EXHIBIT 4.1
COMMUNITY BANK SYSTEM, INC.
______________________________
______________________________
INDENTURE
DATED AS OF FEBRUARY 3, 1997
______________________________
THE CHASE MANHATTAN BANK
AS TRUSTEE
______________________________
JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURES
TIE-SHEET
of provisions of Trust Indenture Act of 1939 with Indenture dated as
of February 3, 1997 between Community Bank System, Inc. and The Chase
Manhattan Bank, Trustee:
ACT SECTION INDENTURE SECTION
310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.09
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.09
310(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N/A
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N/A
310(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.10, 6.11
310(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N/A
310(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.13
311(a) and (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N/A
311(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.01, 4.02(a)
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.02
312(b) and (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.04
313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.04
313(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.04
313(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.04
313(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.04
313(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.04
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.03
314(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N/A
314(c)(1) and (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.07
314(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N/A
314(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N/A
314(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.07
314(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N/A
315(a)(c) and (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.01
315(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.08
315(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.09
316(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.07
316(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N/A
316(a) last sentence . . . . . . . . . . . . . . . . . . . . . . . . . 2.09
316(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.02
317(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.05
317(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.05
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.08
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THIS TIE-SHEET IS NOT PART OF THE INDENTURE AS EXECUTED.
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS . . . . . . . . . . . . . . 1
SECTION 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . 1
Additional Interest . . . . . . . . . . . . . . . . . . . . . . . . 1
Adjusted Treasury Rate . . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . 2
Bankruptcy Law . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Capital Securities . . . . . . . . . . . . . . . . . . . . . . . . . 3
Capital Securities Guarantee . . . . . . . . . . . . . . . . . . . . 3
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Common Securities . . . . . . . . . . . . . . . . . . . . . . . . . 3
Common Securities Guarantee . . . . . . . . . . . . . . . . . . . . 4
Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Community Capital Trust . . . . . . . . . . . . . . . . . . . . . . 4
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Company Request . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Comparable Treasury Issue . . . . . . . . . . . . . . . . . . . . . 4
Comparable Treasury Price . . . . . . . . . . . . . . . . . . . . . 4
Compounded Interest . . . . . . . . . . . . . . . . . . . . . . . . 4
Custodian . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Declaration . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Deferred Interest . . . . . . . . . . . . . . . . . . . . . . . . . 5
Definitive Securities . . . . . . . . . . . . . . . . . . . . . . . 5
Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Dissolution Event . . . . . . . . . . . . . . . . . . . . . . . . . 5
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Exchange Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Exchange Offer . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Extended Interest Payment Period . . . . . . . . . . . . . . . . . . 5
Federal Reserve . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Global Security . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Indebtedness for Money Borrowed . . . . . . . . . . . . . . . . . . 6
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Initial Optional Prepayment Date . . . . . . . . . . . . . . . . . . 6
Interest Payment Date . . . . . . . . . . . . . . . . . . . . . . . 6
Liquidated Damages . . . . . . . . . . . . . . . . . . . . . . . . . 6
Maturity Date . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Mortgage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Non Book-Entry Capital Securities . . . . . . . . . . . . . . . . . 6
Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . . 7
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . 7
Optional Prepayment Price . . . . . . . . . . . . . . . . . . . . . 7
Other Debentures . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Other Guarantees . . . . . . . . . . . . . . . . . . . . . . . . . . 7
outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Predecessor Security . . . . . . . . . . . . . . . . . . . . . . . . 8
Prepayment Price . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Principal Office of the Trustee . . . . . . . . . . . . . . . . . . 8
Property Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Purchase Agreement . . . . . . . . . . . . . . . . . . . . . . . . . 8
Quotation Agent . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Reference Treasury Dealer . . . . . . . . . . . . . . . . . . . . . 8
Reference Treasury Dealer Quotations . . . . . . . . . . . . . . . . 8
Registration Rights Agreement . . . . . . . . . . . . . . . . . . . 9
Regulatory Capital Event . . . . . . . . . . . . . . . . . . . . . . 9
Remaining Life . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . . 9
Restricted Security . . . . . . . . . . . . . . . . . . . . . . . . 9
Rule 144A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Securities Act . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Securityholder; holder of Securities; Holder . . . . . . . . . . . . 10
Security Register . . . . . . . . . . . . . . . . . . . . . . . . . 10
Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . 10
Series A Securities . . . . . . . . . . . . . . . . . . . . . . . . 10
Series B Securities . . . . . . . . . . . . . . . . . . . . . . . . 10
Special Event . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Special Event Prepayment Price . . . . . . . . . . . . . . . . . . . 10
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Tax Event . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Trust Indenture Act of 1939 . . . . . . . . . . . . . . . . . . . . 11
Trust Securities . . . . . . . . . . . . . . . . . . . . . . . . . . 12
U.S. Government Obligations . . . . . . . . . . . . . . . . . . . . 12
ARTICLE II
SECURITIES . . . . . . . . . . . . . . 12
SECTION 2.01. Forms Generally . . . . . . . . . . . . . . . . . . . . . 12
SECTION 2.02. Execution and Authentication . . . . . . . . . . . . . . . 12
SECTION 2.03. Form and Payment . . . . . . . . . . . . . . . . . . . . . 13
SECTION 2.04. Legends. . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 2.05. Global Security . . . . . . . . . . . . . . . . . . . . . 14
SECTION 2.06 Interest . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 2.07. Transfer and Exchange . . . . . . . . . . . . . . . . . . 16
SECTION 2.08. Replacement Securities . . . . . . . . . . . . . . . . . . 18
SECTION 2.09. Treasury Securities . . . . . . . . . . . . . . . . . . . 19
SECTION 2.10. Temporary Securities. . . . . . . . . . . . . . . . . . . 19
SECTION 2.11. Cancellation . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 2.12. Defaulted Interest . . . . . . . . . . . . . . . . . . . . 20
SECTION 2.13. CUSIP Numbers . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE III
PARTICULAR COVENANTS OF THE COMPANY . . . . . . . . 21
SECTION 3.01. Payment of Principal, Premium and Interest . . . . . . . . 21
SECTION 3.02. Offices for Notices and Payments, etc. . . . . . . . . . . 21
SECTION 3.03. Appointments to Fill Vacancies in Trustee's Office . . . . 22
SECTION 3.04. Provision as to Paying Agent . . . . . . . . . . . . . . . 22
SECTION 3.05. Certificate to Trustee . . . . . . . . . . . . . . . . . . 23
SECTION 3.06. Compliance with Consolidation Provisions . . . . . . . . . 24
SECTION 3.07. Limitation on Dividends . . . . . . . . . . . . . . . . . 24
SECTION 3.08. Covenants as to Community Capital Trust . . . . . . . . . 25
SECTION 3.09. Payment of Expenses . . . . . . . . . . . . . . . . . . . 25
SECTION 3.10. Payment Upon Resignation or Removal . . . . . . . . . . . 26
ARTICLE IV
SECURITYHOLDERS' LISTS AND REPORTS BY THE
COMPANY AND THE TRUSTEE . . . . . . . . . . . 26
SECTION 4.01. Securityholders' Lists . . . . . . . . . . . . . . . . . . 26
SECTION 4.02. Preservation and Disclosure of Lists . . . . . . . . . . . 27
SECTION 4.03. Reports by the Company . . . . . . . . . . . . . . . . . . 28
SECTION 4.04. Reports by the Trustee . . . . . . . . . . . . . . . . . . 29
ARTICLE V
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT . . . . . . . . . . . . 30
SECTION 5.01. Events of Default . . . . . . . . . . . . . . . . . . . . 30
SECTION 5.02. Payment of Securities on Default; Suit Therefor . . . . . 32
SECTION 5.03. Application of Moneys Collected by Trustee . . . . . . . . 34
SECTION 5.04. Proceedings by Securityholders . . . . . . . . . . . . . . 35
SECTION 5.05. Proceedings by Trustee . . . . . . . . . . . . . . . . . . 36
SECTION 5.06. Remedies Cumulative and Continuing . . . . . . . . . . . . 36
SECTION 5.07. Direction of Proceedings and Waiver of Defaults by
Majority of Securityholders . . . . . . . . . . . . . . . 36
SECTION 5.08. Notice of Defaults . . . . . . . . . . . . . . . . . . . . 37
SECTION 5.09. Undertaking to Pay Costs . . . . . . . . . . . . . . . . . 38
ARTICLE VI
CONCERNING THE TRUSTEE . . . . . . . . . . . 38
SECTION 6.01. Duties and Responsibilities of Trustee . . . . . . . . . . 38
SECTION 6.02. Reliance on Documents, Opinions, etc. . . . . . . . . . . 40
SECTION 6.03. No Responsibility for Recitals, etc. . . . . . . . . . . . 41
SECTION 6.04. Trustee, Authenticating Agent, Paying Agents, Transfer
Agents or Registrar May Own Securities . . . . . . . . . 42
SECTION 6.05. Moneys to be Held in Trust . . . . . . . . . . . . . . . . 42
SECTION 6.06. Compensation and Expenses of Trustee . . . . . . . . . . . 42
SECTION 6.07. Officers' Certificate as Evidence . . . . . . . . . . . . 43
SECTION 6.08. Conflicting Interest of Trustee . . . . . . . . . . . . . 43
SECTION 6.09. Eligibility of Trustee . . . . . . . . . . . . . . . . . . 43
SECTION 6.10. Resignation or Removal of Trustee . . . . . . . . . . . . 44
SECTION 6.11. Acceptance by Successor Trustee . . . . . . . . . . . . . 46
SECTION 6.12. Succession by Merger, etc. . . . . . . . . . . . . . . . . 46
SECTION 6.13. Limitation on Rights of Trustee as a Creditor . . . . . . 47
SECTION 6.14. Authenticating Agents . . . . . . . . . . . . . . . . . . 47
ARTICLE VII
CONCERNING THE SECURITYHOLDERS . . . . . . . . . 48
SECTION 7.01. Action by Securityholders . . . . . . . . . . . . . . . . 48
SECTION 7.02. Proof of Execution by Securityholders . . . . . . . . . . 49
SECTION 7.03. Who Are Deemed Absolute Owners . . . . . . . . . . . . . . 50
SECTION 7.04. Securities Owned by Company Deemed Not Outstanding . . . . 50
SECTION 7.05. Revocation of Consents; Future Holders Bound . . . . . . . 50
ARTICLE VIII
SECURITYHOLDERS' MEETINGS . . . . . . . . . . . 51
SECTION 8.01. Purposes of Meetings . . . . . . . . . . . . . . . . . . . 51
SECTION 8.02. Call of Meetings by Trustee . . . . . . . . . . . . . . . 51
SECTION 8.03. Call of Meetings by Company or Securityholders . . . . . . 52
SECTION 8.04. Qualifications for Voting . . . . . . . . . . . . . . . . 52
SECTION 8.05. Regulations . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 8.06. Voting . . . . . . . . . . . . . . . . . . . . . . . . . . 53
ARTICLE IX
AMENDMENTS . . . . . . . . . . . . . . 54
SECTION 9.01. Without Consent of Securityholders . . . . . . . . . . . . 54
SECTION 9.02. With Consent of Securityholders . . . . . . . . . . . . . 55
SECTION 9.03. Compliance with Trust Indenture Act; Effect of
Supplemental Indentures . . . .. . . . . . . . . . . . . . 57
SECTION 9.04. Notation on Securities . . . . . . . . . . . . . . . . . . 57
SECTION 9.05. Evidence of Compliance of Supplemental Indenture to be
Furnished Trustee . . . . . . . . . . . . . . . . . . . . 57
ARTICLE X
CONSOLIDATION, CONVERSION, MERGER, SALE, CONVEYANCE AND LEASE . . 57
SECTION 10.01. Company May Consolidate, etc., on Certain Terms . . . . . 57
SECTION 10.02. Successor Corporation to be Substituted for Company . . . 58
SECTION 10.03. Opinion of Counsel to be Given Trustee . . . . . . . . . . 59
ARTICLE XI
SATISFACTION AND DISCHARGE OF INDENTURE . . . . . . . 59
SECTION 11.01. Discharge of Indenture . . . . . . . . . . . . . . . . . . 59
SECTION 11.02. Deposited Moneys and U.S. Government Obligations to be
Held in Trust by Trustee . . . . . . . . . . . . . . . . . 60
SECTION 11.03. Paying Agent to Repay Moneys Held . . . . . . . . . . . . 60
SECTION 11.04. Return of Unclaimed Moneys . . . . . . . . . . . . . . . . 60
SECTION 11.05. Defeasance Upon Deposit of Moneys or U.S. Government
Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS . . . . . . . . . . . 63
SECTION 12.01. Indenture and Securities Solely Corporate Obligations . . 63
ARTICLE XIII
MISCELLANEOUS PROVISIONS . . . . . . . . . . . 63
SECTION 13.01. Successors . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 13.02. Official Acts by Successor Corporation . . . . . . . . . . 63
SECTION 13.03. Surrender of Company Powers . . . . . . . . . . . . . . . 63
SECTION 13.04. Addresses for Notices, etc. . . . . . . . . . . . . . . . 64
SECTION 13.05. Governing Law . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 13.06. Evidence of Compliance with Conditions Precedent . . . . . 64
SECTION 13.07. Business Days . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 13.08. Trust Indenture Act to Control . . . . . . . . . . . . . . 65
SECTION 13.09. Table of Contents, Headings, etc. . . . . . . . . . . . . 65
SECTION 13.10. Execution in Counterparts . . . . . . . . . . . . . . . . 65
SECTION 13.11. Separability . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 13.12. Assignment . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 13.13. Acknowledgement of Rights . . . . . . . . . . . . . . . . 66
ARTICLE XIV
PREPAYMENT OF SECURITIES -- MANDATORY AND
OPTIONAL SINKING FUND . . . . . . . . . . . . 66
SECTION 14.01. Special Event Prepayment . . . . . . . . . . . . . . . . . 66
SECTION 14.02. Optional Prepayment by Company . . . . . . . . . . . . . . 67
SECTION 14.03. No Sinking Fund . . . . . . . . . . . . . . . . . . . . . 68
SECTION 14.04. Notice of Prepayment; Selection of
Securities . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 14.05. Payment of Securities Called for Prepayment . . . . . . . 69
ARTICLE XV
SUBORDINATION OF SECURITIES . . . . . . . . . . 69
SECTION 15.01. Agreement to Subordinate . . . . . . . . . . . . . . . . . 69
SECTION 15.02. Default on Senior Indebtedness . . . . . . . . . . . . . . 70
SECTION 15.03. Liquidation; Dissolution; Bankruptcy . . . . . . . . . . . 71
SECTION 15.04. Subrogation . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 15.05. Trustee to Effectuate Subordination . . . . . . . . . . . 73
SECTION 15.06. Notice by the Company . . . . . . . . . . . . . . . . . . 74
SECTION 15.07. Rights of the Trustee; Holders of Senior Indebtedness . . 75
SECTION 15.08. Subordination May Not Be Impaired . . . . . . . . . . . . 75
ARTICLE XVI
EXTENSION OF INTEREST PAYMENT PERIOD . . . . . . . . 76
SECTION 16.01. Extension of Interest Payment Period . . . . . . . . . . . 76
SECTION 16.02. Notice of Extension . . . . . . . . . . . . . . . . . . . 77
EXHIBIT A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1
Testimonium
Signatures
Acknowledgements
THIS INDENTURE, dated as of February 3, 1997, between Community
Bank System, Inc., a Delaware corporation (hereinafter sometimes called
the "Company"), and The Chase Manhattan Bank, a New York banking corporation,
as trustee (hereinafter sometimes called the "Trustee"),
W I T N E S S E T H :
In consideration of the premises, and the purchase of the
Securities by the holders thereof, the Company covenants and agrees with
the Trustee for the equal and proportionate benefit of the respective
holders from time to time of the Securities, as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions.
The terms defined in this Section 1.01 (except as herein
otherwise expressly provided or unless the context otherwise requires) for
all purposes of this Indenture shall have the respective meanings
specified in this Section 1.01. All other terms used in this Indenture
which are defined in the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), or which are by reference therein defined in the
Securities Act, shall (except as herein otherwise expressly provided or
unless the context otherwise requires) have the meanings assigned to such
terms in said Trust Indenture Act and in said Securities Act as in force
at the date of this Indenture as originally executed. The following terms
have the meanings given to them in the Declaration: (i) Clearing Agency;
(ii) Delaware Trustee; (iii) Depository; (iv) Capital Security
Certificate; (v) Property Trustee; (vi) Administrative Trustees; (vii)
Direct Action; and (viii) Purchase Agreement. All accounting terms used
herein and not expressly defined shall have the meanings assigned to such
terms in accordance with generally accepted accounting principles and the
term "generally accepted accounting principles" means such accounting
principles as are generally accepted at the time of any computation. The
words "herein", "hereof" and "hereunder" and other words of similar import
refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision. Headings are used for convenience of
reference only and do not affect interpretation. The singular includes
the plural and vice versa.
"Additional Interest" shall have the meaning set forth in
Section 2.06(c).
"Adjusted Treasury Rate" shall mean, with respect to any
prepayment date, the rate per annum equal to (i) the yield, under the
heading which represents the average for the immediately prior week,
appearing in the most recently published statistical release designated
"H.15 (519)" or any successor publication which is published weekly by the
Federal Reserve and which establishes yields on actively traded United
States Treasury securities adjusted to constant maturity under the caption
"Treasury Constant Maturities," for the maturity corresponding to the
Remaining Life (if no maturity is within three months before or after the
maturity corresponding to the Remaining Life, yields for the two published
maturities most closely corresponding to the Remaining Life shall be
interpolated, and the Adjusted Treasury Rate shall be interpolated or
extrapolated from such yields on a straight-line basis, rounding to the
nearest month) or (ii) if such release (or any successor release) is not
published during the week preceding the calculation date or does not
contain such yields, the rate per annum equal to the semi-annual
equivalent yield to maturity of the Comparable Treasury Issue, calculated
using a price for the Comparable Treasury Issue (expressed as a percentage
of its principal amount) equal to the Comparable Treasury Price for such
prepayment date, in each case calculated on the third Business Day
preceding the prepayment date, plus in each case (a) 1.00% if such
prepayment date occurs on or prior to January 31, 1998, and (b) .50% in
all other cases.
"Affiliate" shall mean, with respect to a specified Person, (a)
any Person directly or indirectly owning, controlling or holding the power
to vote 10% or more of the outstanding voting securities or other
ownership interests of the specified Person, (b) any Person 10% or more of
whose outstanding voting securities or other ownership interests are
directly or indirectly owned, controlled or held with power to vote by the
specified Person, (c) any Person directly or indirectly controlling,
controlled by, or under common control with the specified Person, (d) a
partnership in which the specified Person is a general partner, (e) any
officer or director of the specified Person, and (f) if the specified
Person is an individual, any entity of which the specified Person is an
officer, director or general partner.
"Authenticating Agent" shall mean any agent or agents of the
Trustee which at the time shall be appointed and acting pursuant to
Section 6.14.
"Bankruptcy Law" shall mean Title 11, U.S. Code, or any similar
federal or state law for the relief of debtors.
"Board of Directors" shall mean either the Board of Directors of
the Company or any duly authorized committee of that board.
"Board Resolution" shall mean 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" shall mean, with respect to any series of
Securities, any day other than a Saturday or a Sunday or a day on which
banking institutions in The City of New York or Wilmington, Delaware are
authorized or required by law or executive order to close.
"Capital Securities" shall mean undivided beneficial interests
in the assets of Community Capital Trust which rank pari passu with the
Common Securities issued by Community Capital Trust; provided, however,
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that if an Event of Default has occurred and is continuing, no payments in
respect of Distributions on, or payments upon liquidation, prepayment or
otherwise with respect to, the Common Securities shall be made until the -
holders of the Capital Securities shall be paid in full the Distributions
and the liquidation, prepayment and other payments to which they are
entitled. References to "Capital Securities" shall include collectively
any Series A Capital Securities and Series B Capital Securities.
"Capital Securities Guarantee" shall mean any guarantee that the
Company may enter into with The Chase Manhattan Bank or other Persons that
operates directly or indirectly for the benefit of holders of Capital Secu-
rities of Community Capital Trust and shall include a Series A Capital
Securities Guarantee and a Series B Capital Securities Guarantee with
respect to the Series A Capital Securities and the Series B Capital Securi-
ties, respectively.
"Commission" shall mean the Securities and Exchange Commission,
as from time to time constituted, created under the Exchange Act, or if at
any time after the execution of this Indenture such Commission is not
existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.
"Common Securities" shall mean undivided beneficial interests in
the assets of Community Capital Trust which rank pari passu with Capital
Securities issued by Community Capital Trust; provided, however, that if
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an Event of Default has occurred and is continuing, no payments in respect
of Distributions on, or payments upon liquidation, prepayment or otherwise
with respect to, the Common Securities shall be made until the holders of
the Capital Securities shall be paid in full the Distributions and the
liquidation, prepayment and other payments to which they are entitled.
"Common Securities Guarantee" shall mean any guarantee that the
Company may enter into with any Person or Persons that operates directly
or indirectly for the benefit of holders of Common Securities of Community
Capital Trust.
