEETINGS..............................................64
Section 11.01. Purpose of Meetings. .........................64
Section 11.02. Call of Meeting and Notice Required. .........64
Section 11.03. Request of Trustee to Call Meeting. ..........65
Section 11.04. Who May Vote at Meeting. .....................66
Section 11.05. Regulations Made by Trustee. .................66
Section 11.06. Form of and Recording Vote. ..................67
ARTICLE TWELVE.................................................68
SUPPLEMENTAL INDENTURES........................................68
Section 12.01. Supplemental Indentures Without Consent of
Holders. ............................................68
Section 12.02. Supplemental Indentures With Consent of
Holders. ............................................70
Section 12.03. Compliance with Trust Indenture Act. .........71
Section 12.04. Execution of Supplemental Indentures. ........72
Section 12.05. Reference in Securities to Supplemental
Indentures. .........................................72
ARTICLE THIRTEEN...............................................73
CONSOLIDATION, MERGER, SALE OR CONVEYANCE......................73
Section 13.01. Consolidation or Merger of or with
Association. ........................................73
Section 13.02. Rights and Duties of Successor Corporation
or Entity. ..........................................73
Section 13.03. Opinion of Counsel. ..........................74
ARTICLE FOURTEEN...............................................76
SATISFACTION, DISCHARGE AND DEFEASANCE.........................76
Section 14.01. Termination of Association's Obligations
Under the Indenture. ................................76
Section 14.02. Application of Trust Funds. ..................78
Section 14.03. Applicability of Defeasance Provisions;
Association's Option to Effect Defeasance or
Covenant Defeasance. ................................78
Section 14.04. Defeasance and Discharge. ....................79
Section 14.05. Covenant Defeasance. .........................79
Section 14.06. Conditions to Defeasance or Covenant
Defeasance. .........................................80
Section 14.07. Deposited Money and Government Obligations
to Be Held in Trust. ................................83
Section 14.08. Repayment to Association. ....................84
Section 14.09. Indemnity for Government Obligations. ........84
Section 14.10. Reinstatement. ...............................85
ARTICLE FIFTEEN................................................86
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,.......................86
OFFICERS AND DIRECTORS.........................................86
Section 15.01. No Recourse. .................................86
ARTICLE SIXTEEN................................................87
MISCELLANEOUS PROVISIONS.......................................87
Section 16.01. Covenants of Association Bind its
Successors and Assigns. .............................87
Section 16.02. Acts by Successor Corporation. ...............87
Section 16.03. Surrender of Rights and Powers Reserved to
Association. ........................................87
Section 16.04. Service of Notice on Association. ............88
Section 16.05. Indenture Governed by Laws of Missouri. ......88
Section 16.06. Officers' Certificate and Opinion of
Counsel. ............................................88
Section 16.07. Due Date on Saturday, Sunday or Legal
Holiday. ............................................89
Section 16.08. Conflict with Trust Indenture Act. ...........90
Section 16.09. Indenture Executed in Counterparts. ..........90
THIS INDENTURE (the "Indenture"), dated as of the 4th day of December,
1997, between FARMLAND INDUSTRIES, INC., a corporation duly organized and
existing under the laws of the State of Kansas (hereinafter sometimes referred
to as the "Association"), party of the first part, and COMMERCE BANK, NATIONAL
ASSOCIATION, a corporation duly organized and existing under the law of the
United States of America (hereinafter sometimes referred to as the "Trustee"),
party of the second part.
RECITALS
The Association has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
subordinated debentures, notes or other evidences of indebtedness ("Securities")
to be issued in one or more series as herein provided.
All things necessary to make the Securities, when executed by the
Association and authenticated and delivered hereunder and duly issued by the
Association have been done.
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually covenanted and agreed as follows for the
equal and ratable benefit of the Holders of the Securities or of any series
thereof:
All acts and things necessary to make the Securities, when executed by the
Association and authenticated and delivered by the Trustee as in this Indenture
provided, the valid, binding and legal obligations of the Association, and to
constitute these presents a valid Indenture and agreement according to its
terms, have been done and performed, and the execution of this Indenture and the
issue hereunder of the Securities have in all respects been duly authorized, and
the Association, in the exercise of legal right and power in it vested, executes
this Indenture and proposes to make, execute, issue and deliver the Securities.
ARTICLE ONE
DEFINITIONS
Section 1.01 Definitions.
The terms defined in this Section 1.01 (except as herein otherwise
expressly provided or unless the context otherwise requires) for all purposes of
this Indenture and of any indenture supplemental hereto shall have the
respective meanings specified in this Section 1.01. All other terms used in
this Indenture which are defined in the Trust Indenture Act of 1939 or which are
by reference therein defined in the Securities Act of 1933, as amended (except
as herein otherwise expressly provided or unless the context otherwise
requires), shall have the meanings assigned to such terms in said Trust
Indenture Act and in said Securities Act as in force at the date of this
Indenture as originally executed.
Association:
The term "Association" shall mean Farmland Industries, Inc., and subject to
the provisions of Article Thirteen, shall also include its successors and
assigns.
Association Order and Association Request:
The terms "Association Order" and "Association Request" shall mean,
respectively, a written order or request signed in the name of the Association
by two officers, one of whom must be the Chairman of the Board, the President,
the Chief Executive Officer, the Chief Operating Officer, the Chief Financial
Officer, a Vice President, the Treasurer or the Secretary of the Association.
Authorized Newspaper:
The term "authorized newspaper" shall mean a newspaper printed in the
English language and customarily published at least once a day for at least five
days in each calendar week and of general circulation in the city in which it is
published.
Board of Directors:
The term "Board of Directors", when used with the reference to the
Association, shall mean the Board of Directors of the Association, or the
Executive Committee of such Board.
Board Resolution:
The term "Board Resolution" shall mean a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Association to have been duly
adopted by its Board of Directors and to be in full force and effect on the date
of such certification, and delivered to the Trustee.
Default:
The term "Default" shall have the meaning specified in Section 8.02.
Defaulted Interest:
The term "Defaulted Interest" shall have the meaning specified in Section
3.07.
Event of Default:
The term "Event of Default" shall mean any event specified in Section 8.01.
Government Obligations:
The term "Government Obligations" shall mean securities that are (x) direct
obligations of the United States of America, for the payment of which its full
faith and credit is pledged or (y) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case (x) or
(y), are not callable or redeemable at the option of the issuer thereof, and
shall also include a depository receipt issued by a bank (as defined in Section
3(a)(2) of the Securities Act of 1933, as amended) as custodian with respect to
any such Government Obligation or a specific payment of principal of or interest
on any such Government Obligation held by such custodian for the account of the
holder of such depository receipt, provided that (except as required by law)
such custodian is not authorized to make any deduction from the amount payable
to the holder of such depository receipt from any amount received by the
custodian in respect of the Government Obligation or the specific payment of
principal of or interest on the Government Obligation evidenced by such
depository receipt.
Holder:
The term "Holder" means a Person in whose name a Security of any series is
registered in the Register.
Indenture:
The term "Indenture" shall mean this Instrument as originally executed and
as it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of particular
series of Securities established as contemplated by Section 3.01.
Interest Payment Date:
The term "Interest Payment Date", with respect to any security, shall mean
the Stated Maturity of an installment of interest on such security.
Officers' Certificate:
The term "Officers' Certificate" shall mean a certificate signed by the
President and/or any Vice President and by an accountant who may be the
Controller, any Assistant Controller or any other accounting officer of the
Association. Each such certificate shall include the statements provided for in
Section 16.06, if and to the extent required by the provisions thereof.
Opinion of Counsel:
The term "Opinion of Counsel" shall mean an opinion in writing signed by
legal counsel, who shall be satisfactory to the Trustee and who may be an
employee of or of counsel to the Association. Each such opinion shall include
the statements provided for in Section 16.06, if and to the extent required by
the provisions thereof.
Outstanding:
The term "Outstanding" when used with reference to Securities, shall,
subject to the provisions of Section 10.04, mean, as of any particular time, all
Securities authenticated and delivered by the Trustee under this Indenture,
except
(a) Securities theretofore cancelled by the Trustee or delivered to the
Trustee cancelled or for cancellation;
(b) Securities for the payment or redemption of which monies in the
necessary amount shall have been deposited in trust with the Trustee
or shall have been set aside and segregated in trust by the
Association, provided, however, that if such Securities are to be
redeemed, notice of such redemption shall have been given as provided
in Article Four, or provision satisfactory to the Trustee shall have
been made for giving such notice; and
(c) Securities in lieu of or in substitution for which other Securities
shall have been authenticated and delivered pursuant to the terms of
Section 3.06.
Register:
The term "Register" has the meaning specified in Section 3.05.
Registrar:
The term "Registrar" has the meaning specified in Section 3.05.
Responsible Officer:
The term "Responsible Officer", when used with respect to the Trustee,
shall mean the President, any Vice President, the Secretary, the Treasurer, any
trust officer, or any other officer or assistant officer of the Trustee
customarily performing functions similar to those performed by the persons who
at the time shall be such officers, respectively, or one to whom any corporate
trust matter is referred because of his knowledge of and familiarity with the
particular subject.
Security or Securities:
The term "Security" or "Securities" has the meaning stated in the first
recital of this Indenture and more particularly means a Security or Securities
of the Association issued, or a certificate evidencing ownership thereof,
authenticated and delivered under this Indenture.
Senior Indebtedness:
The term "Senior Indebtedness" has the meaning specified in Section 6.07.
Special Record Date:
The term "Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 3.07.
Stated Maturity:
The term "Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security or in an interest coupon representing such installment of
interest as the fixed date on which the principal of such Security or such
installment of principal or interest is due and payable.
Trustee:
The term "Trustee" shall mean the Commerce Bank, National Association and,
subject to the provisions of Article Nine hereof, shall also include its
successors and assigns.
Trust Indenture Act of 1939:
The term "Trust Indenture Act of 1939" (except as herein otherwise
expressly provided or unless the context otherwise requires) shall mean the
Trust Indenture Act of 1939 as in force at the date of this Indenture when
originally executed.
Uncertificated Securities:
The term "Uncertificated Securities" shall mean a Security that is not
represented by a certificate.
ARTICLE TWO
SECURITY FORMS
Section 2.01. Forms Generally.
The Securities of each series and the Trustee's certificate of
authentication and the interest coupons, if any, to be attached shall be in
substantially such form as shall be established by or pursuant to a Board
Resolution or in one or more indentures supplemental hereto, in each case with
such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture, and may have such letters, numbers
or other marks of identification and such legends or endorsements placed thereon
as may be required to comply with the rules of any applicable securities
exchange, organizational document, governing instrument or law or as may,
consistently herewith, be determined by the officers executing such Securities
and interest coupons, if any, to be attached thereto, as evidenced by their
execution of the Securities and interest coupons, if any. If temporary
Securities of any series are issued as permitted by Section 3.04, the form
thereof also shall be established as provided in the preceding sentence. If the
forms of Securities and interest coupons, if any, of any series are established
by, or by action taken pursuant to, a Board Resolution, a copy of the Board
Resolution together with an appropriate record of any such action taken pursuant
thereto, including a copy of the approved form of Securities or interest
coupons, if any, shall be delivered to the Trustee at or prior to the delivery
of the Association Order contemplated by Section 3.03 for the authentication and
delivery of such Securities. Any portion of the text of any Security may be set
forth on the reverse thereof, with an appropriate reference thereto on the face
of the Security.
The definitive Securities and interest coupons, if any, may be printed,
typewritten, lithographed or engraved, or may be produced in any other manner,
all as determined by the officers executing such Securities and interest
coupons, if any, as evidenced by their execution of such Securities and interest
coupons, if any.
Section 2.02. Form of Trustee's Certificate of Authentication.
Unless otherwise provided as contemplated by Section 3.01, the Trustee's
certificate of authentication shall be included on the Securities and shall be
substantially in the form as follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
This is one of the Securities referred to in the within-mentioned Indenture.
COMMERCE BANK, NATIONAL ASSOCIATION.
__________________________________
As Trustee
By:
Authorized Signatory
Section 2.03. Uncertificated Securities
(a) In lieu of issuing certificates to evidence ownership of Securities,
the Association may determine to issue the Securities of any series, including
any series which has previously been issued in certificated form, as
Uncertificated Securities. Any Uncertificated Securities shall be treated as
"uncertificated securities" as the term is used in Article 8 of the Uniform
Commercial Code as in effect in the State of Missouri, and such Article 8, to
the maximum extent permitted by law, shall govern the Uncertificated Securities.
Notwithstanding any provision of this Indenture to the contrary, the
registration on the Register of any Security which is in uncertificated form,
whether upon original issuance or transfer, shall be deemed to constitute an
authentication of such Security by the Trustee, and no further authentication
shall be necessary. In addition, whenever any provision of this Indenture shall
require that a Security be surrendered, that requirement shall not apply to a
Security in uncertificated form, to the extent that such provision requires
surrender of a physical certificate.
(b) The Association may establish any rules, regulations, procedures and
forms for the purpose of noting ownership of Uncertificated Securities, for
registration of transfers, exchanges, and surrenders of Uncertificated
Securities and for other matters pertaining to the issuance of Securities in
uncertificated form as the Association, in its discretion, shall deem necessary
or desirable.
ARTICLE THREE
THE SECURITIES
Section 3.01. Amount Unlimited; Issuable in Series.
(a) The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited. The Securities
may be issued from time to time in one or more series.
(b) The following matters shall be established with respect to each series
of Securities issued hereunder (i) by a Board Resolution, (ii) by action taken
pursuant to a Board Resolution and (subject to Section 3.03) set forth, or
determined in the manner provided, in an Officers' Certificate or (iii) in one
or more indentures supplemental hereto:
(1) the title of the Securities of the series (which title shall
distinguish the Securities of the series from all other series of
Securities);
(2) any limit upon the aggregate principal amount of the Securities of the
series which may be authenticated and delivered under this Indenture
which limit shall not pertain to Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in
lieu of, other Securities of the series pursuant to Section 3.04, 3.05
or 3.06;
(3) the date or dates on which the principal of and premium, if any, on
the Securities of the series shall be payable or the method or methods
of determination thereof;
(4) the rate or rates at which the Securities of the series shall bear
interest, if any, or the method or methods of calculating such rate or
rates of interest, the date or dates from which such interest shall
accrue or the method or methods by which such date or dates shall be
determined, the Interest Payment Dates on which any such interest
shall be payable, the right, if any, of the Association to defer or
extend an Interest Payment Date, the record date, if any, for the
interest payable on any Interest Payment Date, and the basis upon
which interest shall be calculated if other than that of a 365-day
year;
(5) the place or places where the principal of, premium, if any, and
interest, if any, on Securities of the series shall be payable, any
Securities of the series may be surrendered for registration of
transfer, any Securities of the series may be surrendered for
exchange, and notices and demands to or upon the Association in
respect of the Securities of the series and this Indenture may be
served and where notices to Holders may be sent.
(6) the period or periods within which, the price or prices at which, and
the other terms and conditions upon which, Securities of the series
may be redeemed, in whole or in part, at the option of the Association
and, if other than as provided in Article Four, the manner in which
the particular Securities of such series (if less than all Securities
of such series are to be redeemed) are to be selected for redemption;
(7) the obligation, if any, of the Association to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or upon the happening of a specified event or at the option
of a Holder thereof and the period or periods within which, the price
or prices at which and the other terms and conditions upon which,
Securities of the series shall be redeemed or purchased, in whole or
in part, pursuant to such obligation;
(8) the denominations in which Securities of the series shall be issuable;
(9) if other than the entire principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable
upon declaration of acceleration thereof pursuant to Section 8.03 or
the method by which such portion shall be determined;
(10) provisions, if any, granting special rights to the Holders of
Securities of the series upon the occurrence of such events as may be
specified;
(11) any deletions from, modifications of or additions to the Events of
Default set forth in Section 8.01 or covenants of the Association set
forth in Article Six pertaining to the Securities of the series;
(12) the forms of the Securities and interest coupons, if any, of the
series;
(13) the applicability, if any, to the Securities and interest coupons, if
any, of the series of Sections 14.04 and 14.05, or such other means of
defeasance or covenant defeasance as may be specified for the
Securities and interest coupons, if any, of such series;
(14) if other than the Association, the identity of any Registrar and any
Paying Agent;
(15) any restrictions on the registration, transfer or exchange of the
Securities of the series; and
(16) any other terms of the series including any terms which may be
required by or advisable under United States laws or regulations or
advisable (as determined by the Association) in connection with the
marketing of Securities of the series.
(c) Subject to any controlling provision of the Trust Indenture Act, in
the event of any inconsistency between the terms of this Indenture and the terms
applicable to a series of Securities established in the manner permitted by
Section 3.01, the (i) Board Resolution, (ii) Officers' Certificate or (iii)
supplemental indenture setting forth such conflicting term shall prevail.
(d) All Securities of any one series and interest coupons, if any,
appertaining thereto shall be substantially identical except as to denomination
and except as may otherwise be provided (i) by a Board Resolution, (ii) by
action taken pursuant to a Board Resolution and (subject to Section 3.03) set
forth, or determined in the manner provided, in the related Officers'
Certificate or (iii) in an indenture supplemental hereto. All Securities of any
one series need not be issued at the same time and, unless otherwise provided,
additional Securities of any series may be issued from time to time, without the
consent of the then Holders of Securities of that series.
(e) If any of the terms of the Securities of any series are established by
action taken pursuant to a Board Resolution, a copy of such Board Resolution
shall be delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth, or providing the manner for determining, the terms of
the Securities of such series, and an appropriate record of any action taken
pursuant thereto in connection with the issuance of any Securities of such
series shall be delivered to the Trustee prior to the authentication and
delivery thereof.
Section 3.02. Denominations.
Unless otherwise provided as contemplated by Section 3.01, any Securities
of a series denominated in Dollars shall be issuable in denominations of not
less than U.S. $1,000.
Section 3.03. Execution, Authentication, Delivery and Dating.
(a) The Securities, upon the execution of this Indenture, or from time to
time thereafter, may be executed by the Association and delivered to the Trustee
for authentication, and, upon Association Order, the Trustee shall thereupon
authenticate and deliver said Securities.
(b) Unless otherwise provided as contemplated by Section 3.01, the
Securities shall be dated the first day in which the payment of the full
purchase price thereof is received by the Association at its offices in Kansas
City, Missouri.
(c) The Securities will be signed on behalf of the Association by its
President or Vice President, under its corporate seal, attested by its Secretary
or Assistant Secretary. The signatures of such officers and the corporate seal
of the Association may be facsimile signatures.
(d) Only such Securities as shall bear thereon a certificate of
authentication substantially in the form hereinbefore recited, executed by the
Trustee, shall be entitled to the benefits of this Indenture or be valid or
obligatory for any purposes. Such certificate by the Trustee upon any Security
executed by the Association shall be conclusive evidence that the Security so
authenticated has been duly authenticated and delivered hereunder and that the
Holder is entitled to the benefits of this Indenture.
(e) In case any officer of the Association who shall have signed any of
the Securities shall cease to be such officer before the Securities so signed
shall have been authenticated and delivered by the Trustee, or disposed of by
the Association, such Securities nevertheless may be authenticated and delivered
or disposed of as though the person who signed such Securities had not ceased to
be such officer of the Association; and any Securities may be signed on behalf
of the Association by such persons as, at the actual date of the execution of
such Security, shall be the proper officers of the Association, although at the
date of the execution of this Indenture any such person was not such officer.
Section 3.04. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Association may execute and, upon Association Order, the Trustee shall
authenticate and deliver temporary Securities of such series which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor and form, with or without interest
coupons, 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 conclusively evidenced
by their execution of such Securities and interest coupons, if any.
If temporary Securities of any series are issued, the Association will
cause definitive Securities of such series to be prepared without unreasonable
delay. After preparation of definitive Securities of such series, the temporary
Securities of such series shall be exchangeable for definitive Securities of
such series upon surrender of the temporary Securities of such series at the
office or agency of the Association pursuant to Section 6.02 for such series,
without charge to the Holder. Upon surrender for cancellation of any one or
more temporary Securities of any series (accompanied by any unmatured interest
coupons appertaining thereto), the Association shall execute and the Trustee
shall authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of the same series of authorized denominations and of like
tenor. Until so exchanged, the temporary Securities of any series shall in all
respects be entitled to the same benefits under this Indenture as definitive
Securities of such series except as otherwise specified as contemplated by
Section 3.01.
Section 3.05. Registration, Transfer and Exchange.
The Association shall cause to be kept at the office or agency to be
maintained by the Association in accordance with Section 6.02 a register (the
"Register") in which, subject to such reasonable regulations as it may
prescribe, the Association shall provide for the registration of Securities and
the registration of transfers of Securities. The Register shall be in written
form or any other form capable of being converted into written form within a
reasonable time. The Association is hereby initially appointed "Registrar" for
the purpose of registering Securities and transfers of Securities as herein
provided.
Upon surrender for registration of transfer of any Security of any series
at the office or agency maintained pursuant to Section 6.02 for that series, the
Association shall execute, and the Trustee shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new Securities
of the same series, of any authorized denominations and of a like aggregate
principal amount and tenor and containing identical terms and provisions.
At the option of the Holder, Securities of any series may be exchanged for
other Securities of the same series, of any authorized denominations, of a like
aggregate principal amount and tenor and containing identical terms and
provisions, upon surrender of the Securities to be exchanged at such office or
agency. Whenever any Securities are so surrendered for exchange, the
Association 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 upon any
exchange of Securities shall be the valid obligations of the Association,
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 Association, the Registrar or the Trustee)
be duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Association, the Registrar and the Trustee 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 for any
exchange of Securities, but the Association may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration or transfer or exchange of Securities, other
than exchanges pursuant to Section 3.04 or Section 12.05 not involving any
transfer.
The Association shall not be required (i) to issue, register the transfer
of, or exchange the Securities of any series for a period beginning at the
opening of business 15 days before any selection for redemption of Securities of
such series and ending at the close of business on the earliest date on which
the relevant notice of redemption is deemed to have been given to all Holders of
such series to be redeemed; 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.
Pursuant to Section 3.01, the foregoing provisions relating to
registration, transfer and exchange may be modified, supplemented or superseded
with respect to any series of Securities by a Board Resolution or in one or more
indentures supplemental hereto.
Section 3.06. Replacement Securities.
In case any Security shall become mutilated or be destroyed, lost or
stolen, the Association in its discretion may execute, and upon its request the
Trustee shall authenticate and deliver, a new Security bearing a number not
contemporaneously Outstanding, in exchange and substitution for the mutilated
Security, or in lieu of and substitution for the Security so destroyed, lost or
stolen. In every case the applicant for a substituted Security shall furnish to
the Association and to the Trustee such security or indemnity as may be required
by them to save each of them harmless, and, in every case of destruction, loss
or theft, the applicant shall also furnish to the Association and to the Trustee
evidence to their satisfaction of the destruction, loss or theft of such
Security and of the ownership thereof. The Trustee may authenticate any such
Security and deliver the same upon the written request or authorization of any
officer of the Association. Upon the issuance of any substituted Security, the
Association 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 connected therewith and, in addition, a further sum not exceeding Two
Dollars ($2.00) for each Security so issued in substitution. In case any
Security which has matured or is about to mature shall become mutilated or be
destroyed, lost or stolen, the Association may, instead of issuing a substitute
Security, pay the same (without surrender thereof except in the case of a
mutilated Security) if the applicant for such payment shall furnish the
Association and any Registrar with such security or indemnity as it may require
to save it harmless, and, in every case of destruction, loss or theft, the
applicant shall also furnish to the Association and to the Trustee evidence to
their satisfaction of the destruction, loss or theft.
Every substituted Security issued pursuant to the provisions of this
Section 3.06 by virtue of the fact that any Security is destroyed, lost or
stolen shall, with respect to such Security, constitute an additional
contractual obligation of the Association, whether or not the destroyed, lost or
stolen Security shall be found at any time, and shall be entitled to all the
benefits of this Indenture equally and proportionately with any and all other
Securities duly issued hereunder. All Securities shall be held and owned upon
the express condition that the foregoing provisions are exclusive with respect
to the replacement or payment of mutilated, destroyed, lost or stolen
Securities, and shall preclude any and all other rights or remedies,
notwithstanding any law or statute existing or hereafter enacted to the contrary
with respect to the replacement or payment of securities without their
surrender.
