Exhibit 4.3
THE SOUTHERN COMPANY
TO
-------------------------------------,
TRUSTEE.
SUBORDINATED NOTE INDENTURE
DATED AS OF ________ 1, _____
THE SOUTHERN COMPANY
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939 AND
SUBORDINATED NOTE INDENTURE, DATED AS OF _______ 1, _____
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
(S) 310(a)(1)............................................609
(a)(2)............................................609
(a)(3).................................Not Applicable
(a)(4).................................Not Applicable
(b)...............................................608
610
(S) 311(a)...............................................613
311(b)(4).........................................613(a)
(b)(6).........................................613(b)
(S) 312(a)...............................................701
702(a)
(c)............................................702(b)
(S) 313(a)............................................703(a)
313(b)............................................703(b)
313(c)............................................703(c)
704
(d)............................................703(c)
(S) 314(a).........................................704, 1007
(b)....................................Not Applicable
(c)(1)............................................102
(c)(2)............................................102
(c)(3).................................Not Applicable
(d)....................................Not Applicable
(e)...............................................102
(S) 315(a)............................................601(a)
(b)...............................................602
(c)............................................601(b)
(d)............................................601(c)
(d)(1)......................................601(a)(1)
(d)(2)......................................601(c)(2)
(d)(3)......................................601(c)(3)
(e)...............................................514
(S) 316(a)...............................................101
(a)(1)(A).........................................502
512
(a)(1)(B).........................................513
(a)(2).................................Not Applicable
(b)...............................................508
(S) 317(a)(1)............................................503
(a)(2)............................................504
(b)..............................................1003
(S) 318(a)...............................................107
TABLE OF CONTENTS
PAGE
Parties...................................................................1
Recitals of the Company...................................................1
ARTICLE ONE...............................................................1
SECTION 101. DEFINITIONS..................................................1
Act.......................................................................2
Additional Interest.......................................................2
Affiliate.................................................................2
Authenticating Agent......................................................2
Board of Directors........................................................2
Board Resolution..........................................................3
Business Day..............................................................3
Certificate of a Firm of Independent Public Accountants...................3
Commission................................................................3
Company...................................................................3
Company Request or Company Order..........................................3
Corporate Trust Office....................................................3
Defaulted Interest........................................................3
Depositary................................................................4
Event of Default..........................................................4
Global Security...........................................................4
Guarantee.................................................................4
Holder .................................................................4
Indenture.................................................................4
Interest Payment Date.....................................................4
Junior Subordinated Note..................................................4
Maturity..................................................................4
Officers' Certificate.....................................................4
Opinion of Counsel........................................................5
Outstanding...............................................................5
Paying Agent..............................................................6
Person .................................................................6
Predecessor Security......................................................6
Property Trustee..........................................................6
Redemption Date...........................................................6
Redemption Price..........................................................6
Regular Record Date.......................................................6
Responsible Officer.......................................................6
i
Securities Trust..........................................................7
Security Register and Security Registrar..................................7
Senior Indebtedness.......................................................7
Special Record Date.......................................................7
Stated Maturity...........................................................7
Trust Agreement...........................................................7
Trust Indenture Act.......................................................7
Trust Securities..........................................................8
Trustee .................................................................8
Vice President............................................................8
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.........................8
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.......................9
SECTION 104. ACTS OF HOLDERS..............................................9
SECTION 105. NOTICES, ETC., TO TRUSTEE AND COMPANY.......................10
SECTION 106. NOTICE TO HOLDERS OF JUNIOR SUBORDINATED NOTES; WAIVER......11
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT...........................11
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS....................11
SECTION 109. SUCCESSORS AND ASSIGNS......................................11
SECTION 110. SEPARABILITY CLAUSE.........................................12
SECTION 111. BENEFITS OF INDENTURE.......................................12
SECTION 112. GOVERNING LAW...............................................12
SECTION 113. LEGAL HOLIDAYS..............................................12
ii
SECTION 114. APPOINTMENT OF AGENT FOR SERVICE............................12
ARTICLE TWO..............................................................13
SECTION 201. FORMS GENERALLY.............................................13
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.............13
SECTION 203. JUNIOR SUBORDINATED NOTES ISSUABLE IN THE FORM OF A
GLOBAL SECURITY.................................................14
ARTICLE THREE............................................................16
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES........................16
SECTION 302. EXECUTION, AUTHENTICATION, DELIVERY AND DATING..............18
SECTION 303. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.........19
SECTION 304. MUTILATED, DESTROYED, LOST AND STOLEN JUNIOR
SUBORDINATED NOTES..............................................21
SECTION 305. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED..............21
SECTION 306. PERSONS DEEMED OWNERS.......................................23
SECTION 307. CANCELLATION................................................23
SECTION 308. COMPUTATION OF INTEREST.....................................23
ARTICLE FOUR.............................................................23
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.....................23
iii
SECTION 402. APPLICATION OF TRUST MONEY..................................25
ARTICLE FIVE.............................................................25
SECTION 501. EVENTS OF DEFAULT...........................................25
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT..........27
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.........................................................28
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM............................29
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF JUNIOR
SUBORDINATED NOTES..............................................29
SECTION 506. APPLICATION OF MONEY COLLECTED..............................30
SECTION 507. LIMITATION ON SUITS.........................................30
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST............................................31
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES..........................31
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE..............................31
SECTION 511. DELAY OR OMISSION NOT WAIVER................................32
SECTION 512. CONTROL BY HOLDERS OF JUNIOR SUBORDINATED NOTES.............32
SECTION 513. WAIVER OF PAST DEFAULTS.....................................32
SECTION 514. UNDERTAKING FOR COSTS.......................................33
iv
SECTION 515. WAIVER OF STAY OR EXTENSION LAWS............................33
ARTICLE SIX..............................................................33
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES.........................34
SECTION 602. NOTICE OF DEFAULTS..........................................35
SECTION 603. CERTAIN RIGHTS OF TRUSTEE...................................35
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF JUNIOR
SUBORDINATED NOTES..............................................36
SECTION 605. MAY HOLD JUNIOR SUBORDINATED NOTES..........................37
SECTION 606. MONEY HELD IN TRUST.........................................37
SECTION 607. COMPENSATION AND REIMBURSEMENT..............................37
SECTION 608. DISQUALIFICATION; CONFLICTING INTERESTS.....................38
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.....................38
SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR...........38
SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR......................40
SECTION 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS........................................................41
SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY...........41
SECTION 614. APPOINTMENT OF AUTHENTICATING AGENT.........................42
v
ARTICLE SEVEN............................................................44
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS...44
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS......44
SECTION 703. REPORTS BY TRUSTEE..........................................44
SECTION 704. REPORTS BY COMPANY..........................................45
ARTICLE EIGHT............................................................46
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS........46
SECTION 802. SUCCESSOR CORPORATION SUBSTITUTED...........................46
ARTICLE NINE.............................................................47
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS..........47
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.............48
SECTION 903. GENERAL PROVISIONS REGARDING SUPPLEMENTAL INDENTURE.........49
SECTION 904. EXECUTION OF SUPPLEMENTAL INDENTURES........................49
SECTION 905. EFFECT OF SUPPLEMENTAL INDENTURES...........................49
SECTION 906. CONFORMITY WITH TRUST INDENTURE ACT.........................50
vi
SECTION 907. REFERENCE IN JUNIOR SUBORDINATED NOTES TO SUPPLEMENTAL
INDENTURES......................................................50
ARTICLE TEN..............................................................50
SECTION 1001. PAYMENT OF PRINCIPAL AND INTEREST..........................50
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY............................50
SECTION 1003. MONEY FOR JUNIOR SUBORDINATED NOTES PAYMENTS TO BE HELD
IN TRUST........................................................51
SECTION 1004. ADDITIONAL INTEREST........................................52
SECTION 1005. CORPORATE EXISTENCE........................................53
SECTION 1006. LIMITATIONS ON DIVIDEND AND CERTAIN OTHER PAYMENTS.........53
SECTION 1007. STATEMENT AS TO COMPLIANCE.................................54
SECTION 1008. WAIVER OF CERTAIN COVENANTS................................54
SECTION 1009. COVENANTS REGARDING TRUST..................................54
ARTICLE ELEVEN...........................................................56
SECTION 1101. APPLICABILITY OF ARTICLE...................................56
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE......................56
SECTION 1103. SELECTION BY TRUSTEE OF JUNIOR SUBORDINATED NOTES TO BE
REDEEMED........................................................56
SECTION 1104. NOTICE OF REDEMPTION.......................................57
vii
SECTION 1105. DEPOSIT OF REDEMPTION PRICE................................58
SECTION 1106. JUNIOR SUBORDINATED NOTES PAYABLE ON REDEMPTION DATE.......58
SECTION 1107. JUNIOR SUBORDINATED NOTES REDEEMED IN PART.................58
ARTICLE TWELVE...........................................................59
SECTION 1201. APPLICABILITY OF ARTICLE...................................59
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH JUNIOR
SUBORDINATED NOTES..............................................59
SECTION 1203. REDEMPTION OF JUNIOR SUBORDINATED NOTES FOR SINKING FUND...59
ARTICLE THIRTEEN.........................................................60
SECTION 1301. JUNIOR SUBORDINATED NOTES SUBORDINATE TO SENIOR
INDEBTEDNESS....................................................60
SECTION 1302. PAYMENT OF PROCEEDS UPON DISSOLUTION, ETC..................60
SECTION 1303. NO PAYMENT WHEN SENIOR INDEBTEDNESS IN DEFAULT.............61
SECTION 1304. PAYMENT PERMITTED IF NO DEFAULT............................62
SECTION 1305. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS....62
SECTION 1306. PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS................62
SECTION 1307. TRUSTEE TO EFFECTUATE SUBORDINATION........................63
viii
SECTION 1308. NO WAIVER OF SUBORDINATION PROVISIONS......................63
SECTION 1309. TRUST MONEYS NOT SUBORDINATED..............................64
SECTION 1310. NOTICE TO THE TRUSTEE......................................64
SECTION 1311. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF
LIQUIDATING AGENT...............................................65
SECTION 1312. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR INDEBTEDNESS...65
SECTION 1313. RIGHTS OF TRUSTEE AS HOLDER OF SENIOR INDEBTEDNESS;
PRESERVATION OF TRUSTEE'S RIGHTS................................65
SECTION 1314. ARTICLE APPLICABLE TO PAYING AGENTS........................66
SECTION 1315. RELIANCE BY HOLDERS OF SENIOR INDEBTEDNESS ON
SUBORDINATION PROVISIONS........................................66
ARTICLE FOURTEEN.........................................................66
SECTION 1401. NO RECOURSE AGAINST OTHERS.................................66
SECTION 1402. SET-OFF....................................................67
SECTION 1403. ASSIGNMENT; BINDING EFFECT.................................67
SECTION 1404. ADDITIONAL INTEREST........................................67
ix
SUBORDINATED NOTE INDENTURE
THIS SUBORDINATED NOTE INDENTURE is made as of _______ 1, _____,
between THE SOUTHERN COMPANY, a corporation duly organized and existing under
the laws of the State of Delaware (herein called the "Company"), having its
principal office at 30 Ivan Allen Jr., Blvd., N.W., Atlanta, Georgia 30308, and
_________________________________, a banking corporation duly organized and
existing under the laws of ________________________, having its principal
corporate trust office at _________________________________________, as Trustee
(herein called the "Trustee").
W I T N E S S E T H:
WHEREAS, the Company has duly authorized the execution and delivery of
this Subordinated Note Indenture to provide for the issuance from time to time
of its unsecured subordinated debentures, notes or other evidences of
indebtedness (herein called the "Junior Subordinated Notes"), to be issued in
one or more series as in this Subordinated Note Indenture provided; and
WHEREAS, all things necessary to make this Subordinated Note Indenture
a valid agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, for and in consideration of the premises and the
purchase of the Junior Subordinated Notes by the Holders thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit of all Holders of
the Junior Subordinated Notes or of series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
For all purposes of this Subordinated Note Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
1
principles in the United States of America, and, except as otherwise herein
expressly provided, the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall mean such
accounting principles as are generally accepted in the United States of America
at the date of such computation;
(4) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Subordinated Note Indenture as a whole and
not to any particular Article, Section or other subdivision; and
(5) Trust Securities related to a particular series of Junior
Subordinated Notes means the series of Trust Securities the proceeds of the sale
of which were loaned to the Company in exchange for such series of Junior
Subordinated Notes, and the guarantee related to such series of Trust Securities
means the guarantee pursuant to which the Company has guaranteed, to the extent
stated therein, the payment of distributions and certain other amounts with
respect to such series of Trust Securities.
Certain terms, used principally in Article Six, are defined in that
Article.
"Act", when used with respect to any Holder of a Junior Subordinated
Note, has the meaning specified in Section 104.
"Additional Interest" means (i) such additional amounts as may be
required so that the net amounts received and retained by the Holder (if the
Holder is a Securities Trust) after paying taxes, duties, assessments or
governmental charges of whatever nature (other than withholding taxes) imposed
by the United States or any other taxing authority will not be less than the
amounts the Holder would have received had no such taxes, duties, assessments,
or other governmental charges been imposed; and (ii) any interest due and not
paid on an Interest Payment Date, together with interest thereon from such
Interest Payment Date to the date of payment, compounded quarterly, on each
Interest Payment Date.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing. Notwithstanding the foregoing, any Securities Trust organized by the
Company shall not be deemed to be an Affiliate of the Company.
"Authenticating Agent" means any Person or Persons authorized by the
Trustee to authenticate one or more series of Junior Subordinated Notes.
"Board of Directors" means either the board of directors of the Company
or any duly authorized committee of the officers and/or directors of the Company
appointed by that board.
2
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means a day other than (i) a Saturday or a Sunday, (ii)
a day on which banks in New York, New York are authorized or obligated by law or
executive order to remain closed, or (iii) a day on which the Trustee's
Corporate Trust Office or Property Trustee's principal corporate trust office is
closed for business.
"Certificate of a Firm of Independent Public Accountants" means a
certificate signed by an independent public accountant or a firm of independent
public accountants who may be the independent public accountants regularly
retained by the Company or who may be other independent public accountants. Such
accountant or firm shall be entitled to rely upon an Opinion of Counsel as to
the interpretation of any legal matters relating to such certificate.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, as
amended, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor corporation shall have become
such pursuant to the applicable provisions of this Subordinated Note Indenture,
and thereafter "Company" shall mean such successor corporation.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its President or
a Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or
an Assistant Secretary, and delivered to the Trustee.