"Common Stock" shall mean the Common Stock, par value $1.25
per share, of the Company or any other class of stock resulting from
changes or reclassifications of such Common Stock consisting solely of
changes in par value, or from par value to no par value, or from no par
value to par value.
"Community Capital Trust" or the "Trust" shall mean Community
Capital Trust I, a Delaware business trust created for the purpose of
issuing its undivided beneficial interests in connection with the issuance
of Securities under this Indenture.
"Company" shall mean Community Bank Systems, Inc., a Delaware
corporation, and, subject to the provisions of Article X, shall include
its successors and assigns.
"Company Request" or "Company Order" shall mean a written
request or order signed in the name of the Company by an Officer of the
Company, and delivered to the Trustee.
"Comparable Treasury Issue" shall mean the United States
Treasury security selected by the Quotation Agent as having a maturity
comparable to the Remaining Life of the Securities that would be utilized,
at the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of comparable
maturity to the Remaining Life of the Securities. If no United States
Treasury security has a maturity which is within a period from three
months before to three months after the Initial Optional Prepayment Date,
the two most closely corresponding United States Treasury securities shall
be used as the Comparable Treasury Issue, and the Adjusted Treasury Rate
shall be interpolated or extrapolated on a straight-line basis, rounding
to the nearest month, using such securities.
"Comparable Treasury Price" shall mean, with respect to any
prepayment date pursuant to Section 14.01, (i) the average of five
Reference Treasury Dealer Quotations for such prepayment date, after
excluding the highest and lowest such Reference Treasury Dealer Quotations,
or (ii) if the Trustee obtains fewer than three such Reference
Treasury Dealer Quotations, the average of all such Quotations.
"Compounded Interest" shall have the meaning set forth in
Section 16.01.
"Custodian" shall mean any receiver, trustee, assignee, liquidator,
or similar official under any Bankruptcy Law.
"Declaration" shall mean the Amended and Restated Declaration of
Trust of Community Capital Trust, dated as of February 3, 1997.
"Default" shall mean any event, act or condition that with
notice or lapse of time, or both, would constitute an Event of Default.
"Deferred Interest" shall have the meaning set forth in Section
16.01.
"Definitive Securities" shall mean those securities issued in
fully registered certificated form not otherwise in global form.
"Depositary" shall mean, with respect to Securities of any
series, for which the Company shall determine that such Securities will be
issued as a Global Security, The Depository Trust Company, New York, New
York, another clearing agency, or any successor registered as a clearing
agency under the Exchange Act or other applicable statute or regulation,
which, in each case, shall be designated by the Company pursuant to
Section 2.05(d).
"Dissolution Event" shall mean the liquidation of the Trust
pursuant to the Declaration, and the distribution of the Securities held
by the Property Trustee to the holders of the Trust Securities issued by
the Trust pro rata in accordance with the Declaration.
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"Event of Default" shall mean any event specified in Section
5.01, continued for the period of time, if any, and after the giving of
the notice, if any, therein designated.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
"Exchange Offer" means the offer that may be made pursuant to
the Registration Rights Agreement (i) by the Company to exchange Series B
Securities for Series A Securities and to exchange a Series B Capital
Securities Guarantee for a Series A Capital Securities Guarantee and (ii)
by Community Capital Trust to exchange Series B Capital Securities for
Series A Capital Securities.
"Extended Interest Payment Period" shall have the meaning set
forth in Section 16.01.
"Federal Reserve" shall mean the Board of Governors of the
Federal Reserve System.
"Global Security" shall mean, with respect to the Securities, a
Security executed by the Company and delivered by the Trustee to the
Depositary or pursuant to the Depositary's instruction, all in accordance
with this Indenture, which shall be registered in the name of the
Depositary or its nominee.
"Indebtedness for Money Borrowed" shall mean any obligation of,
or any obligation guaranteed by, the Company for the repayment of borrowed
money, whether or not evidenced by bonds, debentures, notes or other
written instruments but shall not include (i) any trade accounts payable
in the ordinary course of business, (ii) any indebtedness that by its
terms ranks pari passu with or junior in right of payment to the Securities,
(iii) all other debt securities, and guarantees in respect of those
debt securities, issued to any other trust, or a trustee of such trust,
partnership or other entity affiliated with the Company that is a
financing vehicle of the Company (a "financing entity") in connection with
the issuance by such financing entity of equity securities or other
securities guaranteed by the Company pursuant to an instrument that ranks
pari passu with or junior in right of payment to the Capital Securities
Guarantee, and (iv) any other indebtedness that would otherwise qualify as
Indebtedness for Money Borrowed to the extent that such indebtedness by
its terms ranks pari passu with or junior in right of payment to any
Indebtedness described in any of (i), (ii) or (iii).
"Indenture" shall mean this instrument as originally executed
or, if amended as herein provided, as so amended.
"Initial Optional Prepayment Date" shall mean January 31, 2007.
"Interest Payment Date" shall have the meaning set forth in
Section 2.06.
"Liquidated Damages" shall have the meaning set forth in the
Registration Rights Agreement.
"Maturity Date" shall mean January 31, 2027.
"Mortgage" shall mean and include any mortgage, pledge, lien,
security interest, conditional sale or other title retention agreement or
other similar encumbrance.
"Non Book-Entry Capital Securities" shall have the meaning set
forth in Section 2.05.
"Officers" shall mean any of the Chairman, a Vice Chairman, the
Chief Executive Officer, the President, a Vice President (whether or not
designated by a number or a word or words added before or after such
title), the Comptroller, the Group Director, the Secretary or an Assistant
Secretary of the Company.
"Officers' Certificate" shall mean a certificate signed by two
Officers and delivered to the Trustee.
"Opinion of Counsel" shall mean a written opinion of counsel,
who may be an employee of the Company, and who shall be acceptable to the
Trustee.
"Optional Prepayment Price" shall have the meaning set forth in
Section 14.02.
"Other Debentures" shall mean all junior subordinated debentures
issued by the Company from time to time and sold to trusts to be
established by the Company (if any), in each case similar to the Trust.
"Other Guarantees" shall mean all guarantees issued by the
Company with respect to capital securities (if any) and issued to other
trusts established by the Company (if any), in each case similar to the
Trust.
The term "outstanding," when used with reference to Securities,
shall, subject to the provisions of Section 7.04, mean, as of any
particular time, all Securities authenticated and delivered by the Trustee
or the Authenticating Agent under this Indenture, except
(a) Securities theretofore cancelled by the Trustee or the
Authenticating Agent or delivered to the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or
prepayment of which moneys in the necessary amount shall have been deposited
in trust with the Trustee or with any paying agent (other than the Company)
or shall have been set aside and segregated in trust by the Company (if the
Company shall act as its own paying agent); provided that,
if such Securities, or portions thereof, are to be prepaid prior to maturity
thereof, notice of such prepayment shall have been given as in Article
Fourteen provided or provision satisfactory to the Trustee shall have been
made for giving such notice; and
(c) Securities in lieu of or in substitution for which other
Securities shall have been authenticated and delivered pursuant to the terms
of Section 2.08 unless proof satisfactory to the Company and the Trustee is
presented that any such Securities are held by bona fide holders in due
course.
"Person" shall mean any individual, corporation, estate,
partnership, joint venture, association, joint-stock company, limited
liability company, trust, unincorporated organization or government or any
agency or political subdivision thereof.
"Predecessor Security" of any particular Security shall mean
every previous Security evidencing all or a portion of the same debt as
that evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 2.08 in
lieu of a lost, destroyed or stolen Security shall be deemed to evidence
the same debt as the lost, destroyed or stolen Security.
"Prepayment Price" shall mean the Special Event Prepayment Price
or the Optional Prepayment Price, as the context requires.
"Principal Office of the Trustee", or other similar term, shall
mean the principal office of the Trustee, at which at any particular time
its corporate trust business shall be administered.
"Property Trustee" shall have the same meaning as set forth in
the Declaration.
"Purchase Agreement" shall mean the Purchase Agreement dated
January 29, 1997 among the Company, Community Capital Trust and the
Initial Purchaser named therein.
"Quotation Agent" shall mean the Reference Treasury Dealer
appointed by the Company or, if the Company fails to do so, by the
Property Trustee.
"Reference Treasury Dealer" shall mean a primary U.S. Government
securities dealer in New York City (a "Primary Treasury Dealer").
"Reference Treasury Dealer Quotations" shall mean, with respect
to each Reference Treasury Dealer and any prepayment date pursuant to
Section 14.01, the average, as determined by the Trustee, of the bid and
asked prices for the Comparable Treasury Issue (expressed in each case as
a percentage of its principal amount) quoted in writing to the Property
Trustee by such Reference Treasury Dealer at 5:00 p.m., New York City
time, on the third Business Day preceding such prepayment date.
"Registration Rights Agreement" shall mean the Registration
Rights Agreement, dated as of February 3, 1997, by and among the Company,
the Trust and the Initial Purchaser named therein as such agreement may be
amended, modified or supplemented from time to time.
"Regulatory Capital Event" shall mean that the Company shall
have received an opinion of independent bank regulatory counsel
experienced in such matters to the effect that, as a result of (a) any
amendment to, or change (including any announced prospective change) in,
the laws (or any regulations thereunder) of the United States or any
rules, guidelines or policies of the Federal Reserve or (b) any official
administrative pronouncement or judicial decision interpreting or applying
such laws or regulations, which amendment or change is effective or such
pronouncement or decision is announced on or after February 3, 1997, the
Capital Securities do not constitute, or within 90 days of the date of
such opinion, will not constitute, Tier 1 Capital (or its then
equivalent); provided, however, that the distribution of the Junior
Subordinated Debentures in connection with the liquidation of the Trust by
the Company shall not in and of itself constitute a Regulatory Capital
Event unless such liquidation shall have occurred in connection with a Tax
Event.
"Remaining Life" shall mean, with respect to any optional
prepayment pursuant to Section 14.01, the period from the date of such
prepayment to, and including, the Initial Optional Prepayment Date.
"Responsible Officer", when used with respect to the Trustee,
shall mean 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 cashier, any assistant cashier, the secretary, any assistant
secretary, the treasurer, any assistant treasurer, any trust officer
or assistant trust officer, the controller or any assistant controller or
any other officer or assistant 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.
"Restricted Security" shall mean Securities that bear or are
required to bear the legends set forth in Exhibit A hereto.
"Rule 144A" shall mean Rule 144A under the Securities Act, as
such Rule may be amended from time to time, or under any similar rule or
regulation hereafter adopted by the Commission.
"Securities" shall mean, collectively, the Series A Securities
and the Series B Securities.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Securityholder", "holder of Securities", "Holder", or other
similar terms, shall mean any person in whose name at the time a
particular Security is registered on the register kept by the Company or
the Trustee for that purpose in accordance with the terms hereof.
"Security Register" shall mean (i) prior to a Dissolution Event,
the list of holders provided to the Trustee pursuant to Section 4.01, and
(ii) following a Dissolution Event, any security register maintained by a
security registrar for the securities appointed by the Company following
the execution of a supplemental indenture providing for transfer
procedures as provided for in Section 2.07(a).
"Senior Indebtedness" shall mean all Indebtedness for Money
Borrowed, whether outstanding on the date of execution of this Indenture
or thereafter created, assumed or incurred, unless the terms thereof
specifically provide that it is not superior in right of payment to the
Series A Securities or the Series B Securities, and any deferrals, renewals
or extensions of such Senior Indebtedness.
"Series A Securities" means the Company's 9.75% Series A Junior
Subordinated Deferrable Interest Debentures due January 31, 2027, as
authenticated and issued under this Indenture.
"Series B Securities" means the Company's 9.75% Series B Junior
Subordinated Deferrable Interest Debentures due January 31, 2027, as
authenticated and issued under this Indenture.
"Special Event" shall mean either a Regulatory Capital Event or
a Tax Event.
"Special Event Prepayment Price" shall mean, with respect to any
prepayment of the Securities pursuant to Section 14.01 hereof, an amount
in cash equal to the greater of (i) 100% of the principal amount to be
prepaid or (ii) the sum, as determined by a Quotation Agent, of the
present value of 104.54% of the principal amount thereof plus scheduled
payments of interest on the Securities during the Remaining Life of the
Securities, discounted to the prepayment date on a semi-annual basis
(assuming a 360-day year consisting of twelve 30-day months) at the
Adjusted Treasury Rate, plus, in each case, any accrued and unpaid interest
thereon, including Compounded Interest and Additional Interest, if
any, to the date of such prepayment.
"Subsidiary" shall mean with respect to any Person, (i) any
corporation at least a majority of whose outstanding voting stock of which
is owned, directly or indirectly, by such Person or by one or more of its
Subsidiaries, or by such Person and one or more of its Subsidiaries, (ii)
any general partnership, joint venture or similar entity, at least a
majority of whose outstanding partnership or similar interests shall at
the time be owned by such Person, or by one or more of its Subsidiaries,
or by such Person and one or more of its Subsidiaries and (iii) any
limited partnership of which such Person or any of its Subsidiaries is a
general partner. For the purposes of this definition, "voting stock"
means shares, interests, participations or other equivalents in the equity
interest (however designated) in such Person having ordinary voting power
for the election of a majority of the directors (or the equivalent) of
such Person, other than shares, interests, participations or other
equivalents having such power only by reason of the occurrence of a contin-
gency.
"Tax Event" shall mean the receipt by Community Capital Trust
and the Company of an opinion of a nationally recognized tax counsel
experienced in such matters to the effect that, as a result of (a) any
amendment to, or change (including any announced prospective change) in,
the laws or any regulations thereunder of the United States or any
political subdivision or taxing authority thereof or therein, or (b) as a
result of any official administrative pronouncement or judicial decision
interpreting or applying such laws or regulations, which amendment or
change is effective or which pronouncement or decision is announced on or
after February 3, 1997, there is more than an insubstantial risk that (i)
Community Capital Trust is, or will be within 90 days of the date of such
opinion, subject to United States federal income tax with respect to
income received or accrued on the Securities, (ii) interest payable by the
Company on the Securities is not, or within 90 days of the date of such
opinion will not be, deductible by the Company, in whole or in part, for
United States federal income tax purposes, or (iii) Community Capital
Trust is, or will be within 90 days of the date of such opinion, subject
to more than a de minimis amount of other taxes, duties or other
governmental charges.
"Trustee" shall mean the Person identified as "Trustee" in the
first paragraph hereof, and, subject to the provisions of Article Six
hereof, shall also include its successors and assigns as Trustee
hereunder. The term "Trustee" as used with respect to a particular series
of the Securities shall mean the trustee with respect to that series.
"Trust Indenture Act of 1939" shall mean the Trust Indenture Act
of 1939 as in force at the date of execution of this Indenture, except as
provided in Section 9.03.
"Trust Securities" shall mean the Capital Securities and the
Common Securities, collectively.
"U.S. Government Obligations" shall mean securities that are (i)
direct obligations of the United States of America for the payment of
which its full faith and credit is pledged or (ii) obligations of a Person
controlled or supervised by and acting as an agency or instrumentality of
the United States of America the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of
America, which, in either case under clauses (i) or (ii) are not callable
or redeemable at the option of the issuer thereof, and shall also include
a depository receipt issued by a bank or trust company as custodian with
respect to any such U.S. Government Obligation or a specific payment of
interest on or principal of any such U.S. Government Obligation held by
such custodian for the account of the holder of a depository receipt,
provided that (except as required by law) such custodian is not authorized
to make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in respect of
the U.S. Government Obligation or the specific payment of interest on or
principal of the U.S. Government Obligation evidenced by such depository
receipt.
ARTICLE II
SECURITIES
SECTION 2.01. Forms Generally.
The Securities and the Trustee's certificate of authentication
shall be substantially in the form of Exhibit A, the terms of which are
incorporated in and made a part of this Indenture. The Securities may
have notations, legends or endorsements required by law, stock exchange
rule, agreements to which the Company is subject or usage. Each Security
shall be dated the date of its authentication. The Securities shall be
issued in denominations of $1,000 and integral multiples thereof.
SECTION 2.02. Execution and Authentication.
An Officer shall sign the Securities for the Company by manual
or facsimile signature. If an Officer whose signature is on a Security no
longer holds that office at the time the Security is authenticated, the
Security shall nevertheless be valid.
A Security shall not be valid until authenticated by the manual
signature of the Trustee. The signature of the Trustee shall be
conclusive evidence that the Security has been authenticated under this
Indenture. The form of Trustee's certificate of authentication to be
borne by the Securities shall be substantially as set forth in Exhibit A
hereto.
The Trustee shall, upon a Company Order, authenticate for
original issue up to, and the aggregate principal amount of Securities
outstanding at any time may not exceed the sum of, $30,928,000 aggregate
principal amount of the Securities.
SECTION 2.03. Form and Payment.
Except as provided in Section 2.05, the Securities shall be
issued in fully registered certificated form without interest coupons.
Principal of, and premium, if any, and interest on, the Securities issued
in certificated form will be payable, the transfer of such Securities will
be registrable and such Securities will be exchangeable for Securities
bearing identical terms and provisions at the office or agency of the
Company maintained for such purpose under Section 3.02; provided, however,
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that payment of interest with respect to Securities (other than a Global
Security) may be made at the option of the Company (i) by check mailed to
the holder at such address as shall appear in the Security Register or
(ii) by transfer to an account maintained by the Person entitled thereto
as specified in the Security Register, provided that proper transfer
instructions have been received in writing by the relevant record date.
Notwithstanding the foregoing, so long as the holder of any Securities is
the Property Trustee, the payment of the principal of, and premium, if
any, and interest (including Compounded Interest and Additional Interest,
if any) on such Securities held by the Property Trustee will be made at
such place and to such account as may be designated by the Property
Trustee.
SECTION 2.04. Legends.
(a) Except as permitted by subsection (b) of this Section 2.04
or as otherwise determined by the Company in accordance with applicable
law, each Security shall bear the applicable legends relating to restrictions
on transfer pursuant to the securities laws in substantially the
form set forth on Exhibit A hereto.
(b) The Company shall issue and the Trustee shall authenticate
Series B Securities in exchange for Series A Securities accepted for
exchange in the Exchange Offer, which Series B Securities shall not bear
the legends required by subsection (a) above, in each case unless the
holder of such Series A Securities is either (A) a broker-dealer who pur-
chased such Series A Securities directly from the Company for resale
pursuant to Rule 144A or any other available exemption under the
Securities Act, (B) a Person participating in the distribution of the
Series A Securities or (C) a Person who is an affiliate (as defined in
Rule 144 under the Securities Act) of the Company.
SECTION 2.05. Global Security.
(a) In connection with a Dissolution Event,
(i) if any Capital Securities are held in book-entry form,
the related Definitive Securities shall be presented to the Trustee (if an
arrangement with the Depositary has been maintained) by the Property Trustee
in exchange for one or more Global Securities (as may be required pursuant to
Section 2.07) in an aggregate principal amount equal to the aggregate princi-
pal amount of all outstanding Securities, to be registered
in the name of the Depositary, or its nominee, and delivered by the Trustee
to the Depositary for crediting to the accounts of its participants pursuant
to the instructions of the Administrative Trustees; the Company upon any such
presentation shall execute one or more Global Securities in such aggregate
principal amount and deliver the same to the Trustee for authentication and
delivery in accordance with this Indenture;
and payments on the Securities issued as a Global Security will be made to
the Depositary; and
(ii) if any Capital Securities are held in certificated
form, the related Definitive Securities may be presented to the Trustee by
the Property Trustee and any Capital Security certificate which represents
Capital Securities other than Capital Securities in book-entry form ("Non
Book-Entry Capital Securities") will be deemed to represent beneficial inter-
ests in Securities presented to the Trustee by the Property Trustee having an
aggregate principal amount equal to the aggregate liquidation amount of the
Non Book-Entry Capital Securities until such Capital Security certificates
are presented to the Security Registrar for transfer or reissuance, at which
time such Capital Security certificates will be cancelled and a Security,
registered in the name of the holder of the Capital Security certificate or
the transferee of the holder of such Capital Security certificate, as the
case may be, with an aggregate principal amount equal to the aggregate
liquidation amount of the Capital Security certificate cancelled, will
be executed by the Company and delivered to the Trustee for authentication
and delivery in accordance with this Indenture. Upon the issuance of such
Securities, Securities with an equivalent aggregate principal amount that
were presented by the Property Trustee to the Trustee will be deemed to
have been cancelled.
(b) The Global Securities shall represent the aggregate amount
of outstanding Securities from time to time endorsed thereon; provided,
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that the aggregate amount of outstanding Securities represented thereby
may from time to time be reduced or increased, as appropriate, to reflect
exchanges and prepayments. Any endorsement of a Global Security to
reflect the amount of any increase or decrease in the amount of outstanding
Securities represented thereby shall be made by the Trustee, in accordance
with instructions given by the Company as required by this Section
2.05.
(c) The Global Securities may be transferred, in whole but not
in part, only to the Depositary, another nominee of the Depositary, or to
a successor Depositary selected or approved by the Company or to a nominee
of such successor Depositary.