Section 3.07. Payment of Interest; Interest Rights Preserved.
Unless otherwise provided pursuant to Section 3.01, interest on any
Security of a series 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 of that series is registered at the close of business on the record
date for such interest.
Unless otherwise provided pursuant to Section 3.01, any interest on any
Security of a series which is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date and interest on such defaulted
interest at the then applicable interest rate borne by the Securities of that
series, to the extent lawful (such defaulted interest and interest thereon
herein collectively called "Defaulted Interest") shall forthwith cease to be
payable to the Holder on the record date; and such Defaulted Interest may be
paid by the Association, at its election in each case, as provided in Subsection
(a) or (b) below:
(a) The Association may elect to make payment of any Defaulted Interest to
the persons in whose names the Securities of that series 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 Association shall
notify the Trustee in writing of the amount of Defaulted Interest proposed to be
paid on each Security of that series and the date (not less than 30 days after
such notice) of the proposed payment, and at the same time the Association 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 Subsection
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 Association in writing of such Special Record
Date. In the name and at the expense of the Association, the Trustee 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 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 of
that series are registered on such Special Record Date and shall no longer be
payable pursuant to the following Subsection (b).
(b) The Association may make payment of any Defaulted Interest in any
other lawful manner if, after written notice given by the Association to the
Trustee of the proposed payment pursuant to this Section 3.07, such payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section 3.07, each Security of
any series delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security of the same series shall carry the
rights to interest accrued and unpaid, and to accrue, which were carried by such
other Security of the same series.
Section 3.08. Cancellation.
All Securities surrendered for payment, redemption, exchange or transfer
shall, if surrendered to the Association, be cancelled and delivered to the
Trustee, or, if surrendered to the Trustee, shall be cancelled by it, and no
Security shall be issued in lieu thereof except as expressly permitted by any of
the provisions of this Indenture. On request of the Association, the Trustee
shall deliver to the Association a certificate of cancellation, including such
cancelled Securities held by the Trustee. If the Association shall acquire any
of the Securities, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Securities unless and until
the same are delivered to the Trustee cancelled or for cancellation.
Section 3.09. CUSIP Numbers.
The Association in issuing the Securities may use "CUSIP" numbers (if then
generally in use and in addition to the other identification numbers printed on
the Securities), and, in such case, the Trustee shall use "CUSIP" numbers in
notices of redemption as a convenience to Holders; provided that any such notice
may state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice 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.
ARTICLE FOUR
REDEMPTION BY ASSOCIATION
Section 4.01. Securities Subject to Redemption.
To the extent, if any, provided pursuant to Section 3.01, the Association
may, from time to time, redeem any Outstanding Security of any series by payment
of the face amount thereof, plus accrued interest to the date of such payment,
upon not less than fifteen (15) days written notice mailed to the Holder named
in the Register, at the address designated therein, by ordinary first class
United States mail, properly addressed and stamped and deposited in the United
States.
Section 4.02. Notice of Redemption.
Unless otherwise provided as contemplated by Section 3.01, each such notice
of redemption shall specify the date fixed for redemption and shall state that
payment of the redemption price of the Security or Securities to be redeemed
will be made at the office to be maintained by the Association in accordance
with the provisions of Section 6.02 upon presentation and surrender of such
Security or Securities, that interest accrued to the date fixed for redemption
will be paid, and that on and after said date interest thereon will cease to
accrue.
Section 4.03. Securities Payable on Redemption Date.
Unless otherwise provided as contemplated by Section 3.01, if the giving of
notice of redemption shall have been completed as above provided, the Security
or Securities specified in such notice shall become due and payable on the date
and at the place stated in such notice at the face amount thereof, together with
interest accrued to the date fixed for redemption, and on and after such date
fixed for redemption (unless the Association shall default in the payment of
such Security or Securities at the face amount thereof, together with interest
accrued to date fixed for redemption) interest on the Security or Securities so
called for redemption shall cease to accrue. On presentation and surrender of
such Security or Securities at the place of payment in said notice specified,
the said Security or Securities shall be paid or redeemed by the Association at
the face amount thereof, together with interest accrued thereon to the date
fixed for redemption.
Section 4.04. Securities Redeemed in Part.
Any Security which is to be redeemed only in part pursuant to this Article
Four shall be surrendered to the office to be maintained by the Association in
accordance with the provisions of Section 6.02, and the Association shall
execute, and the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Security or Securities of the same
series, 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 of that series so surrendered that is not redeemed or
purchased.
ARTICLE FIVE
REDEMPTION BY HOLDER
Section 5.01. Redemption by Holder.
To the extent, if any, provided pursuant to Section 3.01, and subject to
the subordination provisions of Section 6.07, the Association agrees to redeem
Securities of any series prior to maturity by payment of the principal thereof,
plus interest to the date of such payment only, at the place and at the rate
specified pursuant to Section 3.01, upon surrender of such Securities,
accompanied by a written request for early redemption to the Association and
such other documentation as should be specified pursuant to Section 3.01.
Section 5.02. Securities Redeemed in Part.
Any Security which is to be redeemed only in part pursuant to this Article
Five shall be surrendered to the office to be maintained by the Association in
accordance with the provisions of Section 6.02, and the Association shall
execute, and the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Security or Securities of the same
series, 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 of that series so surrendered that is not redeemed or
purchased.
Section 5.03. No Set-Aside.
The amounts available for the redemption of Securities prior to maturity
pursuant to this Section Five shall not be set aside in a separate fund or held
in trust.
ARTICLE SIX
PARTICULAR COVENANTS OF THE ASSOCIATION
Section 6.01. Payments of Principal and Interest.
The Association will duly and punctually pay or cause to be paid the
principal of and interest on each of the Securities at the respective times and
place and in the manner provided in the Securities. The principal of and
interest on the Securities shall be payable only to or upon the written order of
the Holder named in the Securities.
Section 6.02. Maintenance of Office or Agency.
The Association will maintain an office or agency in the City of Kansas
City, State of Missouri, where the Securities of each series may be presented
for transfer, exchange, redemption and payment, and where notices and demands to
or upon the Association with respect to the Securities of each series or to this
Indenture may be served. The Association will give to the Trustee notice of the
location of such office or agency and of any change of location thereof. In
case the Association shall fail to maintain such office or agency or shall fail
to give such notice of the location or of any change in the location thereof,
presentations and demands may be made and notices may be served at the principal
office of the Trustee.
Section 6.03. Appointment of Trustee.
The Association covenants and agrees that whenever necessary to avoid or
fill a vacancy in the office of the Trustee, the Association will in the manner
provided in Section 9.18 appoint a Successor Trustee so that there shall at all
times be a Trustee hereunder which shall at all times be a bank or trust
company, which shall at all times be a corporation or banking association
organized and doing business under the laws of the United States or of any State
or Territory or of the District of Columbia, with a capital and surplus of at
least $25,000,000, and authorized under such laws to exercise corporate trust
powers and subject to supervision or examination by Federal, State, Territorial
or District of Columbia authority.
Section 6.04. Appointment of Duties of Paying Agent.
(a) Whenever the Association shall appoint a paying agent other than the
Trustee or the Association, it will cause such paying agent to execute and
deliver to the Trustee an instrument in which such agent shall agree with the
Trustee, subject to the provisions of this Section 6.04, that: (1) it will hold
all sums held by it as agent for the payment of the principal of or interest on
the Securities of any series (whether such sums have been paid to it by the
Association or by any other obligor on the Securities of such series) in trust
for the benefit of the Holders of the Securities of such series; and (2) it will
give the Trustee notice of any failure by the Association (or by any other
obligor on the Securities of such series) to make any payment of the principal
of or interest on the Securities of such series when the same shall be due and
payable.
(b) If the Association shall act as its own paying agent, it will, on or
before each due date of the principal of or interest on the Securities of any
series, set aside, segregate and hold in trust for the benefit of the holders of
the Securities of such series a sum sufficient to pay such principal of and
interest so becoming due. The Association will promptly notify the Trustee of
any failure to take such action.
(c) Anything in this Section 6.04 to the contrary notwithstanding, the
Association may, at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture, or for any other reason, pay or cause to be paid to
the Trustee all sums held in trust by it, or by any paying agent hereunder, as
required by this Section 6.04, such sums to be held by the Trustee upon the
trusts herein contained.
(d) Anything in this Section 6.04 to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section 6.04 is subject to
the provisions of Article Fourteen.
Section 6.05. Report to Trustee.
To the extent provided pursuant to Section 3.01, the Association covenants
and agrees to report in writing to the Trustee as soon as practicable the
interest rate per annum determined to be payable on the Securities and the
effective date of such rate of interest.
Section 6.06. Unclaimed Monies.
Any money deposited with the Trustee or any paying agent, or then held by
the Association, in trust for the payment of any principal of or premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal, premium, if any, or interest has become due and payable
shall be paid, without liability for interest thereon, to the Association on
Association Request, or (if then held by the Association) shall be discharged
from such trust; and the Holder of such Security and interest coupon, if any,
shall thereafter, as an unsecured general creditor, look only to the Association
for payment thereof of the amount, without liability for interest thereon, and
all liability of the Trustee or such paying agent with respect to such trust
money, and all liability of the Association as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such paying agent, before being
required to make any such repayment, may in the name and at the expense of the
Association cause to be published once, in an Authorized Newspaper in each place
where the office or agency of the Association pursuant to Section 6.02 is
located with respect to such series, or cause to be mailed by first-class mail
to such Holder, 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 Association.
Section 6.07. Securities Subordinated to Senior Indebtedness.
(a) The Association, for itself, its successors and assigns, covenants and
agrees, and each Holder of Securities, by his acceptance thereof, likewise
covenants and agrees, that the payment of the principal of (and premium, if any)
and interest on the Securities issued hereunder shall be subordinated and
subject, to the extent and in the manner herein set forth, in right of payment
to the prior payment in full of all Senior Indebtedness. "Senior Indebtedness"
means (i) any indebtedness of the Association outstanding on the date of
execution of this Indenture as originally executed, or thereafter created,
incurred or assumed, for the principal of and premium (if any) and interest on
money borrowed from banks, trust companies, insurance companies, or pension
trusts or evidenced by securities issued under the provisions of an indenture or
similar trust instrument between the Association and a bank or trust company
(other than the indebtedness of the Association with respect to the Securities
issued under this Indenture and its Subordinated Certificates of Investment
issued under Indentures dated July 29, 1974, as amended January 29, 1982, and
Subordinated Capital Investment Certificates issued under an Indenture dated
November 29, 1976, as amended January 29, 1982, and Subordinated Capital
Investment Certificates issued under Indentures dated October 24, 1978, as
amended December 21, 1978 and further amended January 29, 1982, and Subordinated
Capital Investment Certificates issued under an Indenture dated October 24,
1979, as amended January 29, 1982, and Subordinated Capital Investment
Certificates issued under an Indenture dated November 8, 1984, as amended
January 3, 1985, and further amended December 3, 1991 and Subordinated Monthly
Income Capital Investment Certificates issued under an Indenture dated November
8, 1984, and under an Indenture dated November 11, 1985, and Subordinated
Individual Retirement Account Certificates issued under an Indenture dated
November 8, 1984) for the payment of which the Association is directly or
contingently liable or otherwise responsible, whether as principal obligor, as
guarantor, as endorser or otherwise, and all renewals, extensions and refundings
of any such indebtedness, other than indebtedness, however, as to which, in the
instrument creating or evidencing the same or pursuant to which the same is
outstanding or by which the Association incurred, assumed, guaranteed or
otherwise became responsible therefor, it is expressly provided that such
indebtedness, or such renewals, extension or refunding, is not superior in right
of payment to the Securities and (ii) any indebtedness whatsoever of the
Association not covered by (1) above which is created, incurred or assumed after
the date of execution of this Indenture as originally executed and for the
payment of which the Association is directly or contingently liable or otherwise
responsible, whether as principal obligor, as guarantor, as endorser or
otherwise, and all renewals, extensions, refundings and modifications thereof,
as to which, in the instrument creating or evidencing such indebtedness or
pursuant to which the same is outstanding or by which the Association incurred,
assumed, guaranteed or otherwise became responsible therefor, it is expressly
provided that such indebtedness, or such renewal, extension, refunding or
modification, is superior in right of payment to the Securities. The provisions
of this Section are made for the benefit of all owners of Senior Indebtedness
and any such owner may proceed to enforce such provisions.
(b) Payment Over of Proceeds Upon Dissolution, etc. No payment on account
of principal of (or premium, if any) or interest on the Securities of any series
shall be made, and no Securities of any series shall be purchased, either
directly or indirectly, by the Association or any of its subsidiaries, unless
full payment of amounts then due for principal of (and premium, if any) and
interest (including interest on overdue principal and interest, to the extent
permitted by law) on Senior Indebtedness has been made or duly provided for in
money or money's worth. No payment on account of principal of (or premium, if
any) or interest on the Securities shall be made, and no Securities shall be
purchased, either directly or indirectly, by the Association or any of its
subsidiaries, if, at the time of such payment or purchase or immediately after
giving effect thereto, there shall exist under any Senior Indebtedness or any
indenture or agreement pursuant to which any Senior Indebtedness is issued any
default or any condition, event or act, which, with notice or lapse of time, or
both, would constitute a default.
In the event that any Security is declared due and payable before its
stated maturity (herein defined as the date specified in such Security as the
fixed date on which the principal of such Security is due and payable) because
of an event of default hereunder or upon any other acceleration of the principal
amount due on the Securities because of an event of default hereunder or upon
any payment or distribution of assets of the Association of any kind or
character, whether in cash, property or securities, to creditors upon any
dissolution, winding up, total or partial liquidation, reorganization,
assignment for the benefit of creditors or other marshaling of assets of the
Association, whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other proceedings, all principal of (and premium, if any) and
interest (including interest on overdue principal and interest, to the extent
permitted by law) due or to become due upon all Senior Indebtedness shall first
be paid in full before the Holders of Securities, or the Trustee, shall be
entitled to retain any assets (other than shares of stock of the Association as
reorganized or readjusted or securities of the Association or any other
corporation provided for by a plan of reorganization or readjustment, the
payment of which is subordinated, at least to the same extent as the Securities,
to the payment of all Senior Indebtedness which may at the time be outstanding,
provided that the rights of the owners of the Senior Indebtedness are not
altered by such reorganization or readjustment) so paid or distributed in
respect of the Securities (for principal, premium, if any, or interest); and
upon any such dissolution, winding up, liquidation, reorganization, assignment
or marshaling, any payment or distribution of assets of the Association of any
kind or character, whether in cash, property or securities (other than shares of
stock of the Association as reorganized or readjusted or securities of the
Association or any other corporation provided for by a plan of reorganization or
readjustment, the payment of which is subordinated, at least to the same extent
as the Securities, to the payment of all Senior Indebtedness which may at the
time be outstanding, provided that the rights of the owners of the Senior
Indebtedness are not altered by such reorganization or readjustment), to which
the Holders of Securities or the Trustee would be entitled except for the
provisions of this Section, shall be paid by the Association or by any receiver,
trustee in bankruptcy, liquidating trustee, agent or other person (herein
defined as any individual, corporation, partnership, joint venture, association,
joint-stock company, trust, unincorporated organization or government or any
agency or political subdivision thereof) making such payment or distribution, or
by the Holders of Securities or the Trustee if received by them or it, directly
to the owners of Senior Indebtedness (pro rata to each such owner on the basis
of the respective amounts of Senior Indebtedness held by such owner) or their
representatives, to the extent necessary to pay all Senior Indebtedness in full,
after giving effect to any concurrent payment or distribution to or for the
owners of Senior Indebtedness, before any payment or distribution is made to the
Holders of Securities or to the Trustee.
No owner of Senior Indebtedness shall be prejudiced in his right to enforce
subordination of the Securities by any act or failure to act on the part of the
Association. Subject to the payment in full of all Senior Indebtedness, the
Holders of Securities shall be subrogated (equally and ratably with the owners
of all indebtedness of the Association which, by its express terms, ranks on a
parity with the Securities and is entitled to like rights of subrogation) to the
rights of the owners of Senior Indebtedness to receive payments or distributions
of assets of the Association applicable to the Senior Indebtedness until the
Securities shall be paid in full, and no payments or distributions on the Senior
Indebtedness pursuant to this Section shall, as between the Association, its
creditors other than the owners of Senior Indebtedness, and the Holders of the
Securities, be deemed to be a payment by the Association to or on account of the
Securities, it being understood that the provisions 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 owners of Senior Indebtedness, on the
other hand, and nothing contained in this Section or elsewhere in this Indenture
or in the Securities is intended to or shall impair the obligation of the
Association, which is unconditional and absolute, to pay the principal of (and
premium, if any) and interest on the Securities as and when the same shall
become due and payable in accordance with their terms, or to effect the relative
rights of the Holders of Securities and creditors of the Association other than
the owners of Senior Indebtedness, nor shall anything herein or therein prevent
the Trustee or the Holder of any Securities from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture, subject
to the rights, if any, under this Section, of the owners of Senior Indebtedness
in respect of cash, property or securities of the Association otherwise payable
or delivered to the Trustee or such Holder upon the exercise of any such remedy.
Upon any payment or distribution pursuant to this Section, the Trustee and
the Holder of the Securities shall be entitled to rely upon any order or decree
of a court of competent jurisdiction in which any proceedings of the nature
referred to in this Section are pending, and the Trustee, subject to the
provisions of Section 9.03, and the Holders of Securities shall be entitled to
rely upon a certificate of the liquidating trustee or agent or other person
making such payment or distribution 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 owners of the Senior Indebtedness and other
indebtedness of the Association, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Section. In the event that the Trustee determines, in good
faith, that evidence is required with respect to the right of any person as an
owner of Senior Indebtedness to participate in any payment or distribution
pursuant to this Section, the Trustee may request such person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of
Senior Indebtedness held by such person, as to the extent to which such person
is entitled to participate in such payment or distribution, and as to other
facts pertinent to the rights of such persons under this Section, 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.
(c) Trustee to Effectuate Subordination. The Holder of each Security by
his acceptance thereof authorizes and directs the Trustee in his behalf to take
such action as may be necessary or appropriate to acknowledge or effectuate the
subordination as provided in this Section and appoints the Trustee as attorney-
in-fact for any and all such purposes.
(d) Trustee Not Charged with Knowledge of Prohibition. Notwithstanding
the provisions of this Section or any other provision of this Indenture, but
subject to the provisions of Section 9.03, the Trustee and any paying agent
shall not be charged with knowledge of the existence of any Senior Indebtedness,
or of any default in the payment of the principal of (or premium, if any) or
interest on any Senior Indebtedness, or of any facts which would prohibit the
making of any payment of moneys to or by the Trustee or any such paying agent,
unless and until the Trustee or such paying agent shall have received written
notice thereof from the Association or the owners of at least 10% in principal
amount of any kind or category of any Senior Indebtedness or the representative
or representatives of such owners; nor shall the Trustee or any such paying
agent be charged with knowledge of the curing of any such default or of the
elimination of the act or condition preventing any such payment unless and until
the Trustee or such paying agent shall have received an Officers' Certificate to
such effect.
(e) Rights of Trustee as Owner of Senior Indebtedness. The Trustee shall
be entitled to all the rights set forth in this Section with respect to any
Senior Indebtedness; and nothing in this Indenture shall deprive the Trustee of
any of its rights as such owner.
(f) Trustee Not Fiduciary for Owners of Senior indebtedness. The Trustee
shall not be deemed to owe any fiduciary duty to the owners of Senior
Indebtedness and shall not be liable to any such owners if it shall mistakenly
pay over or distribute to Holders of Securities or the Association or any other
person monies or assets to which any owners of Senior Indebtedness shall be
entitled by virtue of this Section or otherwise.
(g) Section Applicable to Paying Agents. In case at any time any paying
agent other than the Trustee shall have been appointed by the Association and be
then acting hereunder, the term "Trustee" as used in this Section shall in such
case (unless the context shall otherwise require) 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 Section in addition to or in
place of the Trustee, provided, however, that paragraphs (d), (e) and (f) of
this Section shall not apply to the Association if it acts as paying agent.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND ASSOCIATION
Section 7.01. Association to Furnish Trustee Names and Addresses of
Holders.
The Association will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not more than 15 days after April 1 and October 1 of
each year, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders of Securities on such dates; and
(b) at such other times as the Trustee may request in writing, within 30
days after the receipt by the Association of any such request, a list of similar
form and content for any or all series as of a date not more than 15 days prior
to the time such list is furnished; excluding from any such list, with respect
to (a) and (b) above, names and addresses possessed by the Trustee in its
capacity as 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 of Securities contained in the
most recent list furnished to the Trustee as provided in Section 7.01 and the
names and addresses of Holders of Securities received by the Trustee in its
capacity as Registrar. The Trustee may destroy any list furnished to it as
provided in Section 7.01 upon receipt of a new list so furnished.
(b) The rights of Holders of Securities to communicate with other Holders
with respect to their rights under this Indenture or under the Securities, and
the corresponding rights and privileges of the Trustee, shall be as provided in
the Trust Indenture Act.
(c) Every Holder of Securities and interest coupons appertaining thereto,
by receiving and holding the same, agrees with the Association and the Trustee
that neither the Association nor the Trustee nor any agent of any of them shall
be held accountable by reason of the disclosure of information as to the names
and addresses of the Holders of Securities made pursuant to the Trust Indenture
Act.
Section 7.03. Reports by Trustee.
(a) The Trustee shall transmit to Holders of Securities such reports
concerning the Trustee and its actions under this Indenture as may be required
pursuant to Section 313 of the Trust Indenture Act, at the times and in the
manner provided pursuant thereto.
(b) Reports so required to be transmitted at stated intervals of not more
than 12 months shall be transmitted no later than July 15 in each calendar year,
commencing with the first July 15 after the first issuance of Securities under
this Indenture.
Section 7.04. Reports by the Association.
The Association shall file with the Trustee and the Commission, and
transmit to the Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to Section 314 of the Trust
Indenture Act at the times and in the manner provided pursuant to the Trust
Indenture 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
Securities Exchange Act of 1934 shall be filed with the Trustee within 15 days
after the same is so required to be filed with the Commission. Notwithstanding
anything contrary herein, the Trustee shall have no duty to review such
documents for purposes of determining compliance with any provisions of this
Indenture.
Section 7.05. Annual Review Certificate.
The Association covenants and agrees to deliver to the Trustee, within 120
days after the end of each fiscal year of the Association, a certificate in
substantially the same form prescribed by Section 16.06 hereof from the
principal executive officer, principal financial officer or principal accounting
officer of the Association stating that a review of the activities of the
Association during such year and of performance under this Indenture has been
made under his or her supervision and to the best of his or her knowledge, based
on such review, the Association has fulfilled all of 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 or
her and the nature and status thereof. For purposes of this Section 7.05, such
compliance shall be determined without regard to any period of grace or
requirement of notice provided under this Indenture.
ARTICLE EIGHT
REMEDIES IN EVENT OF DEFAULT
Section 8.01. Event of Default Defined.