"Corporate Trust Office" means the office of the Trustee in the Borough
of Manhattan, New York City, at which at any particular time its corporate trust
business shall be principally administered, which office at the date of
execution of this Subordinated Note Indenture is located at ___________________.
"corporation" includes corporations, partnerships, limited liability
companies, associations, companies and business trusts.
"Defaulted Interest" has the meaning specified in Section 305.
"Depositary" means, unless otherwise specified by the Company pursuant
to either Section 203 or 301, with respect to Junior Subordinated Notes of any
series issuable or issued as a Global Security, The Depository Trust Company,
New York, New York, or any successor thereto registered as a clearing agency
3
under the Securities Exchange Act of 1934, as amended, or other applicable
statute or regulation.
"Event of Default" has the meaning specified in Section 501.
"Global Security" means, with respect to any series of Junior
Subordinated Notes issued hereunder, a Junior Subordinated Note that is executed
by the Company and authenticated and delivered by the Trustee to the Depositary
or pursuant to the Depositary's instruction, all in accordance with Section 203
of this Indenture and any indenture supplemental hereto.
"Guarantee" means a Guarantee Agreement, if any, executed and delivered
by the Company for the benefit of the holders from time to time of all or a
portion of the Trust Securities of a Securities Trust.
"Holder", when used with respect to any Junior Subordinated Note, means
the Person in whose name the Junior Subordinated Note is registered in the
Security Register.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of the particular series of Junior Subordinated
Notes established as contemplated by Section 301.
"Interest Payment Date", when used with respect to any series of Junior
Subordinated Notes, means the dates established for the payment of interest
thereon, as provided in the supplemental indenture for such series.
"Junior Subordinated Note" has the meaning stated in the first recital
of this Indenture and more particularly means any Junior Subordinated Notes
authenticated and delivered under this Indenture.
"Maturity", when used with respect to any Junior Subordinated Note,
means the date on which the principal of such Junior Subordinated Note or an
installment of principal becomes due and payable as therein or herein provided,
whether at the Stated Maturity or by declaration of acceleration, call for
redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the Company, and
delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee.
"Outstanding", when used with respect to Junior Subordinated Notes,
means, as of the date of determination, all Junior Subordinated Notes
theretofore authenticated and delivered under this Indenture, except:
4
(i) Junior Subordinated Notes theretofore canceled by the
Trustee or delivered to the Trustee for cancellation;
(ii) Junior Subordinated Notes for whose payment or redemption
money in the necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (other than the Company) in trust or set aside and segregated
in trust by the Company (if the Company shall act as its own Paying Agent) for
the Holders of such Junior Subordinated Notes; provided that if such Junior
Subordinated Notes are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made;
(iii) Junior Subordinated Notes that have been paid or in
exchange for or in lieu of which other Junior Subordinated Notes have been
authenticated and delivered pursuant to this Indenture, other than any such
Junior Subordinated Notes in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Junior Subordinated Notes are
held by a bona fide purchaser in whose hands such Junior Subordinated Notes are
valid obligations of the Company; and
(iv) Junior Subordinated Notes, or portions thereof, converted
into or exchanged for another security if the terms of such Junior Subordinated
Notes provide for such conversion or exchange;
provided, however, that in determining, during any period in which any Junior
Subordinated Notes of a series are owned by any Person other than the Company or
any Affiliate thereof, whether the Holders of the requisite principal amount of
Outstanding Junior Subordinated Notes of such series have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, Junior
Subordinated Notes of such series owned by the Company or any Affiliate thereof
shall be disregarded and deemed not to be Outstanding. In determining whether
the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Junior Subordinated
Notes that the Trustee knows to be so owned by the Company or an Affiliate of
the Company in the above circumstances shall be so disregarded. Junior
Subordinated Notes so owned that have been pledged in good faith may be regarded
as Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Junior Subordinated Notes and
that the pledgee is not the Company or any Affiliate of the Company.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Junior Subordinated Notes
on behalf of the Company.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
5
"Predecessor Security" of any particular Junior Subordinated Note means
every previous Junior Subordinated Note evidencing all or a portion of the same
debt as that evidenced by such particular Junior Subordinated Note; and, for the
purposes of this definition, any Junior Subordinated Note authenticated and
delivered under Section 304 in exchange for or in lieu of a mutilated,
destroyed, lost or stolen Junior Subordinated Note shall be deemed to evidence
the same debt as the mutilated, destroyed, lost or stolen Junior Subordinated
Note.
"Property Trustee", when used with respect to the Junior Subordinated
Notes of any series, means the Person designated as such in the related Trust
Agreement.
"Redemption Date", when used with respect to any Junior Subordinated
Note to be redeemed, means the date fixed for such redemption by or pursuant to
this Indenture.
"Redemption Price", when used with respect to any Junior Subordinated
Note to be redeemed, means the price at which it is to be redeemed pursuant to
this Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Junior Subordinated Notes of any series means the date specified for
that purpose as contemplated by Section 301, whether or not a Business Day.
"Responsible Officer", when used with respect to the Trustee, means the
chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any senior trust officer, any trust officer or assistant
trust officer, the controller or any assistant controller or any other officer
of the Trustee customarily performing functions similar to those performed by
any of the above designated officers and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Securities Trust" means any statutory business trust formed by the
Company or an Affiliate to issue Trust Securities, the proceeds of which will be
used to purchase Junior Subordinated Notes of one or more series.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 303.
"Senior Indebtedness" means, with respect to the Company, (i) any
payment due in respect of indebtedness of the Company, whether outstanding at
the date of execution of this Subordinated Note Indenture or thereafter
incurred, created, or assumed, (a) in respect of money borrowed (including any
financial derivative, hedging or futures contract or similar instrument) and (b)
evidenced by securities, debentures, bonds, notes or other similar instruments
issued by the Company which, by their terms, are senior or senior subordinated
debt securities including, without limitation, all obligations under its
indentures with various trustees; (ii) all capital lease obligations; (iii) all
obligations issued or assumed as the deferred purchase price of property, all
6
conditional sale obligations and all obligations of the Company under any title
retention agreement (but excluding trade accounts payable arising in the
ordinary course of business and long-term purchase obligations); (iv) all
obligations for the reimbursement of any letter of credit, banker's acceptance,
security purchase facility or similar credit transaction; (v) all obligations of
the type referred to in clauses (i) through (iv) above of other persons the
payment of which the Company is responsible or liable as obligor, guarantor or
otherwise; and (vi) all obligations of the type referred to in clauses (i)
through (v) above of other persons secured by any lien on any property or asset
of the Company (whether or not such obligation is assumed by the Company),
except for (1) any such indebtedness that is by its terms subordinated to or
pari passu with the Junior Subordinated Notes and (2) any unsecured indebtedness
between or among the Company or its Affiliates. Such Senior Indebtedness shall
continue to be entitled to the benefits of the subordination provisions
contained in Article Thirteen irrespective of any amendment, modification or
waiver of any term of such Senior Indebtedness.
"Special Record Date" for the payment of any Defaulted Interest on the
Junior Subordinated Notes of any series means a date fixed by the Trustee
pursuant to Section 305.
"Stated Maturity", when used with respect to any Junior Subordinated
Note or any installment of principal thereof or interest thereon, means the date
specified in such Junior Subordinated Note as the fixed date on which the
principal of such Junior Subordinated Note or such installment of principal or
interest is due and payable.
"Trust Agreement", when used with respect to a Securities Trust, means
the agreement or instrument that governs the affairs of such Securities Trust.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, and any reference herein to the Trust Indenture Act or a particular
provision thereof shall mean such Trust Indenture Act or provision, as the case
may be, as amended or replaced from time to time.
"Trust Securities" means the securities issued by a Securities Trust
evidencing the entire beneficial interest therein.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
with respect to one or more series of Junior Subordinated Notes pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder, and if at any time there is
more than one such Person, "Trustee" as used with respect to the Junior
Subordinated Notes of any series shall mean the Trustee with respect to Junior
Subordinated Notes of that series.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president."
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
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Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
(i) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions herein
relating thereto;
(ii) 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;
(iii) a statement that, in the opinion of each such
individual, he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be certified or covered by only one document, but one such
Person may certify or give an opinion with respect to some matters and one or
more other such Persons as to other matters, and any such Person may certify or
give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
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Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing. Except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments are delivered to the
Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent, shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority.
(c) The principal amount and serial numbers of Junior Subordinated
Notes held by any Person, and the date of holding the same, shall be proved by
the Security Register.
(d) Any request, demand, authorization, direction, notice,
consent, election, waiver or other Act of the Holder of any Junior Subordinated
Note shall bind every future Holder of the same Junior Subordinated Note and the
Holder of every Junior Subordinated Note issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Junior Subordinated Note.
(e) The fact and date of execution of any such instrument or
writing and the authority of the Person executing the same may also be proved in
any other manner which the Trustee deems sufficient; and the Trustee may in any
instance require further proof with respect to any of the matters referred to in
this Section.
(f) If the Company shall solicit from the Holders of Junior
Subordinated Notes of any series any Act, the Company may, at its option, by
Board Resolution, fix in advance a record date for the determination of Holders
of Junior Subordinated Notes entitled to take such Act, but the Company shall
have no obligation to do so. Any such record date shall be fixed at the
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Company's discretion. If such a record date is fixed, such Act may be sought or
given before or after the record date, but only the Holders of record at the
close of business on such record date shall be deemed to be Holders of Junior
Subordinated Notes for the purpose of determining whether Holders of the
requisite proportion of Junior Subordinated Notes of such series Outstanding
have authorized or agreed or consented to such Act, and for that purpose the
Junior Subordinated Notes of such series Outstanding shall be computed as of
such record date.
SECTION 105. NOTICES, ETC., TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent,
election, waiver or Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder of a Junior Subordinated Note or
by the Company shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Trustee at its Corporate Trust
Office, Attention: Corporate Trustee Administration Department, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to the Company
addressed to the attention of its Secretary, at 30 Ivan Allen, Jr. Blvd., N.W.,
Atlanta, Georgia 30308, with a copy to Southern Company Services, Inc., 30 Ivan
Allen, Jr. Blvd., N.W., Atlanta, Georgia 30308, Attention: Corporate Finance
Department, or at any other address previously furnished in writing to the
Trustee by the Company.
SECTION 106. NOTICE TO HOLDERS OF JUNIOR SUBORDINATED NOTES; WAIVER.
Except as otherwise expressly provided herein, where this Indenture
provides for notice to Holders of Junior Subordinated Notes of any event, such
notice shall be sufficiently given if in writing and mailed, first-class postage
prepaid, to each Holder affected by such event, at his address as it appears in
the Security Register, not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such Notice.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder. In any case
where notice to Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders of Junior Subordinated Notes shall be filed
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with the Trustee, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with a provision
of the Trust Indenture Act that is required to be a part of and govern this
Indenture, such required provision shall control.
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 109. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 110. SEPARABILITY CLAUSE.
In case any provision in this Indenture or the Junior Subordinated
Notes shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 111. BENEFITS OF INDENTURE.
Nothing in this Indenture or the Junior Subordinated Notes, express or
implied, shall give to any Person, other than the parties hereto, their
successors hereunder and the Holders of Junior Subordinated Notes and, to the
extent provided in Section 1403, the holders of Senior Indebtedness or Trust
Securities, any benefit or any legal or equitable right, remedy or claim under
this Indenture.
SECTION 112. GOVERNING LAW.
This Indenture and the Junior Subordinated Notes shall be governed by,
and construed in accordance with, the internal laws of the State of
placeStateNew York.
SECTION 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Junior Subordinated Note shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the Junior
Subordinated Notes) payment of interest or principal (and premium, if any) need
not be made on such date, but may be made on the next succeeding Business Day,
except that, if such Business Day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day, in each case
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with the same force and effect as if made on the Interest Payment Date or
Redemption Date, or at the Stated Maturity, provided that no interest shall
accrue on the amount so payable for the period from and after such Interest
Payment Date, Redemption Date or Stated Maturity, as the case may be.
SECTION 114. APPOINTMENT OF AGENT FOR SERVICE.
By the execution and delivery of this Indenture, the Company hereby
appoints the Trustee as its agent upon which process may be served in any legal
action or proceeding which may be instituted in any Federal or State court in
the Borough of Manhattan, New York City, arising out of or relating to the
Junior Subordinated Notes or this Indenture. Service of process upon such agent
at the office of such agent at ____________________________________________,
Attention: Corporate Trustee Administration Department (or such other address in
the Borough of Manhattan, New York City, as may be the Corporate Trust Office of
the Trustee), and written notice of such service to the Company by the Person
serving the same addressed as provided in Section 105, shall be deemed in every
respect effective service of process upon the Company in any such legal action
or proceeding, and the Company hereby submits to the jurisdiction of any such
court in which any such legal action or proceeding is so instituted. Such
appointment shall be irrevocable so long as the Holders of Junior Subordinated
Notes shall have any rights pursuant to the terms thereof or of this Indenture
until the appointment of a successor by the Company with the consent of the
Trustee and such successor's acceptance of such appointment. The Company further
agrees to take any and all action, including the execution and filing of any and
all such documents and instruments, as may be necessary to continue such
designation and appointment of such agent or successor.
By the execution and delivery of this Indenture, the Trustee hereby
agrees to act as such agent and undertakes promptly to notify the Company of
receipt by it of service of process in accordance with this Section.
ARTICLE TWO
FORMS OF JUNIOR SUBORDINATED NOTES
SECTION 201. FORMS GENERALLY.
The Junior Subordinated Notes of each series shall be in substantially
the form appended to the supplemental indenture authorizing such series, 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
securities exchange or as may, consistently herewith, be determined by the
officers executing such Junior Subordinated Notes, as evidenced by their
execution of the Junior Subordinated Notes.
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The Junior Subordinated Notes of each series shall be issuable in
registered form without coupons.
The definitive Junior Subordinated Notes may be printed, typewritten,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Junior
Subordinated Notes, as evidenced by their execution of such Junior Subordinated
Notes.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The form of the Trustee's Certificate of Authentication for a series of
Junior Subordinated Notes shall be in substantially the form appended to the
Supplemental Indenture authorizing such series.
SECTION 203. JUNIOR SUBORDINATED NOTES ISSUABLE IN THE FORM OF A GLOBAL
SECURITY.