(d) If at any time the Depositary notifies the Company that it
is unwilling or unable to continue as Depositary or the Depositary has
ceased to be a clearing agency registered under the Exchange Act, and a
successor Depositary is not appointed by the Company within 90 days after
the Company receives such notice or becomes aware of such condition, as
the case may be, the Company will execute, and the Trustee, upon written
notice from the Company, will authenticate and make available for delivery
the Definitive Securities, in authorized denominations, and in an aggregate
principal amount equal to the principal amount of the Global Security
in exchange for such Global Security. If there is an Event of Default,
the Depositary shall have the right to exchange the Global Securities for
Definitive Securities. In addition, the Company may at any time determine
that the Securities shall no longer be represented by a Global Security.
In the event of such an Event of Default or such a determination, the
Company shall execute, and subject to Section 2.07, the Trustee, upon receipt
of an Officers' Certificate evidencing such determination by the
Company, will authenticate and make available for delivery the Definitive
Securities, in authorized denominations, and in an aggregate principal
amount equal to the principal amount of the Global Security in exchange
for such Global Security. Upon the exchange of the Global Security for
such Definitive Securities, in authorized denominations, the Global Security
shall be cancelled by the Trustee. Such Definitive Securities issued
in exchange for the Global Security shall be registered in such names and
in such authorized denominations as the Depositary, pursuant to instructions
from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Definitive Securities
to the Depositary for delivery to the Persons in whose names such Definitive
Securities are so registered.
SECTION 2.06 Interest.
(a) Each Security will bear interest at the rate of 9.75% per
annum (the "Coupon Rate") from the most recent date to which interest has
been paid or duly provided for or, if no interest has been paid or duly
provided for, from February 3, 1997 until the principal thereof becomes
due and payable and at the Coupon Rate on any overdue principal (and
premium, if any) and (to the extent that payment of such interest is
enforceable under applicable law) on any overdue installment of interest,
compounded semi-annually, payable (subject to the provisions of Article
XVI) semi-annually in arrears on January 31 and July 31 of each year
(each, an "Interest Payment Date") commencing on July 31, 1997, to the
Person in whose name such Security or any predecessor Security is registered,
at the close of business on the regular record date for such interest
installment, which shall be the fifteenth day prior to the relevant
Interest Payment Date.
(b) Interest will be computed on the basis of a 360-day year
consisting of twelve 30-day months and, for any period of less than a full
calendar month, the number of days elapsed in such month. In the event
that any Interest Payment Date falls on a day that is not a Business Day,
then payment of interest payable on such date will be made on the next
succeeding day which is a Business Day (and without any interest or other
payment in respect of any such delay), with the same force and effect as
if made on such date.
(c) During such time as the Property Trustee is the holder of
any Securities, the Company shall pay any additional amounts on the
Securities as may be necessary in order that the amount of Distributions
then due and payable by the Trust on the outstanding Securities shall not
be reduced as a result of any additional taxes, duties and other governmental
charges to which the Trust has become subject as a result of
a Tax Event ("Additional Interest").
SECTION 2.07. Transfer and Exchange.
(a) Transfer Restrictions. (i) The Series A Securities, and
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those Series B Securities with respect to which any Person described in
Section 2.04(b)(A), (B) or (C) is the beneficial owner, may not be trans-
ferred except in compliance with the legend contained in Exhibit A unless
otherwise determined by the Company in accordance with applicable law.
Upon any distribution of the Securities following a Dissolution Event, the
Company and the Trustee shall enter into a supplemental indenture pursuant
to Section 9.01 to provide for the transfer restrictions and procedures
with respect to the Securities substantially similar to those contained in
the Declaration to the extent applicable in the circumstances existing at
such time.
(ii) Except as provided in a Company Order delivered to the
Trustees, the Securities will be issued and may be transferred only in
blocks having an aggregate principal amount of not less than $100,000.
Any such transfer of the Securities in a block having an aggregate
principal amount of less than $100,000 shall be deemed to be voided and of
no legal effect whatsoever. Any such transferee shall be deemed not to be
holder of such Securities for any purpose, including, but not limited to
the receipt of payments on such Securities, and such transferee shall be
deemed to have no interest whatsoever in such Securities.
(b) General Provisions Relating to Transfers and Exchanges. To
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permit registrations of transfers and exchanges, the Company shall execute
and the Trustee shall authenticate Definitive Securities and Global
Securities at the Company's request. All Definitive Securities and Global
Securities issued upon any registration of transfer or exchange of Definitive
Securities or Global Securities shall be the valid obligations of the
Company, evidencing the same debt, and entitled to the same benefits under
this Indenture, as the Definitive Securities or Global Securities surrendered
upon such registration of transfer or exchange.
No service charge shall be made to a holder for any registration
of transfer or exchange, but the Company may require payment of a sum
sufficient to cover any transfer tax or similar governmental charge
payable in connection therewith.
The Company shall not be required to (i) issue, register the
transfer of or exchange Securities during a period beginning at the
opening of business 15 days before the day of mailing of a notice of
prepayment or any notice of selection of Securities for prepayment under
Article Fifteen hereof and ending at the close of business on the day of
such mailing; or (ii) register the transfer of or exchange any Security so
selected for prepayment in whole or in part, except the unprepaid portion
of any Security being prepaid in part.
Prior to due presentment for the registration of a transfer of
any Security, the Trustee, any Authenticating Agent and the Company may
deem and treat the Person in whose name any Security is registered as the
absolute owner of such Security for the purpose of receiving payment of
principal of and premium, if any, and interest on such Securities, and
neither the Trustee, any Authenticating Agent nor the Company shall be
affected by notice to the contrary.
(c) Exchange of Series A Securities for Series B Securities.
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The Series A Securities may be exchanged for Series B Securities pursuant
to the terms of the Exchange Offer. The Trustee shall make the exchange
as follows:
The Company shall present the Trustee with an Officers'
Certificate certifying the following:
(A) upon issuance of the Series B Securities, the transactions
contemplated by the Exchange Offer have been consummated; and
(B) the principal amount of Series A Securities properly
tendered in the Exchange Offer that are represented by a Global Security and
the principal amount of Series A Securities properly tendered in the Exchange
Offer that are represented by Definitive Securities, the name of each holder
of such Definitive Securities, the principal amount at maturity properly
tendered in the Exchange Offer by each such holder and the name and address
to which Definitive Securities for Series B Securities shall be registered
and sent for each such holder.
The Trustee, upon receipt of (i) such Officers' Certificate,
(ii) an Opinion of Counsel (x) to the effect that the Series B Securities
have been registered under Section 5 of the Securities Act and the Indenture
has been qualified under the Trust Indenture Act and (y) with respect
to the matters set forth in Section 3(p) of the Registration Rights
Agreement and (iii) a Company Order, shall authenticate (A) a Global
Security for Series B Securities in aggregate principal amount equal to
the aggregate principal amount of Series A Securities represented by a
Global Security indicated in such Officers' Certificate as having been
properly tendered and (B) Definitive Securities representing Series B
Securities registered in the names of, and in the principal amounts indicated
in, such Officers' Certificate.
If the principal amount at maturity of the Global Security for
the Series B Securities is less than the principal amount at maturity of
the Global Security for the Series A Securities, the Trustee shall make an
endorsement on such Global Security for Series A Securities indicating a
reduction in the principal amount at maturity represented thereby.
The Trustee shall deliver such Definitive Securities for Series
B Securities to the holders thereof as indicated in such Officers'
Certificate.
SECTION 2.08. Replacement Securities.
If any mutilated Security is surrendered to the Trustee, or the
Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Security, the Company shall issue and
the Trustee shall authenticate a replacement Security if the Trustee's
requirements for replacements of Securities are met. An indemnity bond
must be supplied by the holder that is sufficient in the judgment of the
Trustee and the Company to protect the Company, the Trustee, any Authen-
ticating Agent or any authenticating agent from any loss that any of them
may suffer if a Security is replaced. The Company or the Trustee may
charge for its expenses in replacing a Security.
Every replacement Security is an obligation of the Company and
shall be entitled to all of the benefits of this Indenture equally and
proportionately with all other Securities duly issued hereunder.
SECTION 2.09. Treasury Securities.
In determining whether the holders of the required principal
amount of Securities have concurred in any direction, waiver or consent,
Securities owned by the Company or any Affiliate of the Company shall be
considered as though not outstanding, except that for purposes of determining
whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Securities that a Responsible Officer
of the Trustee actually knows to be so owned shall be so considered.
SECTION 2.10. Temporary Securities.
Pending the preparation of Definitive Securities, the Company
may execute, and upon Company Order the Trustee shall authenticate and
make available for delivery, temporary Securities that are printed,
lithographed, typewritten, mimeographed or otherwise reproduced, in any
authorized denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine, as conclusively evidenced by
their execution of such Securities.
If temporary Securities are issued, the Company shall cause
Definitive Securities to be prepared without unreasonable delay. The
Definitive Securities shall be printed, lithographed or engraved, or
provided by any combination thereof, or in any other manner permitted by
the rules and regulations of any applicable securities exchange, all as
determined by the officers executing such Definitive Securities. After
the preparation of Definitive Securities, the temporary Securities shall
be exchangeable for Definitive Securities upon surrender of the temporary
Securities at the office or agency maintained by the Company for such
purpose pursuant to Section 3.02 hereof, without charge to the Holder.
Upon surrender for cancellation of any one or more temporary Securities,
the Company shall execute, and the Trustee shall authenticate and make
available for delivery, in exchange therefor the same aggregate principal
amount of Definitive Securities of authorized denominations. Until so ex-
changed, the temporary Securities shall in all respects be entitled to the
same benefits under this Indenture as Definitive Securities.
SECTION 2.11. Cancellation.
The Company at any time may deliver Securities to the Trustee
for cancellation. The Trustee and no one else shall cancel all Securities
surrendered for registration of transfer, exchange, payment, replacement
or cancellation and shall retain or destroy cancelled Securities in
accordance with its normal practices (subject to the record retention
requirement of the Exchange Act) unless the Company directs them to be re-
turned to it. The Company may not issue new Securities to replace Securities
that have been paid or prepaid or that have been delivered to the
Trustee for cancellation. All cancelled Securities held by the Trustee
shall be delivered to the Company.
SECTION 2.12. Defaulted Interest.
Any interest on any Security 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 shall be paid by the Company, at its
election, as provided in clause (a) or clause (b) below:
(a) The Company may make payment of any Defaulted Interest on
Securities to the Persons in whose names such Securities (or their
respective Predecessor Securities) are registered at the close of business
on a special record date for the payment of such Defaulted Interest, which
shall be fixed in the following manner: the Company shall notify the Trustee
in writing of the amount of Defaulted Interest proposed to be paid
on each such Security and the date of the proposed payment, and at the same
time the Company shall deposit with the Trustee an amount of money equal to
the aggregate amount proposed to be paid in respect of such Defaulted Inter-
est 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 not be more than 15 nor 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 Securityholder at his or her
address as it appears in the Security Register, not less than 10 days prior
to such special record date. Notice of the proposed payment of such
Defaulted Interest and the special record date therefor having been mailed
as aforesaid, such Defaulted Interest shall be paid to the Persons in whose
names such Securities (or their respective Predecessor Securities)
are registered on such special record date and shall be no longer payable
pursuant to the following clause (b).
(b) The Company may make payment of any Defaulted Interest on
any Securities in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant
to this clause, such manner of payment shall be deemed practicable by the
Trustee.
SECTION 2.13. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers
(if then generally in use), and, if so, the Trustee shall use "CUSIP"
numbers in notices of prepayment as a convenience to Securityholders;
provided that any such notice may state that no representation is made as
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to the correctness of such numbers either as printed on the Securities or
as contained in any notice of a prepayment and that reliance may be placed
only on the other identification numbers printed on the Securities, and
any such prepayment shall not be affected by any defect in or omission of
such numbers. The Company will promptly notify the Trustee of any change
in the CUSIP numbers.
ARTICLE III
PARTICULAR COVENANTS OF THE COMPANY
SECTION 3.01. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of the holders
of the Securities that it will duly and punctually pay or cause to be paid
the principal of and premium, if any, and interest on the Securities at
the place, at the respective times and in the manner provided herein.
Except as provided in Section 2.03, each installment of interest on the
Securities may be paid by mailing checks for such interest payable to the
order of the holder of Security entitled thereto as they appear in the
Security Register. The Company further covenants to pay any and all
amounts including, without limitation, Liquidated Damages, if any, on the
dates and in the manner required under the Registration Rights Agreement.
SECTION 3.02. Offices for Notices and Payments, etc.
So long as any of the Securities remain outstanding, the Company
will maintain in the Borough of Manhattan, The City of New York, an office
or agency where the Securities may be presented for payment, an office or
agency where the Securities may be presented for registration of transfer
and for exchange as in this Indenture provided and an office or agency
where notices and demands to or upon the Company in respect of the
Securities or of this Indenture may be served. The Company will give to
the Trustee written notice of the location of any such office or agency
and of any change of location thereof. Until otherwise designated from
time to time by the Company in a notice to the Trustee, any such office or
agency for all of the above purposes shall be the Principal Office of the
Trustee. In case the Company shall fail to maintain any such office or
agency in the Borough of Manhattan, The City of New York, or shall fail to
give such notice of the location or of any change in the location thereof,
presentations and demands may be made and notices may be served at the
Principal Office of the Trustee.
In addition to any such office or agency, the Company may from
time to time designate one or more offices or agencies outside the Borough
of Manhattan, The City of New York, where the Securities may be presented
for payment, registration of transfer and for exchange in the manner
provided in this Indenture, and the Company may from time to time rescind
such designation, as the Company may deem desirable or expedient;
provided, however, that no such designation or rescission shall in any
manner relieve the Company of its obligation to maintain any such office
or agency in the Borough of Manhattan, The City of New York, for the
purposes above mentioned. The Company will give to the Trustee prompt
written notice of any such designation or rescission thereof.
SECTION 3.03. Appointments to Fill Vacancies in Trustee's
Office.
The Company, whenever necessary to avoid or fill a vacancy in
the office of Trustee, will appoint, in the manner provided in Section
6.10, a Trustee, so that there shall at all times be a Trustee hereunder.
SECTION 3.04. Provision as to Paying Agent.
(a) If the Company shall appoint a paying agent other than the
Trustee with respect to the Securities, it will cause such paying agent to
execute and deliver to the Trustee an instrument in which such agent shall
agree with the Trustee, subject to the provision of this Section 3.04,
(1) that it will hold all sums held by it as such agent
for the payment of the principal of and premium, if any, or interest on the
Securities (whether such sums have been paid to it by the Company or by any
other obligor on the Securities) in trust for the benefit of the holders of
the Securities; and
(2) that it will give the Trustee notice of any failure by
the Company (or by any other obligor on the Securities) to make any payment
of the principal of and premium or interest on the Securities when
the same shall be due and payable.
(b) If the Company shall act as its own paying agent, it will,
on or before each due date of the principal of and premium, if any, or
interest on the Securities, set aside, segregate and hold in trust for the
benefit of the holders of the Securities a sum sufficient to pay such
principal, premium or interest so becoming due and will notify the Trustee
of any failure to take such action and of any failure by the Company (or by
any other obligor under the Securities) to make any payment of the principal
of and premium, if any, or interest on the Securities when the same shall
become due and payable.
(c) Anything in this Section 3.04 to the contrary
notwithstanding, the Company may, at any time, for the purpose of obtaining a
satisfaction and discharge with respect to the Securities hereunder, or for
any other reason, pay or cause to be paid to the Trustee
all sums held in trust for any Securities by the Trustee or any paying agent
hereunder, as required by this Section 3.04, such sums to be held by
the Trustee upon the trusts herein contained.
(d) Anything in this Section 3.04 to the contrary
notwithstanding, the agreement to hold sums in trust as provided in this
Section 3.04 is subject to Sections 11.03 and 11.04.
SECTION 3.05. Certificate to Trustee.
The Company will deliver to the Trustee on or before 120 days
after the end of each fiscal year in each year, commencing with the first
fiscal year ending after the date hereof, so long as Securities are outstand-
ing hereunder, an Officers' Certificate, one of the signers of which
shall be the principal executive, principal financial or principal
accounting officer of the Company stating that in the course of the perfor-
mance by the signers of their duties as officers of the Company they
would normally have knowledge of any default by the Company in the
performance of any covenants contained herein, stating whether or not they
have knowledge of any such default and, if so, specifying each such
default of which the signers have knowledge and the nature thereof.
SECTION 3.06. Compliance with Consolidation Provisions.
The Company will not, while any of the Securities remain out-
standing, consolidate with, or merge or convert into, or merge or convert
into itself, or sell or convey all or substantially all of its property
to, any other Person unless the provisions of Article Ten hereof are
complied with.
SECTION 3.07. Limitation on Dividends.
The Company will not (i) declare or pay any dividends or
distributions on, or redeem, purchase, acquire, or make a liquidation
payment with respect to, any of the Company's capital stock (which
includes common and preferred stock), (ii) make any payment of principal,
interest or premium, if any, with respect to or repay, repurchase or
redeem any debt securities of the Company (including any Other Debentures)
that rank pari passu with or junior in right of payment to the Securities
or (iii) make any guarantee payments with respect to any guarantee by the
Company of the debt securities of any Subsidiary of the Company (including
any Other Guarantees) if such guarantee ranks pari passu or junior in
right of payment to the Securities (other than (a) dividends or distributions
in shares of, or options, warrants or rights to subscribe for or
purchase shares of, Common Stock of the Company; (b) any declaration of a
dividend in connection with the implementation of a stockholders' rights
plan, or the issuance of stock under any such plan in the future, or the
redemption or repurchase of any such rights pursuant thereto; (c) payments
under the Capital Securities Guarantee; (d) as a result of a reclassification
of the Company's capital stock or the exchange or the conversion of
one class or series of the Company's capital stock for another class or
series of the Company's capital stock; (e) 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; and (f) purchases of Common Stock related to the
issuance of Common Stock or rights under any of the Company's benefit
plans for its directors, officers or employees or any of the Company's
dividend reinvestment plans) if at such time (i) there shall have occurred
any event of which the Company has actual knowledge that (a) is or with
the giving of notice or the lapse of time, or both, would constitute an
Event of Default and (b) in respect of which the Company shall not have
taken reasonable steps to cure, (ii) if such Securities are held by the
Property Trustee, the Company shall be in default with respect to its
payment of any obligations under the Capital Securities Guarantee or (iii)
the Company shall have given notice of its election of the exercise of its
right to extend the interest payment period pursuant to Section 16.01 and
any such extension shall have commenced and shall be continuing.
SECTION 3.08. Covenants as to Community Capital Trust.
In the event Securities are issued to Community Capital Trust or
a trustee of such trust in connection with the issuance of Trust
Securities by Community Capital Trust, for so long as such Trust Securities
remain outstanding, the Company will (i) maintain 100% direct
ownership of the Common Securities of Community Capital Trust; provided,
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however, that any successor of the Company, permitted pursuant to Article
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Ten, may succeed to the Company's ownership of such Common Securities,
(ii) use its reasonable efforts to cause Community Capital Trust (a) to
remain a business trust, except in connection with a distribution of
Securities, the prepayment of all of the Trust Securities of Community
Capital Trust or certain mergers, consolidations or amalgamations, each as
permitted by the Declaration of Community Capital Trust, and (b) to otherwise
continue to be treated as a grantor trust and not an association
taxable as a corporation for United States federal income tax purposes and
(iii) to use its reasonable efforts to cause each holder of Trust Securities
to be treated as owning an undivided beneficial interest in the
Securities.
SECTION 3.09. Payment of Expenses.
In connection with the offering, sale and issuance of the
Securities to the Trust and in connection with the sale of the Trust
Securities by the Trust, the Company, in its capacity as borrower with
respect to the Securities, shall:
(a) pay all costs and expenses relating to the offering, sale
and issuance of the Securities, including commissions to the initial
purchasers payable pursuant to the Purchase Agreement, fees and expenses
in connection with any exchange offer or other action to be taken pursuant
to the Registration Rights Agreement and compensation of the Trustee in
accordance with the provisions of Section 6.06;
(b) pay all costs and expenses of the Trust (including, but not
limited to, costs and expenses relating to the organization of the Trust,
the offering, sale and issuance of the Trust Securities (including commis-
sions to the initial purchasers in connection therewith), the fees and
expenses of the Property Trustee and the Delaware Trustee, the costs and
expenses relating to the operation of the Trust, including without limita-
tion, costs and expenses of accountants, attorneys, statistical or
bookkeeping services, expenses for printing and engraving and computing or
accounting equipment, paying agent(s), registrar(s), transfer agent(s),
duplicating, travel and telephone and other telecommunications expenses
and costs and expenses incurred in connection with the acquisition,
financing, and disposition of Trust assets;
(c) be primarily and fully liable for any indemnification
obligations arising with respect to the Declaration;
(d) pay any and all taxes (other than United States withholding
taxes attributable to the Trust or its assets) and all liabilities, costs
and expenses with respect to such taxes of the Trust; and
(e) pay all other fees, expenses, debts and obligations (other
than payments of principal of, premium, if any, or interest on the Trust
Securities) related to Community Capital Trust.
SECTION 3.10. Payment Upon Resignation or Removal.
Upon termination of this Indenture or the removal or resignation
of the Trustee, unless otherwise stated, the Company shall pay to the
Trustee all amounts accrued and owing to the date of such termination,
removal or resignation. Upon termination of the Declaration or the
removal or resignation of the Delaware Trustee or the Property Trustee, as
the case may be, pursuant to Section 5.7 of the Declaration, the Company
shall pay to the Delaware Trustee or the Property Trustee, as the case may
be, all amounts accrued and owing to the date of such termination, removal
or resignation.