Unless otherwise provided pursuant to Section 3.01, "Event of Default",
wherever used herein with respect to the Securities of any series, means any one
of the following events which has occurred and is continuing (whatever the
reason for such Event of Default and whether it shall be occasioned pursuant to
the provisions of Section 6.07 or be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree, order of any court or any
order, rule or regulation of any administrative or government body):
(a) Failure to pay principal of (or any installment of the principal of)
or any premium on any Security of that series, after such principal or premium
shall have become due and payable;
(b) Failure to pay interest of any Security of that series or any interest
coupon appertaining thereto for a period of 60 days after such interest shall
have become due or payable; and
(c) The expiration of a period of 90 days following:
(1) the adjudication of the Association as a bankrupt by any court of
competent jurisdiction;
(2) the entry of an order approving a petition seeking reorganization of
the Association under the Federal Bankruptcy Code or any other
applicable law or statute of the United States of America, or any
State thereof; or
(3) the appointment of a trustee or a receiver of all or substantially all
of the property of the Association;
unless, with respect to (1), (2), and (3) above, during such period such
adjudication, order or appointment of a receiver or trustee shall be vacated;
(d) The filing by the Association of a voluntary petition in bankruptcy or
the making of an assignment for the benefit of creditors; the consenting by the
Association to the appointment of a receiver or trustee of all or any part of
its property; the filing by the Association of a petition or answer seeking
reorganization under the Federal Bankruptcy Code, or any other applicable law or
statute of the United States of America, or of any State thereof; or the filing
by the Association of a petition to take advantage of any insolvency act;
(e) Failure to perform any other covenant or agreement contained herein or
in any indenture supplemental hereto or in any Security of that series for a
period of 90 days following the mailing by the Trustee to the Association of a
written demand that such failure be cured, such failure not having been cured in
the meantime. The Trustee may, and, if requested in writing by the Holders of a
majority in principal amount of the Securities of that series then outstanding,
shall make such demand.
(f) Any other Event of Default provided as contemplated by Section 3.01
with respect to Securities of that series.
Section 8.02. Trustee to Notify Holder of Defaults.
The Trustee shall, within 90 days after the occurrence thereof, give to the
Holders of the affected series notice of all Defaults known to it, unless such
Defaults shall have been cured before the giving of such notice (the term
"Default" being hereby defined to be the events specified in subsections (a),
(b). (c), (d), (e) and (f) of Section 8.01 not including any periods of grace
provided for in said subsections and irrespective of the written demand
specified in subsection (e) of Section 8.01); provided that, except in the case
of Default in the payment of the principal of or interest on any of the
Securities, or in the payment of any sinking or purchase fund installment, if
any, the Trustee shall be protected in withholding such notice if and so long as
the board of directors or responsible officers, or both, of the Trustee, in good
faith determine that the withholding of such notice is in the interests of such
Holders.
Section 8.03. Acceleration Upon Default.
Upon the occurrence of an Event of Default, the Trustee may, and upon the
written request of the Holders of at least a majority in principal amount of the
affected series of Securities then Outstanding shall, by notice in writing given
to the Association, declare the principal of all Securities of the affected
Series then Outstanding and the interest accrued thereon immediately due and
payable, and upon any such declaration the same shall become and shall be
immediately due and payable, anything in this Indenture or in the Securities
contained to the contrary notwithstanding; provided, however, that upon the
occurrence of an Event of Default specified in subsection (c) or (d) of Section
8.01, the principal of the Securities and the interest accrued thereon shall be
immediately due and payable without any further action or notice. This
provision, however, is subject to the condition that if, at any time after the
principal of the Securities shall have been so declared due and payable and
before any judgment or decree for the payment of the monies due shall have been
obtained or entered as hereinafter provided, the Association shall pay or shall
deposit with the Trustee a sum sufficient to pay all maturing installments of
interest upon all of the Securities of the affected series and the principal of
any and all of the Securities of the affected series which shall have become due
otherwise than by acceleration (with interest upon such principal and on overdue
installments of interest to the date of such payment or deposit) and such amount
as shall be sufficient to cover reasonable compensation to the Trustee, its
agents, attorneys and counsel, and all other expenses and liabilities incurred,
and all advances made by the Trustee, except as a result of its negligence or
bad faith, and any and all Events of Default under the Indenture, other than the
nonpayment of the principal of Securities which shall have become due by
acceleration, shall have been remedied, then and in every such case the holders
of a majority in aggregate principal amount of the Securities of the affected
series then Outstanding, by written notice to the Association and to the
Trustee, may waive all Events of Default and rescind and annul such declaration
and its consequences; but no such waiver or rescission and annulment shall
extend to or shall affect any subsequent Event of Default or shall impair any
right consequent thereon.
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 the Association, the Trustee and the
Holders shall, subject to any determination in such proceeding, be restored
severally and respectively to their former positions hereunder, and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
Section 8.04. Right of Trustee to Sue Association Upon Default.
In the case of a default in payment of the principal of any Security of any
series, when the same shall become due and payable, or in the case of a default
in the payment of the interest on any Security of any series for a period of 60
days after such interest shall become due and payable, the Trustee may recover
judgment, in its own name and as trustee of an express trust, against the
Association or other obligor for the whole amount of such principal and interest
remaining unpaid, together with interest upon the overdue principal and premium,
if any, and to the extent the payment of such interest shall be legally
enforceable, upon overdue installments of interest, if any, at the rate borne by
Securities of that series.
The Trustee may file such proofs of claim and other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee and of
the Holders allowed in any judicial proceedings relative to the Association or
any other obligor on the Securities or its creditors, or its properties.
Section 8.05. Right of Holder to Receive Payment or Sue.
Notwithstanding any other provision of this Indenture, the right of any
Holder of any Security to receive payment of the principal of and interest on
such Security, on or after the respective due dates expressed on such Security,
or to institute suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of such
Holder, except as to a postponement of an interest payment consented to as
provided in Section 8.06.
Section 8.06. Right of Holders to Direct Time, Method and Place of
Conducting Proceeding for Remedy Available to Trustee.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of each series affected (with each such series voting as
a class) shall have the right to:
(a) direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred upon
the Trustee, under this Indenture; or
(b) on behalf of the Holders of all such Securities of such series,
consent to the waiver of any past Default and its consequences, except an Event
of Default in the payment of principal or interest, 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.
The Holders of not less than 75 per centum in principal amount of the
Outstanding Securities of each series may consent on behalf of the Holders of
all the Outstanding Securities of such series to the postponement of any
interest payment for a period not exceeding three years from its due date.
Section 8.07. Notice of Defaults.
The Trustee shall not be required to take notice or deemed to have notice
of any Default or Event of Default hereunder, unless the Trustee shall have
received specific notice in writing of such Default or Event of Default from the
Association or the Holders of not less than 10% in principal amount of any
series of Securities Outstanding, and in the absence of any such notice so
received, the Trustee may conclusively assume that no Default or Event of
Default exists.
ARTICLE NINE
CONCERNING THE TRUSTEE
Section 9.01. Qualification of Trustee.
The Trustee shall at all times be a bank or trust company eligible under
Section 6.03 and have a combined capital and surplus of not less than
$25,000,000. If the Trustee publishes reports of condition at least annually,
pursuant to law or to the requirements of any supervising or examining authority
referred to in Section 6.03, then for the purpose of this Section the combined
capital and surplus of the Trustee shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published.
Section 9.02. Acceptance and Undertaking of Trustee.
The Trustee hereby accepts the trust hereby created. The Trustee
undertakes, prior to an Event of Default, and after the curing of all Events of
Default which may have occurred, to perform such duties and only such duties as
are specifically set forth in this Indenture, and in case of an Event of Default
(which has not been cured) to exercise such of the rights and powers vested in
it by this Indenture, and to use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs.
Section 9.03. Examination of Evidence by Trustee.
The Trustee, upon receipt of evidence furnished to it by or on behalf of
the Association pursuant to any provision of this Indenture, will examine the
same to determine whether or not such evidence conforms to the requirements of
this Indenture.
Section 9.04. Trustee not Relieved of Liability for Own Negligence or
Willful Misconduct.
No provision of this Indenture shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act,
or its own willful misconduct, except that:
(a) prior to an Event of Default hereunder and after the curing of all
Events of Default which may have occurred, the Trustee shall not be liable
except for the performance of such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read into this
Indenture against the Trustee but the duties and obligations of the Trustee,
prior to an Event of Default and after the curing of all Events of Default which
may have occurred, shall be determined solely by the express provisions of this
Indenture;
(b) prior to an Event of Default hereunder and after the curing of all
Events of Default which may have occurred, and in the absence of bad faith on
the part of the Trustee, the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed therein, upon
resolutions, requests, letters, reports, notices, consents, certificates,
opinions or other documents conforming to the requirements of this Indenture;
(c) the Trustee shall not be personally liable for any error of judgment
made in good faith by a responsible officer or officers of the Trustee unless it
shall be proved that the Trustee was negligent in ascertaining the pertinent
facts;
(d) the Trustee shall not be personally 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 not less than a majority in principal amount of the
Securities of each affected series at the time Outstanding relating to the time,
method, and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee, under this
Indenture;
(e) notwithstanding anything elsewhere in this Indenture, before taking
any action under this Indenture, the Trustee may require that satisfactory
indemnity be furnished to it by the Holders of the Securities or other persons
for the reimbursement of all reasonable costs and expenses to which it may be
put and to protect it against all liability which it may incur in or by reason
of such action, except liability which is adjudicated to have resulted from its
negligence or willful misconduct by reason of any action so taken;
(f) the permissive right of the Trustee to do things enumerated in the
Indenture shall not be construed as a duty and the Trustee shall not be
answerable for other than its own negligent action, its own negligent failure to
act or its own willful misconduct;
(g) the Trustee shall not be required to give any bond or security in
respect of the execution of the trusts and powers granted hereunder or
otherwise in respect of this Indenture;
(h) whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or conveying
rights and duties affording protection to the Trustee whether in its capacities
as Trustee, paying agent, Registrar or in any other capacity shall be subject to
the provisions of this Article Nine.
Section 9.05. Trustee May Rely on Recitals of Fact.
The recitals of fact contained herein, in the Securities, and in any
prospectus or other document shall be taken as the statements of the
Association, and the Trustee assumes no responsibility for the correctness of
the same. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities issued hereunder.
Section 9.06. Right of Trustee to Rely on Certain Documents.
To the extent permitted by Sections 9.02, 9.03 and 9.04:
(a) The Trustee may rely and shall be protected in acting upon any
resolution, certificate, opinion, notice, request, consent, order, appraisal,
report, bond, or other paper or document believed by it to be genuine and to
have been signed or presented by the proper party or parties; and
(b) The Trustee may consult with counsel and the opinion of such counsel
shall be full and complete authorization and protection in respect of any action
taken or suffered by it hereunder in good faith and in accordance with the
opinion of such counsel.
Section 9.07. Trustee Not Responsible for Approval of Any Expert.
The Trustee shall not be under any responsibility for the approval of any
expert, attorney, accountant, or agent for any of the purposes expressed in this
Indenture, except that nothing in this Section 9.07 contained shall relieve the
Trustee of its obligation to exercise reasonable care with respect to the
approval of independent experts, attorneys, accountants, or agents who may
furnish opinions or certificates to the Trustee pursuant to any provisions of
this Indenture.
Any resolution of the Board of Directors or Executive Committee of the
Association shall be evidenced to the Trustee by a copy thereof certified by the
Secretary or an Assistant Secretary of the Association to have been duly
adopted, and the Trustee may rely upon such copy as conclusive evidence of the
adoption of such resolution.
Nothing contained in this Section 9.07 shall be deemed to modify the
obligation of the Trustee to exercise after an Event of Default the rights and
powers vested in it by this Indenture with the degree of care and skill
specified in Section 9.02.
Section 9.08. Right of Trustee to Become Owner or Pledgee of Securities.
The Trustee, in its individual or any other capacity, may become the Holder
or pledgee of Securities with the same rights it would have if it were not a
Trustee.
Section 9.09. Monies Received by Trustee to be Held in Trust.
Subject to the provisions of Section 6.06, all monies received by the
Trustee whether as Trustee or paying agent shall, until used or applied as
herein provided, be held in trust for the purposes for which they were paid, but
need not be segregated from other funds except to the extent required by law.
The Trustee shall have no liability for interest on any monies received by it
hereunder except as may be agreed upon in writing with the Association from time
to time and as may be permitted by law.
Section 9.10. Compensation of Trustee.
The Association covenants and agrees to pay to the Trustee from time to
time, and the Trustee shall be entitled to reasonable compensation for all
services rendered by it in the execution of the trusts hereby created and in the
exercise and performance of any of the powers and duties hereunder to the
Trustee, which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust, and the Association
will reimburse the Trustee for all advances made by the Trustee in accordance
with any of the provisions of this Indenture and will pay to the Trustee from
time to time its expenses and disbursements (including, without limitation, the
reasonable compensation and the expenses and disbursements of its counsel and of
all persons not regularly in its employ). The Association also covenants to
indemnify the Trustee for, and to hold it harmless against, any loss, liability
or expense incurred without negligence or bad faith on the part of the Trustee,
arising out of or in connection with the acceptance or administration of this
trust, including the costs and expenses of defending against any claim of
liability in the premises. The Association further covenants and agrees to pay
interest to the Trustee at the rate of one hundred fifty percent (150%) of the
prime commercial lending rate of the Trustee upon all amounts paid, advanced or
disbursed by the Trustee for which it is entitled to reimbursement or indemnity
as herein provided. The obligations of the Association to the Trustee under
this Section 9.10 shall constitute additional indebtedness subject to this
Indenture. Such additional indebtedness shall be secured by a lien prior to
that of the Securities upon the trust estate, including all property or funds
held or collected by the Trustee as such.
Section 9.11. Enforcement by Trustee of Right to Compensation.
In order to further assure the Trustee that it will be compensated,
reimbursed and indemnified as provided in Section 9.10 and that the prior lien
provided for in Section 9.10 upon the trust estate to secure the payment of such
compensation, reimbursement and indemnity will be enforced for the benefit of
the Trustee, all parties to this Indenture agree, and each Holder of any
Security by his acceptance thereof shall be deemed to have agreed that in the
event of:
(a) the adjudication of the Association as a bankrupt by any court of
competent jurisdiction,
(b) the filing of any petition seeking the reorganization of the
Association under the Federal Bankruptcy Code or any other applicable law or
statute of the United States of America or of any State thereof,
(c) the appointment of one or more trustees or receivers of all or
substantially all of the property of the Association,
(d) the filing of any bill to foreclose this Indenture,
(e) the filing by the Association of a petition to take advantage of any
insolvency act, or
(f) the institution of any other proceeding wherein it shall become
necessary or desirable to file or present claims against the Association, the
Trustee may file from time to time in any such proceeding or proceedings one or
more claims, supplemental claims and amended claims as a secured creditor for
its reasonable compensation for all services rendered by it (including services
rendered during the course of any such proceeding or proceedings) and for
reimbursement of all advances, expenses and disbursements (including, without
limitation, the reasonable compensation and the expenses and disbursements of
its counsel and of all persons not regularly in its employ) made or incurred by
it in the execution of the trusts hereby created and in the exercise and
performance of any of the powers and duties herein of the Trustee, and for any
and all amounts to which the Trustee is entitled as indemnity as provided in
Section 9.10; and the Trustee and its counsel and agents may file in any such
proceeding or proceedings applications or petitions for compensation for such
services rendered, for reimbursement for such advances, expenses and
disbursements, and for such indemnity. The claim or claims of the Trustee filed
in any such proceeding or proceedings shall be reduced by the amount of
compensation for services, reimbursement for advances, expenses and
disbursements, and indemnity paid to it following final allowance to it and to
its counsel and agents by the court in any such proceeding as an expense of
administration or in connection with a plan of reorganization or readjustment.
To the extent that compensation, reimbursement and indemnity are denied to the
Trustee or to its counsel or other agents because of not being rendered or
incurred in connection with a plan of reorganization or readjustment, approved
as required by law, because such services were not rendered in the interests of
and with benefit to the estate of the Association as a whole but in the
interests of and with benefit to the Holders of the Securities in the execution
of the trusts hereby created or in the exercise and performance of any of the
powers and duties hereunder of the Trustee or because of any other reason, the
court may, to the extent permitted by law, allow such claim, as supplemented and
amended, in any such proceeding or proceedings and for the purposes of any
reorganization or readjustment of the Association's obligations, classify the
Trustee as a secured creditor of a class separate and distinct from that of
other creditors of a class having priority and precedence over the class in
which the Holders of Securities are placed by reason of having a lien, prior and
superior to that of the Holders of the Securities, as such. The amount of the
claim or claims of the Trustee for services rendered and for advances, expenses
and disbursements, including, without limitation, the reasonable compensation
and expenses and disbursements of its counsel and of all persons not regularly
in its employ which are not allowed and paid in any such proceeding, but for
which the Trustee is entitled to the allowance of a secured claim as herein
provided, may be fixed by the court or judge in any such proceeding or
proceedings to the extent that such court or judge has or exercises jurisdiction
over the amount of any such claim or claims.
If, and to the extent that the Trustee and its counsel and other persons
not regularly in its employ do not receive compensation for services rendered,
reimbursement of its or their advances, expenses and disbursements, or
indemnity, as herein provided, as the result of allowances made in any such
proceeding or by any plan of reorganization or readjustment or obligations of
the Association, the Trustee shall be entitled, in priority to the Holders of
Securities, to receive any distributions of any securities, dividends or other
disbursements which would otherwise be made to the Holders of Securities in any
such proceeding or proceedings and is hereby constituted and appointed,
irrevocably, the attorney-in-fact for the Holders of the Securities and each of
them to collect and receive, in their name, place and stead, such distributions,
dividends or other disbursements, to deduct therefrom the amounts due to the
Trustee, its counsel and other persons not regularly in its employ on account of
services rendered, advances, expenses, and disbursements made or incurred, or
indemnity, and to pay and distribute the balance, pro rata, to the Holders of
the Securities. The Trustee shall have a lien upon any securities or other
considerations to which Holders of Securities may become entitled pursuant to
any such plan of reorganization or readjustment of obligations, or in any such
proceeding or proceedings; and the court or judge in any such proceeding or
proceedings may determine the terms and conditions under which any such lien
shall exist and be enforced.
Section 9.12. Trustee May Rely Upon Certificate of Association.
Whenever in the administration of the trusts of this Indenture, prior to an
Event of Default hereunder, the Trustee shall deem it necessary or desirable
that a matter be proved or established prior to taking or suffering any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may be deemed to be conclusively proved and established
by a certificate in substantially the form prescribed by Section 16.06 hereof
signed by the President or Vice President of the Association and delivered to
the Trustee, and such certificate shall be full warrant to the Trustee for any
action taken or suffered by it under the provisions of this Indenture upon the
faith thereof.
Section 9.13. Right of Trustee to Give Notice of Action.
Whenever it is provided in this Indenture that the Trustee shall take any
action upon the happening of a specified event or upon the fulfillment of any
action or upon the request of the Association or of Holders, the Trustee taking
such action shall have full power to give any and all notices and to do any and
all acts and things incidental to such action.
Section 9.14. Conflicting Interest of Trustee.
(a) If the Trustee has or shall acquire a conflicting interest within the
meaning of Section 310(b) of the Trust Indenture Act, the Trustee shall either
eliminate such conflicting interest or resign, to the extent and in the manner
provided by, and subject to the provisions of, the Trust Indenture Act and this
Indenture. To the extent permitted by the Trust Indenture Act, the Trustee
shall not be deemed to have a conflicting interest by virtue of being a trustee
under this Indenture with respect to Securities of more than one series or a
trustee under
(i) the trust indentures dated July 29, 1974, between the Association
and the Trustee, filed as Exhibits F(12), (13) (14), (15) and (16) of
Registration Statement No. 2-51757 together with those certain
supplemental trust indentures dated January 29, 1982;
(ii) the trust indentures dated November 29, 1976, between the
Association and Trustee, filed as Exhibits E(17) and (18) of
Registration Statement No. 2-57765 together with those certain
supplemental trust indentures dated January 29, 1982;
(iii) the trust indenture dated October 24, 1978, between the
Association and Trustee, filed as Exhibit E(19) of Registration
Statement No. 2-63106; together with those certain supplemental trust
indentures dated December 21, 1978 and January 29, 1982;
(iv) the trust indentures dated October 24, 1979, between the
Association and the Trustee, filed as Exhibits E(21), (22) and (23)
of Registration Statement No. 2-66090 together with those certain
supplemental trust indentures dated January 29, 1982;
(v) the trust indentures dated November 8, 1984, between the Association
and the Trustee, filed as Exhibits ___, ____, and ____ of
Registration Statement No. ___________ together with certain
supplemental indentures dated January 3, 1985 and December 3, 1991;
(vi) the trust indenture dated November 11, 1985 between the Association
and the Trustee, filed as Exhibit _______ of Registration Statement
No. ________ to each and all of which reference is hereby made for a
more detailed and complete description thereof,
Section 9.15. Duties of Trustee if it Becomes Creditor of Association.
If and when the Trustee shall be or become a creditor of the Association
(or other obligor under the Securities of any series), the Trustee shall be
subject to the provisions of the Trust Indenture Act regarding the collection of
claims against the Association (or any such other obligor). A Trustee who has
resigned or been removed shall be subject to the Trust Indenture Act Section
311(a) to the extent indicated therein.
Section 9.16. Resignation and Discharge of Trustee.
The Trustee may at any time resign and be discharged of the trusts hereby
created by giving written notice to the Association specifying the day upon
which such resignation shall take effect and thereafter publishing notice
thereof, in one newspaper printed in the English language and customarily
published on each business day and of general circulation in the City of Kansas
City, State of Missouri, once in each of three successive calendar weeks, in
each case on any business day of the week, and such resignation shall take
effect upon the day specified in such notice unless previously a successor
trustee shall have been appointed by the Holders or the Association in the
manner hereinafter provided in Section 9.18, and in such event such resignation
shall take effect immediately on the appointment of such successor trustee.
This Section shall not be applicable to resignations pursuant to Section 9.14.
Section 9.17. Removal of Trustee.
The Trustee may be removed at any time by an instrument or concurrent
instruments in writing filed with the Trustee and signed and acknowledged by the
Holders of a majority in principal amount of the Securities then Outstanding or
by their attorneys in fact duly authorized.
In case at any time the Trustee shall cease to be eligible in accordance
with the provisions of Section 9.01, then the Trustee shall resign immediately
in the manner and with the effect specified in Section 9.16; and, in the event
that the Trustee does not resign immediately in such case, then it may be
removed forthwith by an instrument or concurrent instruments in writing filed
with the Trustee and either (a) signed by the President or Vice President of the
Association with its corporate seal attested by the Secretary or Assistant
Secretary of the Association or (b) signed and acknowledged by the Holders of
ten per centum in principal amount of the Securities then outstanding of a
particular series or by their attorneys in fact duly authorized.
Section 9.18. Filling Vacancy.
In case at any time the Trustee shall resign or shall be removed or shall
become incapable of acting, or shall be adjudged a bankrupt or insolvent, or if
the receiver of the Trustee or of its property shall be appointed, or if 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, a
vacancy shall be deemed to exist in the office of Trustee, and a successor or
successors may be appointed by the Holders of a majority in principal amount of
the Securities then Outstanding hereunder, by an instrument or concurrent
instruments in writing signed and acknowledged by such Holders or by their
attorneys in fact duly authorized, and delivered to such new trustee,
notification thereof being given to the Association and the retiring trustee,
provided, nevertheless, that until a new trustee shall be appointed by the
Holders as aforesaid, the Association, by instrument executed by order of its
Board of Directors or Executive Committee and duly acknowledged by its President
or Vice President, may appoint a trustee to fill such vacancy until a new
trustee shall be appointed by the Holders as herein authorized. The Association
shall publish notice of any such appointment made by it in the manner provided
in Section 9.16. Any new trustee appointed by the Association shall,
immediately and without further act, be superseded by a trustee appointed by the
Holders, as above provided if such appointment by the Holders be made prior to
the expiration of one year after the first publication of notice of the
appointment of the new trustee by the Association.
If no appointment of a successor trustee shall be made pursuant to the
foregoing provisions of this section within six months after a vacancy shall
have occurred in the office of trustee, the Holder of any Security Outstanding
hereunder or any retiring trustee may apply to any court of competent
jurisdiction to appoint a successor trustee. Said court may thereupon after
such notice, if any, as such court may deem proper and prescribe, appoint a
successor trustee.
If the Trustee resigns because of a conflict of interest as provided in
subsection (a) of Section 9.14 and a successor has not been appointed by the
Association or the Holders or, if appointed, has not accepted the appointment
within thirty days after the date of such resignation, the resigning Trustee may
apply to any court of competent jurisdiction for the appointment of a successor
trustee.
Any trustee appointed under the provisions of this Section in succession to
the Trustee shall be a bank or trust company eligible under Section 6.03 and
9.01 and qualified under Section 9.14.