(a) If the Company shall establish pursuant to Section 301 that
the Junior Subordinated Notes of a particular series are to be issued in whole
or in part in the form of one or more Global Securities, then the Company shall
execute and the Trustee shall, in accordance with Section 302 and the Company
Order delivered to the Trustee thereunder, authenticate and deliver such Global
Security or Securities, which (i) shall represent, and shall be denominated in
an amount equal to the aggregate principal amount of the Outstanding Junior
Subordinated Notes of such series to be represented by such Global Security or
Securities, (ii) may provide that the aggregate amount of Outstanding Junior
Subordinated Notes represented thereby may from time to time be increased or
reduced to reflect exchanges, (iii) shall be registered in the name of the
Depositary for such Global Security or Securities or its nominee, (iv) shall be
delivered by the Trustee to the Depositary or pursuant to the Depositary's
instruction and (v) shall bear a legend in accordance with the requirements of
the Depositary.
(b) Notwithstanding any other provision of this Section 203 or of
Section 303, subject to the provisions of paragraph (c) below, unless the terms
of a Global Security expressly permit such Global Security to be exchanged in
whole or in part for individual Junior Subordinated Notes, a Global Security may
be transferred, in whole but not in part and in the manner provided in Section
303, only to a nominee of the Depositary for such Global Security, or to the
Depositary, or to a successor Depositary for such Global Security selected or
approved by the Company, or to a nominee of such successor Depositary.
(c) (1) If at any time the Depositary for a Global Security
notifies the Company that it is unwilling or unable to continue as Depositary
for such Global Security or if at any time the Depositary for the Junior
Subordinated Notes for such series shall no longer be eligible or in good
standing under the Securities Exchange Act of 1934, as amended, or other
applicable statute or regulation, the Company shall appoint a successor
Depositary with respect to such Global Security. If a successor Depositary for
such Global Security is not appointed by the Company within 90 days after the
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Company receives such notice or becomes aware of such ineligibility, the Company
will execute, and the Trustee, upon receipt of a Company Order for the
authentication and delivery of individual Junior Subordinated Notes of such
series in exchange for such Global Security, will authenticate and deliver
individual Junior Subordinated Notes of such series of like tenor and terms in
definitive form in an aggregate principal amount equal to the principal amount
of the Global Security in exchange for such Global Security.
(2) The Company may at any time and in its sole discretion
determine that the Junior Subordinated Notes of any series issued or issuable in
the form of one or more Global Securities shall no longer be represented by such
Global Security or Securities. In such event the Company will execute, and the
Trustee, upon receipt of a Company Request for the authentication and delivery
of individual Junior Subordinated Notes of such series in exchange in whole or
in part for such Global Security, will authenticate and deliver individual
Junior Subordinated Notes of such series of like tenor and terms in definitive
form in an aggregate principal amount equal to the principal amount of such
Global Security or Securities representing such series in exchange for such
Global Security or Securities.
(3) If specified by the Company pursuant to Section 301 with
respect to Junior Subordinated Notes issued or issuable in the form of a Global
Security, the Depositary for such Global Security may surrender such Global
Security in exchange in whole or in part for individual Junior Subordinated
Notes of such series of like tenor and terms in definitive form on such terms as
are acceptable to the Company and such Depositary. Thereupon the Company shall
execute, and the Trustee shall authenticate and deliver, without service charge,
(A) to each Person specified by such Depositary a new Junior Subordinated Note
or Notes of the same series of like tenor and terms and of any authorized
denomination as requested by such Person in aggregate principal amount equal to
and in exchange for such Person's beneficial interest in the Global Security;
and (B) to such Depositary a new Global Security of like tenor and terms and in
an authorized denomination equal to the difference, if any, between the
principal amount of the surrendered Global Security and the aggregate principal
amount of Junior Subordinated Notes delivered to Holders thereof.
(4) In any exchange provided for in any of the preceding three
paragraphs, the Company will execute and the Trustee will authenticate and
deliver individual Junior Subordinated Notes in definitive form in authorized
denominations. Upon the exchange of the entire principal amount of a Global
Security for individual Junior Subordinated Notes, such Global Security shall be
cancelled by the Trustee. Except as provided in the preceding paragraph, Junior
Subordinated Notes issued in exchange for a Global Security pursuant to this
Section shall be registered in such names and in such authorized denominations
as the Depositary for such Global Security, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the Trustee.
Provided that the Company and the Trustee have so agreed, the Trustee shall
deliver such Junior Subordinated Notes to the Persons in whose names the Junior
Subordinated Notes are registered.
(5) Any endorsement of a Global Security to reflect the
amount, or any increase or decrease in the amount, or changes in the rights of
Holders, of Outstanding Junior Subordinated Notes represented thereby shall be
made in such manner and by such Person or Persons as shall be specified therein
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or in the Company Order to be delivered pursuant to Section 302 with respect
thereto. Subject to the provisions of Section 302, the Trustee shall deliver and
redeliver any such Global Security in the manner and upon instructions given by
the Person or Persons specified therein or in the applicable Company Order. If a
Company Order pursuant to Section 302 has been, or simultaneously is, delivered,
any instructions by the Company with respect to such Global Security shall be in
writing but need not be accompanied by or contained in an Officers' Certificate
and need not be accompanied by an Opinion of Counsel.
ARTICLE THREE
THE JUNIOR SUBORDINATED NOTES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Junior Subordinated Notes which may
be authenticated and delivered under this Indenture is unlimited.
The Junior Subordinated Notes may be issued in one or more series.
There may be established, pursuant to one or more indentures supplemental
hereto, prior to the issuance of Junior Subordinated Notes of any series,
(1) the title of the Junior Subordinated Notes of the series
(which shall distinguish the Junior Subordinated Notes of the series from Junior
Subordinated Notes of all other series);
(2) any limit upon the aggregate principal amount of the
Junior Subordinated Notes of the series which may be authenticated and delivered
under this Indenture (except for Junior Subordinated Notes authenticated and
delivered upon registration of transfer of, or in exchange for, or in lieu of,
other Junior Subordinated Notes of the series pursuant to Sections 203, 303,
304, 907 or 1107);
(3) the Person to whom interest on a Junior Subordinated Note
of the series shall be payable if other than the Person in whose name that
Junior Subordinated Note (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest;
(4) the date or dates on which the principal of the Junior
Subordinated Notes of the series is payable, and the right, if any, to extend or
advance the Stated Maturity of the Junior Subordinated Notes and the conditions
to such extension or advancement;
(5) the rate or rates at which the Junior Subordinated Notes
of the series shall bear interest, if any, or any method by which such rate or
rates shall be determined, the date or dates from which such interest shall
accrue, the Interest Payment Dates on which such interest shall be payable, the
Regular Record Date for the interest payable on Junior Subordinated Notes on any
15
Interest Payment Date and the basis upon which interest shall be calculated if
other than that of a 360-day year consisting of twelve 30-day months;
(6) the place or places where the principal of (and premium,
if any) and interest, if any, on Junior Subordinated Notes of the series shall
be payable;
(7) the period or periods within which, the price or prices at
which and the terms and conditions upon which Junior Subordinated Notes of the
series may be redeemed, in whole or in part, at the option
of the Company;
(8) the obligation, if any, of the Company to redeem or
purchase Junior Subordinated Notes of the series pursuant to any sinking fund or
analogous provision or at the option of a Holder thereof and the period or
periods within which, the price or prices at which, and the terms and conditions
upon which, Junior Subordinated Notes of the series shall be redeemed or
purchased, in whole or in part, pursuant to such obligation;
(9) the denominations in which Junior Subordinated Notes of
the series shall be issuable;
(10) if the amount of payments of principal of (and premium,
if any) or interest (including Additional Interest) on the Junior Subordinated
Notes of the series may be determined with reference to an index or formula, the
manner in which such amounts shall be determined;
(11) if other than the principal amount thereof, the portion
of the principal amount of Junior Subordinated Notes of the series which shall
be payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 502;
(12) any deletions from, modifications of or additions to the
Events of Default or covenants of the Company as provided herein pertaining to
the Junior Subordinated Notes of the series, and any change in the rights of the
Trustee or Holders of such series pursuant to Section 901 or 902;
(13) any additions to the definitions currently set forth in
this Indenture with respect to such series;
(14) whether the Junior Subordinated Notes of the series shall
be issued in whole or in part in the form of a Global Security or Securities;
the terms and conditions, if any, upon which such Global Security or Securities
may be exchanged in whole or in part for certificated Junior Subordinated Notes
of such series and of like tenor of any authorized denomination and the
circumstances under which such exchange may occur, if other than in the manner
provided for in Section 203; the Depositary for such Global Security or
Securities; and the form of any legend or legends to be borne by any such Global
Security in addition to or in lieu of the legend referred to in Section 203;
16
(15) the right, if any, of the Company to extend the interest
payment periods of such series of Junior Subordinated Notes, including the
maximum duration of any such extension or extensions, the Additional Interest,
if any, payable on such Junior Subordinated Notes during any extension of the
interest payment period and any notice (which shall include notice to the
Trustee) that must be given upon the exercise of such right to extend interest
payment periods;
(16) any restriction or condition on the transferability of
such Junior Subordinated Notes; and
(17) any other terms of the series.
All Junior Subordinated Notes of any one series shall be substantially
identical except as to the date or dates from which interest, if any, shall
accrue and denomination and except as may otherwise be provided in the terms of
such Junior Subordinated Notes determined or established as provided above. All
Junior Subordinated Notes of any one series need not be issued at the same time
and, unless otherwise provided, a series may be reopened for issuances of
additional Junior Subordinated Notes of such series.
SECTION 302 EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Junior Subordinated Notes shall be executed on behalf of the
Company by its Chairman of the Board, its President or one of its Vice
Presidents, under its corporate seal reproduced thereon attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Junior Subordinated Notes may be manual or facsimile.
Junior Subordinated Notes bearing the manual or facsimile signatures of
individuals who were at the time relevant to the authorization thereof the
proper officers of the Company shall bind the Company, notwithstanding that such
individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Junior Subordinated Notes or did not hold
such offices at the date of such Junior Subordinated Notes.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Junior Subordinated Notes of any series
executed by the Company to the Trustee for authentication, together with a
Company Order for the authentication and delivery of such Junior Subordinated
Notes, and the Trustee, in accordance with the Company Order, shall authenticate
and deliver such Junior Subordinated Notes. If all of the Junior Subordinated
Notes of any series are not to be issued at one time and if the supplemental
indenture establishing such series shall so permit, such Company Order may set
forth procedures acceptable to the Trustee for the issuance of such Junior
Subordinated Notes and determining the terms of particular Junior Subordinated
Notes of such series, such as interest rate, maturity date, date of issuance and
date from which interest shall accrue. In authenticating Junior Subordinated
Notes hereunder, and accepting the additional responsibilities under this
Indenture in relation to such Junior Subordinated Notes, the Trustee shall be
entitled to receive, and (subject to Section 601) shall be fully protected in
relying upon:
17
(1) an Opinion of Counsel, to the effect that:
(a) the form and terms of such Junior Subordinated Notes or
the manner of determining such terms have been established in conformity with
the provisions of this Indenture; and
(b) such Junior Subordinated Notes, when authenticated and
delivered by the Trustee and issued by the Company in the manner and subject to
any conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company, enforceable in accordance with their
terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting the enforcement of
creditors' rights and to general equity principles; and
(2) an Officers' Certificate stating, to the best knowledge of
each signer of such certificate, that no event which is, or after notice or
lapse of time would become, an Event of Default with respect to any of the
Junior Subordinated Notes shall have occurred and be continuing.
The Trustee shall not be required to authenticate such Junior Subordinated Notes
if the issue of such Junior Subordinated Notes pursuant to this Indenture will
affect the Trustee's own rights, duties or immunities under the Junior
Subordinated Notes and this Indenture or otherwise in a manner which is not
reasonably acceptable to the Trustee.
If all the Junior Subordinated Notes of any series are not to be issued
at one time, it shall not be necessary to deliver an Opinion of Counsel and
Officers' Certificate at the time of issuance of each such Junior Subordinated
Note, but such opinion and certificate shall be delivered at or before the time
of issuance of the first Junior Subordinated Note of such series to be issued.
Each Junior Subordinated Note shall be dated the date of its
authentication.
No Junior Subordinated Note shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Junior Subordinated Note a certificate of authentication substantially in the
form provided for herein executed by the Trustee by manual signature, and such
certificate upon any Junior Subordinated Note shall be conclusive evidence, and
the only evidence, that such Junior Subordinated Note has been duly
authenticated and delivered hereunder and is entitled to the benefits of this
Indenture.
SECTION 303. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept at the office of the Security
Registrar designated pursuant to this Section 303 or Section 1002 a register
(referred to as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration
of Junior Subordinated Notes and of transfers of Junior Subordinated Notes. The
18
Trustee is hereby initially appointed as Security Registrar for the purpose of
registering Junior Subordinated Notes and transfers of Junior Subordinated Notes
as herein provided.
Subject to Section 203, upon surrender for registration of transfer of
any Junior Subordinated Note of any series at the office or agency maintained
for such purpose for such series, the Company shall execute, and the Trustee
shall authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Junior Subordinated Notes of the same series,
Stated Maturity and original issue date, of any authorized denominations and of
like tenor and aggregate principal amount.
Subject to Section 203, Junior Subordinated Notes of any series may be
exchanged, at the option of the Holder, for Junior Subordinated Notes of the
same series, Stated Maturity and original issue date, of any authorized
denominations and of like tenor and aggregate principal amount, upon surrender
of the Junior Subordinated Notes to be exchanged at any such office or agency.
Whenever any Junior Subordinated Notes are so surrendered for exchange,
the Company shall execute, and the Trustee shall authenticate and deliver, the
Junior Subordinated Notes that the Holder making the exchange is entitled to
receive.
All Junior Subordinated Notes issued upon any registration of transfer
or exchange of Junior Subordinated Notes shall be the valid obligations of the
Company, evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Junior Subordinated Notes surrendered upon such registration
of transfer or exchange.
Every Junior Subordinated Note presented or surrendered for
registration of transfer or for exchange shall (if so required by the Company or
the Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar duly
executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Junior Subordinated Notes, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or exchange of Junior
Subordinated Notes, other than exchanges pursuant to Section 304, 907 or 1107
not involving any transfer.
The Company shall not be required (i) to issue, to register the
transfer of or to exchange Junior Subordinated Notes of any series during a
period of 15 days immediately preceding the date notice is given identifying the
serial numbers of the Junior Subordinated Notes of that series called for
redemption, or (ii) to issue, to register the transfer of or to exchange any
Junior Subordinated Notes so selected for redemption in whole or in part, except
the unredeemed portion of any Junior Subordinated Note being redeemed in part.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
19
interests of a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
SECTION 304. MUTILATED, DESTROYED, LOST AND STOLEN JUNIOR SUBORDINATED NOTES.