ARTICLE IV
SECURITYHOLDERS' LISTS AND REPORTS BY THE
COMPANY AND THE TRUSTEE
SECTION 4.01. Securityholders' Lists.
The Company covenants and agrees that it will furnish or cause
to be furnished to the Trustee:
(a) on a semi-annual basis on each regular record date for the
Securities, a list, in such form as the Trustee may reasonably require, of
the names and addresses of the Securityholders as of such record date; and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company, of any such request, a list
of similar form and content as of a date not more than 15 days prior to the
time such list is furnished, except that, no such lists need be furnished
so long as the Trustee is in possession thereof by reason of its acting as
Security registrar.
SECTION 4.02. Preservation and Disclosure of Lists.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, all information as to the names and addresses of the
holders of the Securities (1) contained in the most recent list furnished to
it as provided in Section 4.01 or (2) received by it in the capacity of
Securities registrar (if so acting) hereunder. The Trustee may destroy any
list furnished to it as provided in Section 4.01 upon receipt of a new list
so furnished.
(b) In case three or more holders of Securities (hereinafter
referred to as "applicants") apply in writing to the Trustee and furnish to
the Trustee reasonable proof that each such applicant has owned a Security
for a period of at least six months preceding the date of such application,
and such application states that the applicants desire to
communicate with other holders of Securities or with holders of all
Securities with respect to their rights under this Indenture and is accompa-
nied by a copy of the form of proxy or other communication which such
applicants propose to transmit, then the Trustee shall within 5 Business Days
after the receipt of such application, at its election, either:
(1) afford such applicants access to the information preserved
at the time by the Trustee in accordance with the provisions of subsection
(a) of this Section 4.02; or
(2) inform such applicants as to the approximate number of
holders of all Securities, whose names and addresses appear in the informa-
tion preserved at the time by the Trustee in accordance with the provisions
of subsection (a) of this Section 4.02, and as to the approximate cost of
mailing to such Securityholders the form of proxy or other communication, if
any, specified in such application.
(c) Each and every holder of Securities, by receiving and
holding the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any paying agent shall be held accountable by
reason of the disclosure of any such information as to the names and
addresses of the holders of Securities in accordance with the provisions
of subsection (b) of this Section 4.02, 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 said subsection (b).
SECTION 4.03. Reports by the Company.
(a) The Company covenants and agrees to file with the Trustee,
within 15 days after the date on which the Company is required to file the
same with the Commission, copies of the annual reports and of the informa-
tion, documents and other reports (or copies of such portions of any of the
foregoing as the Commission may from time to time by rules and regulations
prescribe) which the Company may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if the
Company is not required to file information, documents or reports pursuant to
either of such sections, then to 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 in-
formation, documents and reports which may be required pursuant
to Section 13 of the Exchange Act 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.
(b) The Company covenants and agrees to file with the Trustee
and the Commission, in accordance with the 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 provided for in this Indenture as may be required from time to time
by such rules and regulations.
(c) The Company covenants and agrees to transmit by mail to all
holders of Securities, as the names and addresses of such holders appear upon
the Security Register, within 30 days after the filing thereof with the
Trustee, such summaries of any information, documents and reports required to
be filed by the Company pursuant to subsections (a) and (b) of
this Section 4.03 as may be required by rules and regulations prescribed from
time to time by the Commission.
(d) Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information contained
therein or determinable from information contained therein, including the
Company's compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers' Certificates).
(e) So long as is required for an offer or sale of the
Securities to qualify for an exemption under Rule 144A under the Securities
Act, the Company shall, upon request, provide the information required by
clause (d)(4) thereunder to each Holder and to each beneficial
owner and prospective purchaser of Securities identified by each Holder of
Restricted Securities, unless such information is furnished to the Commission
pursuant to Section 13 or 15(d) of the Exchange Act.
SECTION 4.04. Reports by the Trustee.
(a) The Trustee shall transmit to Holders such reports
concerning the Trustee and its actions under this Indenture as may be
required pursuant to the Trust Indenture Act at the times and in the manner
provided pursuant thereto. If required by Section 313(a) of the Trust
Indenture Act, the Trustee shall, within sixty days after each January 31
following the date of this Indenture, commencing January 31, 1998, deliver to
Holders a brief report, dated as of such January 31, which complies with the
provisions of such Section 313(a).
(b) A copy of each such report shall, at the time of such
transmission to Securityholders, be filed by the Trustee with each stock
exchange, if any, upon which the Securities are listed, with the Commission
and with the Company. The Company will promptly notify the Trustee when the
Securities are listed on any stock exchange.
ARTICLE V
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 5.01. Events of Default.
One or more of the following events of default shall constitute
an Event of Default hereunder (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 judgement, decree or order of any
court or any order, rule or regulation of any administrative or
governmental body):
(a) default in the payment of any interest upon any Security or
any Other Debentures when it becomes due and payable, and continuance of such
default for a period of 30 days; provided, however, that a valid extension of
an interest payment period by the Company in accordance with the terms
hereof or, in the case of any Other Debentures, the indenture related
thereto, shall not constitute a default in the payment of interest for this
purpose; or
(b) default in the payment of all or any part of the principal
of (or premium, if any, on) any Security or any Other Debentures as and when
the same shall become due and payable either at maturity, upon prepayment, by
declaration of acceleration or otherwise; or
(c) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or warranty
a default in whose performance or whose breach is elsewhere in this Section
specifically dealt with), and continuance of such default or breach for a
period of 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 aggregate principal amount of the
outstanding Securities 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
(d) a court having jurisdiction in the premises shall enter a
decree or order for relief in respect of the Company in an involuntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or appointing a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or similar official) of the Company or for
any substantial part of its property, or ordering the winding-up or
liquidation of its affairs and such decree or order shall remain unstayed and
in effect for a period of 90 consecutive days; or
(e) the Company shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, shall consent to the entry of an order for relief in an involuntary
case under any such law, or shall consent to the appointment of or taking
possession by a receiver, liquidator, assignee, trustee, custodian,
sequestrator (or other similar official) of the Company or of any substantial
part of its property, or shall make any general assignment
for the benefit of creditors, or shall fail generally to pay its debts as
they become due.
If an Event of Default with respect to Securities at the time
outstanding occurs and is continuing, then in every such case the Trustee
or the holders of not less than 25% in aggregate principal amount of the
Securities then outstanding may declare the principal amount of all Securi-
ties to be due and payable immediately, by a notice in writing to
the Company (and to the Trustee if given by the holders of the outstanding
Securities), and upon any such declaration the same shall become immediately
due and payable.
The foregoing provisions, however, are subject to the condition
that if, at any time after the principal of the Securities shall have been
so declared due and payable, and before any judgment or decree for the
payment of the moneys due shall have been obtained or entered as
hereinafter provided, (i) the Company shall pay or shall deposit with the
Trustee a sum sufficient to pay (A) all matured installments of interest
upon all the Securities and the principal of and premium, if any, on any
and all Securities which shall have become due otherwise than by acceleration
(with interest upon such principal and premium, if any, and, to the
extent that payment of such interest is enforceable under applicable law,
on overdue installments of interest, at the same rate as the rate of
interest specified in the Securities to the date of such payment or
deposit) and (B) such amount as shall be sufficient to cover reasonable
compensation to the Trustee and each predecessor Trustee, their respective
agents, attorneys and counsel, and all other expenses and liabilities
incurred, and all advances made, by the Trustee and each predecessor
Trustee except as a result of negligence or bad faith, and (ii) any and
all Events of Default under the Indenture, other than the non-payment of
the principal of the Securities which shall have become due solely by such
declaration of acceleration, shall have been cured, waived or otherwise
remedied as provided herein, then, in every such case, the holders of a
majority in aggregate principal amount of the Securities then outstanding,
by written notice to the Company and to the Trustee, may rescind and annul
such declaration and its consequences, but no such waiver or rescission
and annulment shall extend to or shall affect any subsequent default or
shall impair any right consequent thereon.
In case the Trustee shall have proceeded to enforce any right
under this Indenture and such proceedings shall have been discontinued or
abandoned because of such rescission or annulment or for any other reason
or shall have been determined adversely to the Trustee, then and in every
such case the Company, the Trustee and the holders of the Securities shall
be restored respectively to their several positions and rights hereunder,
and all rights, remedies and powers of the Company, the Trustee and the
holders of the Securities shall continue as though no such proceeding had
been taken.
SECTION 5.02. Payment of Securities on Default; Suit Therefor.
The Company covenants that (a) in case default shall be made in
the payment of any installment of interest upon any of the Securities as
and when the same shall become due and payable, and such default shall
have continued for a period of 30 days, or (b) in case default shall be
made in the payment of the principal of or premium, if any, on any of the
Securities as and when the same shall have become due and payable, whether
at maturity of the Securities or upon prepayment or by declaration of
acceleration or otherwise, then, upon demand of the Trustee, the Company
will pay to the Trustee, for the benefit of the holders of the Securities,
the whole amount that then shall have become due and payable on all such
Securities for principal and premium, if any, or interest, or both, as the
case may be, with interest upon the overdue principal and premium, if any,
and (to the extent that payment of such interest is enforceable under
applicable law and, if the Securities are held by Community Capital Trust
or a trustee of such trust, without duplication of any other amounts paid
by Community Capital Trust or trustee in respect thereof) upon the overdue
installments of interest at the rate borne by the Securities; and, in
addition thereto, such further amount as shall be sufficient to cover the
costs and expenses of collection, including a reasonable compensation to
the Trustee, its agents, attorneys and counsel, and any expenses or
liabilities incurred by the Trustee hereunder other than through its negli-
gence or bad faith.
In case the Company shall fail forthwith to pay such amounts
upon such demand, the Trustee, in its own name and as trustee of an
express trust, shall be entitled and empowered to institute any actions or
proceedings at law or in equity for the collection of the sums so due and
unpaid, and may prosecute any such action or proceeding to judgment or
final decree, and may enforce any such judgment or final decree against
the Company or any other obligor on the Securities and collect in the
manner provided by law out of the property of the Company or any other
obligor on the Securities wherever situated the moneys adjudged or decreed
to be payable.
In case there shall be pending proceedings for the bankruptcy or
for the reorganization of the Company or any other obligor on the
Securities under Title 11, United States Code, or any other applicable
law, or in case a receiver or trustee shall have been appointed for the
property of the Company or such other obligor, or in the case of any other
similar judicial proceedings relative to the Company or other obligor upon
the Securities, or to the creditors or property of the Company or such
other obligor, the Trustee, irrespective of whether the principal of the
Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall
have made any demand pursuant to the provisions of this Section 5.02,
shall be entitled and empowered, by intervention in such proceedings or
otherwise, to file and prove a claim or claims for the whole amount of
principal and interest owing and unpaid in respect of the Securities and,
in case of any judicial proceedings, to file such proofs of claim and
other papers or documents as may be necessary or advisable in order to
have the claims of the Trustee (including any claim for reasonable
compensation to the Trustee and each predecessor Trustee, and their
respective agents, attorneys and counsel, and for reimbursement of all
expenses and liabilities incurred, and all advances made, by the Trustee
and each predecessor Trustee, except as a result of negligence or bad
faith) and of the Securityholders allowed in such judicial proceedings
relative to the Company or any other obligor on the Securities, or to the
creditors or property of the Company or such other obligor, unless
prohibited by applicable law and regulations, to vote on behalf of the
holders of the Securities in any election of a trustee or a standby
trustee in arrangement, reorganization, liquidation or other bankruptcy or
insolvency proceedings or person performing similar functions in
comparable proceedings, and to collect and receive any moneys or other
property payable or deliverable on any such claims, and to distribute the
same after the deduction of its charges and expenses; and any receiver,
assignee or trustee in bankruptcy or reorganization is hereby authorized
by each of the Securityholders 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 Securityholders, to pay to the Trustee such amounts as
shall be sufficient to cover reasonable compensation to the Trustee, each
predecessor Trustee and their respective agents, attorneys and counsel,
and all other expenses and liabilities incurred, and all advances made, by
the Trustee and each predecessor Trustee except as a result of negligence
or bad faith.
Nothing herein contained shall be construed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any holder thereof
or to authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding.
All rights of action and of asserting claims under this
Indenture, or under any of the Securities, may be enforced by the Trustee
without the possession of any of the Securities, or the production thereof
in any trial or other proceeding relative thereto, and any such suit or
proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall be for the
ratable benefit of the holders of the Securities.
In any proceedings brought by the Trustee (and also any
proceedings involving the interpretation of any provision of this
Indenture to which the Trustee shall be a party) the Trustee shall be held
to represent all the holders of the Securities, and it shall not be
necessary to make any holders of the Securities parties to any such
proceedings.
SECTION 5.03. Application of Moneys Collected by Trustee.
Any moneys collected by the Trustee shall be applied in the
order following, at the date or dates fixed by the Trustee for the
distribution of such moneys, upon presentation of the Securities in
respect of which moneys have been collected, and stamping thereon the
payment, if only partially paid, and upon surrender thereof if fully paid:
First: To the payment of costs and expenses of collection
applicable to the Securities and reasonable compensation to the Trustee,
its agents, attorneys and counsel, and of all other expenses and
liabilities incurred, and all advances made, by the Trustee except as a
result of its negligence or bad faith;
Second: To the payment of all Senior Indebtedness of the
Company if and to the extent required by Article Fifteen;
Third: In case the principal of the outstanding Securities in
respect of which moneys have been collected shall not have become due and
be unpaid, to the payment of the amounts then due and unpaid upon
Securities for principal of (and premium, if any) and interest on the
Securities, in respect of which or for the benefit of which money has been
collected, ratably, without preference of priority of any kind, according
to the amounts due on such Securities for principal (and premium, if any)
and interest, respectively; and
Fourth: To the Company.
SECTION 5.04. Proceedings by Securityholders.
No holder of any Security shall have any right by virtue of or
by availing of any provision of this Indenture to institute any suit,
action or proceeding in equity or at law upon or under or with respect to
this Indenture or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless such holder previously shall have given to
the Trustee written notice of an Event of Default and of the continuance
thereof with respect to the Securities specifying such Event of Default,
as hereinbefore provided, and unless also the holders of not less than 25%
in aggregate principal amount of the Securities then outstanding shall
have made written request upon the Trustee to institute such action, suit
or proceeding in its own name as Trustee hereunder and shall have offered
to the Trustee such reasonable indemnity as it may require against the
costs, expenses and liabilities to be incurred therein or thereby, and the
Trustee for 60 days after its receipt of such notice, request and offer of
indemnity shall have failed to institute any such action, suit or
proceeding, it being understood and intended, and being expressly
covenanted by the taker and holder of every Security with every other
taker and holder and the Trustee, that no one or more holders of
Securities shall have any right in any manner whatever by virtue of or by
availing of any provision of this Indenture to affect, disturb or prejudice
the rights of any other holder of Securities, or to obtain or seek to
obtain priority over or preference to any other such holder, or to enforce
any right under this Indenture, except in the manner herein provided and
for the equal, ratable and common benefit of all holders of Securities.
Notwithstanding any other provisions in this Indenture, however,
the right of any holder of any Security to receive payment of the
principal of (premium, if any) and interest on such Security, on or after
the same shall have become due and payable, or to institute suit for the
enforcement of any such payment, shall not be impaired or affected without
the consent of such holder and by accepting a Security hereunder it is
expressly understood, intended and covenanted by the taker and holder of
every Security with every other such taker and holder and the Trustee,
that no one or more holders of Securities shall have any right in any
manner whatsoever by virtue or by availing of any provision of this
Indenture to affect, disturb or prejudice the rights of the holders of any
other Securities, or to obtain or seek to obtain priority over or
preference to any other such holder, or to enforce any right under this
Indenture, except in the manner herein provided and for the equal, ratable
and common benefit of all holders of Securities. For the protection and
enforcement of the provisions of this Section, each and every
Securityholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
The Company and the Trustee acknowledge that pursuant to the
Declaration, the holders of Capital Securities are entitled, in the
circumstances and subject to the limitations set forth therein, to
commence a Direct Action with respect to any Event of Default under this
Indenture and the Securities.
SECTION 5.05. Proceedings by Trustee.
In case an Event of Default occurs with respect to Securities
and is continuing, the Trustee may in its discretion proceed to protect
and enforce the rights vested in it by this Indenture by such appropriate
judicial proceedings as the Trustee shall deem most effectual to protect
and enforce any of such rights, either by suit in equity or by action at
law or by proceeding in bankruptcy or otherwise, whether for the specific
enforcement of any covenant or agreement contained in this Indenture or in
aid of the exercise of any power granted in this Indenture, or to enforce
any other legal or equitable right vested in the Trustee by this Indenture
or by law.
SECTION 5.06. Remedies Cumulative and Continuing.
All powers and remedies given by this Article V to the Trustee
or to the Securityholders shall, to the extent permitted by law, be deemed
cumulative and not exclusive of any other powers and remedies available to
the Trustee or the holders of the Securities, by judicial proceedings or
otherwise, to enforce the performance or observance of the covenants and
agreements contained in this Indenture or otherwise established with
respect to the Securities, and no delay or omission of the Trustee or of
any holder of any of the Securities to exercise any right or power
accruing upon any Event of Default occurring and continuing as aforesaid
shall impair any such right or power, or shall be construed to be a waiver
of any such default or an acquiescence therein; and, subject to the
provisions of Section 5.04, every power and remedy given by this Article V
or by law to the Trustee or to the Securityholders may be exercised from
time to time, and as often as shall be deemed expedient, by the Trustee or
by the Securityholders.
SECTION 5.07. Direction of Proceedings and Waiver of Defaults
by Majority of Securityholders.
The holders of a majority in aggregate principal amount of the
Securities at the time outstanding shall have the right to
direct the time, method, and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power
conferred on the Trustee; provided, however, that (subject to the
-------- -------
provisions of Section 6.01) the Trustee shall have the right to decline to
follow any such direction if the Trustee shall determine that the action
so directed would be unjustly prejudicial to the holders not taking part
in such direction or if the Trustee being advised by counsel determines
that the action or proceeding so directed may not lawfully be taken or if
the Trustee in good faith by its board of directors or trustees, executive
committee, or a trust committee of directors or trustees and/or
Responsible Officers shall determine that the action or proceedings so
directed would involve the Trustee in personal liability. Prior to any
declaration accelerating the maturity of the Securities, the holders of a
majority in aggregate principal amount of the Securities at the time
outstanding may on behalf of the holders of all of the Securities waive
any past default or Event of Default and its consequences except a default
(a) in the payment of principal of or premium, if any, or interest on any
of the Securities or (b) in respect of covenants or provisions hereof
which cannot be modified or amended without the consent of the holder of
each Security affected; provided, however, that if the Securities are held
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by Property Trustee, such waiver or modification to such waiver shall not
be effective until the holders of a majority in aggregate liquidation
amount of Trust Securities shall have consented to such waiver or modifica-
tion to such waiver; provided further, that if the consent of the holder
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of each outstanding Security is required, such waiver shall not be
effective until each holder of the Trust Securities shall have consented
to such waiver. Upon any such waiver, the default covered thereby shall
be deemed to be cured for all purposes of this Indenture and the Company,
the Trustee and the holders of the Securities shall be restored to their
former positions and rights hereunder, respectively; but no such waiver
shall extend to any subsequent or other default or impair any right
consequent thereon. Whenever any default or Event of Default hereunder
shall have been waived as permitted by this Section 5.07, said default or
Event of Default shall for all purposes of the Securities and this Indenture
be deemed to have been cured and to be not continuing.
SECTION 5.08. Notice of Defaults.
The Trustee shall, within 90 days after the occurrence of a
default with respect to the Securities, mail to all Securityholders, as
the names and addresses of such holders appear upon the Security register,
notice of all defaults known to the Trustee, unless such defaults shall
have been cured before the giving of such notice (the term "defaults" for
the purpose of this Section 5.08 being hereby defined to be the events
specified in clauses (a), (b), (c), (d) and (e) of Section 5.01, not
including periods of grace, if any, provided for therein, and irrespective
of the giving of written notice specified in clause (c) of Section 5.01);
and provided that, except in the case of default in the payment of the
principal of or premium, if any, or interest on any of the Securities, 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 and/or Responsible Officers of the Trustee in good faith determines
that the withholding of such notice is in the interests of the
Securityholders; and provided further, that in the case of any default of
the character specified in Section 5.01(c) no such notice to
Securityholders shall be given until at least 60 days after the occurrence
thereof but shall be given within 90 days after such occurrence.
SECTION 5.09. Undertaking to Pay Costs.
All parties to this Indenture agree, and each holder of any
Security 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 right or remedy under this Indenture, or in any suit against the
Trustee for any action taken 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 and expenses, 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 5.09 shall not apply to any suit instituted by the Trustee, to any
suit instituted by any Securityholder, or group of Securityholders,
holding in the aggregate more than 10% in aggregate principal amount of
the Securities outstanding, or to any suit instituted by any
Securityholder for the enforcement of the payment of the principal of (or
premium, if any) or interest on any Security against the Company on or
after the same shall have become due and payable.
ARTICLE VI
CONCERNING THE TRUSTEE
SECTION 6.01. Duties and Responsibilities of Trustee.