Any trustee which has resigned or been removed shall nevertheless retain
the lien upon the trust estate, including all property or funds held or
collected by the trustee as such, to secure the amounts due to the trustee as
compensation, reimbursements, expenses and indemnity, afforded to it by Section
9.10 and retain the rights afforded to it by Section 9.11.
Section 9.19. Duties of Successor Trustee.
Any successor trustee appointed hereunder shall execute, acknowledge and
deliver to his or its predecessor trustee, and also to the Association, an
instrument accepting such appointment hereunder, and thereupon such successor
trustee, without any further act, deed or conveyance, shall become fully vested
with all the estates, properties, rights, powers, trusts, duties and obligations
of his or its predecessor in trust hereunder, with like effect as if originally
named as Trustee herein and the obligations and duties of the Trustee ceasing to
act shall cease and terminate; but the trustee ceasing to act shall
nevertheless, on the written request of the Association, or of the successor
trustee, or of the Holders of 10 per centum in principal amount of the
Securities then Outstanding hereunder, execute, acknowledge and deliver such
instruments of conveyance and further assurances and do such other things as may
reasonably be required for more fully and certainly vesting and confirming in
such successor trustee all the right, title and interest of the Trustee to which
he or it succeeds under this Indenture, and such rights, powers, trusts, duties,
and obligations, and the Trustee ceasing to act shall also, upon like request,
pay over, assign and deliver to the successor trustee any money or other
property subject to the lien of this Indenture. Should any deed, conveyance or
instrument in writing from the Association be required by the new trustee for
more fully and certainly vesting in and confirming to such new trustee such
estates, properties, rights, powers, trusts and duties, any and all such deeds,
conveyances and instruments in writing shall, on request, be executed,
acknowledged and delivered by the Association.
Section 9.20. Merger or Consolidation of or with Trustee.
Any corporation into which the Trustee may be merged or with which it may
be consolidated or any corporation resulting from any merger or consolidation to
which the Trustee shall be a party or any corporation to which substantially all
the corporate trust business and assets of the Trustee may be transferred,
provided such corporation shall be eligible under the provisions of Sections
6.03 and 9.01 and qualified under Section 9.14, shall be the successor trustee
under this Indenture, without the execution or filing of any paper or the
performance of any further act on the part of any other parties hereto, anything
herein to the contrary notwithstanding. In case any of the Securities
contemplated to be issued hereunder shall have been authenticated but not
delivered, any such successor to the Trustee may, subject to the same terms and
conditions as though such successor to the Trustee had itself authenticated such
Securities, adopt the certificate of authentication of the original Trustee or
of any successor to it as trustee hereunder, and deliver the said Securities so
authenticated; and in case any of said Securities shall not have been
authenticated, any successor to the Trustee may authenticate such Securities
either in the name of any predecessor hereunder or in the name of the successor
trustee, and in all such cases such certificates shall have the full force which
it is anywhere in said Securities or in the Indenture provided that the
certificate of the Trustee shall have; provided, however, that the right to
authenticate Securities in the name of the Trustee shall apply only to its
successor or successors by merger or consolidation or sale as aforesaid.
Section 9.21. Duties of Trustee Governed by Laws of Missouri.
The duties, liabilities, rights, privileges and immunities of the Trustee
in relation to the Holders of the Securities shall be governed exclusively by
the laws of the State of Missouri.
ARTICLE TEN
CONCERNING THE HOLDERS
Section 10.01. Proof of Action by Holders.
Whenever in this Indenture it is provided that the Holders of a specified
percentage in aggregate principal amount of the Securities of a particular
series may take any action (including the making of any demand or request, the
giving of any notice, consent or waiver or the taking of any other action) the
fact that at the time of taking any such action the Holders of such specified
percentage have joined therein may be evidenced (a) by any instrument or any
number of instruments of similar tenor executed by Holders in person or by agent
or proxy appointed in writing, or (b) by the record of the Holders of Securities
voting in favor thereof at any meeting of Holders duly called and held in
accordance with the provisions of Article Eleven, or (c) by a combination of
such instrument or instruments and any such record of such a meeting of Holders.
Section 10.02. What Constitutes a Writing.
For the purposes hereof, a "writing" shall include tangible written text
produced by telex, telefacsimile, computer retrieval, or other process by which
electronic signals are transmitted by telephone or otherwise.
Section 10.03. Holder Named in Certificate Treated as Absolute Owner.
The Association, the Trustee and any paying agent may deem and treat the
Holder or Holders named in the Register for any Outstanding Security as the
absolute owner of such Security (whether or not such Security shall be overdue
and notwithstanding any notation of ownership or other writing thereon made by
anyone other than the Association) for the purpose of receiving payment thereof
or on account thereof and for all other purposes, and neither the Association
nor the Trustee nor any paying agent shall be affected by any notice to the
contrary.
Section 10.04. Securities Owned by Association to be Disregarded in
Computing Requisite Amount of Securities.
For the purposes of this section, and in every other instance of a
direction or consent by Holders of Securities under this Indenture, in
determining whether the Holders of the requisite aggregate principal amount of
Securities have concurred in any direction, consent or waiver under this
Indenture, Securities which are registered in the name of the Association or any
other obligor on the Securities or by any person directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Association or any other obligor on the Securities shall be disregarded and
deemed not to be Outstanding for the purpose of any such determination, except
that for the purpose of determining whether the Trustee shall be protected in
relying on any such direction, consent or waiver only Securities in regard to
which the Trustee shall have received written notice identifying such persons or
obligors by name and address which the Trustee knows are so owned shall be so
disregarded.
Section 10.05. Holders May Revoke Prior Action.
At any time prior to (but not after) the evidencing to the Trustee as
provided in Section 10.01, of the taking of any action by the Holders of the
percentage in aggregate principal amount of the Securities of any series
specified in this Indenture in connection with such action, any Holder of a
Security of such series which is shown by the evidence to be included in the
Securities the Holders of which have consented to such action may, by filing
written notice with the Trustee at its principal office and upon proof of owning
as provided in Section 10.02, revoke such action so far as concerns such
Security. Except as aforesaid any such action taken by the Holder of any
Security shall be conclusive and binding upon such Holder and upon all future
Holders of such Security and of any Security issued in exchange or substitution
therefor, irrespective of whether or not any notation in regard thereto is made
upon such Security. Any action taken by the Holders of the percentage in
aggregate principal amount of the Securities of any series specified in this
Indenture in connection with such action shall be conclusively binding upon the
Association, the Trustee and the Holders of the Securities of such series.
ARTICLE ELEVEN
HOLDERS MEETINGS
Section 11.01. Purpose of Meetings.
A meeting of Holders of the Securities, or of the Securities of any series,
may be called at any time and from time to time pursuant to the provisions of
this Article Eleven for any of the following purposes:
(a) to give any notice to the Association or to the Trustee, or to give
any directions to the Trustee, or to consent to the waiving of any Default or
Event of Default hereunder and its consequences, or to take any other action
authorized to be taken by Holders pursuant to any of the provisions of Article
Eight;
(b) to remove the Trustee and appoint a successor Trustee pursuant to the
provisions of Article Nine;
(c) to consent to the execution of an Indenture or Indentures supplemental
hereto pursuant to the provisions of Section 12.02; or
(d) to take any other action authorized to be taken by or on behalf of the
Holders of any specified aggregate principal amount of the Securities or of any
series under any other provision of this Indenture or under applicable law.
Section 11.02. Call of Meeting and Notice Required.
The Trustee may at any time call a meeting of Holders to take any action
specified in Section 11.01, to be held at such time and at such place in the
City of Kansas City, State of Missouri, as the Trustee shall determine. Notice
of every meeting of the Holders, setting forth the time and place of such
meeting and in general terms the action proposed to be taken at such meeting,
shall be mailed by ordinary first class mail, postage prepaid, to the Holders of
all Outstanding Securities of the series affected, at their last known post
office addresses as shown by the Register of the Association or Trustee, not
less than twenty nor more than one hundred eight days prior to the date fixed
for the meeting.
Section 11.03. Request of Trustee to Call Meeting.
In case at any time the Association, pursuant to a resolution of its Board
of Directors, or the Holders of at least 10 per centum in aggregate principal
amount of the Securities or of a particular series then Outstanding, shall have
requested the Trustee to call a meeting of Holders to take any action authorized
in Section 11.01, by written request setting forth in reasonable detail the
action proposed to be taken at the meeting, and the Trustee shall not have
mailed the notice of such meeting within twenty days after receipt of such
request, then the Association or the Holders of Securities in the amount above
specified may determine the time and the place in said City of Kansas City for
such meeting and may call such meeting by mailing notice thereof as provided in
Section 11.02.
Section 11.04. Who May Vote at Meeting.
To be entitled to vote at any meeting of Holders, a person shall be (a) a
Holder of one or more Outstanding Securities entitled to vote at the meeting, or
(b) a person appointed by an instrument in writing as proxy for a Holder or
Holders of one or more Outstanding Securities entitled to vote at the meeting.
The only persons who shall be entitled to be present or to speak at any meeting
of Holders shall be the Persons entitled to vote at such meeting and their
counsel, any representatives of the Trustee and its counsel and any
representatives of the Association and its counsel.
Section 11.05. Regulations Made by Trustee.
Notwithstanding any other provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting of
Holders in regard to proof of the owning of Securities and of the appointment of
proxies, and in regard to the appointment and duties of inspectors of votes, and
submission and examination of proxies, certificates and other evidence of the
right to vote, and such other matters concerning the conduct of the meeting as
it shall think fit.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Association or by Holders as provided in Section 11.03, in which case the
Association or the Holders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the Holders of a majority
in principal amount of the Securities represented at the meeting and entitled to
vote.
Subject to the provisions of Section 10.04, at any meeting each Holder or
proxy shall be entitled to one vote for each $1000 or portion thereof in
principal amount of Securities held or represented by him; provided, however,
that no vote shall be cast or counted at any meeting in respect of any Security
challenged as not Outstanding and ruled by the chairman of the meeting to be not
Outstanding; and provided further, that any Holder of a Security or Securities,
the aggregate principal amount of which is less than $100, shall nevertheless be
entitled to one vote. The chairman of the meeting shall have no right to vote
except as a Holder or proxy. Any meeting of Holders duly called pursuant to the
provisions of Section 11.02 or 11.03 may be adjourned from time to time, and the
meeting may be held as so adjourned without further notice.
Section 11.06. Form of and Recording Vote.
The vote upon any resolution submitted to any meeting of Holders shall be
by written ballots on which shall be subscribed the signatures of the Holders or
proxies. The permanent chairman of the meeting shall appoint two inspectors of
votes who shall count all votes cast at the meeting for or against any
resolution and who shall make and file with the secretary of the meeting their
verified written reports in duplicate of all votes cast at the meeting. A
record in duplicate of the proceedings of each meeting of Holders shall be
prepared by the secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more persons having knowledge of the
facts setting forth a copy of the notice of the meeting and showing that said
notice was published as provided in Section 11.02. The record shall be signed
and verified by the affidavits of the permanent chairman and secretary of the
meeting and one of the duplicates shall be delivered to the Association and the
other to the Trustee to be preserved by the Trustee, the latter to have attached
hereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
ARTICLE TWELVE
SUPPLEMENTAL INDENTURES
Section 12.01. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Association and the Trustee, at
any time and from time to time, may enter into indentures supplemental hereto,
in form reasonably satisfactory to the Trustee, for any of the following
purposes:
(a) to evidence the succession of another corporation or entity to the
Association and the assumption by any such successor of the covenants and
obligations of the Association herein and in the Securities and any interest
coupons appertaining thereto; or
(b) to add to the covenants of the Association for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be for
the benefit of less than all series of Securities, stating that such covenants
are expressly being included solely for the benefit of such series) or to
surrender any right or power herein conferred upon the Association; or
(c) to add any additional Events of Default with respect to all or any
series of Securities; or
(d) to change or eliminate any of the provisions of this Indenture in
respect of one or more series of Securities, provided that any such change or
elimination shall become effective only when there is no Security Outstanding of
any series created prior to the execution of such supplemental indenture which
is entitled to the benefit of such provision; or
(e) to establish the form or terms of Securities of any series as
permitted by Sections 2.01 and 3.01; or
(f) to evidence and provide for the acceptance of appointment hereunder by
a successor Trustee with respect to the Securities pursuant to Section 9.18 and
to add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee; or
(g) to cure any ambiguity, to correct or supplement any provision herein
which may be inconsistent with any other provision herein or to make any other
provisions with respect to matters or questions arising under this Indenture
which shall not be inconsistent with the provisions of this Indenture, provided
such action shall not adversely affect in any material respect the interests of
the Holders of Securities of any series; or
(h) to modify, eliminate or add to the provisions of this Indenture to
such extent as shall be necessary to effect the qualification of this Indenture
under the Trust Indenture Act or under any similar federal statute subsequently
enacted, and to add to this Indenture such other provisions as may be expressly
required under the Trust Indenture Act; or
(i) to enable the issuance of uncertificated Securities and to permit
registration, transfer and exchange of securities by book-entry.
Section 12.02. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority of the
aggregate principal amount of the Outstanding Securities of each series affected
by such supplemental indenture (treating all affected series as one series), the
Association and the Trustee may enter into an indenture or indentures
supplemental hereto to add any provisions to or to change in any manner or
eliminate any provisions of this Indenture or of any other indenture
supplemental hereto or to modify in any manner the rights of the Holders of
Securities of any such series; provided, however, that without the consent of
the Holder of each Outstanding Security affected thereby, an amendment under
this Section may not:
(a) change the Stated Maturity of the principal of, or premium, if any,
on, or any installment of principal of or premium, if any, or interest on, any
such Security, or reduce the principal amount thereof or the rate of interest
thereon or any premium payable upon the redemption thereof, or change the manner
in which the amount of any principal thereof or premium, if any, or interest
thereon is determined, 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);
(b) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of this Indenture or of certain
Defaults hereunder and their consequences) provided for in this Indenture;
(c) change any obligation of the Association to maintain an office or
agency in the places and for the purposes specified in Section 6.02;
(d) modify the provisions in Section 6.07 of this Indenture with respect
to the subordination of Outstanding Securities in a manner adverse to the
Holders thereof; or
(e) make any change in this Section 12.02 except to increase any
percentage or to provide that certain other provisions of this Indenture cannot
be modified or waived with the consent of the Holders of each Outstanding
Security affected thereby.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It is not necessary under this Section 12.02 for the Holders to consent to
the particular form of any proposed supplemental indenture, but it is sufficient
if they consent to the substance thereof.
Section 12.03. Compliance with Trust Indenture Act.
Every amendment to this Indenture or the Securities of one or more series
shall be set forth in a supplemental indenture that complies with the Trust
Indenture Act as then in effect.
Section 12.04. Execution of Supplemental Indentures.
Upon the execution of any supplemental indenture pursuant to the provisions
of this Article Twelve, this Indenture shall be and be deemed to be modified and
amended in accordance therewith and the respective rights, limitation of rights,
obligations, duties and immunities under this Indenture of the Trustee, the
Association and the Holders of Securities shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such modifications
and amendments, and all the terms and conditions of any such supplemental
indenture shall be and be deemed to be part of the terms and conditions of this
Indenture for any and all purposes.
The Trustee, subject to the provisions of Article Nine, may receive and
rely upon an Opinion of Counsel as conclusive evidence that any such
supplemental indenture complies with the provisions of this Article Twelve.
Section 12.05. Reference in Securities to Supplemental Indentures.
Securities, including any interest coupons, of any series authenticated and
delivered after the execution of any supplemental indenture pursuant to this
Article may, and shall if required by the Trustee, bear a notation in form
approved by the Trustee as to any matter provided for in such supplemental
indenture. If the Association shall so determine, new Securities including any
interest coupons of any series so modified as to conform, in the opinion of the
Association, to any such supplemental indenture may be prepared and executed by
the Association and authenticated and delivered by the Trustee in exchange for
Outstanding Securities including any interest coupons of such series.
ARTICLE THIRTEEN
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 13.01. Consolidation or Merger of or with Association.
Nothing contained in this Indenture or in any of the Securities shall
prevent any consolidation or merger of the Association with or into any other
corporation or entity (whether or not affiliated with the Association), or
successive consolidation or mergers in which the Association or its successor or
successors shall be a party or parties, or shall prevent any sale or conveyance
of the property of the Association as an entirety or substantially as an
entirety to any other corporation or entity (whether or not affiliated with the
Association) authorized to acquire and operate the same; provided, however, and
the Association hereby covenants and agrees, that upon any such consolidation,
merger, sale or conveyance, the due and punctual payment of the principal of and
interest on all the Securities, according to their tenor, and the due and
punctual performance and observance of all of the covenants and conditions of
this Indenture to be performed or observed by the Association, shall be
expressly assumed, by supplemental indentures satisfactory in form to the
Trustee executed and delivered to the Trustee by the corporation or entity
formed by such consolidation, or into which the Association shall have been
merged, or by the corporation or entity which shall have acquired such property.
Section 13.02. Rights and Duties of Successor Corporation or Entity.
In case of any such consolidation, merger, sale or conveyance and upon any
such assumption by the successor corporation or entity, such successor
corporation or entity shall succeed to and be substituted for the Association,
with the same effect as if it had been named herein as the party of the first
part. Such successor corporation or entity thereupon may cause to be signed,
and may issue either in its own name or in the name of Farmland Industries,
Inc., any or all of the Securities issuable hereunder which theretofore shall
not have been signed by the Association and delivered to the Trustee; and, upon
the order of such successor corporation or entity, instead of the Association,
and subject to all the terms, conditions and limitations in this Indenture
prescribed, the Trustee shall authenticate and shall deliver any Securities
which previously shall have been signed and delivered by the officers of the
Association to the Trustee for authentication, and any Securities which such
successor corporation or entity thereafter shall cause to be signed and
delivered to the Trustee for that purpose. All the Securities so issued shall
in all respects have the same legal rank and benefit under the Indenture as the
Securities theretofore or thereafter issued in accordance with the terms of this
Indenture as though all of such Securities had been issued at the date of the
execution hereof.
In case of any such consolidation, merger, sale or conveyance such changes
in phraseology and form (but not in substance) may be made in the Securities
thereafter to be issued as may be appropriate.
Nothing contained in this Indenture or in any of the Securities shall
prevent the Association from merging into itself any other corporation or entity
(whether or not affiliated with the Association) or acquiring by purchase or
otherwise all or any part of the property of any other corporation or entity
(whether or not affiliated with the Association).
Section 13.03. Opinion of Counsel.
The Trustee, subject to the provisions of Article Nine, may receive and
rely upon an Opinion of Counsel as conclusive evidence that any such
consolidation, merger, sale or conveyance, and any such assumption, complies
with the provisions of this Article Thirteen.
ARTICLE FOURTEEN
SATISFACTION, DISCHARGE AND DEFEASANCE
Section 14.01. Termination of Association's Obligations Under the
Indenture.
This Indenture shall upon Association Request cease to be of further
effect with respect to Securities of or within any series and any interest
coupons appertaining thereto (except as to (i) rights of registration, transfer
or exchange of such Securities, (ii) rights of replacement of such Securities
which may have been lost, stolen or mutilated as herein expressly provided for,
(iii) rights of holders of Securities to receive payments of principal thereof
and interest thereon, upon the Stated Maturity thereof (but not upon
acceleration), and rights of the Holders to receive mandatory sinking fund
payments, if any, (iv) rights of holders of Securities to convert or exchange
Securities, (v) rights, obligations, duties and immunities of the Trustee
hereunder, (vi) any rights of the Holders of Securities of such series as
beneficiaries hereof with respect to the property so deposited with the Trustee
payable to all or any of them, and (vii) the obligations of the Association
under Section 6.02) and the Trustee, upon payment of all amounts due it under
Section 9.10, at the expense of the Association, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture with
respect to such Securities and any interest coupons appertaining thereto when:
(1) either
(A) all such Securities previously authenticated and delivered and
all interest coupons appertaining thereto (other than such
Securities and interest coupons which have been destroyed, lost or
stolen and which have been replaced or paid as provided in Section
3.06) have been delivered to the Trustee for cancellation or
(B) all Securities of such series and, in the case of (i) or (ii)
below, any interest coupons appertaining thereto 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 Association,
and the Association, in the case of (i), (ii) or (iii) above, has irrevocably
deposited or caused to be deposited with the Trustee as trust funds in trust for
the purpose money in an amount sufficient to pay and discharge the entire
indebtedness on such Securities and such interest coupons not theretofore
delivered to the Trustee for cancellation, for principal, premium, if any, and
interest, with respect thereto, 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 Association has paid or caused to be paid all other sums payable
hereunder by the Association; and
(3) the Association 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 as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the obligation
of the Association to the Trustee and any predecessor Trustee under Section
9.10, 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 6.06 and 14.02 shall survive.
Section 14.02. Application of Trust Funds.
Subject to the provisions of Section 6.06, all money deposited with the
Trustee pursuant to Section 14.01 shall be held in trust and applied by it, in
accordance with the provisions of the Securities, the interest coupons
appertaining thereto, if any, and this Indenture, to the payment, either
directly or through any paying agent (including the Association acting as its
own paying agent) as the Trustee may determine, to the Persons entitled thereto,
of the principal, premium, if any and any interest for whose payment such money
has been deposited with or received by the Trustee, but such money need not be
segregated from other funds except as otherwise provided herein and except to
the extent required by law.
Section 14.03. Applicability of Defeasance Provisions; Association's
Option to Effect Defeasance or Covenant Defeasance.
Except as otherwise specified as contemplated by Section 3.01 for the
Securities of any series, the provisions of Sections 14.04 through 14.09
inclusive, with such modifications thereto as may be specified pursuant to
Section 3.01 with respect to any series of Securities, shall be applicable to
the Securities and any interest coupons appertaining thereto.
Section 14.04. Defeasance and Discharge.
On and after the date on which the conditions set forth in Section 14.06
are satisfied with respect to the Securities of or within any series, the
Association shall be deemed to have paid and been discharged from its
obligations with respect to such Securities and any interest coupons
appertaining thereto (hereinafter "defeasance"). For this purpose, such
defeasance means that the Association shall be deemed to have paid and
discharged the entire indebtedness represented by such Securities and any
interest coupons appertaining thereto which shall thereafter be deemed to be
"Outstanding" only for the purposes of Sections 3.04, 3.05, 3.06, 6.02, 6.06,
14.07 and 14.09 and to have satisfied all its other obligations under such
Securities and any interest coupons appertaining thereto and this Indenture
insofar as such Securities and any interest coupons appertaining thereto are
concerned (and the Trustee, upon payment of all amounts due it under Section
9.10, at the expense of the Association, shall on an Association Order execute
proper instruments acknowledging the same). Subject to compliance with this
Article Fourteen, the Association may defease the Securities of any series and
any interest coupons appertaining thereto under this Section 14.04
notwithstanding a prior covenant defeasance (as defined herein) under Section
14.05 with respect to such Securities and any interest coupons appertaining
thereto. Following a defeasance, payment of such Securities may not be
accelerated because of an Event of Default.
Section 14.05. Covenant Defeasance.
On and after the date on which the conditions set forth in Section 14.06
are satisfied with respect to the Securities of or within any series, (i) the
Association shall be released from its obligations under Section 6.01 and, if
specified pursuant to Section 3.01, its obligations under any other covenant,
with respect to such Securities and any interest coupons appertaining thereto,
(ii) the occurrence of any event specified in Sections 8.01(e) or 8.01(f) (in
each case, with respect to any of the obligations described in clause (i) above)
or 8.01(a) or 8.01(b) shall be deemed not to be or result in a Default or Event
of Default (hereinafter, "covenant defeasance"), and such Securities and any
interest coupons appertaining thereto shall thereafter be deemed to be not
"Outstanding" for the purposes of any request, demand, authorization, direction,
notice, waiver, consent or declaration of Holders (and the consequences of any
thereof) in connection with Section 6.01, such other covenant specified pursuant
to Section 3.01, or Sections 8.01(e) or 8.01(f) (in each case, with respect to
any of the obligations described in clause (i) above) or Sections 8.01(a) or
8.01(b), but shall continue to be deemed "Outstanding" for all other purposes
hereunder and (iii) the provisions of Section 6.07 shall cease to be effective
as to such Securities. For this purpose, such covenant defeasance means that,
with respect to such Securities and any interest coupons appertaining thereto,
the Association may omit to comply with and shall have no liability in respect
of any term, condition or limitation set forth in such Section or such other
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to such Section or such other covenant or by reason of reference in any
such Section or such other covenant to any other provision herein or in any
other document and such omission to comply shall not constitute a Default or an
Event of Default under Sections 8.01(a), 8.01(b), 8.01(e), or 8.01(f) or
otherwise, as the case may be, but, except as specified above, the remainder of
this Indenture and such Securities and any interest coupons appertaining thereto
shall be unaffected thereby.