If any mutilated Junior Subordinated Note is surrendered to the
Trustee, the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a new Junior Subordinated Note of the same series,
Stated Maturity and original issue date, and of like tenor and principal amount
and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Junior
Subordinated Note and (ii) such security or indemnity as may be required by them
to save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Junior Subordinated
Note has been acquired by a bona fide purchaser, the Company shall execute and
upon its request the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Junior Subordinated Note, a new Junior Subordinated
Note of the same series, Stated Maturity and original issue date, and of like
tenor and principal amount and bearing a number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen Junior
Subordinated Note has become or is about to become due and payable, the Company
in its discretion may, instead of issuing a new Junior Subordinated Note, pay
such Junior Subordinated Note.
Upon the issuance of any new Junior Subordinated Note under this
Section, the Company may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Junior Subordinated Note of any series issued pursuant to
this Section in lieu of any destroyed, lost or stolen Junior Subordinated Note
shall constitute an original additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Junior Subordinated Note shall be
at any time enforceable by anyone, and any such new Junior Subordinated Note
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Junior Subordinated Notes of that series
duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Junior Subordinated Notes.
SECTION 305. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
20
Unless otherwise provided as contemplated by Section 301 with respect
to any series of Junior Subordinated Notes, interest (including Additional
Interest) on any Junior Subordinated Note that 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 Junior Subordinated Note (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
Any interest (including Additional Interest) on any Junior Subordinated
Note of any series that is payable, but is not punctually paid or duly provided
for on any Interest Payment Date (herein called "Defaulted Interest") shall
forthwith cease to be payable to the Holder on the relevant Regular Record Date
by virtue of having been such Holder, and such Defaulted Interest may be paid by
the Company, at its election in each case, as provided in Clause (1) or (2)
below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Junior Subordinated Notes of such
series (or their respective Predecessor Securities) are registered at the close
of business on a Special Record Date for the payment of such Defaulted Interest,
which shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid on
each Junior Subordinated Note of such series and the date of the proposed
payment, and at the same time the Company shall deposit with the Trustee an
amount of money equal to the aggregate amount proposed to be paid in respect of
such Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this Clause provided. Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest which shall be
not more than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify the
Company of such Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be mailed, first-class postage prepaid,
to each Holder of Junior Subordinated Notes of such series at the address of
such Holder as it appears in the Security Register, not less than 10 days prior
to such Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so mailed, such
Defaulted Interest shall be paid to the Persons in whose names the Junior
Subordinated Notes of such series (or their respective Predecessor Securities)
are registered at the close of business on such Special Record Date and shall no
longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest
(including Additional Interest, if any) on the Junior Subordinated Notes of any
series in any other lawful manner not inconsistent with the requirements of any
securities exchange on which such Junior Subordinated Notes may be listed, and
upon such notice as may be required by such exchange, if, after notice given by
the Company to the Trustee of the proposed payment pursuant to this Clause, such
manner of payment shall be deemed practicable by the Trustee.
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Subject to the foregoing provisions of this Section, each Junior
Subordinated Note delivered under this Indenture upon registration of transfer
of or in exchange for or in lieu of any other Junior Subordinated Note shall
carry the rights to interest accrued (including Additional Interest, if any) and
unpaid, and to accrue (including Additional Interest, if any), which were
carried by such other Junior Subordinated Note.
SECTION 306. PERSONS DEEMED OWNERS.
Prior to due presentment of a Junior Subordinated Note for registration
of transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name such Junior Subordinated Note is
registered as the absolute owner of such Junior Subordinated Note for the
purpose of receiving payment of principal of (and premium, if any) and (subject
to Section 305) interest (including Additional Interest, if any) on such Junior
Subordinated Note and for all other purposes whatsoever, whether or not such
Junior Subordinated Note be overdue, and neither the Company, the Trustee nor
any agent of the Company or the Trustee shall be affected by notice to the
contrary.
SECTION 307. CANCELLATION.
All Junior Subordinated Notes surrendered for payment, redemption,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be delivered
to the Trustee and shall be promptly cancelled by the Trustee. The Company may
at any time deliver to the Trustee for cancellation any Junior Subordinated
Notes previously authenticated and delivered hereunder which the Company may
have acquired in any manner whatsoever, and all Junior Subordinated Notes so
delivered shall be canceled by the Trustee. No Junior Subordinated Notes shall
be authenticated in lieu of or in exchange for any Junior Subordinated Notes
canceled as provided in this Section, except as expressly permitted by this
Indenture. All cancelled Junior Subordinated Notes held by the Trustee shall be
disposed of in accordance with a Company Order and the Trustee shall promptly
deliver a certificate of disposition to the Company.
SECTION 308. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 301 for Junior
Subordinated Notes of any series, interest on the Junior Subordinated Notes of
each series shall be computed on the basis of a 360-day year consisting of
twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
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This Indenture shall, upon Company Request, cease to be of further
effect (except as to any surviving rights of registration of transfer or
exchange of Junior Subordinated Notes herein expressly provided for) and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) all Junior Subordinated Notes theretofore authenticated
and delivered (other than (i) Junior Subordinated Notes that have been
destroyed, lost or stolen and that have been replaced as provided for in Section
304 and (ii) Junior Subordinated Notes for whose payment money has theretofore
been deposited in trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such trust, as provided in
Section 1003) have been delivered to the Trustee for cancellation; or
(B) all such Junior Subordinated Notes not theretofore
delivered to the Trustee for cancellation have become due and payable, or have
been called for redemption,
and the Company, in the case of (B) above, has deposited or caused to
be deposited with the Trustee as funds in trust for the purpose described above
an amount sufficient to pay and discharge the entire indebtedness on such Junior
Subordinated Notes not theretofore delivered to the Trustee for cancellation,
for principal (and premium, if any) and interest to the date of the Stated
Maturity or Redemption Date, as the case may be, or if later, the date of
payment;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
In the event there are Junior Subordinated Notes of two or more series
hereunder, the Trustee shall be required to execute an instrument acknowledging
satisfaction and discharge of this Indenture only if requested to do so with
respect to Junior Subordinated Notes of all series as to which it is Trustee and
if the other conditions thereto are met. In the event there are two or more
Trustees hereunder, then the effectiveness of any such instrument shall be
conditioned upon receipt of such instruments from all Trustees hereunder.
If, subsequent to the date a discharge is effected pursuant to this
Section 401, Additional Interest (in excess of that established as of the date
such discharge is effected) becomes payable in respect of the series of Junior
Subordinated Notes discharged, in order to preserve the benefits of the
discharge established hereunder, the Company shall irrevocably deposit or cause
to be irrevocably deposited in accordance with the provisions of this Section
401, within ten Business Days prior to the date the first payment in respect of
any portion of such excess Additional Interest becomes due, such additional
funds as are necessary to satisfy the provisions of this Section 401 as if a
discharge were being effected as of the date of such subsequent deposit. Failure
23
to comply with the requirements of this paragraph shall result in the
termination of the benefits of the discharge established by this Section 401.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Trustee to any Authenticating Agent under Section 614 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of clause (1) of
this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
SECTION 402. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Junior Subordinated
Notes, and this Indenture, to the payment, either directly or through any Paying
Agent (including the Company or an Affiliate acting as its own Paying Agent) as
the Trustee may determine, to the Persons entitled thereto, of the principal
(and premium, if any) and interest for whose payment such money has been
deposited with the Trustee.
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT.
"Event of Default", wherever used herein with respect to Junior
Subordinated Notes of any series, means any one of the following events
(whatever the reason for such Event of Default and whether it shall be voluntary
or involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body or occasioned by the operation of Article
Thirteen):
(1) default in the payment of any interest upon any Junior
Subordinated Note of that series when it becomes due and payable on an Interest
Payment Date other than at Maturity, including Additional Interest (as defined
in clause (ii) of the definition thereof) in respect thereof, and continuance of
such default for a period of thirty (30) days; provided, however, that (i) a
valid extension of the interest payment period by the Company pursuant to the
terms of a supplemental indenture authorizing the Junior Subordinated Notes of
that series shall not constitute a default in the payment of interest for this
purpose and (ii) no such default shall be deemed to exist if, on or prior to the
date on which such interest became due, the Company shall have made a payment
sufficient to pay such interest pursuant to the Guarantee related to the Trust
Securities of the Securities Trust owning such series of Junior Subordinated
Notes, and shall have delivered a notice to the Trustee to that effect; or
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(2) default in payment of Additional Interest (as defined in
clause (i) of the definition thereof) and the continuance of such default for a
period of thirty (30) days; or
(3) default in the payment of the principal of, (or premium,
if any) or interest (including Additional Interest as defined in clause (ii) of
the definition thereof) on any Junior Subordinated Note of that series at its
Maturity; provided, however, that no such default in the payment of principal
(or premium, if any) or interest (including Additional Interest as defined in
clause (ii) of the definition thereof) shall be deemed to exist if, on or prior
to the date such principal (and premium, if any) or interest (including
Additional Interest as defined in clause (ii) of the definition thereof) became
due, the Company shall have made a payment sufficient to pay such principal (and
premium, if any) or interest (including Additional Interest as defined in clause
(ii) of the definition thereof) pursuant to the Guarantee related to the Trust
Securities of the Securities Trust owning such series of Junior Subordinated
Notes, and shall have delivered a notice to the Trustee to that effect; or
(4) default in the deposit of any sinking fund payment, when
and as due by the terms of a Junior Subordinated Note of that series and
continuance of such default for a period of three Business Days; or
(5) default in the performance or breach of any covenant or
warranty of the Company in this Indenture (other than a covenant or warranty a
default in whose performance or whose breach is elsewhere in this Section
specifically dealt with or which has expressly been included in this Indenture
solely for the benefit of one or more series of Junior Subordinated Notes other
than that series), and continuance of such default or breach for a period of 90
days after there has been given, by registered or certified mail, to the Company
by the Trustee, or to the Company and the Trustee by the Holders of at least 25%
in principal amount of the Outstanding Junior Subordinated Notes of that series,
a written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default" hereunder; or
(6) the entry by a court having jurisdiction in the premises
of (A) a decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition by
one or more Persons other than the Company seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company under any applicable
federal or state law, or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official for the Company or for any
substantial part of its property, or ordering the winding up or liquidation of
its affairs, and the continuance of any such decree or order for relief or any
such other decree or order unstayed and in effect for a period of 90 consecutive
days; or
(7) the commencement by the Company of a case or proceeding
under any applicable federal or state bankruptcy, insolvency, reorganization or
other similar law or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by it to the entry of a decree or order
for relief in respect of the Company in a case or proceeding under any
25
applicable federal or state bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or insolvency case or
proceeding against it, or the filing by it of a petition or answer or consent
seeking reorganization or relief under any applicable federal or state law, or
the consent by it to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or similar official of the Company or of any substantial part of
its property, or the making by it of an assignment for the benefit of creditors,
or the admission by it in writing of its inability to pay its debts generally as
they become due, or the taking of corporate action by the Company in furtherance
of any such action; or
(8) any other Event of Default provided with respect to Junior
Subordinated Notes of that series in the supplemental indenture authorizing such
series.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default with respect to Junior Subordinated Notes of any
series at the time Outstanding occurs and is continuing, then in every such case
the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Junior Subordinated Notes of that series may declare the principal
amount (or such portion of the principal amount as may be specified in the terms
of that series) of all of the Junior Subordinated Notes of that series to be due
and payable immediately, by a notice in writing to the Company (and to the
Trustee if given by Holders), and upon any such declaration such principal
amount (or specified amount) shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Junior Subordinated Notes of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of not less than a majority in
principal amount of the Outstanding Junior Subordinated Notes of that series, by
written notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest (including any Additional Interest)
on all Junior Subordinated Notes of that series,
(B) the principal of (and premium, if any) any Junior
Subordinated Notes of that series which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate or rates prescribed
therefor in such Junior Subordinated Notes,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest (including any Additional Interest) at the rate
or rates prescribed therefor in such Junior Subordinated Notes, and
26
(D) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due to the Trustee under
Section 607; and
(2) all Events of Default with respect to Junior Subordinated
Notes of that series, other than the non-payment of the principal of Junior
Subordinated Notes of that series which have become due solely by such
declaration of acceleration, have been cured or waived as provided in Section
513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
The Company covenants that if an Event of Default occurs under Section
501(1), (2), (3) or (4) with respect to any Junior Subordinated Notes the
Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Junior Subordinated Notes, the whole amount then due and payable
on such Junior Subordinated Notes for principal (and premium, if any) and
interest (including Additional Interest, if any) and, to the extent that payment
of such interest shall be legally enforceable, interest on any overdue principal
(and premium, if any) and on any overdue interest (including Additional
Interest, if any), at the rate or rates prescribed therefor in such Junior
Subordinated Notes, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due to the Trustee under Section
607.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Junior Subordinated Notes and
collect the moneys adjudged or decreed to be payable in the manner provided by
law out of the property of the Company or any other obligor upon such Junior
Subordinated Notes, wherever situated.
If an Event of Default with respect to Junior Subordinated Notes of any
series occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Junior
Subordinated Notes of such series by such appropriate judicial proceedings as
the Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
27
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the Junior
Subordinated Notes or the property of the Company or of such other obligor or
their creditors, the Trustee (irrespective of whether the principal of the
Junior Subordinated Notes shall then be due and payable as therein expressed or
by declaration or otherwise and irrespective of whether the Trustee shall have
made any demand on the Company for the payment of overdue principal or interest)
shall be entitled and empowered, by intervention in such proceeding or
otherwise,
(1) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest owing and unpaid in respect of the
Junior Subordinated Notes and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, and any other amounts due to the Trustee
under Section 607) and of the Holders of Junior Subordinated Notes allowed in
such judicial proceeding, and
(2) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder of Junior Subordinated Notes to make such payments to the Trustee
and, in the event that the Trustee shall consent to the making of such payments
directly to the Holders of Junior Subordinated Notes, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Junior
Subordinated Note any plan of reorganization, arrangement, adjustment or
composition affecting the Junior Subordinated Notes or the rights of any Holder
thereof or to authorize the Trustee to vote in respect of the claim of any
Holder of a Junior Subordinated Note in any such proceeding.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF JUNIOR
SUBORDINATED NOTES.
All rights of action and claims under this Indenture or the Junior
Subordinated Notes may be prosecuted and enforced by the Trustee without the
possession of any of the Junior Subordinated Notes or the production thereof in
any proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the Junior
Subordinated Notes in respect of which such judgment has been recovered.