With respect to the holders of the Securities issued hereunder,
the Trustee, prior to the occurrence of an Event of Default and after the
curing or waiving of all Events of Default which may have occurred, under-
takes to perform such duties and only such duties as are specifically set
forth in this Indenture. In case an Event of Default has occurred (which
has not been cured or waived), the Trustee shall exercise such of the
rights and powers vested in it by this Indenture, and use the same degree
of care and skill in their exercise, as a prudent man would exercise or
use under the circumstances in the conduct of his own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent
failure to act or its own willful misconduct, except that
(a) prior to the occurrence of an Event of Default and after
the curing or waiving of all Events of Default which may have occurred
(1) the duties and obligations of the Trustee shall be
determined solely by the express provisions of this Indenture, and the
Trustee shall not be liable except for the performance of such duties and
obligations 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 the part of the
Trustee, the Trustee may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon any
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
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) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer or Responsible Officers, unless
it shall be proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(c) 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 Securityholders pursuant to Section 5.07, 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.
None of the provisions contained in this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers, if there is reasonable ground for
believing that the repayment of such funds or liability is not reasonably
assured to it under the terms of this Indenture or adequate indemnity
against such risk is not reasonably assured to it.
SECTION 6.02. Reliance on Documents, Opinions, etc.
Except as otherwise provided in Section 6.01:
(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, consent, order, bond, note,
debenture 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, direction, order or demand of the Company
mentioned herein may be sufficiently evidenced by an Officers' Certificate
(unless other evidence in respect thereof be herein specifically prescribed);
and any Board Resolution may be evidenced to the Trustee by a copy thereof
certified by the Secretary or an Assistant Secretary of the Company;
(c) the Trustee may consult with counsel of its selection and
any advice or Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken or suffered omitted by it hereunder
in good faith and in accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders, pursuant to the provisions of this
Indenture, unless such Securityholders shall have offered to the Trustee
security or indemnity reasonably satisfactory to it against the
costs, expenses and liabilities which may be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture; nothing
contained herein shall, however, relieve the Trustee of the obligation, upon
the occurrence of an Event of Default (that has not been cured or waived), to
exercise such of the rights and powers vested in it by this Indenture, and to
use the same degree of care and skill in their exercise, as a prudent man
would exercise or use under the circumstances
in the conduct of his own affairs;
(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, consent, order, approval, bond,
debenture, coupon or other paper or document, unless requested in writing to
do so by the holders of a majority in aggregate
principal amount of the outstanding Securities; provided, however, that if
the payment within a reasonable time to the Trustee of the costs, expenses
or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably assured to
the Trustee by the security afforded to it by the terms of this Indenture,
the Trustee may require reasonable indemnity against such expense or lia-
bility as a condition to so proceeding; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents (including any Authenticating Agent) or attorneys, and the Trustee
shall not be responsible for any misconduct or negligence on the part of any
such agent or attorney appointed by it with due care.
SECTION 6.03. No Responsibility for Recitals, etc.
The recitals contained herein and in the Securities (except in
the certificate of authentication of the Trustee or the Authenticating
Agent) shall be taken as the statements of the Company and the Trustee and
the Authenticating Agent assume no responsibility for the correctness of
the same. The Trustee and the Authenticating Agent make no
representations as to the validity or sufficiency of this Indenture or of
the Securities. The Trustee and the Authenticating Agent shall not be
accountable for the use or application by the Company of any Securities or
the proceeds of any Securities authenticated and delivered by the Trustee
or the Authenticating Agent in conformity with the provisions of this
Indenture.
SECTION 6.04. Trustee, Authenticating Agent, Paying Agents,
Transfer Agents or Registrar May Own Securities.
The Trustee or any Authenticating Agent or any paying agent or
any transfer agent or any Security registrar, in its individual or any
other capacity, may become the owner or pledgee of Securities with the
same rights it would have if it were not Trustee, Authenticating Agent,
paying agent, transfer agent or Security registrar.
SECTION 6.05. Moneys to be Held in Trust.
Subject to the provisions of Section 11.04, all moneys received
by the Trustee or any paying agent shall, until used or applied as herein
provided, be held in trust for the purpose for which they were received,
but need not be segregated from other funds except to the extent required
by law. The Trustee and any paying agent shall be under no liability for
interest on any money received by it hereunder except as otherwise agreed
in writing with the Company. So long as no Event of Default shall have
occurred and be continuing, all interest allowed on any such moneys shall
be paid from time to time upon the written order of the Company, signed by
the Chairman of the Board of Directors, the President or a Vice President
or the Treasurer or an Assistant Treasurer of the Company.
SECTION 6.06. Compensation and Expenses of Trustee.
The Company, as issuer of the Securities, covenants and agrees
to pay to the Trustee from time to time, and the Trustee shall be entitled
to, such compensation as shall be agreed to in writing between the Company
and the Trustee (which shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust), and the
Company will pay or reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any of the provisions of this Indenture (including
the reasonable compensation and the expenses and disbursements
of its counsel and of all Persons not regularly in its employ) except any
such expense, disbursement or advance as may arise from its negligence or
bad faith. The Company also covenants to indemnify each of the Trustee
and any predecessor Trustee (and its officers, agents, directors and
employees) for, and to hold them harmless against, any and all loss,
damage, claim, liability or expense including taxes (other than taxes
based on the income of the Trustee) incurred without negligence or bad
faith on the part of the Trustee and arising out of or in connection with
the acceptance or administration of this trust, including the costs and
expenses of defending itself against any claim of liability in the premises.
The obligations of the Company under this Section 6.06 to compensate
and indemnify the Trustee and to pay or reimburse the Trustee for
expenses, disbursements and advances shall constitute additional indebtedness
hereunder. Such additional indebtedness shall be secured by a lien
prior to that of the Securities upon all property and funds held or
collected by the Trustee as such, except funds held in trust for the
benefit of the holders of particular Securities.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 5.01(d) or
Section 5.01(e), the expenses (including the reasonable charges and
expenses of its counsel) and the compensation for the services are
intended to constitute expenses of administration under any applicable
federal or state bankruptcy, insolvency or other similar law.
The provisions of this Section shall survive the termination of
this Indenture.
SECTION 6.07. Officers' Certificate as Evidence.
Except as otherwise provided in Sections 6.01 and 6.02, whenever
in the administration of the provisions of this Indenture the Trustee
shall deem it necessary or desirable that a matter be proved or
established prior to taking or omitting any action hereunder, such matter
(unless other evidence in respect thereof is herein specifically
prescribed) may, in the absence of negligence or bad faith on the part of
the Trustee, be deemed to be conclusively proved and established by an
Officers' Certificate delivered to the Trustee, and such certificate, in
the absence of negligence or bad faith on the part of the Trustee, shall
be full warrant to the Trustee for any action taken or omitted by it under
the provisions of this Indenture upon the faith thereof.
SECTION 6.08. Conflicting Interest of Trustee.
If the Trustee has or shall acquire any "conflicting interest"
within the meaning of Section 310(b) of the Trust Indenture Act, the
Trustee and the Company shall in all respects comply with the provisions
of Section 310(b) of the Trust Indenture Act.
SECTION 6.09. Eligibility of Trustee.
The Trustee hereunder shall at all times be a corporation
organized and doing business under the laws of the United States of
America or any state or territory thereof or of the District of Columbia
or a corporation or other Person permitted to act as trustee by the
Commission authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least 50 million U.S. dollars
($50,000,000) and subject to supervision or examination by federal, state,
territorial, or District of Columbia authority. If such corporation
publishes reports of condition at least annually, pursuant to law or to
the requirements of the aforesaid supervising or examining authority, then
for the purposes of this Section 6.09 the combined capital and surplus of
such corporation shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published.
The Company may not, nor may any Person directly or indirectly
controlling, controlled by, or under common control with the Company,
serve as Trustee.
In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 6.09, the Trustee shall
resign immediately in the manner and with the effect specified in Section
6.10.
SECTION 6.10. Resignation or Removal of Trustee.
(a) The Trustee, or any trustee or trustees hereafter
appointed, may at any time resign by giving written notice of such
resignation to the Company and by mailing notice thereof to the holders of
the Securities at their addresses as they shall appear on the Security reg-
ister. Upon receiving such notice of resignation, the Company shall
promptly appoint a successor trustee or trustees by written instrument, in
duplicate, one copy of which instrument shall be delivered to the resigning
Trustee and one copy to the successor trustee. If no successor trustee shall
have been so appointed and have accepted appointment within 60 days after the
mailing of such notice of resignation to the affected Securityholders, the
resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee, or any
Securityholder who has been a bona fide holder of a Security for at least
six months may, subject to the provisions of Section 5.09, on behalf of him-
self and all others similarly situated, petition any such court for the
appointment of a successor trustee. Such court may thereupon, after such
notice, if any, as it may deem proper and prescribe, appoint a successor
trustee.
(b) In case at any time any of the following shall occur:
(1) the Trustee shall fail to comply with the provisions
of Section 6.08 after written request therefor by the Company or by any
Securityholder who has been a bona fide holder of a Security or Securities
for at least six months, or
(2) the Trustee shall cease to be eligible in accordance
with the provisions of Section 6.09 and shall fail to resign after written
request therefor by the Company or by any such Securityholder, 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, the Company may remove the Trustee
and appoint a successor trustee by written instrument, in duplicate, one copy
of which instrument shall be delivered to the Trustee so removed and one copy
to the successor trustee, or, subject to the provisions of Section 5.09, any
Securityholder who has been a bona fide holder of a
Security for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor trustee. Such
court may thereupon, after such notice, if any, as it may deem proper and
prescribe, remove the Trustee and appoint a successor trustee.
(c) The holders of a majority in aggregate principal amount of
the Securities at the time outstanding may at any time remove the Trustee and
nominate a successor trustee, which shall be deemed appointed as successor
trustee unless within 10 days after such nomination the Company objects
thereto or if no successor trustee shall have been so appointed and shall
have accepted appointment within 30 days after such removal, in which case
the Trustee so removed or any Securityholder, upon the terms and conditions
and otherwise as in subsection (a) of this Section 6.10
provided, may petition any court of competent jurisdiction for an appointment
of a successor trustee.
(d) Any resignation or removal of the Trustee and appointment
of a successor trustee pursuant to any of the provisions of this Section 6.10
shall become effective upon acceptance of appointment by the successor
trustee as provided in Section 6.11.
SECTION 6.11. Acceptance by Successor Trustee.
Any successor trustee appointed as provided in Section 6.10
shall execute, acknowledge and deliver to the Company and to its
predecessor trustee an instrument accepting such appointment hereunder,
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, duties and
obligations of its predecessor hereunder, with like effect as if
originally named as trustee herein; but, nevertheless, on the written
request of the Company or of the successor trustee, the trustee ceasing to
act shall, upon payment of any amounts then due it pursuant to the
provisions of Section 6.06, execute and deliver an instrument transferring
to such successor trustee all the rights and powers of the trustee so
ceasing to act and shall duly assign, transfer and deliver to such
successor trustee all property and money held by such retiring trustee
thereunder. Upon request of any such successor trustee, the Company shall
execute any and all instruments in writing for more fully and certainly
vesting in and confirming to such successor trustee all such rights and
powers. Any trustee ceasing to act shall, nevertheless, retain a lien
upon all property or funds held or collected by such trustee to secure any
amounts then due it pursuant to the provisions of Section 6.06.
No successor trustee shall accept appointment as provided in
this Section 6.11 unless at the time of such acceptance such successor
trustee shall be qualified under the provisions of Section 6.08 and
eligible under the provisions of Section 6.09.
Upon acceptance of appointment by a successor trustee as
provided in this Section 6.11, the Company shall mail notice of the
succession of such trustee hereunder to the holders of Securities at their
addresses as they shall appear on the Security register. If the Company
fails to mail such notice within 10 days after the acceptance of appointment
by the successor trustee, the successor trustee shall cause such
notice to be mailed at the expense of the Company.
SECTION 6.12. Succession by Merger, etc.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any corporation succeeding to all or
substantially all of the corporate trust business of the Trustee, shall be
the successor of the Trustee hereunder without the execution or filing of
any paper or any further act on the part of any of the parties hereto.
In case at the time such successor to the Trustee shall succeed
to the trusts created by this Indenture any Securities shall have been
authenticated but not delivered, any such successor to the Trustee may
adopt the certificate of authentication of any predecessor trustee, and
deliver such Securities so authenticated; and in case at that time any of
the Securities shall not have been authenticated, any successor to the
Trustee may authenticate such Securities either in the name of any
predecessor hereunder or in the name of the successor trustee; and in all
such cases such certificates shall have the full force which the
Securities or this Indenture elsewhere provides that the certificate of
the Trustee shall have; provided, however, that the right to adopt the
certificate of authentication of any predecessor Trustee or authenticate
Securities in the name of any predecessor Trustee shall apply only to its
successor or successors by merger, conversion or consolidation.
SECTION 6.13. Limitation on Rights of Trustee as a Creditor.
The Trustee shall comply with Section 311(a) of the Trust
Indenture Act, excluding any creditor relationship described in Section
311(b) of the Trust Indenture Act. A Trustee who has resigned or been
removed shall be subject to Section 311(a) of the Trust Indenture Act to
the extent included therein.
SECTION 6.14. Authenticating Agents.
There may be one or more Authenticating Agents appointed by the
Trustee upon the request of the Company with power to act on its behalf
and subject to its direction in the authentication and delivery of
Securities issued upon exchange or transfer thereof as fully to all
intents and purposes as though any such Authenticating Agent had been
expressly authorized to authenticate and deliver Securities; provided,
that the Trustee shall have no liability to the Company for any acts or
omissions of the Authenticating Agent with respect to the authentication
and delivery of Securities. Any such Authenticating Agent shall at all
times be a corporation organized and doing business under the laws of the
United States or of any state or territory thereof or of the District of
Columbia authorized under such laws to act as Authenticating Agent, having
a combined capital and surplus of at least $50,000,000 and being subject
to supervision or examination by federal, state, territorial or District
of Columbia authority. If such corporation publishes reports of condition
at least annually pursuant to law or the requirements of such authority,
then for the purposes of this Section 6.14 the combined capital and
surplus of such corporation 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, it shall resign
immediately in the manner and with the effect herein specified in this
Section.
Any corporation into which any Authenticating Agent may be
merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, consolidation or conversion to
which any Authenticating Agent shall be a party, or any corporation
succeeding to the corporate trust business of any Authenticating Agent,
shall be the successor of such Authenticating Agent hereunder, if such
successor corporation is otherwise eligible under this Section 6.14
without the execution or filing of any paper or any further act on the
part of the parties hereto or such Authenticating Agent.
Any Authenticating Agent may at any time resign by giving
written notice of resignation to the Trustee and to the Company. The
Trustee may at any time terminate the agency of any Authenticating Agent
by giving written notice of termination 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 any Authenticating Agent shall cease
to be eligible under this Section 6.14, the Trustee may, and upon the
request of the Company shall, promptly appoint a successor Authenticating
Agent eligible under this Section 6.14, shall give written notice of such
appointment to the Company and shall mail notice of such appointment to
all Securityholders as the names and addresses of such holders appear on
the Security Register. Any successor Authenticating Agent upon acceptance
of its appointment hereunder shall become vested with all rights, powers,
duties and responsibilities of its predecessor hereunder, with like effect
as if originally named as Authenticating Agent herein.
The Company, as borrower, agrees to pay to any Authenticating
Agent from time to time reasonable compensation for its services. Any
Authenticating Agent shall have no responsibility or liability for any
action taken by it as such in accordance with the directions of the
Trustee.
ARTICLE VII
CONCERNING THE SECURITYHOLDERS
SECTION 7.01. Action by Securityholders.
Whenever in this Indenture it is provided that the holders of a
specified percentage in aggregate principal amount of the Securities may
take any action (including the making of any demand or request, the giving
of any notice, consent or waiver or the taking of any other action) the
fact that at the time of taking any such action the holders of such
specified percentage have joined therein may be evidenced (a) by any
instrument or any number of instruments of similar tenor executed by such
Securityholders in person or by agent or proxy appointed in writing, or
(b) by the record of such holders of Securities voting in favor thereof at
any meeting of such Securityholders duly called and held in accordance
with the provisions of Article Eight, or (c) by a combination of such
instrument or instruments and any such record of such a meeting of such
Securityholders.
If the Company shall solicit from the Securityholders any
request, demand, authorization, direction, notice, consent, waiver or
other action, the Company may, at its option, as evidenced by an Officers'
Certificate, fix in advance a record date for the determination of
Securityholders entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other action, but the Company shall
have no obligation to do so. If such a record date is fixed, such
request, demand, authorization, direction, notice, consent, waiver or
other action may be given before or after the record date, but only the
Securityholders of record at the close of business on the record date
shall be deemed to be Securityholders for the purposes of determining
whether Securityholders of the requisite proportion of Outstanding
Securities have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other action, and for
that purpose the Outstanding Securities shall be computed as of the record
date; provided, however, that no such authorization, agreement or consent
-------- -------
by such Securityholders on the record date shall be deemed effective
unless it shall become effective pursuant to the provisions of this
Indenture not later than six months after the record date.
SECTION 7.02. Proof of Execution by Securityholders.
Subject to the provisions of Sections 6.01, 6.02 and 8.05, proof
of the execution of any instrument by a Securityholder or his agent or
proxy shall be sufficient if made in accordance with such reasonable rules
and regulations as may be prescribed by the Trustee or in such manner as
shall be satisfactory to the Trustee. The ownership of Securities shall
be proved by the Security Register or by a certificate of the Security
registrar. The Trustee may require such additional proof of any matter
referred to in this Section as it shall deem necessary.
The record of any Securityholders' meeting shall be proved in
the manner provided in Section 8.06.
SECTION 7.03. Who Are Deemed Absolute Owners.
Prior to due presentment for registration of transfer of any
Security, the Company, the Trustee, any Authenticating Agent, any paying
agent, any transfer agent and any Security registrar may deem the Person
in whose name such Security shall be registered upon the Security Register
to be, and may treat him as, the absolute owner of such Security (whether
or not such Security shall be overdue) for the purpose of receiving
payment of or on account of the principal of and premium, if any, and
(subject to Section 2.06) interest on such Security and for all other
purposes; and neither the Company nor the Trustee nor any Authenticating
Agent nor any paying agent nor any transfer agent nor any Security
registrar shall be affected by any notice to the contrary. All such
payments so made to any holder for the time being or upon his order shall
be valid, and, to the extent of the sum or sums so paid, effectual to
satisfy and discharge the liability for moneys payable upon any such
Security.
SECTION 7.04. Securities Owned by Company Deemed Not
Outstanding.
In determining whether the holders of the requisite aggregate
principal amount of Securities have concurred in any direction, consent or
waiver under this Indenture, Securities which are owned by the Company or
any other obligor on the Securities or by any Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company, except Securities held by the Trust, or any
other obligor on the Securities shall be disregarded and deemed not to be
outstanding for the purpose of any such determination; provided that for
the purposes of determining whether the Trustee shall be protected in
relying on any such direction, consent or waiver, only Securities which
the Trustee actually knows are so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded
as outstanding for the purposes of this Section 7.04 if the pledgee shall
establish to the satisfaction of the Trustee the pledgee's right to vote
such Securities and that the pledgee is not the Company or any such other
obligor or Person directly or indirectly controlling or controlled by or
under direct or indirect common control with the Company or any such other
obligor. In the case of a dispute as to such right, any decision by the
Trustee taken upon the advice of counsel shall be full protection to the
Trustee.
SECTION 7.05. Revocation of Consents; Future Holders Bound.
At any time prior to (but not after) the evidencing to the
Trustee, as provided in Section 7.01, of the taking of any action by the
holders of the percentage in aggregate principal amount of the Securities
specified in this Indenture in connection with such action, any holder of
a Security (or any Security issued in whole or in part in exchange or
substitution therefor) the serial number of which is shown by the evidence
to be included in the Securities the holders of which have consented to
such action may, by filing written notice with the Trustee at its
principal office and upon proof of holding as provided in Section 7.02,
revoke such action so far as concerns such Security (or so far as concerns
the principal amount represented by any exchanged or substituted Security).
Except as aforesaid any such action taken by the holder of any
Security shall be conclusive and binding upon such holder and upon all
future holders and owners of such Security, and of any Security issued in
exchange or substitution therefor, irrespective of whether or not any nota-
tion in regard thereto is made upon such Security or any Security
issued in exchange or substitution therefor.
ARTICLE VIII
SECURITYHOLDERS' MEETINGS
SECTION 8.01. Purposes of Meetings.
A meeting of Securityholders may be called at any time and from
time to time pursuant to the provisions of this Article Eight for any of
the following purposes:
(a) to give any notice to the Company or to the Trustee, or to
give any directions to the Trustee, or to consent to the waiving of any
Default hereunder and its consequences, or to take any other action
authorized to be taken by Securityholders pursuant to any of the provisions
of Article Five;
(b) to remove the Trustee and nominate a successor trustee
pursuant to the provisions of Article Six;
(c) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 9.02; or
(d) to take any other action authorized to be taken by or on
behalf of the holders of any specified aggregate principal amount of such
Securities under any other provision of this Indenture or under applicable
law.
SECTION 8.02. Call of Meetings by Trustee.
The Trustee may at any time call a meeting of Securityholders to
take any action specified in Section 8.01, to be held at such time and at
such place in the Borough of Manhattan, The City of New York, as the
Trustee shall determine. Notice of every meeting of the Securityholders,
setting forth the time and the place of such meeting and in general terms
the action proposed to be taken at such meeting, shall be mailed to
holders of Securities at their addresses as they shall appear on the
Securities Register. Such notice shall be mailed not less than 20 nor
more than 180 days prior to the date fixed for the meeting.
SECTION 8.03. Call of Meetings by Company or Securityholders.
In case at any time the Company pursuant to a resolution of the
Board of Directors, or the holders of at least 10% in aggregate principal
amount of the Securities then outstanding, shall have requested the
Trustee to call a meeting of Securityholders, by written request setting
forth in reasonable detail the action proposed to be taken at the meeting,
and the Trustee shall not have mailed the notice of such meeting within 20
days after receipt of such request, then the Company or such
Securityholders may determine the time and the place in the Borough of
Manhattan, The City of New York for such meeting and may call such meeting
to take any action authorized in Section 8.01, by mailing notice thereof
as provided in Section 8.02.
SECTION 8.04. Qualifications for Voting.
To be entitled to vote at any meeting of Securityholders a
Person shall be (a) a holder of one or more Securities or (b) a Person
appointed by an instrument in writing as proxy by a holder of one or more
Securities. The only Persons who shall be entitled to be present or to
speak at any meeting of Securityholders shall be the Persons entitled to
vote at such meeting and their counsel and any representatives of the
Trustee and its counsel and any representatives of the Company and its
counsel.
SECTION 8.05. Regulations.
Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for
any meeting of Securityholders, in regard to proof of the holding of
Securities and of the appointment of proxies, and in regard to the
appointment and duties of inspectors of votes, the submission and examination
of proxies, certificates and other evidence of the right to vote, and
such other matters concerning the conduct of the meeting as it shall think
fit.
The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been
called by the Company or by Securityholders as provided in Section 8.03,
in which case the Company or the Securityholders calling the meeting, as
the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be
elected by majority vote of the meeting.
Subject to the provisions of Section 8.04, at any meeting each
holder of Securities or proxy therefor shall be entitled to one vote for
each $1,000 principal amount of Securities held or represented by him;
provided, however, that no vote shall be cast or counted at any meeting in
respect of any Security challenged as not outstanding and ruled by the
chairman of the meeting to be not outstanding. The chairman of the
meeting shall have no right to vote other than by virtue of Securities
held by him or instruments in writing as aforesaid duly designating him as
the person to vote on behalf of other Securityholders. Any meeting of
Securityholders duly called pursuant to the provisions of Section 8.02 or
8.03 may be adjourned from time to time by a majority of those present,
whether or not constituting a quorum, and the meeting may be held as so
adjourned without further notice.
SECTION 8.06. Voting.
The vote upon any resolution submitted to any meeting of holders
of Securities shall be by written ballots on which shall be subscribed the
signatures of such holders or of their representatives by proxy and the
serial number or numbers of the Securities held or represented by them.
The permanent chairman of the meeting shall appoint two inspectors of
votes who shall count all votes cast at the meeting for or against any
resolution and who shall make and file with the secretary of the meeting
their verified written reports in triplicate of all votes cast at the
meeting. A record in duplicate of the proceedings of each meeting of
Securityholders shall be prepared by the secretary of the meeting and
there shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavits by
one or more persons having knowledge of the facts setting forth a copy of
the notice of the meeting and showing that said notice was mailed as
provided in Section 8.02. The record shall show the serial numbers of the
Securities voting in favor of or against any resolution. The record shall
be signed and verified by the affidavits of the permanent chairman and
secretary of the meeting and one of the duplicates shall be delivered to
the Company and the other to the Trustee to be preserved by the Trustee,
the latter to have attached thereto the ballots voted at the meeting. The
holders of the Series A Capital Securities and the Series B Capital
Securities shall vote for all purposes as a single class.
Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
ARTICLE IX
AMENDMENTS
SECTION 9.01. Without Consent of Securityholders.
The Company and the Trustee may from time to time and at any
time amend the Indenture, without the consent of the Securityholders, for
one or more of the following purposes:
(a) to evidence the succession of another corporation to the
Company, or successive successions, and the assumption by the successor
corporation of the covenants, agreements and obligations of the Company
pursuant to Article Ten hereof;
(b) to add to the covenants of the Company such further
covenants, restrictions or conditions for the protection of the
Securityholders as the Board of Directors and the Trustee shall consider to
be for the protection of the Securityholders, and to make the occurrence, or
the occurrence and continuance, of a default in any of such
additional covenants, restrictions or conditions a Default or an Event of
Default permitting the enforcement of all or any of the remedies provided in
this Indenture as herein set forth; provided, however, that in respect of any
such additional covenant, restriction or condition such amendment may provide
for a particular period of grace after default (which period may be shorter
or longer than that allowed in the case of other Defaults) or may provide for
an immediate enforcement upon such default or may limit
the remedies available to the Trustee upon such default;
(c) to provide for the issuance under this Indenture of
Securities in coupon form (including Securities registrable as to principal
only) and to provide for exchangeability of such Securities with
the Securities issued hereunder in fully registered form and to make all
appropriate changes for such purpose;
(d) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which may be
defective or inconsistent with any other provision contained herein or in any
supplemental indenture, or to make such other provisions in regard to
matters or questions arising under this Indenture; provided that any such
action shall not materially adversely affect the interests of the holders of
the Securities;
(e) to evidence and provide for the acceptance of appointment
hereunder by a successor trustee with respect to the Securities;
(f) to make provision for transfer procedures, certification,
book-entry provisions, the form of restricted securities legends, if any, to
be placed on Securities, and all other matters required pursuant to Section
2.07 or otherwise necessary, desirable or appropriate in connection with the
issuance of Securities to holders of Capital Securities in the event of a
distribution of Securities by Community Capital Trust following a Dissolution
Event;
(g) to qualify or maintain qualification of this Indenture
under the Trust Indenture Act; or
(h) to make any change that does not adversely affect the
rights of any Securityholder in any material respect.
The Trustee is hereby authorized to join with the Company in the
execution of any supplemental indenture to effect such amendment, to make
any further appropriate agreements and stipulations which may be therein
contained and to accept the conveyance, transfer and assignment of any
property thereunder, but the Trustee shall not be obligated to, but may in
its discretion, enter into any such supplemental indenture which affects
the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
Any amendment to this Indenture authorized by the provisions of
this Section 9.01 may be executed by the Company and the Trustee without
the consent of the holders of any of the Securities at the time
outstanding, notwithstanding any of the provisions of Section 9.02.
SECTION 9.02. With Consent of Securityholders.
With the consent (evidenced as provided in Section 7.01) of the
holders of a majority in aggregate principal amount of the Securities at
the time outstanding, the Company, when authorized by a Board Resolution,
and the Trustee may from time to time and at any time amend this Indenture
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 the Securities; provided, however,
that no such amendment shall without the consent of the holders of each
Security then outstanding and affected thereby (i) change the Maturity
Date of any Security, or reduce the rate or extend the time of payment of
interest thereon (except as contemplated by Article Sixteen), or reduce
the principal amount thereof, or reduce any amount payable on prepayment
thereof, or make the principal thereof or any interest or premium thereon
payable in any coin or currency other than that provided in the Securities,
or impair or affect the right of any Securityholder to institute
suit for payment thereof, or (ii) reduce the aforesaid percentage of
Securities the holders of which are required to consent to any such amendment
to this Indenture, provided, however, that if the Securities are held
by Community Capital Trust, such amendment shall not be effective until
the holders of a majority in liquidation amount of Trust Securities shall
have consented to such amendment; provided, further, that if the consent
of the holder of each outstanding Security is required, such amendment
shall not be effective until each holder of the Trust Securities shall
have consented to such amendment.
Upon the request of the Company accompanied by a copy of a
resolution of the Board of Directors certified by its Secretary or
Assistant Secretary authorizing the execution of any supplemental
indenture affecting such amendment, and upon the filing with the Trustee
of evidence of the consent of Securityholders as aforesaid, the Trustee
shall join with the Company in the execution of such supplemental
indenture unless such supplemental indenture affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion, but shall not be obligated to,
enter into such supplemental indenture. The Trustee may receive an
Opinion of Counsel as conclusive evidence that any supplemental indenture
executed pursuant to this Article is authorized or permitted by, and
conforms to, the terms of this Article and that it is proper for the
Trustee under the provisions of this Article to join in the execution
thereof.
Promptly after the execution by the Company and the Trustee of
any supplemental indenture pursuant to the provisions of this Section, the
Trustee shall transmit by mail, first class postage prepaid, a notice,
prepared by the Company, setting forth in general terms the substance of
such supplemental indenture, to the Securityholders as their names and
addresses appear upon the Security Register. Any failure of the Trustee
to mail such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental indenture.
It shall not be necessary for the consent of the Securityholders
under this Section 9.02 to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such consent shall
approve the substance thereof.
SECTION 9.03. Compliance with Trust Indenture Act; Effect of
Supplemental Indentures.
Any supplemental indenture executed pursuant to the provisions
of this Article Nine shall comply with the Trust Indenture Act. Upon the
execution of any supplemental indenture pursuant to the provisions of this
Article Nine, this Indenture shall be and be deemed to be modified and
amended in accordance therewith and the respective rights, limitations of
rights, obligations, duties and immunities under this Indenture of the
Trustee, the Company and the holders of Securities shall thereafter be
determined, exercised and enforced hereunder subject in all respects to
such modifications and amendments and all the terms and conditions of any
such supplemental indenture shall be and be deemed to be part of the terms
and conditions of this Indenture for any and all purposes.
SECTION 9.04. Notation on Securities.
Securities authenticated and delivered after the execution of
any supplemental indenture affecting such series pursuant to the
provisions of this Article Nine may bear a notation in form approved by
the Trustee as to any matter provided for in such supplemental indenture.
If the Company or the Trustee shall so determine, new Securities so
modified as to conform, in the opinion of the Trustee and the Board of
Directors, to any modification of this Indenture contained in any such
supplemental indenture may be prepared and executed by the Company,
authenticated by the Trustee or the Authenticating Agent and delivered in
exchange for the Securities then outstanding.
SECTION 9.05. Evidence of Compliance of Supplemental Indenture
to be Furnished Trustee.
The Trustee, subject to the provisions of Sections 6.01 and
6.02, may receive an Officers' Certificate and an Opinion of Counsel as
conclusive evidence that any supplemental indenture executed pursuant
hereto complies with the requirements of this Article Nine.
ARTICLE X
CONSOLIDATION, CONVERSION, MERGER, SALE, CONVEYANCE AND LEASE
SECTION 10.01. Company May Consolidate, etc., on Certain Terms.
Nothing contained in this Indenture or in any of the Securities
shall prevent any consolidation, conversion or merger of the Company with
or into any other Person (whether or not affiliated with the Company, as
the case may be), or successive consolidations, conversions or mergers in
which the Company or its successor or successors, as the case may be,
shall be a party or parties, or shall prevent any sale, conveyance,
transfer or lease of the property of the Company or its successor or
successors, as the case may be, as an entirety, or substantially as an
entirety, to any other Person (whether or not affiliated with the Company
or its successor or successors, as the case may be) authorized to acquire
and operate the same; provided, that (a) the Company is the surviving
Person, or the Person formed by or surviving any such consolidation,
conversion or merger (if other than the Company) or to which such sale,
conveyance, transfer or lease of property is made is a Person organized
and existing under the laws of the United States or any State thereof or
the District of Columbia, and (b) upon any such consolidation, conversion,
merger, sale, conveyance, transfer or lease, the due and punctual payment
of the principal of (and premium, if any) and interest on the Securities
according to their tenor and the due and punctual performance and observance
of all the covenants and conditions of this Indenture to be kept or
performed by the Company shall be expressly assumed, by supplemental inden-
ture (which shall conform to the provisions of the Trust Indenture Act, as
then in effect) satisfactory in form to the Trustee, and executed
and delivered to the Trustee by the Person formed by such consolidation or
conversion, or into which the Company shall have been converted or merged,
or by the Person which shall have acquired such property, as the case may
be, (c) after giving effect to such consolidation, conversion, merger,
sale, conveyance, transfer or lease, no Default or Event of Default shall
have occurred and be continuing and (d) such consolidation, conversion,
merger, sale, conveyance, transfer or lease does not cause the Securities
to be downgraded by a nationally recognized statistical rating organization.
SECTION 10.02. Successor Corporation to be Substituted for
Company.
In case of any such consolidation, conversion, merger,
conveyance or transfer and upon the assumption by the successor
corporation, by supplemental indenture, executed and delivered to the
Trustee and satisfactory in form to the Trustee, of the due and punctual
payment of the principal of and premium, if any, and interest on all of
the Securities and the due and punctual performance and observance of all
of the covenants and conditions of this Indenture to be performed or
observed by the Company, such successor Person shall succeed to and be
substituted for the Company, with the same effect as if it had been named
herein as the party of the first part, and the Company thereupon shall be
relieved of any further liability or obligation hereunder or upon the
Securities. Such successor Person thereupon may cause to be signed, and
may issue either in its own name or in the name of Community Financial
Corporation, any or all of the Securities issuable hereunder which there-
tofore shall not have been signed by the Company and delivered to the
Trustee or the Authenticating Agent; and, upon the order of such successor
Person instead of the Company and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee or the Authenticating
Agent shall authenticate and deliver any Securities which previously shall
have been signed and delivered by the officers of the Company
to the Trustee or the Authenticating Agent for authentication, and any
Securities which such successor Person thereafter shall cause to be signed
and delivered to the Trustee or the Authenticating Agent for that purpose.
All the Securities so issued shall in all respects have the same legal
rank and benefit under this Indenture as the Securities theretofore or
thereafter issued in accordance with the terms of this Indenture as though
all of such Securities had been issued at the date of the execution
hereof.
SECTION 10.03. Opinion of Counsel to be Given Trustee.
The Trustee, subject to the provisions of Sections 6.01 and
6.02, may receive an Opinion of Counsel as conclusive evidence that any
consolidation, merger, sale, conveyance, transfer or lease, and any
assumption, permitted or required by the terms of this Article Ten
complies with the provisions of this Article Ten.
ARTICLE XI
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 11.01. Discharge of Indenture.
When (a) the Company shall deliver to the Trustee for
cancellation all Securities theretofore authenticated (other than any
Securities which shall have been destroyed, lost or stolen and which shall
have been prepaid, paid or replaced (as provided in Section 2.08)) and not
theretofore cancelled, or (b) all the Securities not theretofore cancelled
or delivered to the Trustee for cancellation shall have become due and
payable, or are by their terms to become due and payable within one year
or are to be called for prepayment within one year under arrangements
satisfactory to the Trustee for the giving of notice of prepayment, and
the Company shall deposit or cause to be deposited with the Trustee, in
trust, funds sufficient to pay on the Maturity Date or upon prepayment all
of the Securities (other than any Securities which shall have been
destroyed, lost or stolen and which shall have been prepaid, paid or
replaced (as provided in Section 2.08)) not theretofore cancelled or
delivered to the Trustee for cancellation, including principal and
premium, if any, and interest due or to become due to the Maturity Date or
prepayment date, as the case may be, but excluding, however, the amount of
any moneys for the payment of principal of or premium, if any, or interest
on the Securities (1) theretofore repaid to the Company in accordance with
the provisions of Section 11.04, or (2) paid to any State or to the
District of Columbia pursuant to its unclaimed property or similar laws,
and if in either case the Company shall also pay or cause to be paid all
other sums payable hereunder by the Company, then this Indenture shall
cease to be of further effect except for the provisions of Sections 2.02,
2.07, 2.08, 3.01, 3.02, 3.04, 6.06, 6.10 and 11.04 hereof shall survive
until such Securities shall mature and be paid. Thereafter, Sections 6.10
and 11.04 shall survive, and the Trustee, on demand of the Company accompa-
nied by any Officers' Certificate and an Opinion of Counsel and at the
cost and expense of the Company, shall execute proper instruments
acknowledging satisfaction of and discharging this Indenture, the Company,
however, hereby agreeing to reimburse the Trustee for any costs or expenses
thereafter reasonably and properly incurred by the Trustee in
connection with this Indenture or the Securities.
SECTION 11.02. Deposited Moneys and U.S. Government Obligations
to be Held in Trust by Trustee.
Subject to the provisions of Section 11.04, all moneys and U.S.
Government Obligations deposited with the Trustee pursuant to Sections
11.01 or 11.05 shall be held in trust and applied by it to the payment,
either directly or through any paying agent (including the Company if
acting as its own paying agent), to the holders of the particular
Securities for the payment of which such moneys or U.S. Government
Obligations have been deposited with the Trustee, of all sums due and to
become due thereon for principal, premium, if any, and interest.
The Company shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 11.05 or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the holders of outstanding
Securities.
SECTION 11.03. Paying Agent to Repay Moneys Held.
Upon the satisfaction and discharge of this Indenture all moneys
then held by any paying agent of the Securities (other than the Trustee)
shall, upon written demand of the Company, be repaid to it or paid to the
Trustee, and thereupon such paying agent shall be released from all
further liability with respect to such moneys.
SECTION 11.04. Return of Unclaimed Moneys.
Any moneys deposited with or paid to the Trustee or any paying
agent for payment of the principal of or premium, if any, or interest on
Securities and not applied but remaining unclaimed by the holders of
Securities for two years after the date upon which the principal of or
premium, if any, or interest on such Securities, as the case may be, shall
have become due and payable, shall be repaid to the Company by the Trustee
or such paying agent on written demand; and the holder of any of the
Securities shall thereafter look only to the Company for any payment which
such holder may be entitled to collect and all liability of the Trustee or
such paying agent with respect to such moneys shall thereupon cease.
SECTION 11.05. Defeasance Upon Deposit of Moneys or U.S.
Government Obligations.
The Company shall be deemed to have been Discharged (as defined
below) from its obligations with respect to the Securities on the 91st day
after the applicable conditions set forth below have been satisfied:
(1) the Company shall have deposited or caused to be deposited
irrevocably with the Trustee or the Defeasance Agent (as defined below) as
trust funds in trust, specifically pledged as security for, and dedicated
solely to, the benefit of the holders of the Securities (i) money in an
amount, or (ii) U.S. Government Obligations which through the payment of
interest and principal in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment, money in
an amount, or (iii) a combination of (i) and (ii), sufficient, in
the opinion (with respect to (ii) and (iii)) of a nationally recognized firm
of independent public accountants expressed in a written certification
thereof delivered to the Trustee and the Defeasance Agent, if any, to pay and
discharge each installment of principal of and interest
and premium, if any, on the outstanding Securities on the dates such
installments of principal, interest or premium are due;
(2) if the Securities are then listed on any national
securities exchange, the Company shall have delivered to the Trustee and the
Defeasance Agent, if any, an Opinion of Counsel to the effect that the
exercise of the option under this Section 11.05 would not cause such
Securities to be delisted from such exchange;
(3) no Default or Event of Default with respect to the Securities
shall have occurred and be continuing on the date of
such deposit; and
(4) the Company shall have delivered to the Trustee and the
Defeasance Agent, if any, an Opinion of Counsel to the effect that holders
of the Securities will not recognize income, gain or loss for United States
federal income tax purposes as a result of the exercise of the option under
this Section 11.05 and will be subject to United States
federal income tax on the same amount and in the same manner and at the same
times as would have been the case if such option had not been exercised, and
such opinion shall be based on a statement so providing or be accompanied by
a private letter ruling to that effect received from the
United States Internal Revenue Service or a revenue ruling pertaining to a
comparable form of transaction to that effect published by the United States
Internal Revenue Service.
"Discharged" means that the Company shall be deemed to have paid
and discharged the entire indebtedness represented by, and obligations
under, the Securities and to have satisfied all the obligations under this
Indenture relating to the Securities (and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging the same),
except (A) the rights of holders of Securities to receive, from the trust
fund described in clause (1) above, payment of the principal of and the
interest and premium, if any, on the Securities when such payments are
due; (B) the Company's obligations with respect to the Securities under
Sections 2.07, 2.08, 5.02 and 11.04; and (C) the rights, powers, trusts,
duties and immunities of the Trustee hereunder.
"Defeasance Agent" means another financial institution which is
eligible to act as Trustee hereunder and which assumes all of the
obligations of the Trustee necessary to enable the Trustee to act
hereunder. In the event such a Defeasance Agent is appointed pursuant to
this Section, the following conditions shall apply:
(1) the Trustee shall have approval rights over the document
appointing such Defeasance Agent and the document setting forth such
Defeasance Agent's rights and responsibilities; and
(2) the Defeasance Agent shall provide verification to the
Trustee acknowledging receipt of sufficient money and/or U. S. Government
Obligations to meet the applicable conditions set forth in this Section
11.05.
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.01. Indenture and Securities Solely Corporate
Obligations.
No recourse for the payment of the principal of or premium, if
any, or interest on any Security, or for any claim based thereon or
otherwise in respect thereof, and no recourse under or upon any
obligation, covenant or agreement of the Company in this Indenture, or in
any Security, or because of the creation of any indebtedness represented
thereby, shall be had against any incorporator, stockholder, officer or
director, as such, past, present or future, of the Company or of any
successor Person to the Company, either directly or through the Company or
any successor Person to the Company, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise; it being expressly understood that all such
liability is hereby expressly waived and released as a condition of, and
as a consideration for, the execution of this Indenture and the issue of
the Securities.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01. Successors.
All the covenants, stipulations, promises and agreements in this
Indenture contained by the Company shall bind its successors and assigns
whether so expressed or not.
SECTION 13.02. Official Acts by Successor Corporation.
Any act or proceeding by any provision of this Indenture
authorized or required to be done or performed by any board, committee or
officer of the Company shall and may be done and performed with like force
and effect by the like board, committee or officer of any corporation that
shall at the time be the lawful sole successor of the Company.
SECTION 13.03. Surrender of Company Powers.
The Company by instrument in writing executed by authority of
2/3 (two-thirds) of its Board of Directors and delivered to the Trustee
may surrender any of the powers reserved to the Company, and thereupon
such power so surrendered shall terminate both as to the Company, as the
case may be, and as to any successor Person.
SECTION 13.04. Addresses for Notices, etc.
Any notice or demand which by any provision of this Indenture is
required or permitted to be given or served by the Trustee or by the
holders of Securities on the Company may be given or served by being
deposited postage prepaid by registered or certified mail in a post office
letter box addressed (until another address is filed by the Company with
the Trustee for the purpose) to the Company, 5790 Widewaters Parkway,
Dewitt, New York 13214, Attention: Sanford A. Belden. Any notice, direc-
tion, request or demand by any Securityholder to or upon the Trustee
shall be deemed to have been sufficiently given or made, for all purposes,
if given or made in writing at the office of the Trustee, addressed to the
Trustee, 450 West 33rd Street, 15th Floor, New York, New York 10001, Atten-
tion: Global Trust Services.
SECTION 13.05. Governing Law.
This Indenture and each Security shall be deemed to be a
contract made under the laws of the State of New York, and for all
purposes shall be governed by and construed in accordance with the laws of
said State, without regard to conflicts of laws principles thereof.
SECTION 13.06. Evidence of Compliance with Conditions Precedent.
Upon any application or demand by the Company to the Trustee to
take any action under any of the provisions of this Indenture, the Company
shall furnish to the Trustee an Officers' Certificate stating that in the
opinion of the signers 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 have been complied with.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or
covenant provided for in this Indenture (except certificates delivered
pursuant to Section 3.05) shall include (1) a statement that the person
making such certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based; (3) a statement that, in the opinion of
such person, he has made such examination or investigation as is necessary
to enable him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and (4) a statement as to
whether or not, in the opinion of such person, such condition or covenant
has been complied with.
SECTION 13.07. Business Days.
In any case where the date of payment of principal of or
premium, if any, or interest on the Securities will not be a Business Day,
the payment of such principal of or premium, if any, or interest on the
Securities need not be made on such date but may be made on the next suc-
ceeding Business Day, with the same force and effect as if made on the
date of payment and no interest shall accrue for the period from and after
such date.
SECTION 13.08. Trust Indenture Act to Control.
If and to the extent that any provision of this Indenture
limits, qualifies or conflicts with the duties imposed by Sections 310 to
317, inclusive, of the Trust Indenture Act of 1939, such imposed duties
shall control.
SECTION 13.09. Table of Contents, Headings, etc.
The table of contents and the titles and headings of the
articles and sections of this Indenture have been inserted for convenience
of reference only, are not to be considered a part hereof, and shall in no
way modify or restrict any of the terms or provisions hereof.
SECTION 13.10. Execution in Counterparts.
This Indenture may be executed in any number of counterparts,
each of which shall be an original, but such counterparts shall together
constitute but one and the same instrument.
SECTION 13.11. Separability.
In case any one or more of the provisions contained in this
Indenture or in the Securities shall for any reason be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Indenture
or of the Securities, but this Indenture and the Securities shall be con-
strued as if such invalid or illegal or unenforceable provision had never
been contained herein or therein.
SECTION 13.12. Assignment.
The Company will have the right at all times to assign any of
its respective 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, as the case may be, will remain
liable for all such obligations. Subject to the foregoing, the Indenture
is binding upon and inures to the benefit of the parties thereto and their
respective successors and assigns. This Indenture may not otherwise be
assigned by the parties hereto.
SECTION 13.13. Acknowledgement of Rights.
The Company acknowledges that, with respect to any Securities
held by Community Capital Trust or a trustee of such trust, if the
Property Trustee of such Trust fails to enforce its rights under this
Indenture as the holder of the Securities held as the assets of Community
Capital Trust any holder of Capital Securities may institute legal proceed-
ings directly against the Company to enforce such Property
Trustee's rights under this Indenture without first instituting any legal
proceedings against such Property Trustee or any other Person or entity.
Notwithstanding the foregoing, if an Event of Default has occurred and is
continuing and such event is attributable to the failure of the Company to
pay principal of or premium, if any, or interest on the Securities when
due, the Company acknowledges that a holder of Capital Securities may di-
rectly institute a proceeding for enforcement of payment to such holder of
the principal of or premium, if any, or interest on the Securities having
a principal amount equal to the aggregate liquidation amount of the Capital
Securities of such holder on or after the respective due date specified in
the Securities.
ARTICLE XIV
PREPAYMENT OF SECURITIES -- MANDATORY AND
OPTIONAL SINKING FUND
SECTION 14.01. Special Event Prepayment.
If a Special Event has occurred and is continuing then,
notwithstanding Section 14.02(a) but subject to Section 14.02(c), the
Company shall have the right at any time prior to the Initial Optional
Prepayment Date, upon not (i) less than 45 days' written notice to the
Trustee and (ii) less than 30 days' nor more than 60 days' written notice
to the Securityholders, to prepay the Securities, in whole (but not in
part), within 90 days following the occurrence of such Special Event at
the Special Event Prepayment Price. Following a Special Event, the
Company shall take such action as is necessary to promptly determine the
Special Event Prepayment Price, including without limitation the appointment
by the Company of a Quotation Agent. The Special Event Prepayment
Price shall be paid prior to 12:00 noon, New York time, on the date of
such prepayment or such earlier time as the Company determines, provided
--------
that the Company shall deposit with the Trustee an amount sufficient to
pay the Special Event Prepayment Price by 10:00 a.m., New York time, on
the date such Special Event Prepayment Price is to be paid.
SECTION 14.02. Optional Prepayment by Company.
(a) Subject to the provisions of this Article Fourteen, the Com-
pany shall have the right to prepay the Securities, in whole or in
part, from time to time, on or after the Initial Optional Prepayment Date
at the optional prepayment prices set forth below (expressed as percentages
of principal) plus, in each case, accrued and unpaid interest thereon
(including Additional Interest and Compounded Interest, if any) to the
applicable date of prepayment (the "Optional Prepayment Price") if prepaid
during the 12-month period beginning January 31 of the years indicated
below.
Year Percentage
---- ----------
2007..........................104.54%
2008..........................104.08%
2009..........................103.63%
2010..........................103.18%
2011..........................102.72%
2012..........................102.27%
2013..........................101.82%
2014..........................101.36%
2015..........................100.91%
2016..........................100.45%
2017 and thereafter...........100.00%
------
If the Securities are only partially prepaid pursuant to this
Section 14.02, the Securities will be prepaid pro rata or by lot or by any
--- ----
other method utilized by the Trustee; provided, that if at the time of
--------
prepayment the Securities are registered as a Global Security, the Depositary
shall determine, in accordance with its procedures, the principal
amount of Securities held by each holder of a Security to be prepaid. The
Optional Prepayment Price shall be paid prior to 12:00 noon, New York
time, on the date of such prepayment or at such earlier time as the
Company determines, provided that the Company shall deposit with the
--------
Trustee an amount sufficient to pay the Optional Prepayment Price by 10:00
a.m., New York time, on the date such Optional Prepayment Price is to be
paid.
(b) Notwithstanding the first sentence of Section 14.02, upon
the entry of an order for dissolution of the Community Capital Trust by a
court of competent jurisdiction, the Securities thereafter will be subject
to optional prepayment, in whole only, but not in part, on or after
January 31, 2007, at the optional prepayment prices set forth in Section
14.02 and otherwise in accordance with this Article Fourteen.
(c) Any prepayment of Securities pursuant to Section 14.01 or
Section 14.02 shall be subject to the receipt by the Company of the
approval of the Federal Reserve and any other required regulatory
approval.
SECTION 14.03. No Sinking Fund.
The Securities are not entitled to the benefit of any sinking
fund.
SECTION 14.04. Notice of Prepayment; Selection of Securities.
In case the Company shall desire to exercise the right to prepay
all, or, as the case may be, any part of the Securities in accordance with
their terms, it shall fix a date for prepayment and shall mail a notice of
such prepayment at least 30 and not more than 60 days prior to the date
fixed for prepayment to the holders of Securities so to be prepaid as a
whole or in part at their last addresses as the same appear on the
Security Register. Such mailing shall be by first class mail. The notice
if mailed in the manner herein provided shall be conclusively presumed to
have been duly given, whether or not the holder receives such notice. In
any case, failure to give such notice by mail or any defect in the notice
to the holder of any Security designated for prepayment as a whole or in
part shall not affect the validity of the proceedings for the prepayment
of any other Security.
Each such notice of prepayment shall specify the CUSIP number of
the Securities to be prepaid, the date fixed for prepayment, the prepayment
price at which the Securities are to be prepaid (or the method by
which such prepayment price is to be calculated), the place or places of
payment that payment will be made upon presentation and surrender of the
Securities, that interest accrued to the date fixed for prepayment will be
paid as specified in said notice, and that on and after said date interest
thereon or on the portions thereof to be prepaid will cease to accrue. If
less than all the Securities are to be prepaid the notice of prepayment
shall specify the numbers of the Securities to be prepaid. In case any
Security is to be prepaid in part only, the notice of prepayment shall
state the portion of the principal amount thereof to be prepaid and shall
state that on and after the date fixed for prepayment, upon surrender of
such Security, a new Security or Securities in principal amount equal to
the unprepaid portion thereof will be issued.
By 10:00 a.m., New York time, on the prepayment date specified
in the notice of prepayment given as provided in this Section, the Company
will deposit with the Trustee or with one or more paying agents an amount
of money sufficient to prepay on the prepayment date all the Securities so
called for prepayment at the appropriate Prepayment Price, together with
accrued interest to the date fixed for prepayment.
The Company will give the Trustee notice not less than 45 days
prior to the prepayment date as to the aggregate principal amount of
Securities to be prepaid and the Trustee shall select, in such manner as
in its sole discretion it shall deem appropriate and fair, the Securities
or portions thereof (in integral multiples of $1,000, except as otherwise
set forth in the applicable form of Security) to be prepaid.
SECTION 14.05. Payment of Securities Called for Prepayment.
If notice of prepayment has been given as provided in Section
14.04, the Securities or portions of Securities with respect to which such
notice has been given shall become due and payable on the date and at the
place or places stated in such notice at the applicable Prepayment Price,
together with interest accrued to the date fixed for prepayment (subject
to the rights of holders of Securities on the close of business on a
regular record date in respect of an Interest Payment Date occurring on or
prior to the prepayment date), and on and after said date (unless the
Company shall default in the payment of such Securities at the Prepayment
Price, together with interest accrued to said date) interest on the
Securities or portions of Securities so called for prepayment shall cease
to accrue. On presentation and surrender of such Securities at a place of
payment specified in said notice, the said Securities or the specified
portions thereof shall be prepaid by the Company at the applicable
Prepayment Price, together with interest accrued thereon to the date fixed
for prepayment (subject to the rights of holders of Securities on the
close of business on a regular record date in respect of an Interest
Payment Date occurring on or prior to the prepayment date).
Upon presentation of any Security prepaid in part only, the
Company shall execute and the Trustee shall authenticate and make
available for delivery to the holder thereof, at the expense of the
Company, a new Security or Securities of authorized denominations, in
principal amount equal to the unprepaid portion of the Security so presented.
ARTICLE XV
SUBORDINATION OF SECURITIES
SECTION 15.01. Agreement to Subordinate.
The Company covenants and agrees, and each holder of Securities
issued hereunder likewise covenants and agrees, that the Securities shall
be issued subject to the provisions of this Article Fifteen; and each
holder of a Security, whether upon original issue or upon transfer or
assignment thereof, accepts and agrees to be bound by such provisions.
The payment by the Company of the principal of, premium, if any,
and interest on all Securities issued hereunder shall, to the extent and
in the manner hereinafter set forth, be subordinated and junior in right
of payment to all Senior Indebtedness, whether outstanding at the date of
this Indenture or thereafter incurred.
No provision of this Article Fifteen shall prevent the occurrence
of any Default or Event of Default hereunder.
SECTION 15.02. Default on Senior Indebtedness.
No payment of principal (including prepayment) of, premium, if
any, or interest on the Securities may be made at any time when (i) any
Senior Indebtedness is not paid when due, (ii) any applicable grace period
with respect to such default has ended and such default has not been cured
or waived or ceased to exist, or (iii) the maturity of any Senior Indebted-
ness has been accelerated because of a default.
In the event of the acceleration of the maturity of the
Securities, then no payment shall be made by the Company with respect to
the principal (including prepayments) of or premium, if any, or interest
on the Securities until the holders of all Senior Indebtedness outstanding
at the time of such acceleration shall receive payment in full of all
amounts due in respect of such Senior Indebtedness (including any amounts
due upon acceleration).
In the event that, notwithstanding the foregoing, any payment
shall be received by the Trustee when such payment is prohibited by the
preceding paragraphs of this Section 15.02, such payment shall be held in
trust for the benefit of, and shall be paid over or delivered to, the
holders of Senior Indebtedness or their respective representatives, or to
the trustee or trustees under any indenture pursuant to which any of such
Senior Indebtedness may have been issued, as their respective interests
may appear, but only to the extent that the holders of the Senior Indebted-
ness (or their representative or representatives or a trustee) notify
the Trustee in writing, within 90 days of such payment of the amounts then
due and owing on such Senior Indebtedness and only the amounts specified
in such notice to the Trustee shall be paid to the holders of such Senior
Indebtedness.
SECTION 15.03. Liquidation; Dissolution; Bankruptcy.
Upon any payment by the Company or distribution of assets of the
Company of any kind or character, whether in cash, property or securities,
to creditors upon any dissolution or winding-up or liquidation or
reorganization of the Company, whether voluntary or involuntary or in
bankruptcy, insolvency, receivership or other proceedings, all amounts due
upon all Senior Indebtedness of the Company shall first be paid in full,
or payment thereof provided for in money in accordance with its terms,
before any payment is made by the Company on account of the principal (and
premium, if any) or interest with respect to the Securities; and upon any
such dissolution or winding-up or liquidation or reorganization, any
payment by the Company, or distribution of assets of the Company of any
kind or character, whether in cash, property or securities, to which the
Securityholders or the Trustee would be entitled to receive from the Company,
except for the provisions of this Article Fifteen, shall be paid
by the Company or by any receiver, trustee in bankruptcy, liquidating
trustee, agent or other Person making such payment or distribution, or by
the Securityholders or by the Trustee under this Indenture if received by
them or it, directly to the holders of Senior Indebtedness of the Company
(pro rata to such holders on the basis of the respective amounts of Senior
--- ----
Indebtedness held by such holders, as calculated by the Company) or their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing such Senior
Indebtedness may have been issued, as their respective interests may
appear, to the extent necessary to pay such Senior Indebtedness in full,
in money or money's worth, after giving effect to any concurrent payment
or distribution to or for the holders of such Senior Indebtedness, before
any payment or distribution is made to the Securityholders or to the
Trustee.
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 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 such Senior Indebtedness
or their representative or representatives, or to the trustee or trustees
under any indenture pursuant to which any instruments evidencing such
Senior Indebtedness may have been issued, and 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
such Senior Indebtedness in full in money in accordance with its terms,
after giving effect to any concurrent payment or distribution to or for
the benefit of the holders of such Senior Indebtedness.
For purposes of this Article Fifteen, the words "cash, property
or securities" 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 Fifteen with respect to the Securities to the payment of
Senior Indebtedness that may at the time be outstanding, provided that (i)
such 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 such 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 Person or the liquidation or dissolution of the Company following
the sale, conveyance, transfer or lease of its property as an entirety, or
substantially as an entirety, to another Person upon the terms and conditions
provided for in Article Ten of this Indenture shall not be deemed a
dissolution, winding-up, liquidation or reorganization for the purposes of
this Section 15.03 if such other Person shall, as a part of such consoli-
dation, merger, sale, conveyance, transfer or lease, comply with the condi-
tions stated in Article Ten of this Indenture. Nothing in Section
15.02 or in this Section 15.03 shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 6.05 of this Indenture.
SECTION 15.04. Subrogation.
Subject to the payment in full of all Senior Indebtedness, the
rights of the Securityholders shall be subrogated to the rights of the
holders of such Senior Indebtedness to receive payments or distributions
of cash, property or securities of the Company, as the case may be,
applicable to such Senior Indebtedness until the principal of (and
premium, if any) and interest on the Securities shall be paid in full;
and, for the purposes of such subrogation, no payments or distributions to
the holders of such Senior Indebtedness of any cash, property or
securities to which the Securityholders or the Trustee would be entitled
except for the provisions of this Article Fifteen, and no payment over
pursuant to the provisions of this Article Fifteen to or for the benefit
of the holders of such Senior Indebtedness by Securityholders or the
Trustee, shall, as between the Company, its creditors other than holders
of Senior Indebtedness of the Company, and the holders of the Securities,
be deemed to be a payment by the Company to or on account of such Senior
Indebtedness. It is understood that the provisions of this Article
Fifteen are and are intended solely for the purposes of defining the
relative rights of the holders of the Securities, on the one hand, and the
holders of such Senior Indebtedness on the other hand.
Nothing contained in this Article Fifteen or elsewhere in this
Indenture or in the Securities is intended to or shall impair, as between
the Company, its creditors other than the holders of Senior Indebtedness
of the Company, and the holders of the Securities, the obligation of the
Company, which is absolute and unconditional, to pay to the holders of the
Securities the principal of (and premium, if any) and interest on the
Securities as and when the same shall become due and payable in accordance
with their terms, or is intended to or shall affect the relative rights of
the holders of the Securities and creditors of the Company, as the case
may be, other than the holders of Senior Indebtedness of the Company, as
the case may be, nor shall anything herein or therein prevent the Trustee
or the holder of any Security from exercising all remedies otherwise per-
mitted by applicable law upon default under this Indenture, subject to the
rights, if any, under this Article Fifteen of the holders of such Senior
Indebtedness in respect of cash, property or securities of the Company, as
the case may be, received upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Company
referred to in this Article Fifteen, the Trustee, subject to the
provisions of Article Six of this Indenture, and the Securityholders shall
be entitled to conclusively rely upon any order or decree made by any
court of competent jurisdiction in which such dissolution, winding-up,
liquidation or reorganization proceedings are pending, or a certificate of
the receiver, trustee in bankruptcy, liquidation trustee, agent or other
Person making such payment or distribution, delivered to the Trustee or to
the Securityholders, for the purposes of ascertaining the Persons entitled
to participate in such distribution, the holders of Senior Indebtedness
and other indebtedness of the Company, as the case may be, the amount
thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article Fifteen.
SECTION 15.05. Trustee to Effectuate Subordination.
Each Securityholder by such Securityholder's acceptance thereof
authorizes and directs the Trustee on such Securityholder's behalf to take
such action as may be necessary or appropriate to effectuate the
subordination provided in this Article Fifteen and appoints the Trustee
such Securityholder's attorney-in-fact for any and all such purposes.
SECTION 15.06. Notice by the Company.
The Company shall give prompt written notice to a Responsible
Officer 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 Securities
pursuant to the provisions of this Article Fifteen. Notwithstanding the
provisions of this Article Fifteen 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 Securities pursuant to the
provisions of this Article Fifteen, unless and until a Responsible Officer
shall have received written notice thereof 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 Article Six of this Indenture, 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 15.06 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 Security), 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 Article Six of this
Indenture, shall be entitled to conclusively rely on the delivery to it of
a written notice by a Person representing himself to be a holder of Senior
Indebtedness of the Company (or a trustee on behalf of such holder), to
establish that such notice has been given by a holder of such 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 such
Senior Indebtedness to participate in any payment or distribution pursuant
to this Article Fifteen, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of
such 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
Fifteen, 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.
Upon any payment or distribution of assets of the Company
referred to in this Article Fifteen, the Trustee and the Securityholders
shall be entitled to rely upon any order or decree entered by any court of
competent jurisdiction in which such insolvency, bankruptcy, receivership,
liquidation, reorganization, dissolution, winding up or similar case or
proceeding is pending, or a certificate of the trustee in bankruptcy,
liquidating trustee, custodian, receiver, assignee for the benefit of
creditors, agent or other Person making such payment or distribution,
delivered to the Trustee or to the Securityholders, for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, the holders of Senior Indebtedness and other indebtedness of
the Company, the amount thereof or payable thereon, the amount or amounts
paid or distributed thereon and all other facts pertinent thereto or to
this Article Fifteen.
SECTION 15.07. Rights of the Trustee; Holders of Senior
Indebtedness.
The Trustee in its individual capacity shall be entitled to all
the rights set forth in this Article Fifteen in respect of any Senior
Indebtedness at any time 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.
With respect to the holders of Senior Indebtedness of the
Company, the Trustee undertakes to perform or to observe only such of its
covenants and obligations as are specifically set forth in this Article
Fifteen, and no implied covenants or obligations with respect to the
holders of such Senior Indebtedness shall be read into this Indenture
against the Trustee. The Trustee shall not be deemed to owe any fiduciary
duty to the holders of such Senior Indebtedness and, subject to the provi-
sions of Article Six of this Indenture, the Trustee shall not be liable to
any holder of such Senior Indebtedness if it shall pay over or deliver to
Securityholders, the Company or any other Person money or assets to which
any holder of such Senior Indebtedness shall be entitled by virtue of this
Article Fifteen or otherwise.
Nothing in this Article Fifteen shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 6.06.
SECTION 15.08. Subordination May Not Be Impaired.
No right of any present or future holder of any Senior
Indebtedness of the Company to enforce subordination as herein provided
shall at any time in any way be prejudiced or impaired by any act or
failure to act on the part of the Company, as the case may be, or by any
act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company, as the case may be, with the terms,
provisions and covenants of this Indenture, regardless of any knowledge
thereof that any such holder may have or otherwise be charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Indebtedness of the Company may, at any
time and from time to time, without the consent of or notice to the
Trustee or the Securityholders, without incurring responsibility to the
Securityholders and without impairing or releasing the subordination
provided in this Article Fifteen or the obligations hereunder of the
holders of the Securities to the holders of such 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, such
Senior Indebtedness, or otherwise amend or supplement in any manner such
Senior Indebtedness or any instrument evidencing the same or any agreement
under which such Senior Indebtedness is outstanding; (ii) sell, exchange,
release or otherwise deal with any property pledged, mortgaged or otherwise
securing such Senior Indebtedness; (iii) release any Person liable in
any manner for the collection of such Senior Indebtedness; and (iv)
exercise or refrain from exercising any rights against the Company, as the
case may be, and any other Person.
ARTICLE XVI
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 16.01. Extension of Interest Payment Period.
So long as no Event of Default has occurred and is continuing,
the Company shall have the right, at any time and from time to time during
the term of the Securities, to defer payments of interest by extending the
interest payment period of such Securities for a period not exceeding 10
consecutive semi-annual periods, including the first such semi-annual
period during such extension period (the "Extended Interest Payment Period"),
during which Extended Interest Payment Period no interest shall be
due and payable; provided that no Extended Interest Payment Period shall
-------- ----
end on a date other than an Interest Payment Date or may extend beyond the
Maturity Date. To the extent permitted by applicable law, interest, the
payment of which has been deferred because of the extension of the
interest payment period pursuant to this Section 16.01, will bear interest
thereon at the Coupon Rate compounded semi-annually for each semi-annual
period of the Extended Interest Payment Period ("Compounded Interest").
At the end of the Extended Interest Payment Period, the Company shall pay
all interest accrued and unpaid on the Securities, including any Additional
Interest and Compounded Interest (together, "Deferred Interest") that
shall be payable to the holders of the Securities in whose names the
Securities are registered in the Security Register on the record date for
the Interest Payment Date on which such Extended Interest Payment Period
ends. Before the termination of any Extended Interest Payment Period, the
Company may further defer payments of interest by further extending such
period, provided that such period, together with all such previous and
further extensions within such Extended Interest Payment Period, shall not
exceed 10 consecutive semi-annual periods, including the first such semi-
annual period during such Extended Interest Payment Period, or extend
beyond the Maturity Date. Upon the termination of any Extended Interest
Payment Period and the payment of all Deferred Interest then due, the
Company may elect to commence a new Extended Interest Payment Period,
subject to the foregoing requirements. No interest shall be due and
payable during an Extended Interest Payment Period, except at the end
thereof, but the Company may prepay at any time all or any portion of the
interest accrued during an Extended Interest Payment Period.
SECTION 16.02. Notice of Extension.
(a) If the Property Trustee is the only registered holder of
the Securities at the time the Company selects an Extended Interest
Payment Period, the Company shall give written notice to the
Administrative Trustees, the Property Trustee and the Trustee of its selec-
tion of such Extended Interest Payment Period five Business Days
before the earlier of (i) the next succeeding date on which Distributions
on the Trust Securities issued by Community Capital Trust are payable, or
(ii) the date the Trust is required to give notice of the record date, or
the date such Distributions are payable, to any national securities
exchange or to holders of the Capital Securities issued by the Trust, but
in any event at least five Business Days before such record date.
(b) If the Property Trustee is not the only holder of the
Securities at the time the Company selects an Extended Interest Payment
Period, the Company shall give the holders of the Securities and the
Trustee written notice of its selection of such Extended Interest Payment
Period at least 10 Business Days before the earlier of (i) the next suc-
ceeding Interest Payment Date, or (ii) the date the Company is required to
give notice of the record or payment date of such interest payment to any
national securities exchange.
(c) The semi-annual period in which any notice is given pursuant
to paragraphs (a) or (b) of this Section 16.02 shall be counted as
one of the 10 semi-annual periods permitted in the maximum Extended
Interest Payment Period permitted under Section 16.01.
The Chase Manhattan Bank hereby accepts the trusts in this Inden-
ture declared and provided, upon the terms and conditions hereinabove
set forth.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed by their respective officers thereunto duly
authorized, as of the day and year first above written.
COMMUNITY BANK SYSTEM, INC.
By _______________________________
Name: Sanford A. Belden
Title: President and
Chief Executive Officer
The Chase Manhattan Bank,
as Trustee
By ____________________________
Name:
Title:
EXHIBIT A
---------
(FORM OF FACE OF SECURITY)
(IF THE SECURITY IS A GLOBAL SECURITY, INSERT: - THIS SECURITY
IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF
A DEPOSITARY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN
THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS
SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE
REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC") TO
THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DTC (AND
ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.)
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT") OR ANY STATE SECURITIES LAWS OR ANY
OTHER APPLICABLE SECURITIES LAW. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO
OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY, PRIOR TO THE DATE (THE
"RESALE RESTRICTION TERMINATION DATE") WHICH IS THREE YEARS AFTER THE LATER
OF THE ORIGINAL ISSUANCE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY
OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDE-
CESSOR OF THIS SECURITY) ONLY (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRA-
TION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT,
(C) SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A
UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES
IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) THAT PURCHASES
FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO
WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE
THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES
ACT, (E) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF SUB-
PARAGRAPH (A)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT
IS ACQUIRING THIS SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH
AN INSTITUTIONAL ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH
A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN
VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO ANY OTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT,
SUBJECT TO THE RIGHT OF THE COMPANY PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER
(i) PURSUANT TO CLAUSE (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION
OF COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY TO THE
COMPANY, AND (ii) PURSUANT TO CLAUSE (E), TO REQUIRE THAT A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE REVERSE OF THIS SECURITY IS COMPLETED
AND DELIVERED BY THE TRANSFEREE TO THE COMPANY. SUCH HOLDER FURTHER AGREES
THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A
NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
No. Cusip No.
------- ---------
COMMUNITY BANK SYSTEM, INC.
9.75% JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURE,
SERIES A, DUE JANUARY 31, 2027
Community Bank System, Inc., a Delaware corporation (the "Company",
which term includes any successor Person under the Indenture hereinafter
referred to), for value received, hereby promises to pay to Community Capital
Trust I (the "Trust") or registered assigns, the principal sum of thirty
million nine hundred twenty-eight thousand Dollars on January 31, 2027 (the
"Maturity Date"), unless previously prepaid, and to pay interest on the
outstanding principal amount hereof from February 3, 1997, or from the most
recent interest payment date (each such date, an "Interest Payment Date") to
which interest has been paid or duly provided for, semi-annually (subject to
deferral as set forth herein) in arrears on January 31 and July 31 of each
year, commencing July 31, 1997 at the rate of 9.75% per annum until the
principal hereof shall have become due and payable, and on any overdue
principal and premium, if any, and (without duplication and to the extent
that payment of such interest is enforceable under applicable law) on any
overdue installment of interest at the same rate per annum compounded semi-
annually. The amount of interest payable on any Interest Payment Date shall
be computed on the basis of a 360-day year of twelve 30-day months and, for
any period less than a full calendar month, the number of days elapsed in
such month. In the event that any date on which the principal of (or
premium, if any) or interest on this Security is payable is not a Business
Day, then payment payable on such date will be made on the next succeeding
day that is a Business Day (and without any interest or other payment in
respect of any such delay), with the same force and effect as if made on such
date.
The interest installment so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in the
Indenture, be paid to the Person in whose name this Security (or one or more
Predecessor Securities, as defined in said Indenture) is registered at the
close of business on the regular record date for such interest installment,
which shall be the fifteenth day prior to the relevant Interest Payment Date.
Any such interest installment not punctually paid or duly provided for shall
forthwith cease to be payable to the holders on such regular record date and
may be paid to the Person in whose name this Security (or one or more Prede-
cessor Securities) is registered at the close of business on a special record
date to be fixed by the Trustee for the payment of such defaulted interest,
notice whereof shall be given to the holders of Securities not less than 10
days prior to such special record date, or may be paid at any time in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities may be listed, and upon such notice as may
be required by such exchange, all as more fully provided in the Indenture.
The principal of (and premium, if any) and interest on this
Security shall be payable at the office or agency of the Trustee maintained
for that purpose in any coin or currency of the United States of America that
at the time of payment is legal tender for payment of public and private
debts; provided, however, that, payment of interest may be made at the option
-------- -------
of the Company by (i) check mailed to the holder at such address as shall
appear in the Security Register or (ii) by transfer to an account maintained
by the Person entitled thereto, provided that proper written transfer
instructions have been received by the relevant record date. Notwithstanding
the foregoing, so long as the Holder of this Security is the Trust, the
payment of the principal of (and premium, if any) and interest on this
Security will be made at such place and to such account as may be designated
by the Property Trustee.
The indebtedness evidenced by this Security is, to the extent
provided in the Indenture, subordinate and junior in right of payment to the
prior payment in full of Senior Indebtedness, and this Security is issued
subject to the provisions of the Indenture with respect thereto. Each holder
of this Security, by accepting the same, (a) agrees to and shall be bound by
such provisions, (b) authorizes and directs the Trustee on his or her behalf
to take such action as may be necessary or appropriate to acknowledge or
effectuate the subordination so provided and (c) appoints the Trustee his or
her attorney-in-fact for any and all such purposes. Each holder hereof, by
his or her acceptance hereof, hereby waives all notice of the acceptance of
the subordination provisions contained herein and in the Indenture by each
holder of Senior Indebtedness, whether now outstanding or hereafter incurred,
and waives reliance by each such holder upon said provisions.
This Security shall not be entitled to any benefit under the
Indenture hereinafter referred to, be valid or become obligatory for any
purpose until the Certificate of Authentication hereon shall have been signed
by or on behalf of the Trustee.
The provisions of this Security are continued on the reverse side
hereof and such provisions shall for all purposes have the same effect as
though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed.
COMMUNITY BANK SYSTEM, INC.
By: ____________________________
Name:
Title:
Attest:
By: _______________________
Name:
Title:
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned
Indenture.
Dated: ______________
The Chase Manhattan Bank,
as Trustee
By: ____________________
Authorized Signatory
(FORM OF REVERSE OF SECURITY)
This Security is one of the Securities of the Company (herein
sometimes referred to as the "Securities"), specified in the Indenture, all
issued or to be issued under and pursuant to an Indenture, dated as of
February 3, 1997 (the "Indenture"), duly executed and delivered between the
Company and The Chase Manhattan Bank, as Trustee (the "Trustee"), to which
Indenture reference is hereby made for a description of the rights, limita-
tions of rights, obligations, duties and immunities thereunder of the
Trustee, the Company and the holders of the Securities.
Upon the occurrence and continuation of a Special Event, the
Company shall have the right at any time prior to January 31, 2007 (the
"Initial Optional Prepayment Date"), within 90 days following the occurrence
of such Special Event to prepay this Security in whole (but not in part) at
the Special Event Prepayment Price. "Special Event Prepayment Price" shall
mean, with respect to any prepayment of the Securities following a Special
Event, an amount in cash equal to the greater of (i) 100% of the principal
amount to be prepaid or (ii) the sum, as determined by a Quotation Agent, of
the present value of 104.54% of the principal amount thereof plus the
scheduled payments of interest thereon on the Securities from the prepayment
date to and including the Initial Optional Prepayment Date, discounted to the
prepayment date on a semi-annual basis (assuming a 360-day year consisting
of twelve 30-day months) at the Adjusted Treasury Rate, plus any accrued and
unpaid interest thereon, including Compounded Interest and Additional Inter-
est, if any, to the date of such prepayment.
In addition, the Company shall have the right to prepay this Secur-
ity, in whole or in part, at any time on or after the Initial Optional
Prepayment Date (an "Optional Prepayment"), at the prepayment prices as set
forth below (expressed as percentages of principal to be prepaid) plus, in
each case, accrued and unpaid interest thereon (including Additional Interest
and Compounded Interest, if any) to the applicable date of prepayment (the
"Optional Prepayment Price"), if prepaid during the 12-month period beginning
January 31 of the years indicated below.
Year Percentage
---------------
2007......................104.54%
2008......................104.08%
2009......................103.63%
2010......................103.18%
2011......................102.72%
2012......................102.27%
2013......................101.82%
2014......................101.36%
2015......................100.91%
2016......................100.45%
2017 and thereafter.......100.00%
The Optional Prepayment Price or the Special Event Prepayment
Price, as the case requires, shall be paid prior to 12:00 noon, New York
time, on the date of such prepayment or at such earlier time as the Company
determines, provided, that the Company shall deposit with the Trustee an
amount sufficient to pay the applicable Prepayment Price by 10:00 a.m., New
York City time, on the date such Prepayment Price is to be paid. Any pr-
epayment pursuant to this paragraph will be made upon not less than 30 days
nor more than 60 days notice. If the Securities are only partially prepaid
by the Company pursuant to an Optional Prepayment, the Securities will be
prepaid pro rata or by lot or by any other method utilized by the Trustee;
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provided that if, at the time of prepayment, the Securities are registered
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as a Global Security, the Depositary shall determine the particular
Securities to be prepaid in accordance with its procedures.
In the event of prepayment of this Security in part only, a new
Security or Securities for the unprepaid portion hereof will be issued in the
name of the holder hereof upon the cancellation hereof.
Notwithstanding the foregoing, any prepayment of Securities by the
Company shall be subject to the receipt by the Company of the approval of the
Federal Reserve and any other required regulatory approval.
In case an Event of Default, as defined in the Indenture, shall
have occurred and be continuing, the principal of all of the Securities may
be declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the
Indenture.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the holders of a majority in aggregate principal
amount of the Securities at the time outstanding, as defined in the
Indenture, to execute supplemental indentures for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions
of the Indenture or of modifying in any manner the rights of the holders of
the Securities; provided, however, that no such supplemental indenture shall,
without the consent of each holder of Securities then outstanding and
affected thereby, (i) extend the Maturity Date of any Securities, or reduce
the principal amount thereof, or reduce any amount payable on prepayment
thereof, or reduce the rate or extend the time of payment of interest thereon
(subject to Article Sixteen of the Indenture), or make the principal of, or
interest or premium on, the Securities payable in any coin or currency other
than U.S. dollars, or impair or affect the right of any holder of Securities
to institute suit for the payment thereof, or (ii) reduce the aforesaid
percentage of Securities, the holders of which are required to consent to any
such supplemental indenture. The Indenture also contains provisions permit-
ting the holders of a majority in aggregate principal amount of the
Securities at the time outstanding affected thereby, on behalf of all of the
holders of the Securities, to waive any past default in the performance of
any of the covenants contained in the Indenture, or established pursuant to
the Indenture, and its consequences, except a default in the payment of the
principal of or premium, if any, or interest on any of the Securities or a
default in respect of any covenant or provision under which the Indenture
cannot be modified or amended without the consent of each holder of Securi-
ties then outstanding. Any such consent or waiver by the holder of this
Security (unless revoked as provided in the Indenture) shall be conclusive
and binding upon such Holder and upon all future holders and owners of this
Security and of any Security issued in exchange herefor or in place hereof
(whether by registration of transfer or otherwise), irrespective of whether
or not any notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
premium, if any, and interest on this Security at the time and place and at
the rate and in the money herein prescribed.
The Company shall have the right, at any time and from time to time
during the term of the Securities, to defer payments of interest by extending
the interest payment period of such Securities for a period not exceeding 10
consecutive semi-annual periods, including the first such semi-annual period
during such extension period, and not to extend beyond the Maturity Date of
the Securities (an "Extended Interest Payment Period"), at the end of which
period the Company shall pay all interest then accrued and unpaid (together
with interest thereon at the rate specified for the Securities to the extent
that payment of such interest is enforceable under applicable law). Before
the termination of any such Extended Interest Payment Period, the Company may
further defer payments of interest by further extending such Extended
Interest Payment Period, provided that such Extended Interest Payment Period,
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together with all such previous and further extensions within such Extended
Interest Payment Period, (i) shall not exceed 10 consecutive semi-annual
periods, including the first semi-annual period during such Extended Interest
Payment Period, (ii) shall not end on any date other than an Interest Payment
Date and (iii) shall not extend beyond the Maturity Date of the Securities.
Upon the termination of any such Extended Interest Payment Period and the
payment of all accrued and unpaid interest and any additional amounts then
due, the Company may commence a new Extended Interest Payment Period, subject
to the foregoing requirements.
The Company has agreed that it will not (i) declare or pay any
dividends or distributions on, or redeem, purchase, acquire, or make a liqui-
dation payment with respect to, any of the Company's capital stock (which
includes common and preferred stock), (ii) make any payment of principal,
interest or premium, if any, with respect to or repay, repurchase or redeem
any debt securities of the Company that rank pari passu with or junior in
right of payment to the Securities or (iii) make any guarantee payments with
respect to any guarantee by the Company of the debt securities or any
Subsidiary of the Company (including any Other Guarantees) if such guarantee
ranks pari passu or junior in right of payment to the Securities (other than
(a) dividends or distributions in shares of, or options, warrants or rights
to subscribe for or purchase shares of, Common Stock of the Company; (b) any
declaration of a dividend in connection with the implementation of a
stockholders' rights plan, or the issuance of stock under any such plan in
the future, or the redemption or repurchase of any such rights pursuant
thereto; (c) payments under the Capital Securities Guarantee; (d) as a result
of a reclassification of the Company's capital stock or the exchange or the
conversion of one class or series of the Company's capital stock for another
class or series of the Company's capital stock; (e) the purchase of fraction-
al interests in shares of the Company's capital stock pursuant to the
exchange or conversion of such capital stock or the security being exchanged
or converted; and (f) purchases of Common Stock related to the issuance of
Common Stock or rights under any of the Company's benefit plans for its
directors, officers or employees or any of the Company's dividend reinvest-
ment plans) if at such time (i) there shall have occurred any event of which
the Company has actual knowledge that (a) is, or with the giving of notice
or the lapse of time, or both, would be, an Event of Default and (b) in
respect of which the Company shall not have taken reasonable steps to cure,
(ii) if the Securities are held by Community Capital Trust, the Company shall
be in default with respect to its payment of any obligations under the Cap-
ital Securities Guarantee or (iii) the Company shall have given notice of its
election of the exercise of its right to extend the interest payment period
and any such extension shall be continuing.
The Securities are issuable only in registered form without coupons
in denominations of $1,000.00 and any integral multiple thereof. As provided
in the Indenture and subject to the transfer restrictions limitations as may
be contained herein and therein from time to time, this Security is transfer-
able by the holder hereof on the Security Register of the Company, upon
surrender of this Security for registration of transfer at the office or
agency of the Company in the City and State of New York accompanied by a
written instrument or instruments of transfer in form satisfactory to the
Company or the Trustee duly executed by the holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Securities of
authorized denominations and for the same aggregate principal amount and
series will be issued to the designated transferee or transferees. No service
charge will be made for any such transfer, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in relation thereto.
Prior to due presentment for registration of transfer of this
Security, the Company, the Trustee, any authenticating agent, any paying
agent, any transfer agent and the registrar may deem and treat the registered
holder hereof as the absolute owner hereof (whether or not this Security
shall be overdue and notwithstanding any notice of ownership or writing
hereon made by anyone other than the Security Registrar) for the purpose of
receiving payment of or on account of the principal hereof and premium, if
any, and (subject to the Indenture) interest due hereon and for all other
purposes, and neither the Company nor the Trustee nor any authenticating
agent nor any paying agent nor any transfer agent nor any registrar shall be
affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or
premium, if any, or interest on this Security, or for any claim based hereon,
or otherwise in respect hereof, or based on or in respect of the Indenture,
against any incorporator, stockholder, officer or director, past, present or
future, as such, of the Company or of any predecessor or successor Person,
whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise, all such liability
being, by the acceptance hereof and as part of the consideration for the
issuance hereof, expressly waived and released.
All terms used in this Security that are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
THE INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
CONFLICT OF LAW PROVISIONS THEREOF.