Section 14.06. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either Section
14.04 or Section 14.05 to the then Outstanding Securities of or within a series:
(a) The Association shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements of
Section 6.03 who shall agree to comply with the provisions of Sections 14.03
through 14.09 inclusive and Section 6.06 applicable to the Trustee, for purposes
of such sections also a "Trustee") as trust funds in trust for the purpose of
making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Securities and any
interest coupons appertaining thereto, (A) money in an amount, or (B) Government
Obligations which through the scheduled payment of principal and interest in
respect thereof in accordance with their terms will provide, not later than one
day before the due date of any payment, money in an amount, or (C) a combination
thereof, in an amount sufficient in the opinion of a nationally recognized firm
of independent certified public accountants expressed in a written opinion with
respect thereto delivered to the Trustee, to pay and discharge, and which shall
be applied by the Trustee (or other qualifying trustee) to pay and discharge,
(x) the principal of (premium, if any) and each installment of interest, if any,
on the Outstanding Securities and any interest coupons appertaining thereto on
the Stated Maturity of such principal or installment of interest and (y) any
mandatory sinking fund payments applicable to such Securities on the day on
which such payments are due and payable in accordance with the terms of this
Indenture and of such Securities and any interest coupons appertaining thereto.
(b) In the case of an election under Section 14.04, the Association shall
have delivered to the Trustee an Opinion of Counsel stating that (x) the
Association has received from, or there has been published by, the Internal
Revenue Service a ruling, or (y) since the date of this Indenture there has been
a change in the applicable Federal income tax law, in either case to the effect
that, and based thereon such opinion shall confirm that, the Holders of the
Outstanding Securities and any interest coupons appertaining thereto will not
recognize gain or loss for Federal income tax purposes as a result of such
deposit, defeasance and discharge and will be subject to Federal income tax on
the same amount, in the same manner and at the same times as would have been the
case if such deposit, defeasance and discharge had not occurred.
(c) In the case of an election under Section 14.05, the Association shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of the Outstanding Securities and any interest coupons appertaining
thereto will not recognize gain or loss for Federal income tax purposes as a
result of such deposit and covenant defeasance and will be subject to Federal
income tax on the same amount, in the same manner and at the same times as would
have been the case if such deposit and covenant defeasance had not occurred.
(d) The Association shall have delivered to the Trustee an Officer's
Certificate to the effect that the Securities, if then listed on any securities
exchange or approved for trading in any automated quotation system, will not be
delisted or disapproved for such trading as a result of such deposit.
(e) At the time of such deposit: (A) no default in the payment of all or
a portion of principal of (or premium, if any) or interest on any Senior
Indebtedness of the Association shall have occurred and be continuing, and no
event of default with respect to any Senior Indebtedness of the Association
shall have occurred and be continuing and shall have resulted in such Senior
Indebtedness becoming or being declared due and payable prior to the date on
which it would otherwise have become due and payable and (B) no other event of
default with respect to any Senior Indebtedness of the Association shall have
occurred and be continuing permitting (after notice or the lapse of time, or
both) the holders of such Senior Indebtedness (or a trustee on behalf of the
holders thereof) to declare such Senior Indebtedness due and payable prior to
the date on which it would otherwise have become due and payable, or, in the
case of either Clause (A) or Clause (B) above, each such default or event of
default shall have been cured or waived or shall have ceased to exist.
(f) No Event of Default or event which with notice or lapse of time or
both would become an Event of Default shall have occurred and be continuing on
the date of such deposit or, insofar as Sections 8.01(c) or 8.01(d) are
concerned, at any time during the period ending on the 91st day after the date
of such deposit (it being understood that this condition shall not be deemed
satisfied until the expiration of such period).
(g) The Association shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the defeasance under Section 14.04 or
the covenant defeasance under Section 14.05 (as the case may be) have been
complied with.
(h) Such defeasance or covenant defeasance shall not result in the trust
arising from such deposit constituting an investment company as defined in the
Investment Company Act of 1940, as amended from time to time, or such trust
shall be registered under such act or exempt from registration thereunder.
(i) Such defeasance or covenant defeasance shall be effected in compliance
with any additional or substitute terms, conditions or limitations which may be
imposed on the Association in connection therewith as contemplated by Section
3.01.
Section 14.07. Deposited Money and Government Obligations to Be Held in
Trust.
Subject to the provisions of Section 6.06, all money and Government
Obligations (or other property as may be provided pursuant to Section 3.01)
(including the proceeds thereof) deposited with the Trustee pursuant to Section
14.06 in respect of any Securities of any series and any interest coupons
appertaining thereto shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and any interest coupons
appertaining thereto and this Indenture, to the payment, either directly or
through any paying agent (including the Association acting as its own paying
agent) as the Trustee may determine, to the Holders of such Securities and any
interest coupons appertaining thereto of all sums due and to become due thereon
in respect of principal, premium, if any, and interest, if any, but such money
need not be segregated from other funds except as provided herein and except to
the extent required by law.
Section 14.08. Repayment to Association.
Subject to the delivery by the Association of any written certification
required by the last paragraph of this Section 14.08, the Trustee (and any
paying agent) shall promptly pay to the Association upon Association Request any
excess money or securities held by them at any time.
The provisions of Section 6.06 shall apply to any money or securities held
by the Trustee or any paying agent under this Article Fourteen that remain
unclaimed for two years after the Maturity of any series of Securities for which
money or securities have been deposited pursuant to Section 14.06(a).
Anything in this Article to the contrary notwithstanding, the Trustee shall
deliver or pay to the Association from time to time upon Association Request any
money or Government Obligations held by it as provided in Section 14.06 with
respect to any Securities which, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect the defeasance or covenant defeasance, as
the case may be, with respect to such Securities.
Section 14.09. Indemnity for Government Obligations.
The Association shall pay, and shall indemnify the Trustee against, any
tax, fee or other charge imposed on or assessed against Government Obligations
deposited pursuant to this Article or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of the Outstanding Securities.
Section 14.10. Reinstatement.
If the Trustee (or paying agent) is unable to apply any money or Government
Obligations in accordance with Section 14.06 by reason of any order or judgment
of any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Association's obligations under this
Indenture and the Securities shall be revived and reinstated, with present and
prospective effect, as though no deposit had occurred pursuant to Section 14.06,
until such time as the Trustee (or paying agent) is permitted to apply all such
money or Government Obligations in accordance with Section 14.06; provided,
however, that if the Association makes any payment to the Trustee (or paying
agent) of principal, premium, if any, or interest on any Security following the
reinstatement of its obligations, the Trustee (or paying agent) shall promptly
pay any such amount to the Holders of the Securities and the Association shall
be subrogated to the rights of the Holders of such Securities to receive such
payment from the money and Government Obligations held by the Trustee (or paying
agent).
ARTICLE FIFTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
Section 15.01. No Recourse.
No recourse under or upon any obligation, covenant or agreement of this
Indenture, or of any Security, or for any claim based thereon or otherwise in
respect thereof, shall be had against any incorporator, stockholder, officer or
director, as such, past, present or future, of the Association or of any
successor corporation, either directly or through the Association, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly understood that this
Indenture and the obligations issued hereunder are solely corporate obligations,
and that no such personal liability whatever shall attach to, or is or shall be
incurred by, the incorporators, stockholders, officers or directors, as such of
the Association or of any successor corporation, or any of them, because of the
creation of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any of
the Securities or implied therefrom; and that any and all such personal
liability, either at common law or in equity or by constitution or statute, of,
and any and all such rights and claims against, every such incorporator,
stockholder, officer or director, as such because of the creation of the
indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any of the Securities
or implied therefrom, are hereby expressly waived and released as a condition
of, and as a consideration for, the execution of this Indenture and the issue of
such Securities.
ARTICLE SIXTEEN
MISCELLANEOUS PROVISIONS
Section 16.01. Covenants of Association Bind its Successors and Assigns.
All the covenants, stipulations, promises and agreements in this Indenture
contained by or on behalf of the Association shall bind its successors and
assigns, whether so expressed or not.
Section 16.02. Acts by Successor Corporation.
Any act or proceeding by any provision of this Indenture authorized or
required to be done or performed by any board, committee or officer of the
Association shall and may be done and performed with like force and effect by
the like board, committee or officer of any corporation that shall at the time
be the lawful sole successor of the Association.
Section 16.03. Surrender of Rights and Powers Reserved to Association.
The Association by instrument in writing executed by authority of two-
thirds of its Board of Directors and delivered to the Trustee may surrender any
of the powers or rights reserved to the Association and thereupon such powers or
rights so surrendered shall terminate both as to the Association and as to any
successor corporation.
Section 16.04. Service of Notice on Association.
Any notice or demand which by any provision of this Indenture is required
or permitted to be given or served by the Trustee or by the Holders of
Securities to or on the Association may be given or served by being deposited
postage prepaid in a post office letter box addressed (until another address is
filed by the Association with the Trustee pursuant to Section 6.02), as follows:
Farmland Industries, Inc.
P.O. Box 7305
Kansas City, Missouri, 64116-0005
Any notice, direction, request or demand by any Holder to or upon the
Trustee shall be deemed to have been sufficiently given or made, for all
purposes, upon receipt by a responsible officer at the principal office of the
Trustee.
Section 16.05. Indenture Governed by Laws of Missouri.
THIS INDENTURE, THE SECURITIES AND ANY INTEREST COUPONS APPERTAINING
THERETO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF MISSOURI.
Section 16.06. Officers' Certificate and Opinion of Counsel.
Upon any application or demand by the Association to the Trustee to take
any action under any of the provisions of this Indenture, the Association shall
furnish to the Trustee an Officers' Certificate stating that all conditions
precedent provided for in this Indenture relating to the proposed action have
been complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent have been complied with, except that in
the case of any such application or demand as to which the furnishing of such
documents is specifically required by any provisions of this Indenture relating
to such particular application or demand, no additional certificate or opinion
need be furnished.
Each certificate or opinion provided for in this Indenture and delivered to
the Trustee with respect to compliance with a condition or covenant provided for
in this Indenture shall include (1) a statement that the person making such
certificate or opinion has read such covenant or condition; (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 such person, 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 or not, in the opinion of such
person, such condition or covenant has been complied with.
Section 16.07. Due Date on Saturday, Sunday or Legal Holiday.
In any case where the date of maturity of interest on or principal of the
Securities or the date fixed for redemption of any Security shall be a Saturday
or Sunday or shall, in the City of Kansas City, State of Missouri, be a legal
holiday or a day on which banking institutions are authorized by law to close,
then payment of interest or principal need not be made on such date, but in any
such case may be made on the next succeeding day not a Saturday, Sunday or a
legal holiday or a day on which banking institutions are authorized by law to
close with the same force and effect as if made on the date of maturity or the
date fixed for redemption, and no interest shall accrue for the period after
such date.
Section 16.08. Conflict with Trust Indenture Act.
This Indenture is subject to the Trust Indenture Act and if any provision
hereof limits, qualifies or conflicts with the Trust Indenture Act, the Trust
Indenture Act shall control. Whether or not this Indenture is required to be
qualified under the Trust Indenture Act, the provisions of the Trust Indenture
Act required to be included in an indenture in order for such indenture to be so
qualified shall be deemed to be included in this Indenture with the same effect
as if such provisions were set forth herein and any provisions hereof which may
not be included in an indenture which is so qualified shall be deemed to be
deleted or modified to the extent such provisions would be required to be
deleted or modified in an indenture so qualified.
Section 16.09. Indenture Executed in Counterparts.
This Indenture may be executed in any number of counterparts, each of which
shall be an original; but such counterparts shall together constitute but one
and the same instrument.
COMMERCE BANK, NATIONAL ASSOCIATION, the party of the second part, hereby
accepts the trusts in this Indenture declared and provided, upon the terms and
conditions hereinabove set forth.
IN WITNESS WHEREOF, FARMLAND INDUSTRIES, INC., the party of the first part,
has caused this Indenture to be signed and acknowledged by its [Financial Vice
President and Treasurer], and its corporate seal to be affixed hereunto, and the
same to be attested by its Secretary; and COMMERCE BANK, NATIONAL ASSOCIATION,
the party of the second part has caused this Indenture to be signed and
acknowledged by one of its Vice Presidents, and its corporate seal to be affixed
hereunto, and the same to be attested by its Secretary or Assistant Secretary.
Executed and delivered in the City of Kansas City, State of Missouri, on
___________, 1997.
(Corporate Seal) FARMLAND INDUSTRIES, INC.
____________________ By
Secretary Name:
Title:
(Corporate Seal) COMMERCE BANK,
NATIONAL ASSOCIATION
By
Name:
Title:
Assistant Secretary
STATE OF MISSOURI )
) ss.
COUNTY OF ___________ )
On this 4th day of December, 1997, before me personally appeared
__________________, to be personally known, who, being by me duly sworn, did say
that he is the _____________________of FARMLAND INDUSTRIES, INC., Kansas City,
Missouri, that the seal affixed to this instrument is the corporate seal of said
corporation and that the said instrument was signed and sealed in behalf of said
corporation by authority of its Board of Directors, and said
________________________ acknowledged said instrument to be the free act and
deed of said corporation.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official
seal at my office in Kansas City, Missouri, the day and year last above written.
(Notarial Seal)
/s/
Notary Public
My commission expires:
STATE OF MISSOURI )
) ss.
COUNTY OF ___________ )
On this 4th day of December, 1997, before me personally appeared
____________________, to me personally known, who, being by me duly sworn, did
say that he is a Vice President assigned to the Trust Division of COMMERCE BANK,
NATIONAL ASSOCIATION, Kansas City, Missouri, that the seal affixed to this
instrument is the corporate seal of said corporation, and that the said
instrument was signed and sealed in behalf of said corporation by authority of
its board of directors and said ____________________ acknowledged said
instrument to be the free act and deed of said corporation.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official
seal at my office in Kansas City, Missouri, the day and year last above written.
(Notarial Seal)
/s/
Notary Public
My commission expires:
PRINCIPAL AMOUNT:
BOND NUMBER:
FARMLAND INDUSTRIES, INC.
Kansas City, Missouri 64116
SUBORDINATED DEBENTURE BONDS,
TEN-YEAR, SERIES A
___________________________ _______________________
Name Date of Original Issuance
___________________________ _______________________
Street Maturity Date
___________________________ _______________________
City State Interest Rate
Farmland Industries, Inc., a Kansas corporation ("Farmland", which
term includes any successor corporation under the Indenture referred to herein),
for value received, hereby promises to pay to the owner named above or
registered assigns (the "Holder"), the principal amount shown above on the
Maturity Date specified above (except to the extent redeemed or repaid prior to
the Maturity Date), and to pay interest thereon from the most recent date to
which interest has been paid or, if no interest has been paid, from the date of
original issuance of this Bond (the "Date of Original Issuance") at the interest
rate per annum specified above (the "Interest Rate"), computed on the basis of a
365-day year, until the principal hereof is paid or duly made available for
payment, and to pay interest on overdue principal and, to the extent permitted
by law, overdue interest at the Interest Rate. Payment of principal and
interest shall be in such coin or currency of the United States of America as at
the time of payment shall be legal tender for the payment of public and private
debts.
Interest is payable at the option of the purchaser, made at the time
of original issuance in one of the following ways: (i) semiannually on January 1
and July 1, to Holders of record on the last preceding December 15 and June 15,
respectively (or, in the case of the first interest payment date, if originally
issued between the record date and the payment date, to the Holder on the Date
of Original Issuance); or (ii) at maturity or at the date of redemption if
redeemed prior to maturity, compounded semiannually, on December 31 and June 30
at the Interest Rate. Any election to receive payment of interest semiannually
is irrevocable. The election to receive payment of interest at maturity, or at
the date of redemption if redeemed prior to maturity, will be terminated upon
written request of the Holder, such termination to be effective as of the last
previous interest compounding date. Such termination is irrevocable and, at the
same time, is an election to receive payment of interest semiannually
thereafter. Any interest attributable to periods starting with the Date of
Original Issuance and ending with the effective date of the written request of
the Holder to terminate the election to receive payment of interest at maturity
or at the date of redemption if redeemed prior to maturity will be paid upon
receipt of the written request to terminate the election. Farmland shall have
the right at any time by notice to the Holder to terminate any obligation to
continue retaining the interest of any Holder. Such termination shall be
effective as of the opening of business on the day following the first interest
compounding date after such notice is mailed to the Holder and the Holder will
be paid all interest then accrued and unpaid to the Holder on the effective
date. If the Maturity Date (or date of redemption or repayment) or an interest
payment date falls on a day which is not a business day, principal or interest
payable with respect to such Maturity Date (or date of redemption or repayment)
or interest payment date will be paid on the next succeeding business day with
the same force and effect as if made on such Maturity Date (or date of
redemption or repayment) or interest payment date, as the case may be, and no
interest shall accrue on the amount so payable for the period from and after
such Maturity Date (or any date of redemption or repayment) or interest payment
date.
This Bond shall not be valid or become obligatory for any purpose
until the Certificate of Authentication hereon shall have been signed by the
Trustee under the Indenture mentioned on the reverse side hereof.
ISSUED THIS DAY OF , 19
Attest: FARMLAND INDUSTRIES, INC.
SECRETARY ________________________ BY PRESIDENT ____________________
Trustee's Certificate of Authentication
This is one of the Bonds described in the Indenture mentioned on the back
hereof.
COMMERCE BANK, NATIONAL ASSOCIATION
As Trustee By ____________________________________________
Authorized Signature
REVERSE SIDE OF TEN-YEAR SERIES A
This Bond is one of a duly authorized issue of securities (hereinafter
called the "Securities") of Farmland issued and to be issued under an Indenture
dated as of ____________________ (herein called the "Indenture") between
Farmland and Commerce Bank, National Association, as Trustee (herein called the
"Trustee", which term includes any successor trustee under the Indenture), to
which the Indenture and all indentures supplemental thereto and the Officers'
Certificate (as defined in the Indenture) setting forth the terms of this series
of Securities reference is hereby made for a statement of the respective rights,
limitation of rights, duties and immunities thereunder of Farmland, the Trustee
and the Holders and the terms upon which the Bonds are, and are to be,
authenticated and delivered. The Bonds of this series may bear different dates,
mature at different times, bear interest at different rates, be subject to
different redemption or repayment provisions and may otherwise vary and are
entitled to the benefits of the Indenture.
Any interest which is payable, but is not punctually paid or duly
provided for, on any interest payment date and, to the extent permitted by law,
interest on such defaulted interest at the Interest Rate (such defaulted
interest and interest thereon herein collectively called "Defaulted Interest")
will not be payable to the Holder on the applicable record date; and such
Defaulted Interest may be paid by Farmland, at its election in each case, in the
time and manner as provided for in the Indenture.
Payment of the principal of, premium, if any, and interest on this
Bond will be made at the office or agency of Farmland in Kansas City, Missouri;
provided, however, that at the option of Farmland payment of interest other than
interest paid at maturity, redemption or repayment may be made by check mailed
to the address of the person entitled thereto as such address will appear in the
Register or by electronic funds transfer or similar means to an account
maintained by the person entitled thereto as specified in the Register.
If an Event of Default (as defined in the Indenture) with respect to
the Bonds shall occur and be continuing, the Trustee or the Holders of not less
than a majority in principal amount of the outstanding Bonds may declare the
principal of and accrued interest on all the Bonds due and payable in the manner
and with the effect and subject to the conditions provided in the Indenture.
Upon certain events of bankruptcy, insolvency or reorganization of Farmland, the
principal of and accrued interest on all of the Bonds shall become due and
payable without any declaration by the Trustee or the Holders.
The Indenture contains provisions permitting Farmland and the Trustee
to enter into one or more supplemental indentures under certain situations
without the consent of the Holders of any of the Bonds. The Indenture permits,
with certain exceptions as therein provided, the amendment thereof and the
modification of the rights and obligations of Farmland and the rights of the
Holders of the Securities of each series under the Indenture to be affected at
any time by Farmland and the Trustee with the consent of the Holders of a
majority in aggregate principal amount of the Outstanding Securities (as defined
in the Indenture) of each series affected thereby. The Indenture also contains
provisions permitting the Holders of specified percentages in aggregate
principal amount of the Outstanding Securities of each series under the
Indenture, on behalf of the Holders of all Securities of such series, to waive
compliance by Farmland 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 Bond shall be conclusive and binding upon such Holder and
upon all future Holders of this Bond and of any Bond issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof, whether
or not notation of such consent or waiver is made upon this Bond.
No reference herein to the Indenture and no provision of this Bond or
of the Indenture shall alter or impair the obligation of Farmland, which is
absolute and unconditional, to pay the principal of and interest on this Bond at
the times, places, and rate, and in the coin or currency, herein prescribed.
This Bond may be redeemed, after two (2) years from Date of Original
Issuance, at the option of Farmland at any time prior to maturity, on at least
fifteen (15) days written notice, at face value plus accrued interest to the
date of redemption only. The Indenture permits Farmland to select in any manner
at its discretion the Bonds to be redeemed.
Subject to the conditions hereinafter set forth, this Bond may be
redeemed at the option of the Holder.
(1)At any time three (3) years after the Date of Original Issuance, the Holder
may request redemption of this Bond from Farmland. Farmland will redeem
prior to maturity each month, on a first come, first serve basis (as
evidenced by the time stamped or otherwise recorded as the time of receipt by
Farmland) a limited amount of Redemption Eligible Bonds. Subject to the
carryover discussed below, the aggregate maximum amount of Redemption
Eligible Bonds, as a group, that Farmland will redeem each month will be the
greater of:
(a) $1,500,000 or
(b)
1/2 of 1% of the combined total principal balance outstanding of all
Redemption Eligible Bonds outstanding at the end of the prior month.
For purposes of the foregoing, "Redemption Eligible Bonds" mean Ten-Year,
Series A Bonds, Ten-Year, Series B Bonds, Five-Year, Series C Bonds, and
Five-Year, Series D Bonds issued under the Indenture and any other
subordinated debt that Farmland elects to designate as a "Redemption
Eligible Bond". If the amount determined pursuant to the foregoing formula
in any month (including any carryover from the prior month) exceeds the
total amount requested for redemption prior to maturity in that month, such
excess is carried over to the next month and added to the amount available
for redemption prior to maturity in that month; provided, however, that any
excess will not be carried beyond the end of Farmland's fiscal year.
If the total balance of outstanding Bonds of this series is less than
$5,000,000 at the end of any month, then in the following month any Bonds
of this series which have been held at least three (3) years from the Date
of Original Issuance will be redeemed at the request of the Holder without
regard to the above dollar limitation.
(2) In addition to the amounts made available for redemption prior to maturity
at the option of the Holder as described in (1) above, redemption will be
made in the case of death of Holder upon written request and delivery of
satisfactory proof of death and other documentation and in accordance with
applicable laws.
(3) In addition to the amounts made available for redemption prior to maturity
at the option of the Holder as described in (1) and (2) above, if this Bond
is held in an Individual Retirement Account (an "IRA") established under
Section 408 of the Internal Revenue Code of 1986, as amended (the "IRC"),
Farmland will redeem this Bond, upon written request, to the extent necessary
to satisfy mandatory withdrawals from the IRA which are required by the IRC.
Such redemption will be made only upon sufficient proof to Farmland that a
mandatory withdrawal from the IRA is required.