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SECTION 506. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (or premium,
if any) or interest, upon presentation of the Junior Subordinated Notes, and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
First: To the payment of all amounts due the Trustee under
Section 607; and
Second: Subject to Article Thirteen, to the payment of the
amounts then due and unpaid for principal of (and premium, if any) and interest
(including Additional Interest, if any) on the Junior Subordinated Notes in
respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the amounts
due and payable on such Junior Subordinated Notes for principal (and premium, if
any) and interest (including Additional Interest, if any), respectively; and
Third: The balance, if any, to the Person or Persons entitled
thereto.
SECTION 507. LIMITATION ON SUITS.
No Holder of any Junior Subordinated Note of any series shall have any
right to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Junior Subordinated
Notes of that series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Junior Subordinated Notes of that series shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be incurred
in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Junior Subordinated Notes of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatsoever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
29
other of such Holders or to obtain or to seek to obtain priority or preference
over any other of such Holders or to enforce any right under this Indenture,
except in the manner herein provided and for the equal and ratable benefit of
all of such Holders.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM
AND INTEREST.
Notwithstanding any other provision in this Indenture but subject to
Article Thirteen, (1) the Holder of any Junior Subordinated Notes shall have the
right, which is absolute and unconditional, to receive payment of the principal
of (and premium, if any) and (subject to Section 305) interest (including any
Additional Interest) on such Junior Subordinated Note on the due dates expressed
in such Junior Subordinated Note (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement of any such payment,
and such rights shall not be impaired without the consent of such Holder; and
(2) so long as the Junior Subordinated Notes of any series are held by a
Securities Trust, a registered holder of preferred securities issued by such
Securities Trust may institute a legal proceeding directly against the Company,
without first instituting a legal proceeding directly against or requesting or
directing that action be taken by the Property Trustee of such Securities Trust
or any other Person, for enforcement of payment to such registered holder of
principal of or interest on Junior Subordinated Notes of such series having a
principal amount equal to the aggregate stated liquidation amount of such
preferred securities of such registered holder on or after the due dates
therefor specified or provided for in the Junior Subordinated Notes of such
series.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder of a Junior Subordinated Note has
instituted any proceeding to enforce any right or remedy under this Indenture
and such proceeding has been discontinued or abandoned for any reason, or has
been determined adversely to the Trustee or to such Holder, then and in every
such case, subject to any determination in such proceeding, the Company, the
Trustee and the Holders of Junior Subordinated Notes shall be restored severally
and respectively to their former positions hereunder and thereafter all rights
and remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Junior Subordinated Notes in the last
paragraph of Section 304, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders of Junior Subordinated Notes is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER.
30
No delay or omission of the Trustee or of any Holder of any Junior
Subordinated Note to exercise any right or remedy upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders of Junior Subordinated Notes
may be exercised from time to time, and as often as may be deemed expedient, by
the Trustee or by the Holders of Junior Subordinated Notes.
SECTION 512. CONTROL BY HOLDERS OF JUNIOR SUBORDINATED NOTES.
The Holders of not less than a majority in principal amount of the
Outstanding Junior Subordinated Notes of any series shall have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee, with respect to the Junior Subordinated Notes of such series, provided
that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture, and could not involve the Trustee in personal
liability in circumstances where reasonable indemnity would not be adequate, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 513. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in principal amount of the
Outstanding Junior Subordinated Notes of any series may, on behalf of the
Holders of all the Junior Subordinated Notes of such series, waive any past
default hereunder with respect to such series and its consequences, except a
default
(1) in the payment of the principal of (or premium, if any) or
interest (including Additional Interest) on any Junior Subordinated Note of such
series, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Junior Subordinated Note of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 514. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any Junior
Subordinated Note by his acceptance thereof shall be deemed to have agreed, that
any court may in its discretion require, in any suit for the enforcement of any
31
right or remedy under this Indenture, or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in principal
amount of the Outstanding Junior Subordinated Notes of any series, or to any
suit instituted by any Holder of any Junior Subordinated Note for the
enforcement of the payment of the principal of (or premium, if any) or interest
(including Additional Interest) on any Junior Subordinated Note on or after the
Stated Maturity or Maturities expressed in such Junior Subordinated Note (or, in
the case of redemption, on or after the Redemption Date).
SECTION 515. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Event of Default with respect
to Junior Subordinated Notes of any series,
(1) the Trustee undertakes to perform, with respect to Junior
Subordinated Notes of such series, such duties and only such duties as are
specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may,
with respect to Junior Subordinated Notes of such series, conclusively rely, as
to the truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the Trustee and conforming
to the requirements of this Indenture; but in the case of any such certificates
or opinions which by any provision hereof are specifically required to be
32
furnished to the Trustee, the Trustee shall be under a duty to examine the same
to determine whether or not they conform to the requirements of this Indenture.
(b) In case an Event of Default with respect to Junior
Subordinated Notes of any series has occurred and is continuing, the Trustee
shall exercise, with respect to Junior Subordinated Notes of such series, such
of the rights and powers vested in it by this Indenture, and use the same degree
of care and skill in their exercise, as a prudent man would exercise or use
under the circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that
(1) this Subsection shall not be construed to limit the effect
of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of a majority in principal amount of the Outstanding
Junior Subordinated Notes of any series relating to the time, method and place
of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this Indenture
with respect to the Junior Subordinated Notes of such series; and
(4) no provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision
of this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
SECTION 602. NOTICE OF DEFAULTS.
Within 90 days after the occurrence of any default hereunder with
respect to the Junior Subordinated Notes of any series, the Trustee shall
transmit by mail to all Holders of Junior Subordinated Notes of such series
entitled to receive reports pursuant to Section 313(c) of the Trust Indenture
Act, notice of all defaults hereunder known to the Trustee, unless such default
shall have been cured or waived; provided, however, that, except in the case of
a default in the payment of the principal of (or premium, if any) or interest
(including Additional Interest) on any Junior Subordinated Note of such series
33
or in the payment of any sinking fund installment with respect to Junior
Subordinated Notes of such series, the Trustee shall be protected in withholding
such notice if and so long as the board of directors, the executive committee or
a trust committee of directors or Responsible Officers of the Trustee in good
faith determine that the withholding of such notice is in the interest of the
Holders of Junior Subordinated Notes of such series; and provided, further, that
in the case of any default of the character specified in Section 501(5) with
respect to Junior Subordinated Notes of such series, no such notice to Holders
shall be given until at least 45 days after the occurrence thereof. For the
purpose of this Section, the term "default" means any event which is, or after
notice or lapse of time or both would become, an Event of Default with respect
to Junior Subordinated Notes of such series.
SECTION 603. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order and a
resolution of the Board of Directors may be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith on
its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders of Junior Subordinated Notes of any series
pursuant to this Indenture, unless such Holders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document, but
the Trustee, in its discretion, may make such further inquiry or investigation
34
into such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Company, personally or by agent
or attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due care by it
hereunder; and
(h) the Trustee shall not be charged with knowledge of any
Event of Default with respect to the Junior Subordinated Notes of any series for
which it is acting as Trustee unless either (1) a Responsible Officer of the
Trustee assigned to the Corporate Trustee Administration Department and agency
group of the Trustee (or any successor division or department of the Trustee)
shall have actual knowledge of the Event of Default or (2) written notice of
such Event of Default shall have been given to the Trustee by the Company, any
other obligor on such Junior Subordinated Notes or by any Holder of such Junior
Subordinated Notes.
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF JUNIOR
SUBORDINATED NOTES.
The recitals contained herein and in the Junior Subordinated Notes
(except the Trustee's certificates of authentication) shall be taken as the
statements of the Company, and the Trustee or any Authenticating Agent assumes
no responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Junior Subordinated
Notes. The Trustee or any Authenticating Agent shall not be accountable for the
use or application by the Company of Junior Subordinated Notes or the proceeds
thereof.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Trust Securities and shall be entitled to rely on the delivery to it
of a written notice by a Person representing himself to be a holder of a Trust
Security to establish that such Person is such a holder. The Trustee may
conclusively rely on an Officers' Certificate as evidence that the holders of
the necessary percentage of liquidation preference of Trust Securities have
taken any action contemplated hereunder and shall have no duty to investigate
the truth or accuracy of any statement contained therein.
SECTION 605. MAY HOLD JUNIOR SUBORDINATED NOTES.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Junior Subordinated Notes and,
subject to Sections 608 and 613, may otherwise deal with the Company with the
same rights it would have if it were not Trustee, Authenticating Agent, Paying
Agent, Security Registrar or such other agent.
SECTION 606. MONEY HELD IN TRUST.
35
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
SECTION 607. COMPENSATION AND REIMBURSEMENT.
The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which compensation shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any provision of this Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence, willful
misconduct or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence, willful
misconduct or bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder, including the
costs and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder.
As security for the performance of the obligations of the Company under
this Section the Trustee shall have a lien prior to the Junior Subordinated
Notes upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of, premium, if any, or
interest, if any, on particular Junior Subordinated Notes.
SECTION 608. DISQUALIFICATION; CONFLICTING INTERESTS.
If the Trustee has or shall acquire any conflicting interest, within
the meaning of the Trust Indenture Act, it shall, within 90 days after
ascertaining that it has such conflicting interest, 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 trustee under __________________.
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America, any State thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least $50,000,000, subject to supervision or examination by federal or
36
state authority and qualified and eligible under this Article and otherwise
permitted by the Trust Indenture Act to act as Trustee under an Indenture
qualified under the Trust Indenture Act. If such corporation publishes reports
of condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation shall be deemed to be its
combined capital surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of
a successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the Junior
Subordinated Notes of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 611 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Junior Subordinated Notes of such series.
(c) The Trustee may be removed at any time with respect to the
Junior Subordinated Notes of any series by Act of the Holders of a majority in
principal amount of the Outstanding Junior Subordinated Notes of such series
delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after
written request therefor by the Company or by any Holder of a Junior
Subordinated Note who has been a Holder of a Junior Subordinated Note for at
least six months, or
(2) the Trustee shall cease to be eligible under Section 609
and shall fail to resign after written request therefor by the Company or by any
such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (i) the Company, by a Board Resolution, may remove the
Trustee with respect to all Junior Subordinated Notes, or (ii) subject to
Section 514, any Holder of a Junior Subordinated Note who has been a bona fide
Holder of a Junior Subordinated Note for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
37
jurisdiction for the removal of the Trustee with respect to all Junior
Subordinated Notes and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Junior Subordinated Notes of one or more series, the Company, by
a Board Resolution, shall promptly appoint a successor Trustee or Trustees with
respect to the Junior Subordinated Notes of that or those series (it being
understood that any such successor Trustee may be appointed with respect to the
Junior Subordinated Notes of one or more or all of such series and that at any
time there shall be only one Trustee with respect to the Junior Subordinated
Notes of any particular series) and shall comply with the applicable
requirements of Section 611. If, within one year after such resignation, removal
or incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Junior Subordinated Notes of any series shall be appointed by Act
of the Holders of a majority in principal amount of the Outstanding Junior
Subordinated Notes of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
611, become the successor Trustee with respect to the Junior Subordinated Notes
of such series and to that extent supersede the successor Trustee appointed by
the Company. If no successor Trustee with respect to the Junior Subordinated
Notes of any series shall have been so appointed by the Company or the Holders
of Junior Subordinated Notes and accepted appointment in the manner required by
Section 611, any Holder of a Junior Subordinated Note who has been a bona fide
Holder of a Junior Subordinated Note of such series for at least six months may,
on behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Junior Subordinated Notes of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Junior Subordinated Notes of any
series and each appointment of a successor Trustee with respect to the Junior
Subordinated Notes of any series by mailing written notice of such event by
first-class mail, postage prepaid, to all Holders of such series of Junior
Subordinated Notes as their names and addresses appear in the Security Register.
SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor Trustee
with respect to all Junior Subordinated Notes, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder.
38
(b) In case of the appointment hereunder of a successor Trustee
with respect to the Junior Subordinated Notes of one or more (but not all)
series, the Company, the retiring Trustee and each successor Trustee with
respect to the Junior Subordinated Notes of one or more series shall execute and
deliver an indenture supplemental hereto wherein each successor Trustee shall
accept such appointment and which (1) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Junior Subordinated Notes of that or those series to
which the appointment of such successor Trustee relates, (2) if the retiring
Trustee is not retiring with respect to all Junior Subordinated Notes, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Junior Subordinated Notes of that or those series as to which the
retiring Trustee is not retiring shall continue to be vested in the retiring
Trustee, and (3) shall add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, it being understood that nothing
herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee; and upon the execution and delivery of
such supplemental indenture the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Junior Subordinated Notes of that or those series to which the
appointment of such successor Trustee relates; but, on request of the Company or
any successor Trustee, such retiring Trustee shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder with respect to the Junior Subordinated Notes of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Junior Subordinated Notes shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
39
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Junior Subordinated Notes so authenticated
with the same effect as if such successor Trustee had itself authenticated such
Junior Subordinated Notes.
SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Junior Subordinated Notes), the Trustee shall be
subject to the provisions of the Trust Indenture Act regarding the collection of
claims against the Company (or any such other obligor). For purposes of Section
311(b)(4) and (6) of the Trust Indenture Act:
(a) "cash transaction" means any transaction in which full payment
for goods or securities sold is made within seven days after delivery of the
goods or securities in currency or in checks or other orders drawn upon banks or
bankers and payable upon demand; and
(b) "self-liquidating paper" means any draft, bill of exchange,
acceptance or obligation which is made, drawn, negotiated or incurred by the
Company (or any such obligor) for the purpose of financing the purchase,
processing, manufacturing, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to, possession
of, or a lien upon, the goods, wares or merchandise or the receivables or
proceeds arising from the sale of the goods, wares or merchandise previously
constituting the security, provided the security is received by the Trustee
simultaneously with the creation of the creditor relationship with the Company
(or any such obligor) arising from the making, drawing, negotiating or incurring
of the draft, bill of exchange, acceptance or obligation.
SECTION 614. APPOINTMENT OF AUTHENTICATING AGENT.
At any time when any of the Junior Subordinated Notes remain
Outstanding the Trustee may appoint an Authenticating Agent or Agents with
respect to one or more series of Junior Subordinated Notes that shall be
authorized to act on behalf of the Trustee to authenticate Junior Subordinated
Notes of such series issued upon exchange, registration of transfer or partial
redemption thereof or pursuant to Section 304, and Junior Subordinated Notes so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the authentication
and delivery of Junior Subordinated Notes by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any State thereof or the
District of Columbia, authorized under such laws to act as Authenticating Agent,
having a combined capital and surplus of not less than $50,000,000 and subject
to supervision or examination by federal or state authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
40
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of Junior
Subordinated Notes, if any, of the series with respect to which such
Authenticating Agent will serve, as their names and addresses appear in the
Security Register. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 607.