(4) The foregoing redemption privileges described in (1), (2) and (3) above are
subject to the condition as provided under the subordination provisions
applicable to the Subordinated Debenture Bonds, that Farmland cannot redeem
any of the Subordinated Debenture Bonds if, at the time of or immediately
after giving effect to such redemption, there shall exist under any Senior
Indebtedness or any indenture or agreement pursuant to which any Senior
Indebtedness is issued any default or any condition, event or act, which,
with notice or lapse of time, or both, would constitute a default.
Redemption prior to maturity will be made, subject to the
aforementioned conditions, upon the surrender of this Bond, properly endorsed
and accompanied by written requests for early redemption to Farmland.
Redemption prior to maturity will be made at the face value of this Bond plus
accrued interest to the date of redemption. Amounts available for redemption
prior to maturity are not set aside in a separate fund.
This Bond shall be subordinate, to the extent and in the manner
provided in the Indenture, in right of payment to the prior payment in full of
all Senior Indebtedness (as defined in the Indenture) and this Bond is issued
subject to the provisions of the Indenture with respect thereto. Each Holder of
this Bond, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his or her or its behalf
to take such action as may be necessary or appropriate to acknowledge or
effectuate the subordination so provided and (c) appoints the Trustee his or her
or its attorney-in-fact for any and all such purposes.
As provided in the Indenture, and subject to certain limitations
therein set forth, the transfer of this Bond may be registered on the Register
upon surrender of this Bond for registration of transfer at the office or agency
of Farmland, in Kansas City, Missouri, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to Farmland duly executed by
the Holder or by his attorney duly authorized in writing, and thereupon one or
more new Bonds of this series having the same terms as this Bond, of authorized
denominations, having the same terms and conditions and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Bonds are issuable only in registered form, without coupons. As
provided in the Indenture, and subject to certain limitations therein set forth,
this Bond is exchangeable for a like aggregate principal amount of Bonds having
the same terms as this Bond of different authorized denominations, as requested
by the Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange of Bonds, but Farmland may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
therewith.
Prior to due presentment of this Bond for registration of transfer,
Farmland, the Trustee and any agent of Farmland or the Trustee may treat the
person in whose name this Bond is registered as the owner hereof for all
purposes, whether or not this Bond be overdue, and neither Farmland, the Trustee
nor any such agent shall be affected by notice to the contrary.
All terms used in this Bond which are defined in the Indenture shall
have the meanings designated to them in the Indenture and all references in the
Indenture to "Security" or "Securities" shall be deemed to include the Bonds.
For value received, I, we and each of us hereby sell, assign and
transfer the within Bond and the indebtedness evidenced thereby to
___________________________________________________________
of _________________________________________________________
(ADDRESS) (CITY OR TOWN) STATE
THIS ASSIGNMENT WILL BECOME EFFECTIVE ONLY WHEN MADE AND ENTERED ON
THE BOOKS OF FARMLAND INDUSTRIES, INC.
{
__________ {___________________________________
DATE { (SIGNED)
ENDORSEMENT { ___________________________________
(SIGNED)
PRINCIPAL AMOUNT:
BOND NUMBER:
FARMLAND INDUSTRIES, INC.
Kansas City, Missouri 64116
SUBORDINATED DEBENTURE BONDS,
TEN-YEAR, SERIES B
___________________________ _______________________
Name Date of Original Issuance
___________________________ _______________________
Street Maturity Date
___________________________ _______________________
City State Interest Rate
Farmland Industries, Inc., a Kansas corporation ("Farmland", which
term includes any successor corporation under the Indenture referred to herein),
for value received, hereby promises to pay to the owner named above or
registered assigns (the "Holder"), the principal amount shown above on the
Maturity Date specified above (except to the extent redeemed or repaid prior to
the Maturity Date), and to pay interest thereon from the most recent date to
which interest has been paid or, if no interest has been paid, from the date of
original issuance of this Bond (the "Date of Original Issuance") at the interest
rate per annum specified above (the "Interest Rate"), computed on the basis of a
365-day year, until the principal hereof is paid or duly made available for
payment, and to pay interest on overdue principal and, to the extent permitted
by law, overdue interest at the Interest Rate. Payment of principal and
interest shall be in such coin or currency of the United States of America as at
the time of payment shall be legal tender for the payment of public and private
debts.
Interest is payable at the option of the purchaser, made at the time
of original issuance in one of the following ways: (i) semiannually on January 1
and July 1, to Holders of record on the last preceding December 15 and June 15,
respectively (or, in the case of the first interest payment date, if originally
issued between the record date and the payment date, to the Holder on the Date
of Original Issuance); or (ii) at maturity or at the date of redemption if
redeemed prior to maturity, compounded semiannually, on December 31 and June 30
at the Interest Rate. Any election to receive payment of interest semiannually
is irrevocable. The election to receive payment of interest at maturity, or at
the date of redemption if redeemed prior to maturity, will be terminated upon
written request of the Holder, such termination to be effective as of the last
previous interest compounding date. Such termination is irrevocable and, at the
same time, is an election to receive payment of interest semiannually
thereafter. Any interest attributable to periods starting with the Date of
Original Issuance and ending with the effective date of the written request of
the Holder to terminate the election to receive payment of interest at maturity
or at the date of redemption if redeemed prior to maturity will be paid upon
receipt of the written request to terminate the election. Farmland shall have
the right at any time by notice to the Holder to terminate any obligation to
continue retaining the interest of any Holder. Such termination shall be
effective as of the opening of business on the day following the first interest
compounding date after such notice is mailed to the Holder and the Holder will
be paid all interest then accrued and unpaid to the Holder on the effective
date. If the Maturity Date (or date of redemption or repayment) or an interest
payment date falls on a day which is not a business day, principal or interest
payable with respect to such Maturity Date (or date of redemption or repayment)
or interest payment date will be paid on the next succeeding business day with
the same force and effect as if made on such Maturity Date (or date of
redemption or repayment) or interest payment date, as the case may be, and no
interest shall accrue on the amount so payable for the period from and after
such Maturity Date (or any date of redemption or repayment) or interest payment
date.
This Bond shall not be valid or become obligatory for any purpose
until the Certificate of Authentication hereon shall have been signed by the
Trustee under the Indenture mentioned on the reverse side hereof.
ISSUED THIS DAY OF , 19
Attest: FARMLAND INDUSTRIES, INC.
SECRETARY ________________________ BY PRESIDENT ____________________
Trustee's Certificate of Authentication
This is one of the Bonds described in the Indenture mentioned on the back
hereof.
COMMERCE BANK, NATIONAL ASSOCIATION
As Trustee By ____________________________________________
Authorized Signature
REVERSE SIDE OF TEN-YEAR SERIES B
This Bond is one of a duly authorized issue of securities (hereinafter
called the "Securities") of Farmland issued and to be issued under an Indenture
dated as of ____________________ (herein called the "Indenture") between
Farmland and Commerce Bank, National Association, as Trustee (herein called the
"Trustee", which term includes any successor trustee under the Indenture), to
which the Indenture and all indentures supplemental thereto and the Officers'
Certificate (as defined in the Indenture) setting forth the terms of this series
of Securities reference is hereby made for a statement of the respective rights,
limitation of rights, duties and immunities thereunder of Farmland, the Trustee
and the Holders and the terms upon which the Bonds are, and are to be,
authenticated and delivered. The Bonds of this series may bear different dates,
mature at different times, bear interest at different rates, be subject to
different redemption or repayment provisions and may otherwise vary and are
entitled to the benefits of the Indenture.
Any interest which is payable, but is not punctually paid or duly
provided for, on any interest payment date and, to the extent permitted by law,
interest on such defaulted interest at the Interest Rate (such defaulted
interest and interest thereon herein collectively called "Defaulted Interest")
will not be payable to the Holder on the applicable record date; and such
Defaulted Interest may be paid by Farmland, at its election in each case, in the
time and manner as provided for in the Indenture.
Payment of the principal of, premium, if any, and interest on this
Bond will be made at the office or agency of Farmland in Kansas City, Missouri;
provided, however, that at the option of Farmland payment of interest other than
interest paid at maturity, redemption or repayment may be made by check mailed
to the address of the person entitled thereto as such address will appear in the
Register or by electronic funds transfer or similar means to an account
maintained by the person entitled thereto as specified in the Register.
If an Event of Default (as defined in the Indenture) with respect to
the Bonds shall occur and be continuing, the Trustee or the Holders of not less
than a majority in principal amount of the outstanding Bonds may declare the
principal of and accrued interest on all the Bonds due and payable in the manner
and with the effect and subject to the conditions provided in the Indenture.
Upon certain events of bankruptcy, insolvency or reorganization of Farmland, the
principal of and accrued interest on all of the Bonds shall become due and
payable without any declaration by the Trustee or the Holders.
The Indenture contains provisions permitting Farmland and the Trustee
to enter into one or more supplemental indentures under certain situations
without the consent of the Holders of any of the Bonds. The Indenture permits,
with certain exceptions as therein provided, the amendment thereof and the
modification of the rights and obligations of Farmland and the rights of the
Holders of the Securities of each series under the Indenture to be affected at
any time by Farmland and the Trustee with the consent of the Holders of a
majority in aggregate principal amount of the Outstanding Securities (as defined
in the Indenture) of each series affected thereby. The Indenture also contains
provisions permitting the Holders of specified percentages in aggregate
principal amount of the Outstanding Securities of each series under the
Indenture, on behalf of the Holders of all Securities of such series, to waive
compliance by Farmland 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 Bond shall be conclusive and binding upon such Holder and
upon all future Holders of this Bond and of any Bond issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof, whether
or not notation of such consent or waiver is made upon this Bond.
No reference herein to the Indenture and no provision of this Bond or
of the Indenture shall alter or impair the obligation of Farmland, which is
absolute and unconditional, to pay the principal of and interest on this Bond at
the times, places, and rate, and in the coin or currency, herein prescribed.
This Bond may be redeemed, after two (2) years from Date of Original
Issuance, at the option of Farmland at any time prior to maturity, on at least
fifteen (15) days written notice, at face value plus accrued interest to the
date of redemption only. The Indenture permits Farmland to select in any manner
at its discretion the Bonds to be redeemed.
Subject to the conditions hereinafter set forth, this Bond may be
redeemed at the option of the Holder.
(1)At any time three (3) years after the Date of Original Issuance, the Holder
may request redemption of this Bond from Farmland. Farmland will redeem
prior to maturity each month, on a first come, first serve basis (as
evidenced by the time stamped or otherwise recorded as the time of receipt by
Farmland) a limited amount of Redemption Eligible Bonds. Subject to the
carryover discussed below, the aggregate maximum amount of Redemption
Eligible Bonds, as a group, that Farmland will redeem each month will be the
greater of:
(a) $1,500,000 or
(b) 1/2 of 1% of the combined total principal balance outstanding of all
Redemption Eligible Bonds outstanding at the end of the prior month.
For purposes of the foregoing, "Redemption Eligible Bonds" mean Ten-Year,
Series A Bonds, Ten-Year, Series B Bonds, Five-Year, Series C Bonds, and
Five-Year, Series D Bonds issued under the Indenture and any other
subordinated debt that Farmland elects to designate as a "Redemption
Eligible Bond". If the amount determined pursuant to the foregoing formula
in any month (including any carryover from the prior month) exceeds the
total amount requested for redemption prior to maturity in that month, such
excess is carried over to the next month and added to the amount available
for redemption prior to maturity in that month; provided, however, that any
excess will not be carried beyond the end of Farmland's fiscal year.
If the total balance of outstanding Bonds of this series is less than
$5,000,000 at the end of any month, then in the following month any Bonds
of this series which have been held at least three (3) years from the Date
of Original Issuance will be redeemed at the request of the Holder without
regard to the above dollar limitation.
(2) In addition to the amounts made available for redemption prior to maturity
at the option of the Holder as described in (1) above, redemption will be
made in the case of death of Holder upon written request and delivery of
satisfactory proof of death and other documentation and in accordance with
applicable laws.
(3) In addition to the amounts made available for redemption prior to maturity
at the option of the Holder as described in (1) and (2) above, if this Bond
is held in an Individual Retirement Account (an "IRA") established under
Section 408 of the Internal Revenue Code of 1986, as amended (the "IRC"),
Farmland will redeem this Bond, upon written request, to the extent necessary
to satisfy mandatory withdrawals from the IRA which are required by the IRC.
Such redemption will be made only upon sufficient proof to Farmland that a
mandatory withdrawal from the IRA is required.
(4) The foregoing redemption privileges described in (1), (2) and (3) above are
subject to the condition as provided under the subordination provisions
applicable to the Subordinated Debenture Bonds, that Farmland cannot redeem
any of the Subordinated Debenture Bonds if, at the time of or immediately
after giving effect to such redemption, there shall exist under any Senior
Indebtedness or any indenture or agreement pursuant to which any Senior
Indebtedness is issued any default or any condition, event or act, which,
with notice or lapse of time, or both, would constitute a default.
Redemption prior to maturity will be made, subject to the
aforementioned conditions, upon the surrender of this Bond, properly endorsed
and accompanied by written requests for early redemption to Farmland.
Redemption prior to maturity will be made at the face value of this Bond plus
accrued interest to the date of redemption. Amounts available for redemption
prior to maturity are not set aside in a separate fund.
This Bond shall be subordinate, to the extent and in the manner
provided in the Indenture, in right of payment to the prior payment in full of
all Senior Indebtedness (as defined in the Indenture) and this Bond is issued
subject to the provisions of the Indenture with respect thereto. Each Holder of
this Bond, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his or her or its behalf
to take such action as may be necessary or appropriate to acknowledge or
effectuate the subordination so provided and (c) appoints the Trustee his or her
or its attorney-in-fact for any and all such purposes.
As provided in the Indenture, and subject to certain limitations
therein set forth, the transfer of this Bond may be registered on the Register
upon surrender of this Bond for registration of transfer at the office or agency
of Farmland, in Kansas City, Missouri, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to Farmland duly executed by
the Holder or by his attorney duly authorized in writing, and thereupon one or
more new Bonds of this series having the same terms as this Bond, of authorized
denominations, having the same terms and conditions and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Bonds are issuable only in registered form, without coupons. As
provided in the Indenture, and subject to certain limitations therein set forth,
this Bond is exchangeable for a like aggregate principal amount of Bonds having
the same terms as this Bond of different authorized denominations, as requested
by the Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange of Bonds, but Farmland may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
therewith.
Prior to due presentment of this Bond for registration of transfer,
Farmland, the Trustee and any agent of Farmland or the Trustee may treat the
person in whose name this Bond is registered as the owner hereof for all
purposes, whether or not this Bond be overdue, and neither Farmland, the Trustee
nor any such agent shall be affected by notice to the contrary.
All terms used in this Bond which are defined in the Indenture shall
have the meanings designated to them in the Indenture and all references in the
Indenture to "Security" or "Securities" shall be deemed to include the Bonds.
For value received, I, we and each of us hereby sell, assign and
transfer the within Bond and the indebtedness evidenced thereby to
___________________________________________________________
of _________________________________________________________
(ADDRESS) (CITY OR TOWN) STATE
THIS ASSIGNMENT WILL BECOME EFFECTIVE ONLY WHEN MADE AND ENTERED ON
THE BOOKS OF FARMLAND INDUSTRIES, INC.
{
__________ {___________________________________
DATE { (SIGNED)
ENDORSEMENT { ___________________________________
(SIGNED)
PRINCIPAL AMOUNT:
BOND NUMBER:
FARMLAND INDUSTRIES, INC.
Kansas City, Missouri 64116
SUBORDINATED DEBENTURE BONDS,
FIVE-YEAR, SERIES C
___________________________ _______________________
Name Date of Original Issuance
___________________________ _______________________
Street Maturity Date
___________________________ _______________________
City State Interest Rate
Farmland Industries, Inc., a Kansas corporation ("Farmland", which
term includes any successor corporation under the Indenture referred to herein),
for value received, hereby promises to pay to the owner named above or
registered assigns (the "Holder"), the principal amount shown above on the
Maturity Date specified above (except to the extent redeemed or repaid prior to
the Maturity Date), and to pay interest thereon from the most recent date to
which interest has been paid or, if no interest has been paid, from the date of
original issuance of this Bond (the "Date of Original Issuance") at the interest
rate per annum specified above (the "Interest Rate"), computed on the basis of a
365-day year, until the principal hereof is paid or duly made available for
payment, and to pay interest on overdue principal and, to the extent permitted
by law, overdue interest at the Interest Rate. Payment of principal and
interest shall be in such coin or currency of the United States of America as at
the time of payment shall be legal tender for the payment of public and private
debts.
Interest is payable at the option of the purchaser, made at the time
of original issuance in one of the following ways: (i) semiannually on January 1
and July 1, to Holders of record on the last preceding December 15 and June 15,
respectively (or, in the case of the first interest payment date, if originally
issued between the record date and the payment date, to the Holder on the Date
of Original Issuance); or (ii) at maturity or at the date of redemption if
redeemed prior to maturity, compounded semiannually, on December 31 and June 30
at the Interest Rate. Any election to receive payment of interest semiannually
is irrevocable. The election to receive payment of interest at maturity, or at
the date of redemption if redeemed prior to maturity, will be terminated upon
written request of the Holder, such termination to be effective as of the last
previous interest compounding date. Such termination is irrevocable and, at the
same time, is an election to receive payment of interest semiannually
thereafter. Any interest attributable to periods starting with the Date of
Original Issuance and ending with the effective date of the written request of
the Holder to terminate the election to receive payment of interest at maturity
or at the date of redemption if redeemed prior to maturity will be paid upon
receipt of the written request to terminate the election. Farmland shall have
the right at any time by notice to the Holder to terminate any obligation to
continue retaining the interest of any Holder. Such termination shall be
effective as of the opening of business on the day following the first interest
compounding date after such notice is mailed to the Holder and the Holder will
be paid all interest then accrued and unpaid to the Holder on the effective
date. If the Maturity Date (or date of redemption or repayment) or an interest
payment date falls on a day which is not a business day, principal or interest
payable with respect to such Maturity Date (or date of redemption or repayment)
or interest payment date will be paid on the next succeeding business day with
the same force and effect as if made on such Maturity Date (or date of
redemption or repayment) or interest payment date, as the case may be, and no
interest shall accrue on the amount so payable for the period from and after
such Maturity Date (or any date of redemption or repayment) or interest payment
date.
This Bond shall not be valid or become obligatory for any purpose
until the Certificate of Authentication hereon shall have been signed by the
Trustee under the Indenture mentioned on the reverse side hereof.
ISSUED THIS DAY OF , 19
Attest: FARMLAND INDUSTRIES, INC.
SECRETARY ________________________ BY PRESIDENT ____________________
Trustee's Certificate of Authentication
This is one of the Bonds described in the Indenture mentioned on the back
hereof.
COMMERCE BANK, NATIONAL ASSOCIATION
As Trustee By ____________________________________________
Authorized Signature
REVERSE SIDE OF FIVE-YEAR SERIES C
This Bond is one of a duly authorized issue of securities (hereinafter
called the "Securities") of Farmland issued and to be issued under an Indenture
dated as of ____________________ (herein called the "Indenture") between
Farmland and Commerce Bank, National Association, as Trustee (herein called the
"Trustee", which term includes any successor trustee under the Indenture), to
which the Indenture and all indentures supplemental thereto and the Officers'
Certificate (as defined in the Indenture) setting forth the terms of this series
of Securities reference is hereby made for a statement of the respective rights,
limitation of rights, duties and immunities thereunder of Farmland, the Trustee
and the Holders and the terms upon which the Bonds are, and are to be,
authenticated and delivered. The Bonds of this series may bear different dates,
mature at different times, bear interest at different rates, be subject to
different redemption or repayment provisions and may otherwise vary and are
entitled to the benefits of the Indenture.
Any interest which is payable, but is not punctually paid or duly
provided for, on any interest payment date and, to the extent permitted by law,
interest on such defaulted interest at the Interest Rate (such defaulted
interest and interest thereon herein collectively called "Defaulted Interest")
will not be payable to the Holder on the applicable record date; and such
Defaulted Interest may be paid by Farmland, at its election in each case, in the
time and manner as provided for in the Indenture.
Payment of the principal of, premium, if any, and interest on this
Bond will be made at the office or agency of Farmland in Kansas City, Missouri;
provided, however, that at the option of Farmland payment of interest other than
interest paid at maturity, redemption or repayment may be made by check mailed
to the address of the person entitled thereto as such address shall appear in
the Register or by electronic funds transfer or similar means to an account
maintained by the person entitled thereto as specified in the Register.
If an Event of Default (as defined in the Indenture) with respect to
the Bonds shall occur and be continuing, the Trustee or the Holders of not less
than a majority in principal amount of the outstanding Bonds may declare the
principal of and accrued interest on all the Bonds due and payable in the manner
and with the effect and subject to the conditions provided in the Indenture.
Upon certain events of bankruptcy, insolvency or reorganization of Farmland, the
principal of and accrued interest on all of the Bonds shall become due and
payable without any declaration by the Trustee or the Holders.
The Indenture contains provisions permitting Farmland and the Trustee
to enter into one or more supplemental indentures under certain situations
without the consent of the Holders of any of the Bonds. The Indenture permits,
with certain exceptions as therein provided, the amendment thereof and the
modification of the rights and obligations of Farmland and the rights of the
Holders of the Securities of each series under the Indenture to be affected at
any time by Farmland and the Trustee with the consent of the Holders of a
majority in aggregate principal amount of the Outstanding Securities (as defined
in the Indenture) of each series affected thereby. The Indenture also contains
provisions permitting the Holders of specified percentages in aggregate
principal amount of the Outstanding Securities of each series under the
Indenture, on behalf of the Holders of all Securities of such series, to waive
compliance by Farmland 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 Bond shall be conclusive and binding upon such Holder and
upon all future Holders of this Bond and of any Bond issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof, whether
or not notation of such consent or waiver is made upon this Bond.
No reference herein to the Indenture and no provision of this Bond or
of the Indenture shall alter or impair the obligation of Farmland, which is
absolute and unconditional, to pay the principal of and interest on this Bond at
the times, places, and rate, and in the coin or currency, herein prescribed.
This Bond may be redeemed, after two (2) years from Date of Original
Issuance, at the option of Farmland at any time prior to maturity, on at least
fifteen (15) days written notice, at face value plus accrued interest to the
date of redemption only. The Indenture permits Farmland to select in any manner
at its discretion the Bonds to be redeemed.
Subject to the conditions hereinafter set forth, this Bond may be
redeemed at the option of the Holder.
(1)At any time two (2) years after the Date of Original Issuance, the Holder
may request redemption of this Bond from Farmland. Farmland will redeem
prior to maturity each month, on a first come, first serve basis (as
evidenced by the time stamped or otherwise recorded as the time of receipt
by Farmland) a limited amount of Redemption Eligible Bonds. Subject to the
carryover discussed below, the aggregate maximum amount of Redemption
Eligible Bonds, as a group, that Farmland will redeem each month will be the
greater of:
(a) $1,500,000 or
(b) 1/2 of 1% of the combined total principal balance outstanding of all
Redemption Eligible Bonds outstanding at the end of the prior month.
For purposes of the foregoing, "Redemption Eligible Bonds" mean Ten-
Year, Series A Bonds, Ten-Year, Series B Bonds, Five-Year, Series C
Bonds, and Five-Year, Series D Bonds issued under the Indenture and any
other subordinated debt that Farmland elects to designate as a
"Redemption Eligible Bond". If the amount determined pursuant to the
foregoing formula in any month (including any carryover from the prior
month) exceeds the total amount requested for redemption prior to
maturity in that month, such excess is carried over to the next month
and added to the amount available for redemption prior to maturity in
that month; provided, however, that any excess will not be carried
beyond the end of Farmland's fiscal year.
If the total balance of outstanding Bonds of this series is less than
$5,000,000 at the end of any month, then in the following month any
Bonds of this series which have been held at least two (2) years from
the Date of Original Issuance will be redeemed at the request of the
Holder without regard to the above dollar limitation.