The provisions of Sections 306, 604 and 605 shall be applicable to each
Authenticating Agent.
If an appointment with respect to one or more series is made pursuant
to this Section, the Junior Subordinated Notes of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternate certificate of authentication in the following form:
This is one of the Junior Subordinated Notes of the series
designated therein referred to in the within-mentioned Indenture.
------------------------------------
As Trustee
41
By
----------
As Authenticating Agent
By
----------
Authorized Signatory
42
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not later than June 1 and December 1, in
each year, a list, in such form as the Trustee may reasonably require,
containing all the information in the possession or control of the Company, or
any of its Paying Agents other than the Trustee, as to the names and addresses
of the Holders of Junior Subordinated Notes as of the preceding May 15 or
November 15, as the case may be, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a list of
similar form and content as of the most recent Regular Record Date;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
(a) The Trustee shall comply with the obligations imposed on it
pursuant to Section 312 of the Trust Indenture Act.
(b) Every Holder of Junior Subordinated Notes, by receiving and
holding the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any agent of either of them shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the Holders of Junior Subordinated Notes in accordance with
Section 312(b) of the Trust Indenture Act, regardless of the source from which
such information was derived, and that the Trustee shall not be held accountable
by reason of mailing any material pursuant to a request made under Section
312(b) of the Trust Indenture Act.
SECTION 703. REPORTS BY TRUSTEE.
(a) Within 60 days after May 15 of each year commencing with the
first May 15 after the first issuance of Junior Subordinated Notes pursuant to
this Indenture, if required by Section 313(a) of the Trust Indenture Act, the
Trustee shall transmit a brief report dated as of such May 15 with respect to
any of the events specified in such Section 313(a) that may have occurred since
the later of the immediately preceding May 15 and the date of this Indenture.
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(b) The Trustee shall transmit the reports required by Section
313(b) of the Trust Indenture Act at the times specified therein.
(c) Reports pursuant to this Section shall be transmitted in the
manner and to the Persons required by Sections 313(c) and (d) of the Trust
Indenture Act.
SECTION 704. REPORTS BY COMPANY.
The Company, pursuant to Section 314(a) of the Trust Indenture Act,
shall:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports and
of the information, documents and other reports (or copies of such portions of
any of the foregoing as the Commission may from time to time by rules and
regulations prescribe) that the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934, as amended; or, if the Company is not required to file information,
documents or reports pursuant to either of said Sections, then it shall file
with the Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the supplementary and
periodic information, documents and reports which may be required pursuant to
Section 13 of the Securities Exchange Act of 1934, as amended, in respect of a
security listed and registered on a national securities exchange as may be
prescribed from time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by the
Company with the conditions and covenants of this Indenture as may be required
from time to time by such rules and regulations;
(3) transmit, within 30 days after the filing thereof with the
Trustee, to the Holders of Junior Subordinated Notes, in the manner and to the
extent provided in Section 313(c) of the Trust Indenture Act, such summaries of
any information, documents and reports required to be filed by the Company
pursuant to paragraphs (1) and (2) of this Section 704 as may be required by
rules and regulations prescribed from time to time by the Commission; and
(4) notify the Trustee when and as the Junior Subordinated
Notes of any series become admitted to trading on any national securities
exchange.
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ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not consolidate with or merge into any other
corporation or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, unless
(1) in case the Company shall consolidate with or merge into
another corporation or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, the corporation formed by such
consolidation or into which the Company is merged or the Person which acquires
by conveyance or transfer, or which leases, the properties and assets of the
Company substantially as an entirety shall be a corporation organized and
existing under the laws of the United States of America, any State thereof or
the District of Columbia and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form satisfactory
to the Trustee, the due and punctual payment of the principal of (and premium,
if any) and interest (including Additional Interest) on all the Junior
Subordinated Notes and the performance of every covenant of this Indenture on
the part of the Company to be performed or observed;
(2) immediately after giving effect to such transactions, no
Event of Default, and no event which, after notice or lapse of time or both,
would become an Event of Default, shall have happened and be continuing; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger, conveyance, transfer or lease complies with this Article and that all
conditions precedent herein provided for relating to such transaction have been
complied with.
SECTION 802. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation by the Company with or merger by the Company
into any corporation or any conveyance, transfer or lease of the properties and
assets of the Company substantially as an entirety in accordance with Section
801, the successor corporation formed by such consolidation or into which the
Company is merged or to which such conveyance, transfer or lease is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
corporation had been named as the Company herein, and thereafter, except in the
case of a lease, the predecessor corporation shall be relieved of all
obligations and covenants under this Indenture and the Junior Subordinated
Notes.
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ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders of Junior Subordinated Notes, the
Company, when authorized by a Board Resolution, and the Trustee, at any time and
from time to time, may enter into one or more indentures supplemental hereto, in
form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the
Company and the assumption by any such successor of the covenants of the Company
herein and in the Junior Subordinated Notes; or
(2) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Junior Subordinated Notes (and if such
covenants are to be for the benefit of less than all series of Junior
Subordinated Notes, 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 Company; or
(3) to add any additional Events of Default; or
(4) to add to or change any of the provisions of this
Indenture, to change or eliminate any restrictions on the payment of principal
(or premium, if any) on Junior Subordinated Notes or to permit the issuance of
Junior Subordinated Notes in uncertificated form, provided any such action shall
not adversely affect the interests of the Holders of Junior Subordinated Notes
of any series in any material respect; or
(5) to change or eliminate any of the provisions of this
Indenture with respect to any series of Junior Subordinated Notes theretofore
unissued; or
(6) to secure the Junior Subordinated Notes; or
(7) to establish the form or terms of Junior Subordinated
Notes of any series as permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Junior Subordinated Notes
of one or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 611(b); or
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(9) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision herein, or
to make provisions with respect to matters or questions arising under this
Indenture, provided such action shall not adversely affect the interests of the
Holders of Junior Subordinated Notes of any series or holders of outstanding
Trust Securities in any material respect; or
(10) subject to Section 903(a), to make any change in Article
Thirteen that would limit or terminate the benefits available to any holder of
Senior Indebtedness under such Article; or
(11) 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 hereafter enacted, and to add to this Indenture such other provisions as
may be expressly required by the Trust Indenture Act.
SECTION 902 SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Junior Subordinated Notes of each series
affected by such supplemental indenture, by Act of said Holders delivered to the
Company and the Trustee, the Company, when authorized by a Board Resolution, and
the Trustee may enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of modifying in any manner the rights
of the Holders of Junior Subordinated Notes of such series under this Indenture;
provided, however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Junior Subordinated Note affected
thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Junior Subordinated Note, or
reduce the principal amount thereof or the rate of interest (including
Additional Interest) thereon or any premium payable upon the redemption thereof,
or change the method of calculating the rate of interest thereon, or impair the
right to institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date), or
(2) reduce the percentage in principal amount of the
Outstanding Junior Subordinated Notes of any series, the consent of whose
Holders is required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance with certain provisions of
this Indenture or certain defaults hereunder and their consequences) provided
for in this Indenture, or
(3) modify any of the provisions of this Section 902, Section
513 or Section 1008, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived without
the consent of the Holder of each Outstanding Junior Subordinated Note affected
thereby, provided, however, that this clause shall not be deemed to require the
consent of any Holder of a Junior Subordinated Note with respect to changes in
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the references to "the Trustee" and concomitant changes in this Section and
Section 1008, or the deletion of this proviso, in accordance with the
requirements of Sections 611(b) and 901(8), or
(4) modify the provisions of this Indenture with respect to
the subordination of the Junior Subordinated Notes in a manner adverse to such
Holder.
SECTION 903. GENERAL PROVISIONS REGARDING SUPPLEMENTAL INDENTURE.
(a) A supplemental indenture entered into pursuant to Section 901
or Section 902 may not make any change that adversely affects the rights under
Article Thirteen of any holder of Senior Indebtedness then outstanding unless
the holders of such Senior Indebtedness (or any group or representative thereof
authorized to give a consent) consent to such change.
(b) 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 Junior Subordinated
Notes, or which modifies the rights of the Holders of Junior Subordinated Notes
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 Junior
Subordinated Notes of any other series.
(c) It shall not be necessary for any Act of Holders of Junior
Subordinated Notes under this Section to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient if such Act or
action shall approve the substance thereof.
SECTION 904. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties, immunities or liabilities under this Indenture or
otherwise.
SECTION 905. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Junior Subordinated Notes theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby.
SECTION 906. CONFORMITY WITH TRUST INDENTURE ACT.
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Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
SECTION 907. REFERENCE IN JUNIOR SUBORDINATED NOTES TO SUPPLEMENTAL
INDENTURES.
Junior Subordinated Notes of any series authenticated and delivered
after the execution of any supplemental indenture pursuant to this Article may,
and shall if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Junior Subordinated Notes of any series so
modified as to conform, in the opinion of the Trustee and the Company, to any
such supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding Junior
Subordinated Notes of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL AND INTEREST.
The Company covenants and agrees for the benefit of each series of
Junior Subordinated Notes that it will duly and punctually pay the principal of
(and premium, if any) and interest, including Additional Interest (subject to
the right of the Company to extend an interest payment period pursuant to the
terms of a supplemental indenture authorizing the Junior Subordinated Notes of
that series), on the Junior Subordinated Notes of that series in accordance with
the terms of the Junior Subordinated Notes and this Indenture.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Company or its Affiliate will maintain an office or agency where
Junior Subordinated Notes of each series may be presented or surrendered for
payment, where Junior Subordinated Notes of that series may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company in respect of the Junior Subordinated Notes of that series and this
Indenture may be served. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency in respect of any series of Junior Subordinated Notes or shall
fail to furnish the Trustee with the address thereof, such presentations and
surrenders of Junior Subordinated Notes of that series may be made and notices
and demands may be made or served at the Corporate Trust Office of the Trustee,
and the Company hereby appoints the Trustee as its agent to receive such
respective presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Junior Subordinated Notes of one or more series
may be presented or surrendered for any or all such purposes and may from time
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to time rescind such designations. The Company will give prompt written notice
to the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.
SECTION 1003. MONEY FOR JUNIOR SUBORDINATED NOTES PAYMENTS TO BE HELD IN
TRUST.
If the Company or one of its Affiliates shall at any time act as its
own Paying Agent with respect to any series of Junior Subordinated Notes, it
will, on or before each due date of the principal of (and premium, if any) or
interest (including Additional Interest, if any) on any of the Junior
Subordinated Notes of that series, segregate and hold in trust for the benefit
of the Persons entitled thereto a sum sufficient to pay the principal (and
premium, if any) or interest (including Additional Interest, if any) so becoming
due until such sums shall be paid to such Persons or otherwise disposed of as
herein provided and will promptly notify the Trustee of its action or failure so
to act.
Whenever the Company shall have one or more Paying Agents for any
series of Junior Subordinated Notes, it will, prior to each due date of the
principal of (and premium, if any) or interest (including Additional Interest,
if any) on any Junior Subordinated Notes of that series, deposit with a Paying
Agent a sum sufficient to pay the principal (and premium, if any) or interest
(including Additional Interest, if any) so becoming due, such sum to be held in
trust for the benefit of the Persons entitled to such principal, premium or
interest (including Additional Interest, if any), and (unless such Paying Agent
is the Trustee) the Company will promptly notify the Trustee of its action or
failure so to act.
The Company will cause each Paying Agent for any series of Junior
Subordinated Notes other than the Trustee to execute and deliver to the Trustee
an instrument in which such Paying Agent shall agree with the Trustee, subject
to the provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal
of (and premium, if any) or interest (including Additional Interest, if any) on
Junior Subordinated Notes of that series in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or otherwise
disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Junior Subordinated Notes of that series) in the
making of any payment of principal of (and premium, if any) or interest
(including Additional Interest, if any) on the Junior Subordinated Notes of that
series; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such Paying Agent.
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The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and premium, if
any) or interest (including Additional Interest, if any) on any Junior
Subordinated Note of any series and remaining unclaimed for two years after such
principal (and premium, if any) or interest (including Additional Interest, if
any) has become due and payable shall be paid to the Company on Company Request,
or (if then held by the Company) shall be discharged from such trust; and the
Holder of such Junior Subordinated Note shall thereafter, as an unsecured
general creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being required
to make any such repayment, may at the expense of the Company cause to be
published once, in a newspaper of general circulation in New York City notice
that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such publication, any
unclaimed balance of such money then remaining will be repaid to the Company.
SECTION 1004. ADDITIONAL INTEREST.
If the Junior Subordinated Notes of a series provide for the payment of
Additional Interest (for purposes of this Section 1004, as defined in clause (i)
of the definition thereof) to the Holders of such Junior Subordinated Notes,
then the Company shall pay to each Holder of such Securities the Additional
Interest as provided therein.
Except as otherwise provided in or pursuant to this Indenture, if the
Junior Subordinated Notes of a series provide for the payment of Additional
Interest, at least 10 days prior to the first Interest Payment Date with respect
to that series of Junior Subordinated Notes upon which such Additional Interest
shall be payable (or, if the Junior Subordinated Notes of that series shall not
bear interest prior to Maturity, the first day on which a payment of principal
and any premium is made), and at least 10 days prior to each date of payment of
principal and any premium or interest if there has been any change with respect
to the matters set forth in the below-mentioned Officers' Certificate, the
Company will furnish the Trustee and the Company's Paying Agents, if other than
the Trustee or the Company, with an Officers' Certificate stating the amount of
the Additional Interest payable per minimum authorized denomination of such
Junior Subordinated Notes (and, if such Additional Interest is payable only with
respect to particular Junior Subordinated Notes, then the names of the Holders
of such Junior Subordinated Notes).
SECTION 1005. CORPORATE EXISTENCE.
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Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and the rights (charter and statutory) and franchises of the Company;
provided, however, that the Company shall not be required to preserve any such
right or franchise if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company, and that the loss thereof is not disadvantageous in any material
respect to the Holders.
SECTION 1006. LIMITATIONS ON DIVIDEND AND CERTAIN OTHER PAYMENTS.
The Company covenants, for the benefit of the Holders of each series of
Junior Subordinated Notes, that, subject to the next succeeding sentence, (a)
the Company shall not declare or pay any dividend or make any distributions with
respect to, or redeem, purchase, acquire or make a liquidation payment with
respect to, any of its capital stock, and (b) the Company shall not make any
payment of interest, principal or premium, if any, on or repay, repurchase or
redeem any debt securities (including guarantees other than the Guarantee with
respect to the series of Trust Securities, if any, related to such series of
Junior Subordinated Notes) issued by the Company which rank pari passu with or
junior to the Junior Subordinated Notes, (a) if at such time the Company shall
have given notice of its election to extend an interest payment period for such
series of Junior Subordinated Notes and such extension shall be continuing, (b)
if at such time the Company shall be in default with respect to its payment or
other obligations under the Guarantee with respect to the series of Trust
Securities, if any, related to such series of Junior Subordinated Notes, or (c)
if at such time an Event of Default hereunder with respect to such series of
Junior Subordinated Notes shall have occurred and be continuing. The preceding
sentence, however, shall not restrict (i) any of the actions described in the
preceding sentence resulting from any reclassification of the Company's capital
stock or the exchange or conversion of one class or series of the Company's
capital stock for another class or series of the Company's capital stock, or
(ii) the purchase of fractional interests in shares of the Company's capital
stock pursuant to the conversion or exchange provisions of such capital stock or
the security being converted or exchanged.
SECTION 1007. STATEMENT AS TO COMPLIANCE.
(a) The Company shall deliver to the Trustee, within 120 days
after the end of each fiscal year, a written statement, which need not comply
with Section 102, signed by the principal executive officer, the principal
financial officer or the principal accounting officer of the Company, as to his
or her knowledge of the Company's compliance with all conditions and covenants
under this Indenture. For purposes of this Section 1007, such compliance shall
be determined without regard to any period of grace or requirement of notice
under this Indenture.
(b) The Company shall deliver to the Trustee, no later than the
Business Day on which the event occurs, written notice of the liquidation,
dissolution or winding-up of a Securities Trust if such liquidation, dissolution
or winding-up would occur earlier than the Stated Maturity of the Junior
Subordinated Notes owned by such Securities Trust.
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(c) The Company shall deliver to the Trustee, within five days
after the occurrence thereof, written notice of any event which after notice or
lapse of time or both would become an Event of Default pursuant to Section 501.
SECTION 1008. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 1005 and 1006 with respect to
the Junior Subordinated Notes of any series if before the time for such
compliance the Holders of at least a majority in principal amount of the
Outstanding Junior Subordinated Notes of such series shall, by Act of such
Holders, either waive such compliance in such instance or generally waive
compliance with such term, provision or condition, but no such waiver shall
extend to or affect such term, provision or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the obligations
of the Company and the duties of the Trustee in respect of any such term,
provision or condition shall remain in full force and effect.
SECTION 1009. COVENANTS REGARDING TRUST.
For so long as the Trust Securities remain outstanding, the Company
covenants (i) to directly or indirectly maintain 100% ownership of the Common
Securities (as defined in the Trust Agreement relating to such securities) of
the Trust; provided, however, that any permitted successor of the Company
hereunder may succeed to the Company's ownership of such Common Securities, and
(ii) to use its reasonable efforts to cause the Trust (a) to remain a statutory
business trust, except in connection with the distribution of Junior
Subordinated Notes to the holders of Trust Securities in liquidation of the
Trust, the redemption of all of the Trust Securities of the Trust, or certain
mergers, consolidations or amalgamations, each as permitted under the Trust
Agreement, and (b) to otherwise continue to be classified as a grantor trust for
United States federal income tax purposes.
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ARTICLE ELEVEN
REDEMPTION OF JUNIOR SUBORDINATED NOTES
SECTION 1101. APPLICABILITY OF ARTICLE.
Junior Subordinated Notes of any series which are redeemable before
their Stated Maturity shall be redeemable in accordance with their terms and
(except as otherwise specified as contemplated by Section 301 for Junior
Subordinated Notes of any series) in accordance with this Article.
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Junior Subordinated Notes
shall be evidenced by a Board Resolution. In case of any redemption at the
election of the Company of all of the Junior Subordinated Notes of any series,
the Company shall, at least 60 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee and the
related Property Trustee), notify the Trustee and the related Property Trustee
in writing of such Redemption Date. In case of any redemption at the election of
the Company of less than all the Junior Subordinated Notes of any series, the
Company shall, at least 60 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee and the
related Property Trustee), notify the Trustee and the related Property Trustee
in writing of such Redemption Date and of the principal amount of Junior
Subordinated Notes of such series to be redeemed. In the case of any redemption
of Junior Subordinated Notes (i) prior to the expiration of any restriction on
such redemption provided in the terms of such Junior Subordinated Notes or
elsewhere in this Indenture, or (ii) pursuant to an election of the Company
which is subject to a condition specified in the terms of such Junior
Subordinated Notes, the Company shall furnish the Trustee with an Officers'
Certificate evidencing compliance with such restriction or condition.
SECTION 1103. SELECTION BY TRUSTEE OF JUNIOR SUBORDINATED NOTES TO BE
REDEEMED.
If the Junior Subordinated Notes are registered in the name of only one
Holder, any partial redemptions shall be pro rata. If the Junior Subordinated
Notes are held in definitive form by more than one Holder and if less than all
the Junior Subordinated Notes of any series are to be redeemed, the particular
Junior Subordinated Notes to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Junior
Subordinated Notes of such series not previously called for redemption, by lot
or other such method as the Trustee shall deem fair and appropriate and which
may provide for the selection for redemption of portions (equal to the minimum
authorized denomination for Junior Subordinated Notes of that series or any
integral multiple thereof) of the principal amount of Junior Subordinated Notes
of such series of a denomination larger than the minimum authorized denomination
for Junior Subordinated Notes of that series.
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The Trustee shall promptly notify the Company in writing of the Junior
Subordinated Notes selected for redemption and, in the case of any Junior
Subordinated Notes selected for partial redemption, the principal amount thereof
to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Junior Subordinated Notes
shall relate, in the case of any Junior Subordinated Notes redeemed or to be
redeemed only in part, to the portion of the principal amount of such Junior
Subordinated Notes which has been or is to be redeemed.
SECTION 1104. NOTICE OF REDEMPTION.
Notice of redemption shall be given in the manner provided in Section
106 to the Holders of Junior Subordinated Notes to be redeemed not less than 30
nor more than 60 days prior to the Redemption Date.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Junior Subordinated Notes
of any series are to be redeemed, the identification (and, in the case of
partial redemption, the principal amounts) of the particular Junior Subordinated
Notes to be redeemed,
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Junior Subordinated Note to be redeemed
and, if applicable, that interest thereon will cease to accrue on
and after said date,
(5) the place or places where such Junior Subordinated Notes
are to be surrendered for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the
case.
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Notice of redemption of Junior Subordinated Notes to be redeemed at the
election of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company.
SECTION 1105. DEPOSIT OF REDEMPTION PRICE.
Except as otherwise provided in a supplemental indenture pursuant to
Section 301, prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company or its Affiliate is acting as
its own Paying Agent, segregate and hold in trust as provided in Section 1003)
an amount of money sufficient to pay the Redemption Price of and accrued
interest, if any, on all the Junior Subordinated Notes which are to be redeemed
on that date.
SECTION 1106. JUNIOR SUBORDINATED NOTES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the Junior
Subordinated Notes so to be redeemed shall, on the Redemption Date, become due
and payable at the Redemption Price therein specified together with any accrued
interest (including any Additional Interest) thereon, and from and after such
date (unless the Company shall default in the payment of the Redemption Price
and accrued interest) such Junior Subordinated Notes shall cease to bear
interest. Upon surrender of any such Junior Subordinated Note for redemption in
accordance with such notice, such Junior Subordinated Note shall be paid by the
Company at the Redemption Price, together with accrued interest, if any, and any
Additional Interest to the Redemption Date; provided, however, that, except as
otherwise provided in a supplemental indenture pursuant to Section 301,
installments of interest on Junior Subordinated Notes whose Stated Maturity is
on or prior to the Redemption Date shall be payable to the Holders of such
Junior Subordinated Notes, or one or more Predecessor Securities, registered as
such at the close of business on the relevant Record Dates according to their
terms and the provisions of Section 305.
If any Junior Subordinated Note called for redemption shall not be so
paid upon surrender thereof for redemption, the principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Junior Subordinated Note.
SECTION 1107. JUNIOR SUBORDINATED NOTES REDEEMED IN PART.
Any Junior Subordinated Note that is to be redeemed only in
part shall be surrendered at an office or agency of the Company therefor (with,
if the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or his attorney duly authorized in writing), and
the Company shall execute, and the Trustee shall authenticate and deliver to the
Holder of such Junior Subordinated Note without service charge, a new Junior
Subordinated Note of the same series, Stated Maturity and original issue date 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 Junior Subordinated Note so surrendered.
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ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Junior Subordinated Notes of a series except as otherwise
specified as contemplated by Section 301 for Junior Subordinated Notes of such
series.
The minimum amount of any sinking fund payment provided for by the
terms of Junior Subordinated Notes of any series is herein referred to as a
"mandatory sinking fund payment", and any payment in excess of such minimum
amount provided for by the terms of Junior Subordinated Notes of any series is
herein referred to as an "optional sinking fund payment". If provided for by the
terms of Junior Subordinated Notes of any series, the cash amount of any sinking
fund payment may be subject to reduction as provided in Section 1202. Each
sinking fund payment shall be applied to the redemption of Junior Subordinated
Notes of any series as provided for by the terms of Junior Subordinated Notes of
such series.
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH JUNIOR SUBORDINATED
NOTES.
The Company (1) may deliver Outstanding Junior Subordinated Notes of a
series (other than any previously called for redemption), and (2) may apply as a
credit Junior Subordinated Notes of a series which have been redeemed either at
the election of the Company pursuant to the terms of such Junior Subordinated
Notes or through the application of permitted optional sinking fund payments
pursuant to the terms of such Junior Subordinated Notes, in each case in
satisfaction of all or any part of any sinking fund payment with respect to the
Junior Subordinated Notes of such series required to be made pursuant to the
terms of such Junior Subordinated Notes as provided for by the terms of such
series; provided that such Junior Subordinated Notes have not been previously so
credited. Such Junior Subordinated Notes shall be received and credited for such
purpose by the Trustee at the Redemption Price specified in such Junior
Subordinated Notes for redemption through operation of the sinking fund and the
amount of such sinking fund payment shall be reduced accordingly.
SECTION 1203. REDEMPTION OF JUNIOR SUBORDINATED NOTES FOR SINKING FUND.
Not less than 60 days prior to each sinking fund payment date for any
series of Junior Subordinated Notes, the Company will deliver to the Trustee an
Officers' Certificate specifying the amount of the next ensuing sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering and crediting Junior
Subordinated Notes of that series pursuant to Section 1202 and stating the basis
for such credit and that such Junior Subordinated Notes have not previously been
so credited and will also deliver to the Trustee any Junior Subordinated Notes
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to be so delivered. Not less than 30 days before each such sinking fund payment
date the Trustee shall select the Junior Subordinated Notes to be redeemed upon
such sinking fund payment date in the manner specified in Section 1103 and cause
notice of the redemption thereof to be given in the name of and at the expense
of the Company in the manner provided in Section 1104. Such notice having been
duly given, the redemption of such Junior Subordinated Notes shall be made upon
the terms and in the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
SUBORDINATION
SECTION 1301. JUNIOR SUBORDINATED NOTES SUBORDINATE TO SENIOR INDEBTEDNESS.
The Company covenants and agrees, and each Holder of a Junior
Subordinated Note, by his acceptance thereof, likewise covenants and agrees,
that, to the extent and in the manner hereinafter set forth in this Article
(subject to Article Four), the payment of the principal of, premium, if any, and
interest (including Additional Interest) on each and all of the Junior
Subordinated Notes are hereby expressly made subordinate and subject in right of
payment to the prior payment in full in cash of all Senior Indebtedness.
SECTION 1302. PAYMENT OF PROCEEDS UPON DISSOLUTION, ETC.
Upon any payment or distribution of assets of the Company to creditors
upon any liquidation, dissolution, winding-up, reorganization, assignment for
the benefit of creditors, marshalling of assets or liabilities or any
bankruptcy, insolvency or similar proceedings of the Company (each such event,
if any, referred to as a "Proceeding"), the holders of Senior Indebtedness shall
be entitled to receive payment in full of all amounts due on or to become due on
or in respect of all Senior Indebtedness (including any interest accruing
thereon after the commencement of any such Proceeding, whether or not allowed as
a claim against the Company in such Proceeding), before the Holders of the
Junior Subordinated Notes are entitled to receive any payment or distribution
(excluding any payment described in Section 1309) on account of the principal
of, premium, if any, or interest (including Additional Interest, if any) on the
Junior Subordinated Notes or on account of any purchase, redemption or other
acquisition of Junior Subordinated Notes by the Company (all such payments,
distributions, purchases, redemptions and acquisitions, whether or not in
connection with a Proceeding, herein referred to, individually and collectively,
as a "Payment").
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, prohibited by the foregoing shall be received by the
Trustee or the Holders of the Junior Subordinated Notes before all Senior
Indebtedness is paid in full, or provision is made for such payment in money in
accordance with its terms, such payment or distribution shall be held in trust
for the benefit of and shall be paid over or delivered to the holders of Senior
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Indebtedness or to the trustee or trustees under any indenture pursuant to which
any instruments evidencing any such Senior Indebtedness may have been issued, as
their respective interests may appear, as calculated by the Company, for
application to the payment of all Senior Indebtedness remaining unpaid to the
extent necessary to pay all Senior Indebtedness in full in accordance with its
terms, after giving effect to any concurrent payment or distribution to or for
the holders of such Senior Indebtedness.
For purposes of this Article, "assets of the Company" shall not be
deemed to include shares of stock of the Company as reorganized or readjusted,
or securities of the Company or any other corporation provided for by a plan of
reorganization or readjustment, the payment of which is subordinated at least to
the extent provided in this Article with respect to the Junior Subordinated
Notes to the payment of all Senior Indebtedness that may at the time be
outstanding, provided, however, that (i) the Senior Indebtedness is assumed by
the new corporation, if any, resulting from any such reorganization or
readjustment, and (ii) the rights of the holders of the Senior Indebtedness are
not, without the consent of such holders, altered by such reorganization or
readjustment. The consolidation of the Company with, or the merger of the
Company into, another corporation or the liquidation or dissolution of the
Company following the conveyance or transfer of its property as an entirety, or
substantially as an entirety, to another corporation upon the terms and
conditions provided for in Article Eight hereof shall not be deemed a
dissolution, winding-up, liquidation or reorganization for the purposes of this
Section 1302 if such other corporation shall, as a part of such consolidation,
merger, conveyance or transfer, comply with the conditions stated in Article
Eight hereof. Nothing in Section 1303 or in this Section 1302 shall apply to
claims of, or payments to, the Trustee under or pursuant to Section 607.