(2) In addition to the amounts made available for redemption prior to maturity
at the option of the Holder as described in (1) above, redemption will be
made in the case of death of Holder upon written request and delivery of
satisfactory proof of death and other documentation and in accordance with
applicable laws.
(3) In addition to the amounts made available for redemption prior to maturity
at the option of the Holder as described in (1) and (2) above, if this Bond
is held in an Individual Retirement Account (an "IRA") established under
Section 408 of the Internal Revenue Code of 1986, as amended (the "IRC"),
Farmland will redeem this Bond, upon written request, to the extent
necessary to satisfy mandatory withdrawals from the IRA which are required
by the IRC. Such redemption will be made only upon sufficient proof to
Farmland that a mandatory withdrawal from the IRA is required.
(4) The foregoing redemption privileges described in (1), (2) and (3) above
are subject to the condition as provided under the subordination provisions
applicable to the Subordinated Debenture Bonds, that Farmland cannot redeem
any of the Subordinated Debenture Bonds if, at the time of or immediately
after giving effect to such redemption, there shall exist under any Senior
Indebtedness or any indenture or agreement pursuant to which any Senior
Indebtedness is issued any default or any condition, event or act, which,
with notice or lapse of time, or both, would constitute a default.
Redemption prior to maturity will be made, subject to the
aforementioned conditions, upon the surrender of this Bond, properly endorsed
and accompanied by written requests for early redemption to Farmland.
Redemption prior to maturity will be made at the face value of this Bond plus
accrued interest to the date of redemption. Amounts available for redemption
prior to maturity are not set aside in a separate fund.
This Bond shall be subordinate, to the extent and in the manner
provided in the Indenture, in right of payment to the prior payment in full of
all Senior Indebtedness (as defined in the Indenture) and this Bond is issued
subject to the provisions of the Indenture with respect thereto. Each Holder of
this Bond, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his or her or its behalf
to take such action as may be necessary or appropriate to acknowledge or
effectuate the subordination so provided and (c) appoints the Trustee his or her
or its attorney-in-fact for any and all such purposes.
As provided in the Indenture, and subject to certain limitations
therein set forth, the transfer of this Bond may be registered on the Register
upon surrender of this Bond for registration of transfer at the office or agency
of Farmland, in Kansas City, Missouri, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to Farmland duly executed by
the Holder or by his attorney duly authorized in writing, and thereupon one or
more new Bonds of this series having the same terms as this Bond, of authorized
denominations, having the same terms and conditions and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Bonds are issuable only in registered form, without coupons. As
provided in the Indenture, and subject to certain limitations therein set forth,
this Bond is exchangeable for a like aggregate principal amount of Bonds having
the same terms as this Bond of different authorized denominations, as requested
by the Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange of Bonds, but Farmland may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
therewith.
Prior to due presentment of this Bond for registration of transfer,
Farmland, the Trustee and any agent of Farmland or the Trustee may treat the
person in whose name this Bond is registered as the owner hereof for all
purposes, whether or not this Bond be overdue, and neither Farmland, the Trustee
nor any such agent shall be affected by notice to the contrary.
All terms used in this Bond which are defined in the Indenture shall
have the meanings designated to them in the Indenture and all references in the
Indenture to "Security" or "Securities" shall be deemed to include the Bonds.
For value received, I, we and each of us hereby sell, assign and
transfer the within Bond and the indebtedness evidenced thereby to
____________________________________________________________
of _________________________________________________________
(ADDRESS) (CITY OR TOWN) STATE
THIS ASSIGNMENT WILL BECOME EFFECTIVE ONLY WHEN MADE AND ENTERED ON
THE BOOKS OF FARMLAND INDUSTRIES, INC.
{
__________ {___________________________________
DATE { (SIGNED)
ENDORSEMENT { ___________________________________
(SIGNED)
PRINCIPAL AMOUNT:
BOND NUMBER:
FARMLAND INDUSTRIES, INC.
Kansas City, Missouri 64116
SUBORDINATED DEBENTURE BONDS,
FIVE-YEAR, SERIES D
___________________________ _______________________
Name Date of Original
Issuance
___________________________ _______________________
Street Maturity Date
___________________________ _______________________
City State Interest Rate
Farmland Industries, Inc., a Kansas corporation ("Farmland", which
term includes any successor corporation under the Indenture referred to herein),
for value received, hereby promises to pay to the owner named above or
registered assigns (the "Holder"), the principal amount shown above on the
Maturity Date specified above (except to the extent redeemed or repaid prior to
the Maturity Date), and to pay interest thereon from the most recent date to
which interest has been paid or, if no interest has been paid, from the date of
original issuance of this Bond (the "Date of Original Issuance") at the interest
rate per annum specified above (the "Interest Rate"), computed on the basis of a
365-day year, until the principal hereof is paid or duly made available for
payment, and to pay interest on overdue principal and, to the extent permitted
by law, overdue interest at the Interest Rate. Payment of principal and
interest shall be in such coin or currency of the United States of America as at
the time of payment shall be legal tender for the payment of public and private
debts.
Interest is payable at the option of the purchaser, made at the time
of original issuance in one of the following ways: (i) semiannually on January 1
and July 1, to Holders of record on the last preceding December 15 and June 15,
respectively (or, in the case of the first interest payment date, if originally
issued between the record date and the payment date, to the Holder on the Date
of Original Issuance); or (ii) at maturity or at the date of redemption if
redeemed prior to maturity, compounded semiannually, on December 31 and June 30
at the Interest Rate. Any election to receive payment of interest semiannually
is irrevocable. The election to receive payment of interest at maturity, or at
the date of redemption if redeemed prior to maturity, will be terminated upon
written request of the Holder, such termination to be effective as of the last
previous interest compounding date. Such termination is irrevocable and, at the
same time, is an election to receive payment of interest semiannually
thereafter. Any interest attributable to periods starting with the Date of
Original Issuance and ending with the effective date of the written request of
the Holder to terminate the election to receive payment of interest at maturity
or at the date of redemption if redeemed prior to maturity will be paid upon
receipt of the written request to terminate the election. Farmland shall have
the right at any time by notice to the Holder to terminate any obligation to
continue retaining the interest of any Holder. Such termination shall be
effective as of the opening of business on the day following the first interest
compounding date after such notice is mailed to the Holder and the Holder will
be paid all interest then accrued and unpaid to the Holder on the effective
date. If the Maturity Date (or date of redemption or repayment) or an interest
payment date falls on a day which is not a business day, principal or interest
payable with respect to such Maturity Date (or date of redemption or repayment)
or interest payment date will be paid on the next succeeding business day with
the same force and effect as if made on such Maturity Date (or date of
redemption or repayment) or interest payment date, as the case may be, and no
interest shall accrue on the amount so payable for the period from and after
such Maturity Date (or any date of redemption or repayment) or interest payment
date.
This Bond shall not be valid or become obligatory for any purpose
until the Certificate of Authentication hereon shall have been signed by the
Trustee under the Indenture mentioned on the reverse side hereof.
ISSUED THIS DAY OF , 19
Attest: FARMLAND INDUSTRIES, INC.
SECRETARY ________________________ BY PRESIDENT ____________________
Trustee's Certificate of Authentication
This is one of the Bonds described in the Indenture mentioned on the back
hereof.
COMMERCE BANK, NATIONAL ASSOCIATION
As Trustee By ____________________________________________
Authorized Signature
REVERSE SIDE OF FIVE-YEAR SERIES D
This Bond is one of a duly authorized issue of securities (hereinafter
called the "Securities") of Farmland issued and to be issued under an Indenture
dated as of ____________________ (herein called the "Indenture") between
Farmland and Commerce Bank, National Association, as Trustee (herein called the
"Trustee", which term includes any successor trustee under the Indenture), to
which the Indenture and all indentures supplemental thereto and the Officers'
Certificate (as defined in the Indenture) setting forth the terms of this series
of Securities reference is hereby made for a statement of the respective rights,
limitation of rights, duties and immunities thereunder of Farmland, the Trustee
and the Holders and the terms upon which the Bonds are, and are to be,
authenticated and delivered. The Bonds of this series may bear different dates,
mature at different times, bear interest at different rates, be subject to
different redemption or repayment provisions and may otherwise vary and are
entitled to the benefits of the Indenture.
Any interest which is payable, but is not punctually paid or duly
provided for, on any interest payment date and, to the extent permitted by law,
interest on such defaulted interest at the Interest Rate (such defaulted
interest and interest thereon herein collectively called "Defaulted Interest")
will not be payable to the Holder on the applicable record date; and such
Defaulted Interest may be paid by Farmland, at its election in each case, in the
time and manner as provided for in the Indenture.
Payment of the principal of, premium, if any, and interest on this
Bond will be made at the office or agency of Farmland in Kansas City, Missouri;
provided, however, that at the option of Farmland payment of interest other than
interest paid at maturity, redemption or repayment may be made by check mailed
to the address of the person entitled thereto as such address shall appear in
the Register or by electronic funds transfer or similar means to an account
maintained by the person entitled thereto as specified in the Register.
If an Event of Default (as defined in the Indenture) with respect to
the Bonds shall occur and be continuing, the Trustee or the Holders of not less
than a majority in principal amount of the outstanding Bonds may declare the
principal of and accrued interest on all the Bonds due and payable in the manner
and with the effect and subject to the conditions provided in the Indenture.
Upon certain events of bankruptcy, insolvency or reorganization of Farmland, the
principal of and accrued interest on all of the Bonds shall become due and
payable without any declaration by the Trustee or the Holders.
The Indenture contains provisions permitting Farmland and the Trustee
to enter into one or more supplemental indentures under certain situations
without the consent of the Holders of any of the Bonds. The Indenture permits,
with certain exceptions as therein provided, the amendment thereof and the
modification of the rights and obligations of Farmland and the rights of the
Holders of the Securities of each series under the Indenture to be affected at
any time by Farmland and the Trustee with the consent of the Holders of a
majority in aggregate principal amount of the Outstanding Securities (as defined
in the Indenture) of each series affected thereby. The Indenture also contains
provisions permitting the Holders of specified percentages in aggregate
principal amount of the Outstanding Securities of each series under the
Indenture, on behalf of the Holders of all Securities of such series, to waive
compliance by Farmland 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 Bond shall be conclusive and binding upon such Holder and
upon all future Holders of this Bond and of any Bond issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof, whether
or not notation of such consent or waiver is made upon this Bond.
No reference herein to the Indenture and no provision of this Bond or
of the Indenture shall alter or impair the obligation of Farmland, which is
absolute and unconditional, to pay the principal of and interest on this Bond at
the times, places, and rate, and in the coin or currency, herein prescribed.
This Bond may be redeemed, after two (2) years from Date of Original
Issuance, at the option of Farmland at any time prior to maturity, on at least
fifteen (15) days written notice, at face value plus accrued interest to the
date of redemption only. The Indenture permits Farmland to select in any manner
at its discretion the Bonds to be redeemed.
Subject to the conditions hereinafter set forth, this Bond may be
redeemed at the option of the Holder.
(1)At any time two (2) years after the Date of Original Issuance, the Holder
may request redemption of this Bond from Farmland. Farmland will redeem
prior to maturity each month, on a first come, first serve basis (as
evidenced by the time stamped or otherwise recorded as the time of receipt
by Farmland) a limited amount of Redemption Eligible Bonds. Subject to the
carryover discussed below, the aggregate maximum amount of Redemption
Eligible Bonds, as a group, that Farmland will redeem each month will be the
greater of:
(a) $1,500,000 or
(b) 1/2 of 1% of the combined total principal balance outstanding of all
Redemption Eligible Bonds outstanding at the end of the prior month.
For purposes of the foregoing, "Redemption Eligible Bonds" mean Ten-
Year, Series A Bonds, Ten-Year, Series B Bonds, Five-Year, Series C
Bonds, and Five-Year, Series D Bonds issued under the Indenture and any
other subordinated debt that Farmland elects to designate as a
"Redemption Eligible Bond". If the amount determined pursuant to the
foregoing formula in any month (including any carryover from the prior
month) exceeds the total amount requested for redemption prior to
maturity in that month, such excess is carried over to the next month
and added to the amount available for redemption prior to maturity in
that month; provided, however, that any excess will not be carried
beyond the end of Farmland's fiscal year.
If the total balance of outstanding Bonds of this series is less than
$5,000,000 at the end of any month, then in the following month any
Bonds of this series which have been held at least two (2) years from
the Date of Original Issuance will be redeemed at the request of the
Holder without regard to the above dollar limitation.
(2) In addition to the amounts made available for redemption prior to maturity
at the option of the Holder as described in (1) above, redemption will be
made in the case of death of Holder upon written request and delivery of
satisfactory proof of death and other documentation and in accordance with
applicable laws.
(3) In addition to the amounts made available for redemption prior to maturity
at the option of the Holder as described in (1) and (2) above, if this Bond
is held in an Individual Retirement Account (an "IRA") established under
Section 408 of the Internal Revenue Code of 1986, as amended (the "IRC"),
Farmland will redeem this Bond, upon written request, to the extent
necessary to satisfy mandatory withdrawals from the IRA which are required
by the IRC. Such redemption will be made only upon sufficient proof to
Farmland that a mandatory withdrawal from the IRA is required.
(4) The foregoing redemption privileges described in (1), (2) and (3) above
are subject to the condition as provided under the subordination provisions
applicable to the Subordinated Debenture Bonds, that Farmland cannot redeem
any of the Subordinated Debenture Bonds if, at the time of or immediately
after giving effect to such redemption, there shall exist under any Senior
Indebtedness or any indenture or agreement pursuant to which any Senior
Indebtedness is issued any default or any condition, event or act, which,
with notice or lapse of time, or both, would constitute a default.
Redemption prior to maturity will be made, subject to the
aforementioned conditions, upon the surrender of this Bond, properly endorsed
and accompanied by written requests for early redemption to Farmland.
Redemption prior to maturity will be made at the face value of this Bond plus
accrued interest to the date of redemption. Amounts available for redemption
prior to maturity are not set aside in a separate fund.
This Bond shall be subordinate, to the extent and in the manner
provided in the Indenture, in right of payment to the prior payment in full of
all Senior Indebtedness (as defined in the Indenture) and this Bond is issued
subject to the provisions of the Indenture with respect thereto. Each Holder of
this Bond, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his or her or its behalf
to take such action as may be necessary or appropriate to acknowledge or
effectuate the subordination so provided and (c) appoints the Trustee his or her
or its attorney-in-fact for any and all such purposes.
As provided in the Indenture, and subject to certain limitations
therein set forth, the transfer of this Bond may be registered on the Register
upon surrender of this Bond for registration of transfer at the office or agency
of Farmland, in Kansas City, Missouri, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to Farmland duly executed by
the Holder or by his attorney duly authorized in writing, and thereupon one or
more new Bonds of this series having the same terms as this Bond, of authorized
denominations, having the same terms and conditions and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Bonds are issuable only in registered form, without coupons. As
provided in the Indenture, and subject to certain limitations therein set forth,
this Bond is exchangeable for a like aggregate principal amount of Bonds having
the same terms as this Bond of different authorized denominations, as requested
by the Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange of Bonds, but Farmland may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
therewith.
Prior to due presentment of this Bond for registration of transfer,
Farmland, the Trustee and any agent of Farmland or the Trustee may treat the
person in whose name this Bond is registered as the owner hereof for all
purposes, whether or not this Bond be overdue, and neither Farmland, the Trustee
nor any such agent shall be affected by notice to the contrary.
All terms used in this Bond which are defined in the Indenture shall
have the meanings designated to them in the Indenture and all references in the
Indenture to "Security" or "Securities" shall be deemed to include the Bonds.
For value received, I, we and each of us hereby sell, assign and
transfer the within Bond and the indebtedness evidenced thereby to
____________________________________________________________
of _________________________________________________________
(ADDRESS) (CITY OR TOWN) STATE
THIS ASSIGNMENT WILL BECOME EFFECTIVE ONLY WHEN MADE AND ENTERED ON
THE BOOKS OF FARMLAND INDUSTRIES, INC.
{
__________ {___________________________________
DATE { (SIGNED)
ENDORSEMENT { ___________________________________
(SIGNED)
PRINCIPAL AMOUNT:
BOND NUMBER:
FARMLAND INDUSTRIES, INC.
Kansas City, Missouri 64116
SUBORDINATED DEBENTURE BONDS,
TEN-YEAR MONTHLY INCOME, SERIES E
___________________________ _______________________
Name Date of Original Issuance
___________________________ _______________________
Street Maturity Date
___________________________ _______________________
City State Interest Rate
Farmland Industries, Inc., a Kansas corporation ("Farmland", which
term includes any successor corporation under the Indenture referred to herein),
for value received, hereby promises to pay to the owner named above or
registered assigns (the "Holder"), the principal amount shown above on the
Maturity Date specified above (except to the extent redeemed or repaid prior to
the Maturity Date), and to pay interest thereon from the most recent date to
which interest has been paid or, if no interest has been paid, from the date of
original issuance of this Bond (the "Date of Original Issuance") at the interest
rate per annum specified above (the "Interest Rate"), computed on the basis of a
365-day year, until the principal hereof is paid or duly made available for
payment, and to pay interest on overdue principal and, to the extent permitted
by law, overdue interest at the Interest Rate. Payment of principal and
interest shall be in such coin or currency of the United States of America as at
the time of payment shall be legal tender for the payment of public and private
debts.
Interest on the principal sum is payable monthly on the first day of
each month following the month in which this Bond is issued to Holders of record
on the last day of the preceding month. If the Maturity Date (or any date of
redemption or repayment) or an interest payment date falls on a day which is not
a business day, principal or interest payable with respect to such Maturity Date
(or date of redemption or repayment) or interest payment date will be paid on
the next succeeding business day with the same force and effect as if made on
such Maturity Date (or date of redemption or repayment) or interest payment
date, as the case may be, and no interest shall accrue on the amount so payable
for the period from and after such Maturity Date (or date of redemption or
repayment) or interest payment date.
This Bond shall not be valid or become obligatory for any purpose
until the Certificate of Authentication hereon shall have been signed by the
Trustee under the Indenture mentioned on the reverse side hereof.
ISSUED THIS DAY OF , 19
Attest: FARMLAND INDUSTRIES, INC.
SECRETARY ________________________ BY PRESIDENT ____________________
Trustee's Certificate of Authentication
This is one of the Bonds described in the Indenture mentioned on the back
hereof.
COMMERCE BANK, NATIONAL ASSOCIATION
As Trustee By ____________________________________________
Authorized Signature
REVERSE SIDE OF MONTHLY INCOME BONDS
This Bond is one of a duly authorized issue of securities (hereinafter
called the "Securities") of Farmland issued and to be issued under an Indenture
dated as of ____________________ (herein called the "Indenture") between
Farmland and Commerce Bank, National Association, as Trustee (herein called the
"Trustee", which term includes any successor trustee under the Indenture), to
which the Indenture and all indentures supplemental thereto and the Officers'
Certificate (as defined in the Indenture) setting forth the terms of this series
of Securities reference is hereby made for a statement of the respective rights,
limitation of rights, duties and immunities thereunder of Farmland, the Trustee
and the Holders and the terms upon which the Bonds are, and are to be,
authenticated and delivered. The Bonds of this series may bear different dates,
mature at different times, bear interest at different rates, be subject to
different redemption or repayment provisions and may otherwise vary and are
entitled to the benefits of the Indenture.
Any interest which is payable, but is not punctually paid or duly
provided for, on any interest payment date and, to the extent permitted by law,
interest on such defaulted interest at the Interest Rate (such defaulted
interest and interest thereon herein collectively called "Defaulted Interest")
shall not be payable to the Holder on the record date; and such Defaulted
Interest may be paid by Farmland, at its election in each case, in the time and
manner as provided for in the Indenture.
Payment of the principal of, premium, if any, and interest on this
Bond will be made at the office or agency of Farmland in Kansas City, Missouri;
provided, however, that at the option of Farmland payment of interest other than
interest paid at maturity, redemption or repayment may be made by check mailed
to the address of the person entitled thereto as such address shall appear in
the Register or by electronic funds transfer or similar means to an account
maintained by the person entitled thereto as specified in the Register.
If an Event of Default (as defined in the Indenture) with respect to
the Bonds shall occur and be continuing, the Trustee or the Holders of not less
than a majority in principal amount of the outstanding Bonds may declare the
principal of and accrued interest on all of the Bonds due and payable in the
manner and with the effect and subject to the conditions provided in the
Indenture. Upon certain events of bankruptcy, insolvency or reorganization of
Farmland, the principal and accrued interest of all of the Bonds shall become
due and payable without any declaration by the Trustee or the Holders.
The Indenture contains provisions permitting Farmland and the Trustee
to enter into one or more supplemental indentures under certain situations
without the consent of the Holders of any of the Bonds. The Indenture permits,
with certain exceptions as therein provided, the amendment thereof and the
modification of the rights and obligations of Farmland and the rights of the
Holders of the Securities of each series under the Indenture to be affected at
any time by Farmland and the Trustee with the consent of the Holders of a
majority in aggregate principal amount of the Outstanding Securities (as defined
in the Indenture) of each series affected thereby. The Indenture also contains
provisions permitting the Holders of specified percentages in aggregate
principal amount of the Outstanding Securities of each series under the
Indenture, on behalf of the Holders of all Securities of such series, to waive
compliance by Farmland 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 Bond shall be conclusive and binding upon such Holder and
upon all future Holders of this Bond and of any Bond issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof, whether
or not notation of such consent or waiver is made upon this Bond.
No reference herein to the Indenture and no provision of this Bond or
of the Indenture shall alter or impair the obligation of Farmland, which is
absolute and unconditional, to pay the principal of and interest on this Bond at
the times, places, and rate, and in the coin or currency, herein prescribed.
This Bond cannot be called for redemption by Farmland any time prior
to maturity.
Except as hereinafter provided, this Bond cannot be redeemed at the
option of the Holder prior to maturity. In the case of death of the Holder,
Farmland will redeem this Bond upon written request to Farmland and delivery of
satisfactory proof of death and other documentation and in accordance with
applicable law. Redemptions will be made at the face value of the bonds plus
accrued interest to the date of redemption only.
This Bond shall be subordinate in right of payment to all money
borrowed from banks, trust companies, insurance companies or pension trusts or
evidenced by securities issued under the provisions of an indenture or loan or
other agreement pursuant to which Senior Indebtedness is issued, whether secured
or unsecured, and whether or not now owed or hereafter incurred.
As provided in the Indenture, and subject to certain limitations
therein set forth, the transfer of this Bond may be registered on the Register
upon surrender of this Bond for registration of transfer at the office or agency
of Farmland, in Kansas City, Missouri, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to Farmland duly executed by
the Holder or by his attorney duly authorized in writing, and thereupon one or
more new Bonds of this series having the same terms as this Bond, of authorized
denominations, having the same terms and conditions and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Bonds are issuable only in registered form, without coupons. As
provided in the Indenture, and subject to certain limitations therein set forth,
this Bond is exchangeable for a like aggregate principal amount of Bonds having
the same terms as this Bond of different authorized denominations, as requested
by the Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange of Bonds, but Farmland may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
therewith.
Prior to due presentment of this Bond for registration of transfer,
Farmland, the Trustee and any agent of Farmland or the Trustee may treat the
person in whose name this Bond is registered as the owner hereof for all
purposes, whether or not this Bond is overdue, and neither Farmland, the Trustee
nor any such agent shall be affected by notice to the contrary.
All terms used in this Bond which are defined in the Indenture shall
have the meanings designated to them in the Indenture and all references in the
Indenture to "Security" or "Securities" shall be deemed to include the Bonds.
For value received, I, we and each of us hereby sell, assign and
transfer the within Bond and the indebtedness evidenced thereby to
___________________________________________________
of _________________________________________________
(ADDRESS) (CITY OR TOWN) STATE
THIS ASSIGNMENT WILL BECOME EFFECTIVE ONLY WHEN MADE AND ENTERED ON
THE BOOKS OF FARMLAND, INDUSTRIES INC.
{
__________ {___________________________________
DATE { (SIGNED)
ENDORSEMENT { ___________________________________
(SIGNED) _
PRINCIPAL AMOUNT:
BOND NUMBER:
FARMLAND INDUSTRIES, INC.
Kansas City, Missouri 64116
SUBORDINATED DEBENTURE BONDS,
TEN-YEAR MONTHLY INCOME, SERIES F
___________________________ _______________________
Name Date of Original Issuance
___________________________ _______________________
Street Maturity Date
___________________________ _______________________
City State Interest Rate
Farmland Industries, Inc., a Kansas corporation ("Farmland", which
term includes any successor corporation under the Indenture referred to herein),
for value received, hereby promises to pay to the owner named above or
registered assigns (the "Holder"), the principal amount shown above on the
Maturity Date specified above (except to the extent redeemed or repaid prior to
the Maturity Date), and to pay interest thereon from the most recent date to
which interest has been paid or, if no interest has been paid, from the date of
original issuance of this Bond (the "Date of Original Issuance") at the interest
rate per annum specified above (the "Interest Rate"), computed on the basis of a
365-day year, until the principal hereof is paid or duly made available for
payment, and to pay interest on overdue principal and, to the extent permitted
by law, overdue interest at the Interest Rate. Payment of principal and
interest shall be in such coin or currency of the United States of America as at
the time of payment shall be legal tender for the payment of public and private
debts.
Interest on the principal sum is payable monthly on the first day of
each month following the month in which this Bond is issued to Holders of record
on the last day of the preceding month. If the Maturity Date (or any date of
redemption or repayment) or an interest payment date falls on a day which is not
a business day, principal or interest payable with respect to such Maturity Date
(or date of redemption or repayment) or interest payment date will be paid on
the next succeeding business day with the same force and effect as if made on
such Maturity Date (or date of redemption or repayment) or interest payment
date, as the case may be, and no interest shall accrue on the amount so payable
for the period from and after such Maturity Date (or date of redemption or
repayment) or interest payment date.
This Bond shall not be valid or become obligatory for any purpose
until the Certificate of Authentication hereon shall have been signed by the
Trustee under the Indenture mentioned on the reverse side hereof.
ISSUED THIS DAY OF , 19
Attest: FARMLAND INDUSTRIES, INC.
SECRETARY ________________________ BY PRESIDENT ____________________
Trustee's Certificate of Authentication
This is one of the Bonds described in the Indenture mentioned on the back
hereof.
COMMERCE BANK, NATIONAL ASSOCIATION
As Trustee By ____________________________________________
Authorized Signature
REVERSE SIDE OF MONTHLY INCOME BONDS
This Bond is one of a duly authorized issue of securities (hereinafter
called the "Securities") of Farmland issued and to be issued under an Indenture
dated as of ____________________ (herein called the "Indenture") between
Farmland and Commerce Bank, National Association, as Trustee (herein called the
"Trustee", which term includes any successor trustee under the Indenture), to
which the Indenture and all indentures supplemental thereto and the Officers'
Certificate (as defined in the Indenture) setting forth the terms of this series
of Securities reference is hereby made for a statement of the respective rights,
limitation of rights, duties and immunities thereunder of Farmland, the Trustee
and the Holders and the terms upon which the Bonds are, and are to be,
authenticated and delivered. The Bonds of this series may bear different dates,
mature at different times, bear interest at different rates, be subject to
different redemption or repayment provisions and may otherwise vary and are
entitled to the benefits of the Indenture.
Any interest which is payable, but is not punctually paid or duly
provided for, on any interest payment date and, to the extent permitted by law,
interest on such defaulted interest at the Interest Rate (such defaulted
interest and interest thereon herein collectively called "Defaulted Interest")
shall not be payable to the Holder on the record date; and such Defaulted
Interest may be paid by Farmland, at its election in each case, in the time and
manner as provided for in the Indenture.
Payment of the principal of, premium, if any, and interest on this
Bond will be made at the office or agency of Farmland in Kansas City, Missouri;
provided, however, that at the option of Farmland payment of interest other than
interest paid at maturity, redemption or repayment may be made by check mailed
to the address of the person entitled thereto as such address shall appear in
the Register or by electronic funds transfer or similar means to an account
maintained by the person entitled thereto as specified in the Register.
If an Event of Default (as defined in the Indenture) with respect to
the Bonds shall occur and be continuing, the Trustee or the Holders of not less
than a majority in principal amount of the outstanding Bonds may declare the
principal of and accrued interest on all of the Bonds due and payable in the
manner and with the effect and subject to the conditions provided in the
Indenture. Upon certain events of bankruptcy, insolvency or reorganization of
Farmland, the principal and accrued interest of all of the Bonds shall become
due and payable without any declaration by the Trustee or the Holders.
The Indenture contains provisions permitting Farmland and the Trustee
to enter into one or more supplemental indentures under certain situations
without the consent of the Holders of any of the Bonds. The Indenture permits,
with certain exceptions as therein provided, the amendment thereof and the
modification of the rights and obligations of Farmland and the rights of the
Holders of the Securities of each series under the Indenture to be affected at
any time by Farmland and the Trustee with the consent of the Holders of a
majority in aggregate principal amount of the Outstanding Securities (as defined
in the Indenture) of each series affected thereby. The Indenture also contains
provisions permitting the Holders of specified percentages in aggregate
principal amount of the Outstanding Securities of each series under the
Indenture, on behalf of the Holders of all Securities of such series, to waive
compliance by Farmland 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 Bond shall be conclusive and binding upon such Holder and
upon all future Holders of this Bond and of any Bond issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof, whether
or not notation of such consent or waiver is made upon this Bond.
No reference herein to the Indenture and no provision of this Bond or
of the Indenture shall alter or impair the obligation of Farmland, which is
absolute and unconditional, to pay the principal of and interest on this Bond at
the times, places, and rate, and in the coin or currency, herein prescribed.
This Bond cannot be called for redemption by Farmland any time prior
to maturity.
Except as hereinafter provided, this Bond cannot be redeemed at the
option of the Holder prior to maturity. In the case of death of the Holder,
Farmland will redeem this Bond upon written request to Farmland and delivery of
satisfactory proof of death and other documentation and in accordance with
applicable law. Redemptions will be made at the face value of the bonds plus
accrued interest to the date of redemption only.
This Bond shall be subordinate in right of payment to all money
borrowed from banks, trust companies, insurance companies or pension trusts or
evidenced by securities issued under the provisions of an indenture or loan or
other agreement pursuant to which Senior Indebtedness is issued, whether secured
or unsecured, and whether or not now owed or hereafter incurred.
As provided in the Indenture, and subject to certain limitations
therein set forth, the transfer of this Bond may be registered on the Register
upon surrender of this Bond for registration of transfer at the office or agency
of Farmland, in Kansas City, Missouri, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to Farmland duly executed by
the Holder or by his attorney duly authorized in writing, and thereupon one or
more new Bonds of this series having the same terms as this Bond, of authorized
denominations, having the same terms and conditions and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Bonds are issuable only in registered form, without coupons. As
provided in the Indenture, and subject to certain limitations therein set forth,
this Bond is exchangeable for a like aggregate principal amount of Bonds having
the same terms as this Bond of different authorized denominations, as requested
by the Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange of Bonds, but Farmland may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
therewith.
Prior to due presentment of this Bond for registration of transfer,
Farmland, the Trustee and any agent of Farmland or the Trustee may treat the
person in whose name this Bond is registered as the owner hereof for all
purposes, whether or not this Bond is overdue, and neither Farmland, the Trustee
nor any such agent shall be affected by notice to the contrary.
All terms used in this Bond which are defined in the Indenture shall
have the meanings designated to them in the Indenture and all references in the
Indenture to "Security" or "Securities" shall be deemed to include the Bonds.
For value received, I, we and each of us hereby sell, assign and
transfer the within Bond and the indebtedness evidenced thereby to
___________________________________________________
of _________________________________________________
(ADDRESS) (CITY OR TOWN) STATE
THIS ASSIGNMENT WILL BECOME EFFECTIVE ONLY WHEN MADE AND ENTERED ON
THE BOOKS OF FARMLAND, INDUSTRIES INC.
{
__________ {___________________________________
DATE { (SIGNED)
ENDORSEMENT { ___________________________________
(SIGNED) ______________________
PRINCIPAL AMOUNT:
BOND NUMBER:
FARMLAND INDUSTRIES, INC.
Kansas City, Missouri 64116
SUBORDINATED DEBENTURE BONDS,
FIVE-YEAR MONTHLY INCOME, SERIES G
___________________________ _______________________
Name Date of Original Issuance
___________________________ _______________________
Street Maturity Date
___________________________ _______________________
City State Interest Rate
Farmland Industries, Inc., a Kansas corporation ("Farmland", which
term includes any successor corporation under the Indenture referred to herein),
for value received, hereby promises to pay to the owner named above or
registered assigns (the "Holder"), the principal amount shown above on the
Maturity Date specified above (except to the extent redeemed or repaid prior to
the Maturity Date), and to pay interest thereon from the most recent date to
which interest has been paid or, if no interest has been paid, from the date of
original issuance of this Bond (the "Date of Original Issuance") at the interest
rate per annum specified above (the "Interest Rate"), computed on the basis of a
365-day year, until the principal hereof is paid or duly made available for
payment, and to pay interest on overdue principal and, to the extent permitted
by law, overdue interest at the Interest Rate. Payment of principal and
interest shall be in such coin or currency of the United States of America as at
the time of payment shall be legal tender for the payment of public and private
debts.
Interest on the principal sum is payable monthly on the first day of
each month following the month in which this Bond is issued to Holders of record
on the last day of the preceding month. If the Maturity Date (or any date of
redemption or repayment) or an interest payment date falls on a day which is not
a business day, principal or interest payable with respect to such Maturity Date
(or date of redemption or repayment) or interest payment date will be paid on
the next succeeding business day with the same force and effect as if made on
such Maturity Date (or date of redemption or repayment) or interest payment
date, as the case may be, and no interest shall accrue on the amount so payable
for the period from and after such Maturity Date (or date of redemption or
repayment) or interest payment date.
This Bond shall not be valid or become obligatory for any purpose
until the Certificate of Authentication hereon shall have been signed by the
Trustee under the Indenture mentioned on the reverse side hereof.
ISSUED THIS DAY OF , 19
Attest: FARMLAND INDUSTRIES, INC.
SECRETARY ________________________ BY PRESIDENT ____________________
Trustee's Certificate of Authentication
This is one of the Bonds described in the Indenture mentioned on the back
hereof.
COMMERCE BANK, NATIONAL ASSOCIATION
As Trustee By ____________________________________________
Authorized Signature
REVERSE SIDE OF MONTHLY INCOME BONDS
This Bond is one of a duly authorized issue of securities (hereinafter
called the "Securities") of Farmland issued and to be issued under an Indenture
dated as of ____________________ (herein called the "Indenture") between
Farmland and Commerce Bank, National Association, as Trustee (herein called the
"Trustee", which term includes any successor trustee under the Indenture), to
which the Indenture and all indentures supplemental thereto and the Officers'
Certificate (as defined in the Indenture) setting forth the terms of this series
of Securities reference is hereby made for a statement of the respective rights,
limitation of rights, duties and immunities thereunder of Farmland, the Trustee
and the Holders and the terms upon which the Bonds are, and are to be,
authenticated and delivered. The Bonds of this series may bear different dates,
mature at different times, bear interest at different rates, be subject to
different redemption or repayment provisions and may otherwise vary and are
entitled to the benefits of the Indenture.
Any interest which is payable, but is not punctually paid or duly
provided for, on any interest payment date and, to the extent permitted by law,
interest on such defaulted interest at the Interest Rate (such defaulted
interest and interest thereon herein collectively called "Defaulted Interest")
shall not be payable to the Holder on the record date; and such Defaulted
Interest may be paid by Farmland, at its election in each case, in the time and
manner as provided for in the Indenture.
Payment of the principal of, premium, if any, and interest on this
Bond will be made at the office or agency of Farmland in Kansas City, Missouri;
provided, however, that at the option of Farmland payment of interest other than
interest paid at maturity, redemption or repayment may be made by check mailed
to the address of the person entitled thereto as such address shall appear in
the Register or by electronic funds transfer or similar means to an account
maintained by the person entitled thereto as specified in the Register.
If an Event of Default (as defined in the Indenture) with respect to
the Bonds shall occur and be continuing, the Trustee or the Holders of not less
than a majority in principal amount of the outstanding Bonds may declare the
principal of and accrued interest on all of the Bonds due and payable in the
manner and with the effect and subject to the conditions provided in the
Indenture. Upon certain events of bankruptcy, insolvency or reorganization of
Farmland, the principal and accrued interest of all of the Bonds shall become
due and payable without any declaration by the Trustee or the Holders.
The Indenture contains provisions permitting Farmland and the Trustee
to enter into one or more supplemental indentures under certain situations
without the consent of the Holders of any of the Bonds. The Indenture permits,
with certain exceptions as therein provided, the amendment thereof and the
modification of the rights and obligations of Farmland and the rights of the
Holders of the Securities of each series under the Indenture to be affected at
any time by Farmland and the Trustee with the consent of the Holders of a
majority in aggregate principal amount of the Outstanding Securities (as defined
in the Indenture) of each series affected thereby. The Indenture also contains
provisions permitting the Holders of specified percentages in aggregate
principal amount of the Outstanding Securities of each series under the
Indenture, on behalf of the Holders of all Securities of such series, to waive
compliance by Farmland 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 Bond shall be conclusive and binding upon such Holder and
upon all future Holders of this Bond and of any Bond issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof, whether
or not notation of such consent or waiver is made upon this Bond.
No reference herein to the Indenture and no provision of this Bond or
of the Indenture shall alter or impair the obligation of Farmland, which is
absolute and unconditional, to pay the principal of and interest on this Bond at
the times, places, and rate, and in the coin or currency, herein prescribed.
This Bond cannot be called for redemption by Farmland any time prior
to maturity.
Except as hereinafter provided, this Bond cannot be redeemed at the
option of the Holder prior to maturity. In the case of death of the Holder,
Farmland will redeem this Bond upon written request to Farmland and delivery of
satisfactory proof of death and other documentation and in accordance with
applicable law. Redemptions will be made at the face value of the bonds plus
accrued interest to the date of redemption only.
This Bond shall be subordinate in right of payment to all money
borrowed from banks, trust companies, insurance companies or pension trusts or
evidenced by securities issued under the provisions of an indenture or loan or
other agreement pursuant to which Senior Indebtedness is issued, whether secured
or unsecured, and whether or not now owed or hereafter incurred.
As provided in the Indenture, and subject to certain limitations
therein set forth, the transfer of this Bond may be registered on the Register
upon surrender of this Bond for registration of transfer at the office or agency
of Farmland, in Kansas City, Missouri, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to Farmland duly executed by
the Holder or by his attorney duly authorized in writing, and thereupon one or
more new Bonds of this series having the same terms as this Bond, of authorized
denominations, having the same terms and conditions and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Bonds are issuable only in registered form, without coupons. As
provided in the Indenture, and subject to certain limitations therein set forth,
this Bond is exchangeable for a like aggregate principal amount of Bonds having
the same terms as this Bond of different authorized denominations, as requested
by the Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange of Bonds, but Farmland may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
therewith.
Prior to due presentment of this Bond for registration of transfer,
Farmland, the Trustee and any agent of Farmland or the Trustee may treat the
person in whose name this Bond is registered as the owner hereof for all
purposes, whether or not this Bond is overdue, and neither Farmland, the Trustee
nor any such agent shall be affected by notice to the contrary.
All terms used in this Bond which are defined in the Indenture shall
have the meanings designated to them in the Indenture and all references in the
Indenture to "Security" or "Securities" shall be deemed to include the Bonds.
For value received, I, we and each of us hereby sell, assign and
transfer the within Bond and the indebtedness evidenced thereby to
___________________________________________________
of _________________________________________________
(ADDRESS) (CITY OR TOWN) STATE
THIS ASSIGNMENT WILL BECOME EFFECTIVE ONLY WHEN MADE AND ENTERED ON
THE BOOKS OF FARMLAND, INDUSTRIES INC.
{
__________ {___________________________________
DATE { (SIGNED)
ENDORSEMENT { ___________________________________
(SIGNED) ______________________
PRINCIPAL AMOUNT:
BOND NUMBER:
FARMLAND INDUSTRIES, INC.
Kansas City, Missouri 64116
SUBORDINATED DEBENTURE BONDS,
FIVE-YEAR MONTHLY INCOME, SERIES H
___________________________ _______________________
Name Date of Original Issuance
___________________________ _______________________
Street Maturity Date
___________________________ _______________________
City State Interest Rate
Farmland Industries, Inc., a Kansas corporation ("Farmland", which
term includes any successor corporation under the Indenture referred to herein),
for value received, hereby promises to pay to the owner named above or
registered assigns (the "Holder"), the principal amount shown above on the
Maturity Date specified above (except to the extent redeemed or repaid prior to
the Maturity Date), and to pay interest thereon from the most recent date to
which interest has been paid or, if no interest has been paid, from the date of
original issuance of this Bond (the "Date of Original Issuance") at the interest
rate per annum specified above (the "Interest Rate"), computed on the basis of a
365-day year, until the principal hereof is paid or duly made available for
payment, and to pay interest on overdue principal and, to the extent permitted
by law, overdue interest at the Interest Rate. Payment of principal and
interest shall be in such coin or currency of the United States of America as at
the time of payment shall be legal tender for the payment of public and private
debts.
Interest on the principal sum is payable monthly on the first day of
each month following the month in which this Bond is issued to Holders of record
on the last day of the preceding month. If the Maturity Date (or any date of
redemption or repayment) or an interest payment date falls on a day which is not
a business day, principal or interest payable with respect to such Maturity Date
(or date of redemption or repayment) or interest payment date will be paid on
the next succeeding business day with the same force and effect as if made on
such Maturity Date (or date of redemption or repayment) or interest payment
date, as the case may be, and no interest shall accrue on the amount so payable
for the period from and after such Maturity Date (or date of redemption or
repayment) or interest payment date.
This Bond shall not be valid or become obligatory for any purpose
until the Certificate of Authentication hereon shall have been signed by the
Trustee under the Indenture mentioned on the reverse side hereof.
ISSUED THIS DAY OF , 19
Attest: FARMLAND INDUSTRIES, INC.
SECRETARY ________________________ BY PRESIDENT ____________________
Trustee's Certificate of Authentication
This is one of the Bonds described in the Indenture mentioned on the back
hereof.
COMMERCE BANK, NATIONAL ASSOCIATION
As Trustee By ____________________________________________
Authorized Signature
REVERSE SIDE OF MONTHLY INCOME BONDS
This Bond is one of a duly authorized issue of securities (hereinafter
called the "Securities") of Farmland issued and to be issued under an Indenture
dated as of ____________________ (herein called the "Indenture") between
Farmland and Commerce Bank, National Association, as Trustee (herein called the
"Trustee", which term includes any successor trustee under the Indenture), to
which the Indenture and all indentures supplemental thereto and the Officers'
Certificate (as defined in the Indenture) setting forth the terms of this series
of Securities reference is hereby made for a statement of the respective rights,
limitation of rights, duties and immunities thereunder of Farmland, the Trustee
and the Holders and the terms upon which the Bonds are, and are to be,
authenticated and delivered. The Bonds of this series may bear different dates,
mature at different times, bear interest at different rates, be subject to
different redemption or repayment provisions and may otherwise vary and are
entitled to the benefits of the Indenture.
Any interest which is payable, but is not punctually paid or duly
provided for, on any interest payment date and, to the extent permitted by law,
interest on such defaulted interest at the Interest Rate (such defaulted
interest and interest thereon herein collectively called "Defaulted Interest")
shall not be payable to the Holder on the record date; and such Defaulted
Interest may be paid by Farmland, at its election in each case, in the time and
manner as provided for in the Indenture.
Payment of the principal of, premium, if any, and interest on this
Bond will be made at the office or agency of Farmland in Kansas City, Missouri;
provided, however, that at the option of Farmland payment of interest other than
interest paid at maturity, redemption or repayment may be made by check mailed
to the address of the person entitled thereto as such address shall appear in
the Register or by electronic funds transfer or similar means to an account
maintained by the person entitled thereto as specified in the Register.
If an Event of Default (as defined in the Indenture) with respect to
the Bonds shall occur and be continuing, the Trustee or the Holders of not less
than a majority in principal amount of the outstanding Bonds may declare the
principal of and accrued interest on all of the Bonds due and payable in the
manner and with the effect and subject to the conditions provided in the
Indenture. Upon certain events of bankruptcy, insolvency or reorganization of
Farmland, the principal and accrued interest of all of the Bonds shall become
due and payable without any declaration by the Trustee or the Holders.
The Indenture contains provisions permitting Farmland and the Trustee
to enter into one or more supplemental indentures under certain situations
without the consent of the Holders of any of the Bonds. The Indenture permits,
with certain exceptions as therein provided, the amendment thereof and the
modification of the rights and obligations of Farmland and the rights of the
Holders of the Securities of each series under the Indenture to be affected at
any time by Farmland and the Trustee with the consent of the Holders of a
majority in aggregate principal amount of the Outstanding Securities (as defined
in the Indenture) of each series affected thereby. The Indenture also contains
provisions permitting the Holders of specified percentages in aggregate
principal amount of the Outstanding Securities of each series under the
Indenture, on behalf of the Holders of all Securities of such series, to waive
compliance by Farmland 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 Bond shall be conclusive and binding upon such Holder and
upon all future Holders of this Bond and of any Bond issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof, whether
or not notation of such consent or waiver is made upon this Bond.
No reference herein to the Indenture and no provision of this Bond or
of the Indenture shall alter or impair the obligation of Farmland, which is
absolute and unconditional, to pay the principal of and interest on this Bond at
the times, places, and rate, and in the coin or currency, herein prescribed.
This Bond cannot be called for redemption by Farmland any time prior
to maturity.
Except as hereinafter provided, this Bond cannot be redeemed at the
option of the Holder prior to maturity. In the case of death of the Holder,
Farmland will redeem this Bond upon written request to Farmland and delivery of
satisfactory proof of death and other documentation and in accordance with
applicable law. Redemptions will be made at the face value of the bonds plus
accrued interest to the date of redemption only.
This Bond shall be subordinate in right of payment to all money
borrowed from banks, trust companies, insurance companies or pension trusts or
evidenced by securities issued under the provisions of an indenture or loan or
other agreement pursuant to which Senior Indebtedness is issued, whether secured
or unsecured, and whether or not now owed or hereafter incurred.
As provided in the Indenture, and subject to certain limitations
therein set forth, the transfer of this Bond may be registered on the Register
upon surrender of this Bond for registration of transfer at the office or agency
of Farmland, in Kansas City, Missouri, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to Farmland duly executed by
the Holder or by his attorney duly authorized in writing, and thereupon one or
more new Bonds of this series having the same terms as this Bond, of authorized
denominations, having the same terms and conditions and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Bonds are issuable only in registered form, without coupons. As
provided in the Indenture, and subject to certain limitations therein set forth,
this Bond is exchangeable for a like aggregate principal amount of Bonds having
the same terms as this Bond of different authorized denominations, as requested
by the Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange of Bonds, but Farmland may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
therewith.
Prior to due presentment of this Bond for registration of transfer,
Farmland, the Trustee and any agent of Farmland or the Trustee may treat the
person in whose name this Bond is registered as the owner hereof for all
purposes, whether or not this Bond is overdue, and neither Farmland, the Trustee
nor any such agent shall be affected by notice to the contrary.
All terms used in this Bond which are defined in the Indenture shall
have the meanings designated to them in the Indenture and all references in the
Indenture to "Security" or "Securities" shall be deemed to include the Bonds.
For value received, I, we and each of us hereby sell, assign and
transfer the within Bond and the indebtedness evidenced thereby to
___________________________________________________
of _________________________________________________
(ADDRESS) (CITY OR TOWN) STATE
THIS ASSIGNMENT WILL BECOME EFFECTIVE ONLY WHEN MADE AND ENTERED ON
THE BOOKS OF FARMLAND, INDUSTRIES INC.
{
__________ {___________________________________
DATE { (SIGNED)
ENDORSEMENT { ___________________________________
(SIGNED) ______________________