SECTION 1303. NO PAYMENT WHEN SENIOR INDEBTEDNESS IN DEFAULT.
No payment of any principal, including redemption payments, if any,
premium, if any, or interest on (including Additional Interest) the Junior
Subordinated Notes shall be made if
(i) any Senior Indebtedness is not paid when due whether at
the stated maturity of any such payment or by call for redemption and any
applicable grace period with respect to such default has ended, with such
default remaining uncured and such default has not been waived or otherwise
ceased to exist;
(ii) the maturity of any Senior Indebtedness has been
accelerated because of a default; or
(iii) notice has been given of the exercise of an option to
require repayment, mandatory payment or prepayment or otherwise.
In the event that, notwithstanding the foregoing, the Company shall
make any Payment to the Trustee or any Holder prohibited by the foregoing
provisions of this Section, then in such event such Payment shall be held in
trust and paid over and delivered forthwith to the holders of the Senior
Indebtedness.
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The provisions of this Section shall not apply to any Payment with
respect to which Section 1302 hereof would be applicable.
SECTION 1304. PAYMENT PERMITTED IF NO DEFAULT.
Nothing contained in this Article or elsewhere in this Indenture or in
any of the Junior Subordinated Notes shall prevent the Company, at any time
except during the pendency of any Proceeding referred to in Section 1302 hereof
or under the conditions described in Section 1303 hereof, from making Payments.
Nothing in this Article shall have any effect on the right of the Holders or the
Trustee to accelerate the maturity of the Junior Subordinated Notes upon the
occurrence of an Event of Default, but, in that event, no payment may be made in
violation of the provisions of this Article with respect to the Junior
Subordinated Notes. If payment of the Junior Subordinated Notes is accelerated
because of an Event of Default, the Company shall promptly notify the holders of
the Senior Indebtedness (or their representatives) of such acceleration.
SECTION 1305. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS.
The rights of the Holders of the Junior Subordinated Notes shall be
subrogated to the rights of the holders of such Senior Indebtedness to receive
payments and distributions of cash, property and securities applicable to the
Senior Indebtedness until the principal of, premium, if any, and interest
(including Additional Interest) on the Junior Subordinated Notes shall be paid
in full. For purposes of such subrogation, no payments or distributions to the
holders of the Senior Indebtedness of any cash, property or securities to which
the Holders of the Junior Subordinated Notes or the Trustee would be entitled
except for the provisions of this Article, and no payments pursuant to the
provisions of this Article to the holders of Senior Indebtedness by Holders of
the Junior Subordinated Notes or the Trustee, shall, as among the Company, its
creditors other than holders of Senior Indebtedness and the Holders of the
Junior Subordinated Notes, be deemed to be a payment or distribution by the
Company to or on account of the Senior Indebtedness.
SECTION 1306. PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS.
The provisions of this Article are and are intended solely for the
purpose of defining the relative rights of the Holders on the one hand and the
holders of Senior Indebtedness on the other hand. Nothing contained in this
Article or elsewhere in this Indenture or in the Junior Subordinated Notes is
intended to or shall (a) impair, as among the Company, its creditors other than
holders of Senior Indebtedness and the Holders of the Junior Subordinated Notes,
the obligation of the Company, which is absolute and unconditional (and which,
subject to the rights under this Article of the holders of Senior Indebtedness,
is intended to rank equally with all other general obligations of the Company),
to pay to the Holders of the Junior Subordinated Notes the principal of,
premium, if any, and interest (including Additional Interest) on the Junior
Subordinated Notes as and when the same shall become due and payable in
accordance with their terms; or (b) affect the relative rights against the
Company of the Holders of the Junior Subordinated Notes and creditors of the
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Company other than the holders of Senior Indebtedness; or (c) prevent the
Trustee or the Holder of any Junior Subordinated Note from exercising all
remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article of the holders of
Senior Indebtedness to receive cash, property and securities otherwise payable
or deliverable to the Trustee or such Holder or, under the conditions specified
in Section 1303, to prevent any payment prohibited by such Section or enforce
their rights pursuant to the penultimate paragraph in Section 1303.
SECTION 1307. TRUSTEE TO EFFECTUATE SUBORDINATION.
Each Holder of a Junior Subordinated Note by his acceptance thereof
authorizes and directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article and appoints the Trustee his attorney-in-fact for any and all such
purposes, including, in the event of any dissolution, winding-up, liquidation or
reorganization of the Company, whether in bankruptcy, insolvency, receivership
proceedings, or otherwise, the timely filing of a claim for the unpaid balance
of the indebtedness of the Company owing to such Holder in the form required in
such proceedings and the causing of such claim to be approved.
SECTION 1308. NO WAIVER OF SUBORDINATION PROVISIONS.
No right of any present or future holder of any Senior Indebtedness to
enforce the subordination provisions provided herein shall at any time in any
way be prejudiced or impaired by any act or failure to act on the part of the
Company or by any act or any failure to act, in good faith, by any such holder,
or by any noncompliance by the Company with the terms, provisions and covenants
of this Indenture, regardless of any knowledge thereof any such holder may have
or be otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Indebtedness may, at any time and from time to time,
without the consent of or notice to the Trustee or the Holders of the Junior
Subordinated Notes, without incurring responsibility to the Holders of the
Junior Subordinated Notes and without impairing or releasing the subordination
provided in this Article or the obligations hereunder of the Holders of the
Junior Subordinated Notes to the holders of Senior Indebtedness, do any one or
more of the following: (i) change the manner, place or terms of payment or
extend the time of payment of, or renew or alter, Senior Indebtedness, or
otherwise amend or supplement in any manner Senior Indebtedness or any
instrument evidencing the same or any agreement under which Senior Indebtedness
is outstanding; (ii) permit the Company to borrow, repay and then reborrow any
or all of the Senior Indebtedness; (iii) sell, exchange, release or otherwise
deal with any property pledged, mortgaged or otherwise securing Senior
Indebtedness; (iv) release any Person liable in any manner for the collection of
Senior Indebtedness; (v) exercise or refrain from exercising any rights against
the Company and any other Person; or (vi) apply any sums received by them to
Senior Indebtedness.
SECTION 1309. TRUST MONEYS NOT SUBORDINATED.
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Notwithstanding anything contained herein to the contrary, payments
from money held in trust by the Trustee under Article Four for the payment of
the principal of, premium, if any, and interest (including Additional Interest)
on any series of Junior Subordinated Notes shall not be subordinated to the
prior payment of any Senior Indebtedness or subject to the restrictions set
forth in this Article and no Holder of such Junior Subordinated Notes nor the
Trustee shall be obligated to pay over such amount to the Company, any holder of
Senior Indebtedness (or a designated representative of such holder) or any other
creditor of the Company.
SECTION 1310. NOTICE TO THE TRUSTEE.
The Company shall give prompt written notice to a Responsible Officer
of the Trustee of any fact known to the Company that would prohibit the making
of any payment of monies to or by the Trustee in respect of the Junior
Subordinated Notes pursuant to the provisions of this Article. Notwithstanding
the provisions of this Article or any other provision of this Indenture, the
Trustee shall not be charged with knowledge of the existence of any facts that
would prohibit the making of any payment of monies to or by the Trustee in
respect of the Junior Subordinated Notes pursuant to the provisions of this
Article unless and until a Responsible Officer of the Trustee shall have
received written notice thereof at the Corporate Trust Office of the Trustee
from the Company or a holder or holders of Senior Indebtedness or from any
trustee therefor; and before the receipt of any such written notice, the
Trustee, subject to the provisions of Section 601, shall be entitled in all
respects to assume that no such facts exist; provided, however, that if the
Trustee shall not have received the notice provided for in this Section 1310 at
least two Business Days prior to the date upon which, by the terms hereof, any
money may become payable for any purpose (including, without limitation, the
payment of the principal of (or premium, if any) or interest on any Junior
Subordinated Note), then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to receive such
money and to apply the same to the purposes for which they were received, and
shall not be affected by any notice to the contrary that may be received by it
within two Business Days prior to such date.
The Trustee, subject to the provisions of Section 601, shall be
entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Indebtedness (or a trustee on
behalf of such holder) to establish that such notice has been given by a holder
of Senior Indebtedness or a trustee on behalf of any such holder or holders. In
the event that the Trustee determines in good faith that further evidence is
required with respect to the right of any Person as a holder of Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
such Person under this Article, and if such evidence is not furnished the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.
SECTION 1311. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING AGENT.
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Upon any payment or distribution of assets of the Company referred to
in this Article, the Trustee, subject to the provisions of Section 601 hereof,
and the Holders of the Junior Subordinated Notes shall be entitled to rely upon
any order or decree entered by any court of competent jurisdiction in which such
Proceeding is pending, or a certificate of the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee for the benefit of creditors, agent or
other Person making such payment or distribution, delivered to the Trustee or to
the Holders of Junior Subordinated Notes, for the purpose of ascertaining the
Persons entitled to participate in such payment or distribution, the holders of
the Senior Indebtedness, the amount thereof or payable thereon, the amount or
amounts paid or distributed thereon and all other facts pertinent thereto or to
this Article, provided that the foregoing shall apply only if such court has
been apprised of the provisions of this Article.
SECTION 1312. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR INDEBTEDNESS.
Subject to the provisions of Section 601, the Trustee shall not be
deemed to owe any fiduciary duty to the holders of Senior Indebtedness and shall
not be liable to any such holders if it shall in good faith mistakenly pay over
or distribute to Holders of Junior Subordinated Notes or to the Company or to
any other Person cash, property or securities to which any holders of Senior
Indebtedness shall be entitled by virtue of this Article or otherwise.
SECTION 1313. RIGHTS OF TRUSTEE AS HOLDER OF SENIOR INDEBTEDNESS;
PRESERVATION OF TRUSTEE'S RIGHTS.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article with respect to any Senior Indebtedness which
may at any time be held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of
its rights as such holder.
Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 607 hereof.
SECTION 1314. ARTICLE APPLICABLE TO PAYING AGENTS.
In case at any time any Paying Agent other than the Trustee (or the
Company or an Affiliate of the Company) shall have been appointed by the Company
and be then acting hereunder, the term "Trustee" as used in this Article shall
in such case (unless the context otherwise requires) be construed as extending
to and including such Paying Agent within its meaning as fully for all intents
and purposes as if such Paying Agent were named in this Article in addition to
or in place of the Trustee.
SECTION 1315. RELIANCE BY HOLDERS OF SENIOR INDEBTEDNESS ON SUBORDINATION
PROVISIONS.
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Each Holder by accepting a Junior Subordinated Note acknowledges and
agrees that the foregoing subordination provisions are, and are intended to be,
an inducement and a consideration to each holder of any Senior Indebtedness,
whether such Senior Indebtedness was created or acquired before or after the
issuance of the Junior Subordinated Notes, to acquire and continue to hold, or
to continue to hold, such Senior Indebtedness and such holder of Senior
Indebtedness shall be deemed conclusively to have relied on such subordination
provisions in acquiring and continuing to hold, or to continue to hold, such
Senior Indebtedness.
ARTICLE FOURTEEN
MISCELLANEOUS PROVISIONS
SECTION 1401. NO RECOURSE AGAINST OTHERS.
An incorporator or any past, present or future director, officer,
employee or stockholder, as such, of the Company shall not have any liability
for any obligations of the Company under the Junior Subordinated Notes or this
Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. By accepting a Junior Subordinated Note, each
Holder shall waive and release all such liability. Such waiver and release shall
be part of the consideration for the issue of the Junior Subordinated Notes.
SECTION 1402. SET-OFF.
Notwithstanding anything to the contrary in this Indenture or in any
Junior Subordinated Note of any series, prior to the dissolution of any
Securities Trust that has issued Trust Securities related to a series of Junior
Subordinated Notes, the Company shall have the right to set-off and apply
against any payment it is otherwise required to make hereunder or thereunder
with respect to the principal of or interest (including any Additional Interest)
on the Junior Subordinated Notes of such series with and to the extent the
Company has theretofore made, or is concurrently on the date of such payment
making, a payment with respect to the Trust Securities of the series related to
such series of Junior Subordinated Notes under the applicable Guarantee.
Contemporaneously with, or as promptly as practicable after, any such payment
under such Guarantee, the Company shall deliver to the Trustee an Officers'
Certificate (upon which the Trustee shall be entitled to rely conclusively
without any requirement to investigate the facts contained therein) to the
effect that such payment has been made and that, as a result of such payment,
the corresponding payment under the related series of Junior Subordinated Notes
has been set-off in accordance with this Section 1402.
SECTION 1403. ASSIGNMENT; BINDING EFFECT.
The Company shall have the right at all times to assign any of its
rights or obligations under this Indenture to a direct or indirect wholly-owned
subsidiary of the Company, provided that, in the event of any such assignment,
the Company shall remain primarily liable for the performance of all such
obligations. This Indenture may also be assigned by the Company in connection
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with a transaction described in Article Eight. This Indenture shall be binding
upon and inure to the benefit of the Company, the Trustee, the Holders, any
Security Registrar, Paying Agent, and Authenticating Agent and, to the extent
specifically set forth herein, the holders of Senior Indebtedness and their
respective successors and assigns. The provisions of clause (2) of Section 508
and Section 1006 are for the benefit of the holders of the series of Trust
Securities referred to therein and, prior to the dissolution of the related
Securities Trust, may be enforced by such holders. A holder of a Trust Security
shall not have the right, as such a holder, to enforce any other provision of
this Indenture.
SECTION 1404. ADDITIONAL INTEREST.
Whenever there is mentioned in this Indenture, in any context, the
payment of the principal of, premium, if any, or interest on, or in respect of,
any Junior Subordinated Note of any series, such mention shall be deemed to
include mention of the payment of Additional Interest provided for by the terms
of such series of Junior Subordinated Notes to the extent that, in such context,
Additional Interest is, were or would be payable in respect thereof pursuant to
such terms, and express mention of the payment of Additional Interest in any
provisions hereof shall not be construed as excluding Additional Interest in
those provisions hereof where such express mention is not made.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
THE SOUTHERN COMPANY
By
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Name:
Title:
Attest:
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Name:
Title:
--------------------------------
Trustee
By
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Name:
Title:
Attest:
- -----------------------
Name:
Title: