EXHIBIT 4.8
OLD KENT FINANCIAL CORPORATION
TO
BANKERS TRUST COMPANY
a New York banking corporation, Trustee
INDENTURE
Dated as of January 31, 1997
Floating Rate Junior Subordinated Debentures due 2027
TABLE OF CONTENTS
PAGE
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION. . . . 1
SECTION 101. Definitions. . . . . . . . . . . . . . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent. . . . . . . . . . . . . . . . . . . . . . . . 2
Board of Directors. . . . . . . . . . . . . . . . . . . . . . . . . 2
Board Resolution. . . . . . . . . . . . . . . . . . . . . . . . . . 2
Business Day. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Capital Securities. . . . . . . . . . . . . . . . . . . . . . . . . 3
Cedel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Closing Date. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Commission. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Common Securities . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company Request . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company Order . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Corporate Trust Office. . . . . . . . . . . . . . . . . . . . . . . 3
Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . 3
Custodian . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Declaration . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Defaulted Interest. . . . . . . . . . . . . . . . . . . . . . . . . 4
Depositary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Determination Date. . . . . . . . . . . . . . . . . . . . . . . . . 4
DWAC. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Euroclear . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Event of Default. . . . . . . . . . . . . . . . . . . . . . . . . . 4
Exchange Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Extension Period. . . . . . . . . . . . . . . . . . . . . . . . . . 4
Federal Reserve . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Global Security . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Holder. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Indebtedness. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Initial Purchaser . . . . . . . . . . . . . . . . . . . . . . . . . 5
Interest Payment Date . . . . . . . . . . . . . . . . . . . . . . . 5
Investment Company Event. . . . . . . . . . . . . . . . . . . . . . 5
Junior Subordinated Securities. . . . . . . . . . . . . . . . . . . 5
Legal Defeasance. . . . . . . . . . . . . . . . . . . . . . . . . . 5
-i-
PAGE
LIBOR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
London Business Day . . . . . . . . . . . . . . . . . . . . . . . . 6
Maturity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
New Junior Subordinated Securities. . . . . . . . . . . . . . . . . 7
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . . 7
Opinion of Counsel. . . . . . . . . . . . . . . . . . . . . . . . . 7
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Paying Agent. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Person. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Predecessor Security. . . . . . . . . . . . . . . . . . . . . . . . 8
Private Placement Legend. . . . . . . . . . . . . . . . . . . . . . 8
Property Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . 8
Qualified Institutional Buyer" or "QIB" . . . . . . . . . . . . . . 8
Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Redemption Price. . . . . . . . . . . . . . . . . . . . . . . . . . 8
Registration Rights Agreement . . . . . . . . . . . . . . . . . . . 8
Regular Record Date . . . . . . . . . . . . . . . . . . . . . . . . 8
Regulation S. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Regulation S Global Security. . . . . . . . . . . . . . . . . . . . 8
Regulatory Capital Event. . . . . . . . . . . . . . . . . . . . . . 8
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . . 9
Restricted Global Security. . . . . . . . . . . . . . . . . . . . . 9
Restricted Period . . . . . . . . . . . . . . . . . . . . . . . . . 9
Restricted Security . . . . . . . . . . . . . . . . . . . . . . . . 9
Rule 144A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Securities Act. . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Security Register . . . . . . . . . . . . . . . . . . . . . . . . . 9
Security Registrar. . . . . . . . . . . . . . . . . . . . . . . . . 9
Special Event . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Special Record Date . . . . . . . . . . . . . . . . . . . . . . . . 9
Stated Maturity". . . . . . . . . . . . . . . . . . . . . . . . . . 9
Subsidiary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Tax Event . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . 10
U.S. Government Obligations . . . . . . . . . . . . . . . . . . . . 10
Vice President. . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 102. Compliance Certificates and Opinions . . . . . . . . . . . 10
SECTION 103. Form of Documents Delivered to Trustee . . . . . . . . . . 11
SECTION 104. Acts of Holders; Record Dates. . . . . . . . . . . . . . . 11
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PAGE
SECTION 105. Notices, Etc. to Trustee and the Company . . . . . . . . . 12
SECTION 106. Notice to Holders; Waiver. . . . . . . . . . . . . . . . . 13
SECTION 107. Conflict With Trust Indenture Act. . . . . . . . . . . . . 13
SECTION 108. Effect of Headings and Table of Contents . . . . . . . . . 13
SECTION 109. Separability Clause. . . . . . . . . . . . . . . . . . . . 13
SECTION 110. Benefits of Indenture. . . . . . . . . . . . . . . . . . . 13
SECTION 111. GOVERNING LAW. . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 112. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE TWO
SECURITY FORMS . . . . . . . . . . . . . . 14
SECTION 201. Form of Security . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE THREE
THE SECURITIES . . . . . . . . . . . . . . 15
SECTION 301. Title and Terms. . . . . . . . . . . . . . . . . . . . . . 15
SECTION 302. Denominations. . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 303. Execution, Authentication, Delivery and Dating . . . . . . 17
SECTION 304. Temporary Securities . . . . . . . . . . . . . . . . . . . 17
SECTION 305. Registration; Registration of Transfer and Exchange. . . . 18
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities . . . . . 19
SECTION 307. Payment of Interest; Interest Rights Preserved . . . . . . 20
SECTION 308. Persons Deemed Owners. . . . . . . . . . . . . . . . . . . 21
SECTION 309. Cancellation . . . . . . . . . . . . . . . . . . . . . . . 21
-iii-
PAGE
SECTION 310. Computation of Interest. . . . . . . . . . . . . . . . . . 21
SECTION 311. Right of Set-off . . . . . . . . . . . . . . . . . . . . . 22
SECTION 312. CUSIP Numbers. . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 313. Global Securities. . . . . . . . . . . . . . . . . . . . . 22
SECTION 314. Restrictive Legend . . . . . . . . . . . . . . . . . . . . 24
SECTION 315. Special Transfer Provisions. . . . . . . . . . . . . . . . 26
ARTICLE FOUR
SATISFACTION AND DISCHARGE; DEFEASANCE . . . . . . . . 29
SECTION 401. Satisfaction and Discharge of Indenture. . . . . . . . . . 29
SECTION 402. Legal Defeasance . . . . . . . . . . . . . . . . . . . . . 30
SECTION 403. Covenant Defeasance. . . . . . . . . . . . . . . . . . . . 30
SECTION 404. Conditions to Legal Defeasance or Covenant Defeasance. . . 31
SECTION 405. Application of Trust Money . . . . . . . . . . . . . . . . 32
SECTION 406. Indemnity for U.S. Government Obligations. . . . . . . . . 32
ARTICLE FIVE
REMEDIES. . . . . . . . . . . . . . . . 32
SECTION 501. Events of Default. . . . . . . . . . . . . . . . . . . . . 32
SECTION 502. Acceleration of Maturity; Rescission and Annulment . . . . 33
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 504. Trustee may File Proofs of Claim . . . . . . . . . . . . . 34
SECTION 505. Trustee may Enforce Claims Without Possession of
Securities. . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 506. Application of Money Collected . . . . . . . . . . . . . . 35
-iv-
PAGE
SECTION 507. Limitation on Suits. . . . . . . . . . . . . . . . . . . . 35
SECTION 508. Unconditional Right of Holders to Receive Principal and
Interest; Capital Security Holders' Rights. . . . . . . . 36
SECTION 509. Restoration of Rights and Remedies . . . . . . . . . . . . 36
SECTION 510. Rights and Remedies Cumulative . . . . . . . . . . . . . . 37
SECTION 511. Delay or Omission not Waiver . . . . . . . . . . . . . . . 37
SECTION 512. Control by Holders . . . . . . . . . . . . . . . . . . . . 37
SECTION 513. Waiver of Past Defaults. . . . . . . . . . . . . . . . . . 37
SECTION 514. Undertaking for Costs. . . . . . . . . . . . . . . . . . . 38
SECTION 515. Waiver of Stay or Extension Laws . . . . . . . . . . . . . 38
ARTICLE SIX
TRUSTEE. . . . . . . . . . . . . . . . 39
SECTION 601. Certain Duties and Responsibilities. . . . . . . . . . . . 39
SECTION 602. Notice of Defaults . . . . . . . . . . . . . . . . . . . . 39
SECTION 603. Certain Rights of Trustee. . . . . . . . . . . . . . . . . 39
SECTION 604. Not Responsible for Recitals or Issuance of Securities . . 40
SECTION 605. Trustee and Other Agents may Hold Securities . . . . . . . 41
SECTION 606. Money Held in Trust. . . . . . . . . . . . . . . . . . . . 41
SECTION 607. Compensation; Reimbursement; and Indemnity . . . . . . . . 41
SECTION 608. Disqualification; Conflicting Interests. . . . . . . . . . 42
SECTION 609. Corporate Trustee Required; Eligibility. . . . . . . . . . 42
SECTION 610. Resignation and Removal; Appointment of Successor. . . . . 42
SECTION 611. Acceptance of Appointment by Successor . . . . . . . . . . 44
SECTION 612. Merger, Conversion, Consolidation or Succession to
Business. . . . . . . . . . . . . . . . . . . . . . . . . 44
-v-
PAGE
SECTION 613. Preferential Collection of Claims Against Company. . . . . 44
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY . . . . . 45
SECTION 701. Company to Furnish Trustee Names and Addresses of
Holders . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 702. Preservation of Information; Communications to Holders . . 45
SECTION 703. Reports by Trustee . . . . . . . . . . . . . . . . . . . . 45
SECTION 704. Reports by Company . . . . . . . . . . . . . . . . . . . . 46
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE. . . . . 46
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms . . . 46
SECTION 802. Successor Person Substituted . . . . . . . . . . . . . . . 47
ARTICLE NINE
SUPPLEMENTAL INDENTURES. . . . . . . . . . . . 47
SECTION 901. Supplemental Indentures Without Consent of Holders . . . . 47
SECTION 902. Supplemental Indentures With Consent of Holders. . . . . . 48
SECTION 903. Execution of Supplemental Indentures . . . . . . . . . . . 49
SECTION 904. Effect of Supplemental Indentures. . . . . . . . . . . . . 49
SECTION 905. Conformity With Trust Indenture Act. . . . . . . . . . . . 49
SECTION 906. Reference in Securities to Supplemental Indentures . . . . 49
ARTICLE TEN
COVENANTS . . . . . . . . . . . . . . . 49
SECTION 1001. Payment of Principal and Interest . . . . . . . . . . . . 50
SECTION 1002. Maintenance of Office or Agency . . . . . . . . . . . . . 50
-vi-
PAGE
SECTION 1003. Money for Security Payments to be Held in Trust . . . . . 50
SECTION 1004. Statements by Officers as to Default. . . . . . . . . . . 51
SECTION 1005. Existence . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 1006. Maintenance of Properties . . . . . . . . . . . . . . . . 52
SECTION 1007. Payment of Taxes and Other Claims . . . . . . . . . . . . 52
SECTION 1008. Waiver of Certain Covenants . . . . . . . . . . . . . . . 52
SECTION 1009. Payment of the Trust's Costs and Expenses . . . . . . . . 52
SECTION 1010. Restrictions on Payments and Distributions. . . . . . . . 53
ARTICLE ELEVEN
SUBORDINATION OF SECURITIES. . . . . . . . . . . 54
SECTION 1101. Securities Subordinate to Indebtedness. . . . . . . . . . 54
SECTION 1102. Default on Indebtedness . . . . . . . . . . . . . . . . . 54
SECTION 1103. Prior Payment of Indebtedness Upon Acceleration of
Securities . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 1104. Liquidation; Dissolution; Bankruptcy. . . . . . . . . . . 55
SECTION 1105. Subrogation . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 1106. Trustee to Effectuate Subordination . . . . . . . . . . . 57
SECTION 1107. Notice by the Company . . . . . . . . . . . . . . . . . . 57
SECTION 1108. Rights of the Trustee; Holders of Indebtedness. . . . . . 58
SECTION 1109. Subordination May Not Be Impaired . . . . . . . . . . . . 59
ARTICLE TWELVE
REDEMPTION OF SECURITIES. . . . . . . . . . . . 59
SECTION 1201. Optional Redemption; Conditions to Optional Redemption. . 59
SECTION 1202. Applicability of Article. . . . . . . . . . . . . . . . . 60
-vii-
PAGE
SECTION 1203. Election to Redeem; Notice to Trustee . . . . . . . . . . 60
SECTION 1204. Selection by Trustee of Securities to be Redeemed . . . . 60
SECTION 1205. Notice of Redemption. . . . . . . . . . . . . . . . . . . 60
SECTION 1206. Deposit of Redemption Price . . . . . . . . . . . . . . . 61
SECTION 1207. Securities Payable on Redemption Date . . . . . . . . . . 61
-viii-
Sections 310 through 318 of the
Trust Indenture Act of 1939:
TRUST INDENTURE INDENTURE
ACT SECTION SECTION
Section 310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . .609
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .609
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 608, 610
Section 311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .613
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .613
Section 312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .701
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 702(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 702(c)
Section 313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(a)
(a)(4). . . . . . . . . . . . . . . . . . . . . . . . . . .101, 1004
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(a)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(a)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(b)
Section 314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .704
(b) . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .102
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .102
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .102
Section 315(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .601
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .602
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .601
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .601
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .514
Section 316(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .101
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . .502
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . .513
(a)(2). . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .508
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104(c)
Section 317(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . .503
(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . .504
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1003
Section 318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .107
This INDENTURE is dated as of January 31, 1997, between OLD KENT
FINANCIAL CORPORATION, a corporation duly organized and existing under the
laws of the State of Michigan (herein called the "Company"), having its
principal office at One Vandenberg Center, Grand Rapids, MI 49503 and
BANKERS TRUST COMPANY, a New York banking corporation, as Trustee (herein
called the "Trustee").
RECITALS
WHEREAS, for its lawful corporate purposes, the Company has duly
authorized the execution and delivery of this Indenture to provide for the
issuance of its Floating Rate Junior Subordinated Debentures due 2027 (the
"Junior Subordinated Securities") and its Floating Rate New Junior
Subordinated Debentures due 2027 (the "New Junior Subordinated Securities",
and together with the Junior Subordinated Securities, the "Securities") to
be issued in exchange for the Junior Subordinated Securities.
WHEREAS, Old Kent Capital Trust I, a Delaware business trust (the
"Trust"), has offered to the public its Floating Rate Subordinated Capital
Income Securities (the "Capital Securities") representing undivided
beneficial ownership interests in the assets of the Trust and proposes to
invest the proceeds from such offering and the proceeds from the issuance
of its Common Securities in the Securities.
WHEREAS, to provide the terms and conditions upon which the
Securities are to be authenticated, issued and delivered, the Company has
duly authorized the execution of this Indenture.
WHEREAS, all things necessary to make this Indenture a valid
agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as expressly provided
or unless the context otherwise requires:
(i) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular and
the masculine as well as the feminine;
2
(ii) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(iii) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles;
(iv) 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;
(v) a reference to any Person shall include its successor and
assigns;
(vi) a reference to any agreement or instrument shall mean such
agreement or instrument as supplemented, modified, amended or amended and
restated and in effect from time to time;
(vii) a reference to any statute, law, rule or regulation, shall
include any amendments thereto applicable to the relevant Person, and any
successor statute, law, rule or regulation; and
(viii) a reference to any particular rating category shall be
deemed to include any corresponding successor category, or any
corresponding rating category issued by a successor or subsequent rating
agency.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Additional Interest" has the meaning specified in Section 307.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of
this definition, "control" when used with respect to any specified Person
means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities,
by contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
to act on behalf of the Trustee to authenticate Securities.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board as the context
requires.
3
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors or the Executive Committee thereof and to
be in full force and effect on the date of such certification, and
delivered to the Trustee.
"Business Day" means any day other than a Saturday or Sunday or a
day on which banking institutions in The City of New York and Grand Rapids,
Michigan are authorized or required by law or executive order to remain
closed or a day on which the Corporate Trust Office of the Trustee, or the
principal office of the Property Trustee, under the Declaration, is closed
for business.
"Calculation Agent" means any Person authorized by the Company to
determine the interest rate of the Securities.
"Capital Securities" has the meaning specified in the Recitals to
this instrument.
"Cedel" means Cedel Bank, societe anonymne.
"Closing Date" means January 31, 1997 and such other dates as the
parties hereto may agree upon to consummate the transactions contemplated
hereby.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it
under the Trust Indenture Act, then the body performing such duties at such
time.
"Common Securities" means the common securities issued by the
Trust.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become
such pursuant to the applicable provisions of this Indenture, and
thereafter "Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or
order signed in the name of the Company by its Chairman of the Board, its
Vice Chairman of the Board, its President or a Vice President, and by its
Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary,
and delivered to the Trustee.
"Corporate Trust Office" means the principal office of the
Trustee in the City of New York, at which at any particular time its
4
corporate trust business shall be administered and which at the date of
this Indenture is located at Four Albany Street, 4th Floor, New York, New
York 10006, Attention: Corporate Market Services.
"Covenant Defeasance" has the meaning specified in Section 403.
"Custodian" means the custodian for the time being of any Global
Security as designated by the Depositary.
"Declaration" means the Amended and Restated Declaration of
Trust, dated as of January 31, 1997, as amended, modified or supplemented
from time to time, among the trustees of the Trust named therein, the
Company, as sponsor, and the holders from time to time of undivided
beneficial ownership interests in the assets of the Trust.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to Securities issuable in whole
or in part in the form of one or more Global Securities, a clearing agency
registered under the Exchange Act that is designated to act as Depositary
for such Securities.
"Determination Date" means, with respect to any interest period,
the date that is two London Business Days prior to the first day of such
interest period.
"DWAC" means Deposit and Withdrawal At Custodian Service.
"Euroclear" means Morgan Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear System.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, and any successor legislation.
"Extension Period" has the meaning specified in Section 301.
"Federal Reserve" means the Board of Governors of the Federal
Reserve System.
"Global Security" means a Security that evidences all or part of
the Securities and is authenticated and delivered to, and registered in the
name of, the Depositary for such Securities or a nominee thereof.
"Guarantee" means the Guarantee Agreement, dated as of January
31, 1997, made by the Company in favor of Bankers Trust Company as trustee
5
thereunder for the benefit of the Holders (as defined therein) of the
Capital Securities and the holder of the Common Securities.
"Holder" means a Person in whose name a Security is registered in
the Security Register.
"Indebtedness" means, whether recourse is to all or a portion of
the assets of the Company and whether or not contingent, (i) every
obligation of the Company for money borrowed, (ii) every obligation of the
Company evidenced by bonds, debentures, notes or other similar instruments
of the Company, including obligations incurred in connection with the
acquisition of property, assets or businesses and including the Company's 6
5/8% Subordinated Notes due November 15, 2005, (iii) every reimbursement
obligation of the Company with respect to letters of credit, bankers'
acceptances or similar facilities issued for the account of the Company,
(iv) every obligation of the Company issued or assumed as the deferred
purchase price of property or services (but excluding trade accounts
payable or accrued liabilities arising in the ordinary course of business),
(v) every capital lease obligation of the Company, (vi) every obligation of
the Company for claims (as defined in Section 101(4) of the United States
Bankruptcy Code of 1978, as amended) in respect of derivative products such
as interest and foreign exchange rate contracts, commodity contracts and
similar arrangements and (vii) every obligation of the type referred to in
clauses (i) through (vi) of another Person and all dividends of another
Person the payment of which, in either case, the Company has guaranteed or
is responsible or liable, directly or indirectly, as obligor or otherwise;
PROVIDED that "Indebtedness" shall not include (A) any obligations which,
by their terms, are expressly stated to rank PARI PASSU in right of payment
with, or to not be superior in right of payment to, the Securities, (B) any
indebtedness of the Company which when incurred and without respect to any
election under Section 1111(b) of the United States Bankruptcy Code of
1978, as amended, was without recourse to the Company, (C) any indebtedness
of the Company to any of its subsidiaries, (D) any indebtedness of the
Company to any employee of the Company or (E) any indebtedness in respect
of debt securities issued to any trust, or a trustee of such trust,
partnership or other entity affiliated with the Company that is a financing
entity of the Company in connection with the issuance of such financing
entity of securities that are similar to the Capital Securities.
"Indenture" means this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions
hereof, including, for all purposes of this instrument and any such
supplemental indenture, the provisions of the Trust Indenture Act that are
deemed to be a part of and govern this instrument and any such supplemental
indenture, respectively.
"Initial Purchaser" means Lehman Brothers Inc.
6
"Interest Payment Date", when used with respect to any
installment of interest on a Security, means the date specified in such
Security as the fixed date on which an installment of interest with respect
to the Securities is due and payable.
"Investment Company Event" means the receipt by the Trust of an
Opinion of Counsel having a recognized national securities practice to the
effect that, as a result of the occurrence of a change in law or regulation
or a change in interpretation or application of law or regulation by any
legislative body, court, governmental agency or regulatory authority (a
"Change in 1940 Act Law"), the Trust is or will be considered an
"investment company" that is required to be registered under the Investment
Company Act of 1940, as amended, which Change in 1940 Act Law becomes
effective on or after the date of original issuance of the Securities.
"Junior Subordinated Securities" has the meaning specified in the
Recitals to this instrument.
"Legal Defeasance" has the meaning specified in Section 402.
"LIBOR" means, with respect to an interest period relating to an
Interest Payment Date (in the following order of priority):
(ix) the rate (expressed as a percentage per annum) for
Eurodollar deposits having a three-month maturity that
appears on Telerate Page 3750 as of 11:00 a.m. (London time)
on the related Determination Date;
(x) if such rate does not appear on Telerate Page 3750 as of
11:00 a.m. (London time) on the related Determination Date,
LIBOR will be the arithmetic mean (if necessary rounded
upwards to the nearest whole multiple of .00001%) of the
rates (expressed as percentages per annum) for Eurodollar
deposits having a three-month maturity that appear on
Reuters Monitor Money Rates Page LIBO ("Reuters Page LIBO")
as of 11:00 a.m. (London time) on such Determination Date;
(xi) if such rate does not appear on Reuters Page LIBO as of
11:00 a.m. (London time) on the related Determination Date,
the Calculation Agent will request the principal London
offices of four leading banks in the London interbank market
to provide such banks' offered quotations (expressed as
percentages per annum) to prime banks in the London
interbank market for Eurodollar deposits having a three-
month maturity as of 11:00 a.m. (London time) on such
Determination Date. If at least two quotations are
provided, LIBOR will be the arithmetic mean (if necessary
7
rounded upwards to the nearest whole multiple of .00001%)
of such quotations;
(xii) if fewer than two such quotations are provided as requested
in clause (iii) above, the Calculation Agent will request
four major New York City banks to provide such banks'
offered quotations (expressed as percentages per annum) to
leading European banks for Loans in Eurodollars as of 11:00
a.m. (London time) on such Determination Date. If at least
two such quotations are provided, LIBOR will be the
arithmetic mean (if necessary rounded upwards to the nearest
whole multiple of .00001%) of such quotations; and
(xiii) if fewer than two such quotations are provided as requested
in clause (iv) above, LIBOR will be LIBOR determined with
respect to the interest period immediately preceding such
current interest period.
If the rate for Eurodollar deposits having a three-month maturity
that initially appears on Telerate Page 3750 or Reuters Page LIBO, as the
case may be, as of 11:00 a.m. (London time) on the related Determination
Date is superseded on Telerate Page 3750 or Reuters Page LIBO, as the case
may be, by a corrected rate before 12:00 noon (London time) on such
Determination Date, the corrected rate as so substituted on the applicable
page will be the applicable LIBOR for such Determination Date.
"London Business Day" means any day, other than a Saturday or
Sunday, on which banks are open for business in London.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security becomes due and payable as
therein or herein provided, whether at the Stated Maturity (which may be
extended as therein or herein provided) or by declaration of acceleration,
call for redemption or otherwise.
"New Junior Subordinated Securities" has the meaning specified in
the Recitals to this instrument.
"Officers' Certificate" means a certificate signed on behalf of
the Company by the Chairman of the Board, a Vice Chairman of the Board, the
President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the Company, and
delivered to the Trustee. One of the officers signing an Officers'
Certificate given pursuant to Section 1004 shall be the principal
executive, financial or accounting officer of the Company. Any Officers'
Certificate delivered with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
8
(i) a statement that each officer signing the Officers'
Certificate on behalf of the Company has read the covenant or condition and
the definitions relating thereto;
(ii) a statement that each such officer has made such examination
or investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(iii) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may
be counsel for the Company (and who may be an employee of the Company). An
opinion of counsel may rely on Officers' Certificates as to matters of
fact.
"Outstanding", when used with respect to Securities, means, as of
the date of determination, all Securities authenticated and delivered under
this Indenture, except: (i) Securities cancelled by the Trustee or
delivered to the Trustee for cancellation; (ii) Securities for whose
payment or redemption money in the necessary amount has been deposited with
the Trustee or any Paying Agent (other than the Company) in trust or set
aside and segregated in trust by the Company (if the Company shall act as
its own Paying Agent) for the Holder of such Securities; PROVIDED that, if
such Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made; and (iii) Securities which have been paid pursuant
to Section 306, or in exchange or for in lieu of which other Securities
have been authenticated and delivered pursuant to this Indenture, other
than any such Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such Securities are
held by a bona fide purchaser in whose hands such Securities are valid
obligations of the Company; PROVIDED, HOWEVER, that in determining whether
the holders of the requisite principal amount of Outstanding Securities are
present at a meeting of holders of Securities for quorum purposes or have
consented to or voted in favor of any request, demand, authorization,
direction, notice, consent, waiver, amendment or modification hereunder,
Securities held for the account of the Company, any of its subsidiaries or
any of its affiliates shall be disregarded and deemed not to be
Outstanding, except that in determining whether the Trustee shall be
protected in making such a determination or relying upon any such quorum,
consent or vote, only Securities which a Responsible Officer of the Trustee
actually knows to be so owned shall be so disregarded.
"Paying Agent" means any Person authorized by the Company to pay
the principal of or interest on any Securities on behalf of the Company.
9
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other
entity of whatever nature.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any security authenticated and delivered under Section 306 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security
shall be deemed to evidence the same debt as the mutilated, destroyed, lost
or stolen Security.
"Private Placement Legend" has the meaning specified in Section
314 of this Indenture.
"Property Trustee" has the meaning set forth in the Declaration.
"Qualified Institutional Buyer" or "QIB" shall have the meaning
specified in Rule 144A under the Securities Act.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registration Rights Agreement" means the Registration Rights
Agreement dated the date hereof between the Company and the Initial
Purchaser for the benefit of themselves and the Holders (as defined
therein) of the Capital Securities as the same may be amended from time to
time in accordance with the terms thereof.
"Regular Record Date" for the interest payable on any Interest
Payment Date means the fifteenth day preceding the relevant Interest
Payment Date.
"Regular Trustee" has the meaning specified in the Declaration.
"Regulation S" means Regulation S under the Securities Act and
any successor regulation thereto.
"Regulation S Global Security" means any Global Security or
Securities evidencing Securities that are to be traded pursuant to
Regulation S.
10
"Regulatory Capital Event" means 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 (i) 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 (ii) any official or administrative
pronouncement or action 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 the date of original
issuance of the Capital Securities, the Capital Securities do not
constitute, or within 90 days of the date thereof, will not constitute Tier
1 capital (or its then equivalent); PROVIDED, HOWEVER, that the
distribution of the Securities 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 or an Investment Company Event.
"Responsible Officer", when used with respect to the Trustee,
means any officer within the Corporate Trust Office including any Vice
President, Assistant Vice President, Managing Director, the Secretary, any
Assistant Secretary or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate
trust matter, any other officer to whom such matter is referred because of
his knowledge of and familiarity with the particular subject.
"Restricted Global Security" means any Global Security or
Securities evidencing Securities that are to be traded pursuant to
Rule 144A.
"Restricted Period" shall have the meaning specified in
Section 315.
"Restricted Security" has the meaning assigned to such term in
Rule 144(a)(3) of the Securities Act.
"Rule 144A" means Rule 144A under the Securities Act.
"Securities" has the meaning specified in the Recitals to this
instrument.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Special Event" means either an Investment Company Event, a
Regulatory Capital Event or a Tax Event.
11
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of interest thereon, means the date specified in such Security
as the date on which the principal, together with any accrued and unpaid
interest, of such Security or such installment of interest is due and
payable.
"Subsidiary" means a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or
by one or more other Subsidiaries or by the Company and one or more other
Subsidiaries. For the purposes of this definition, "voting stock" means
stock which ordinarily has voting power for the election of directors,
whether at all times or only so long as no senior class of stock has such
voting power by reason of any contingency.
"Tax Event" means the receipt by the Trust of an Opinion of
Counsel, rendered by a law firm having a recognized national tax practice,
to the effect that, as a result of any amendment to, change in or announced
proposed change in the laws (or any regulations thereunder) of the United
States or any political subdivision or taxing authority thereof or therein,
or as a result of any official or administrative pronouncement or action or
judicial decision interpreting or applying such laws or regulations, which
amendment or change is adopted or which proposed change, pronouncement or
decision is announced or which action is taken on or after the date of
original issuance of the Capital Securities under the Declaration, there is
more than an insubstantial risk that (i) the Trust is, or will be within 90
days of the date of such opinion, subject to U.S. 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 U.S. federal income tax purposes or (iii) the 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.
"Trust" means Old Kent Capital Trust I, a statutory business
trust declared and established pursuant to the Delaware Business Trust Act
by the Declaration.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become
such pursuant to the applicable provisions of this Indenture, and
thereafter "Trustee" shall mean such successor Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed; PROVIDED,
HOWEVER, that in the event the Trust Indenture Act of 1939 is amended after
12
such date, "Trust Indenture Act" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
"U.S. Government Obligations" has the meaning specified in
Section 404.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or
a word or words added before or after the title "vice president."
SECTION 102. Compliance Certificates and Opinions; Officers' Certificate
of Evidence.
Upon any application or request by the Company to the Trustee to
take any action under any provision of this Indenture, the Company shall
furnish to the Trustee such certificates and opinions as may be required
under the Trust Indenture Act. Each such certificate or opinion shall be
given in the form of an Officers' Certificate, if to be given by an officer
of the Company, or an Opinion of Counsel, if to be given by counsel, and
shall comply with the requirements of the Trust Indenture Act and any other
requirement set forth in this Indenture.
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 be 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 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary
that all such matters be certified by, or covered by the opinion of, only
one such Person, or that they be so certified or covered by only one
document, but one such Person may certify or give an opinion with respect
to some matters and one or more other such Persons as to other matters, and
any such Person may certify or give an opinion as to such matters in one or
several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows, or
13
in the exercise of reasonable care should know, that the certificate or
opinion or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such certificate or
opinion of counsel may be based, insofar as it relates to factual matters,
upon a certificate or opinion of, or representations by, an officer or
officers of the Company stating that the information with respect to such
factual matters is in the possession of the Company, unless such counsel
knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
SECTION 104. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or
taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person
or by an agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument
or instruments are delivered to the Trustee at the address specified in
Section 105 and, where it is hereby expressly required, to the Company.
Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments. Proof of execution of any
such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to Section 601)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by a signer acting in a
capacity other than his individual capacity, such certificate or affidavit
shall also constitute sufficient proof of his authority.
(c) The Company may, in the circumstances permitted by the Trust
Indenture Act, fix any day as the record date for the purpose of
determining the Holders entitled to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action, or to
vote on any action, authorized or permitted to be given or taken by
14
Holders. If not set by the Company prior to the first solicitation of a
Holder made by any Person in respect of any such action, or, in the case of
any such vote, prior to such vote, the record date for any such action or
vote shall be the 15th day (or, if later, the date of the most recent list
of Holders required to be provided pursuant to Section 701) prior to such
first solicitation or vote, as the case may be.
With regard to any record date, only the Holders on such date (or
their duly designated proxies) shall be entitled to give or take, or vote
on, the relevant action.
(d) The ownership of Securities shall be proved by the Security
Register.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued
upon the registration of transfer thereof or in exchange therefor or in
lieu thereof in respect of anything done, omitted or suffered to be done by
the Trustee or the Company in reliance thereon, whether or not notation of
such action is made upon such Security.
SECTION 105. Notices, Etc. to Trustee and the Company.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with:
(i) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or filed
in writing to or with the Trustee at its Corporate Trust Office; or
(ii) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to the
Company (Attention: Corporate Secretary) addressed to it at the address of
its principal office specified in the first paragraph of this instrument or
at any other address previously furnished in writing to the Trustee by the
Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event,
such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each
Holder affected by such event, at his address as it appears in the Security
Register, not later than the latest date (if any), and not earlier than the
earliest date (if any), prescribed for the giving of such notice. In any
15
case where notice to Holders is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any particular
Holder shall affect the sufficiency of such notice with respect to other
Holders. Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such
notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed
with the Trustee, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made by telecopier or overnight
air courier guaranteeing next day delivery.
SECTION 107. Conflict With Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such Act to be
a part of and govern this Indenture, the provision of the Trust Indenture
Act shall control. If any provision of this Indenture modifies or excludes
any provision of the Trust Indenture Act that may be so modified or
excluded, the latter provision shall be deemed to apply to this Indenture
as so modified or so be excluded, as the case may be.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
SECTION 109. Separability Clause.
In case any provision in this Indenture or in the Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
SECTION 110. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder, the holders of Indebtedness, the holders of Capital
Securities (to the extent provided herein) and the Holders of Securities,
any benefit or any legal or equitable right, remedy or claim under this
Indenture.
16
SECTION 111. GOVERNING LAW.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF. THIS INDENTURE IS SUBJECT
TO THE PROVISIONS OF THE TRUST INDENTURE ACT THAT ARE REQUIRED TO BE PART
OF THIS INDENTURE AND SHALL, TO THE EXTENT APPLICABLE, BE GOVERNED BY SUCH
PROVISIONS.
SECTION 112. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or
Stated Maturity of any Security shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the
Securities) payment of interest or principal of the Securities need not be
made on such date, but may be made on the next succeeding Business Day
(except that, if such Business Day is in the next succeeding calendar year,
such Interest Payment Date, Redemption Date or Stated Maturity, as the case
may be, shall be the immediately preceding Business Day) with the same
force and effect as if made on the Interest Payment Date or Redemption
Date, or at the Stated Maturity, PROVIDED that no interest shall accrue for
the period from and after such Interest Payment Date, Redemption Date or
Stated Maturity, as the case may be.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Form of Security.
The Junior Subordinated Securities in definitive form and the New
Junior Subordinated Securities in definitive form shall be in the form
attached hereto as Exhibit A; PROVIDED, that the New Junior Subordinated
Securities shall not contain any of the transfer restriction provisions
following the Trustee's authentication.
If the Securities are distributed to the holders of Capital
Securities and Common Securities, the record holder (including any
Depositary) of any Capital Securities or Common Securities shall be issued
Securities in definitive, fully registered form without interest coupons,
substantially in the form of Exhibit A hereto, with the legends in
substantially the form of the legends existing on the security representing
the Capital Securities or Common Securities to be exchanged (with such
changes thereto as the officers executing such Securities determine to be
necessary or appropriate, as evidenced by their execution of the
Securities) and such other legends as may be applicable thereto (including
any legend required by Section 313 or Section 314 hereof), duly executed by
17
the Company and authenticated (upon receipt of a Company Order for the
authentication) by the Trustee or the Authenticating Agent as provided
herein, which Securities, if to be held in global form by any Depositary,
may be deposited on behalf of the holders of the Securities represented
thereby with the Trustee, as custodian for the Depositary, and registered
in the name of a nominee of the Depositary.
Any Global Security shall represent such of the outstanding
Securities as shall be specified therein and shall provide that it shall
represent the aggregate amount of outstanding Securities from time to time
endorsed thereon and that the aggregate amount of outstanding Securities
represented thereby may from time to time be increased or reduced to
reflect transfers or exchanges permitted hereby. 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 or the Custodian, at the direction of the Trustee, in such manner
and upon written instructions given by the holder of such Securities in
accordance with the Indenture. Payment of principal, interest and premium,
if any, on any Global Security shall be made to the holder of such Global
Security.
The Securities shall have such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such
Securities, as evidenced by their execution of the Securities.
The definitive Securities shall be printed, lithographed or
engraved or produced by any combination of these or other methods, all as
determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
ARTICLE THREE
THE SECURITIES
SECTION 301. Title and Terms.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities' Stated Maturity shall be February 1, 2027.
The Securities shall bear interest at a variable per annum rate
equal to LIBOR plus .80%, from January 31, 1997 or from the most recent
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Interest Payment Date to which interest has been paid or duly provided for,
as the case may be, payable quarterly (subject to deferral as set forth
herein), in arrears, on the 1st Day of February, May, August and November
of each year, commencing May 1, 1997, until the principal thereof is paid
or made available for payment. Interest will compound quarterly and will
accrue at a variable per annum rate equal to LIBOR plus .80%, to the extent
permitted by applicable law, on any interest installment in arrears for
more than one quarterly period or during an extension of an interest
payment period as set forth below in this Section 301. In the event that
any date on which interest is payable on the Securities is not a Business
Day, then a payment of the 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) except that, if such
Business Day falls in the next calendar year, such payment will be made on
the immediately preceding Business Day, in each case with the same force
and effect as if made on the date the payment was originally payable.
The Company shall have the right, at any time during the term of
the Securities, from time to time and so long as no Event of Default has
occurred or is continuing, to defer payment of interest on such Security
for up to 20 consecutive quarterly periods (an "Extension Period") PROVIDED
that no Extension Period may extend past the Maturity of the Security.
There may be multiple Extension Periods of varying lengths during the term
of the Securities. At the end of each Extension Period, if any, the
Company shall pay all interest then accrued and unpaid, together with
interest thereon, compounded quarterly at the rate specified on this
Security to the extent permitted by applicable law. Prior to the
termination of any such Extension Period, the Company may further extend
the interest payment period, PROVIDED that no Extension Period may exceed
20 consecutive quarterly periods or extend beyond the Stated Maturity of
the Securities. Upon the termination of any such Extension Period and the
payment of all amounts then due on any Interest Payment Date, the Company
may elect to begin a new Extension Period subject to the above
requirements. No interest shall be due and payable during an Extension
Period, except at the end thereof. The Company shall give the Trustee, the
Property Trustee and the Regular Trustees written notice of its election of
such Extension Period at least one Business Day prior to the record date
for the related interest payment.
The Trustee shall promptly give notice of the Company's selection
of such Extension Period to the Holders of the Capital Securities.
The principal of and interest on the Securities shall be payable
at the office or agency of the Paying Agent in the United States maintained
for such purpose and at any other office or agency maintained by the
Company for such purpose in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts; PROVIDED, HOWEVER, that at the option of the Company payment
19
of interest may be made (i) by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register or
(ii) by wire transfer in immediately available funds at such place and to
such account as may be designated by the Person entitled thereto as
specified in the Security Register.
The Securities shall be subordinated in right of payment to
Indebtedness as provided in Article Eleven.
The Securities shall be redeemable as provided in Article Twelve.
SECTION 302. Denominations.
The Securities shall be issuable only in registered form, without
coupons, and only in denominations of $1,000 and any integral multiple
thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its Vice Chairman of the Board, its President or one
of its Vice Presidents. The signature of any of these officers on the
Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of
such Securities or did not hold such offices at the date of such
Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities executed by
the Company to the Trustee for authentication, together with a Company
Order for the authentication and delivery of such Securities; and the
Trustee in accordance with such Company Order shall authenticate and make
available for delivery such Securities as in this Indenture provided and
not otherwise.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form provided
for herein executed by the Trustee by manual signature, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder.
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SECTION 304. 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 which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine, as evidenced by their execution of
such Securities.
If temporary Securities are issued, the Company will cause
definitive Securities to be prepared without unreasonable delay. After the
preparation of definitive Securities, the temporary Securities shall be
exchangeable for definitive Securities upon surrender of the temporary
Securities at any office or agency of the Company designated pursuant to
Section 1002, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities the Company shall
execute and the Trustee shall authenticate, upon receipt of a Company Order
for the authentication, and make available for delivery in exchange
therefor a like principal amount of definitive Securities of authorized
denominations. Until so exchanged the temporary Securities shall in all
respects be entitled to the same benefits under this Indenture as
definitive Securities.
SECTION 305. Registration; Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office
of the Trustee, a register (the register maintained in such office and in
any other office or agency designated pursuant to Section 1002 being herein
sometimes collectively referred to as the "Security Register") in which,
subject to such reasonable regulations as it may prescribe, the Company
shall provide for the registration of Securities and of transfers of
Securities. The Trustee is hereby appointed "Security Registrar" for the
purpose of registering Securities and transfers of Securities as herein
provided.
Upon surrender for registration of transfer of any Security at an
office or agency of the Company designated pursuant to Section 1002 for
such purpose, the Company shall execute, and the Trustee shall, upon
receipt of a Company Order for the authentication, authenticate and make
available for delivery, in the name of the designated transferee or
transferees, one or more new Securities of any authorized denominations and
of a like aggregate principal amount.
At the option of the Holder, Securities may be exchanged for
other Securities of any authorized denominations and of a like aggregate
21
principal amount, upon surrender of the Securities to be exchanged at such
office or agency. Whenever any Securities are so surrendered for exchange,
the Company shall execute, and the Trustee shall, upon receipt of a Company
Order for the authentication, authenticate and make available for delivery,
the Securities which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer
or exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company, duly executed by the Holder thereof or his
attorney duly authorized in writing.
No service charge shall be made for any registration of transfer
or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Sections 304, 906 or 1208 not
involving any transfer.
If the Securities are to be redeemed in part, the Company shall
not be required (i) to issue, register the transfer of or exchange any
Securities during a period beginning at the opening of business 15 days
before the day of the mailing of a notice of redemption of any such
Securities selected for redemption under Section 1204 and ending at the
close of business on the day of such mailing, or (ii) to register the
transfer of or exchange any Security so selected for redemption in whole or
in part, except the unredeemed portion of any Security being redeemed in
part.
So long as the Securities are eligible for book-entry settlement
with the Depositary, or unless otherwise required by law, all Securities to
be traded on the PORTAL Market shall be represented by the Restricted
Global Security registered in the name of the Depositary or the nominee of
the Depositary.
The transfer and exchange of beneficial interests in any Global
Security, which does not involve the issuance of a definitive Security or
the transfer of interests to another Global Security, shall be effected
through the Depositary (but not the Trustee or the Custodian) in accordance
with this Indenture (including the restrictions on transfer set forth
herein) and the procedures of the Depositary therefor. Neither the Trustee
nor the Custodian (in such respective capacities) will have any
22
responsibility for the transfer and exchange of beneficial interests in
such Global Security that does not involve the issuance of a definitive
Security or the transfer of interests to another Global Security.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the
Company shall execute and the Trustee shall, upon receipt of a Company
Order for the authentication, authenticate and make available for delivery
in exchange therefor a new Security of like tenor and principal amount and
bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security and (ii) such security or indemnity as may be required by them to
save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security has been
acquired by a bona fide purchaser, the Company shall execute and the
Trustee shall, upon receipt of a Company Order for the authentication,
authenticate and make available for delivery, in lieu of any such
destroyed, lost or stolen Security, a new Security of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in its
discretion may, subject to the preceding paragraph, pay such Security
instead of issuing a new Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Trustee and its
agents and counsel) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost
or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately
with any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
23
SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually paid
or duly provided for, on any Interest Payment Date shall be paid to the
Person in whose name that Security (or one or more Predecessor Securities)
is registered at the close of business on the Regular Record Date for such
interest.
Any interest on any Security which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the
Holder on the relevant Regular Record Date by virtue of having been such
Holder, and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in clause (i) or (ii) below:
(i) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities (or their respective
Predecessor Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which shall
be fixed in the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each
Security and the date of the proposed payment, and at the same time the
Company shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest
or shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to be
held in trust for the benefit of the Persons entitled to such Defaulted
Interest as in this clause provided. Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest which shall
be not more than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Trustee
of the notice of the proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in the name and at the expense
of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder at his address as it appears in
the Security Register, not less than 10 days prior to such Special Record
Date. Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so mailed, such Defaulted Interest
shall be paid to the Persons in whose names the Securities (or their
respective Predecessor Securities) are registered at the close of business
on such Special Record Date and shall no longer be payable pursuant to the
following clause (ii).
(ii) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and if so
listed, upon such notice as may be required by such exchange, if, after
24
written notice given by the Company to the Trustee of the proposed payment
pursuant to this clause, such manner of payment shall be deemed practicable
by the Trustee. Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue which, which were carried by
such other Security.
In the event that a Registration Default (as defined in the
Registration Rights Agreement) occurs, additional interest ("Additional
Interest") shall become payable in respect of the Securities with respect
to the first 90-day period immediately following the occurrence of such
Registration Default, in an amount equal to $.25 per week per $1,000
liquidation amount of Securities for each week or portion thereof that the
Registration Default continues. Additional Interest will increase by an
additional $.05 per $1,000 liquidation amount of Securities with respect to
each subsequent 90-day period until all Registration Defaults have been
cured, up to a maximum amount of Additional Interest of $.50 per $1,000
liquidation amount of Securities.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the
Trustee shall treat the Person in whose name such Security is registered as
the owner of such Security for the purpose of receiving payment of
principal of and (subject to Section 307) interest on such Security and for
all other purposes whatsoever, whether or not such Security be overdue, and
neither the Company, the Trustee nor any officer, director, employee or
agent of the Company or the Trustee shall be affected by notice to the
contrary.
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption, registration
of transfer or exchange shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee and shall be promptly cancelled by it.
The Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the
Company may have acquired in any manner whatsoever, and all Securities so
delivered shall be promptly cancelled by the Trustee. No Securities shall
be authenticated in lieu of or in exchange for any Securities cancelled as
provided in this Section, except as expressly permitted by this Indenture.
All cancelled Securities held by the Trustee shall be disposed of in
accordance with its customary procedures. If the Company shall acquire any
of the Securities, however, such acquisition shall not operate as a
redemption or satisfaction of the Indebtedness represented by such
25
Securities unless and until the same are surrendered to the Trustee for
cancellation.
SECTION 310. Computation of Interest.
The Company shall appoint a Calculation Agent, which may be the
Trustee, to determine LIBOR as of the Determination Date for each quarterly
interest period and to calculate the interest rate and the amount of
interest due for each such interest period. Absent manifest error, the
Calculation Agent's determination of LIBOR and its calculation of the
interest rate for each interest period shall be final and binding on the
holders of the Securities.
Interest on the Securities shall be computed on the basis of the
actual number of days elapsed in a year of twelve 30-day months. The
amount of interest payable for any period shorter than a full quarterly
period for which interest is computed will be computed on the basis of
actual number of days elapsed in such 90-day quarterly period.
SECTION 311. Right of Set-off.
Notwithstanding anything to the contrary in the Indenture, the
Company shall have the right to set-off any payment it is otherwise
required to make thereunder to the extent the Company has theretofore made,
or is concurrently on the date of such payment making, a related payment
under the Guarantee.
SECTION 312. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if
then generally in use), and, if so, the Trustee shall use "CUSIP" numbers
in notices of redemption as a convenience to Holders; PROVIDED that any
such notice may state that no representation is made as to the correctness
of such numbers either as printed on the Securities or as contained in any
notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption
shall not be affected by any defect in or omission of such numbers. The
Company shall promptly notify the Trustee of any change in the "CUSIP"
numbers.
SECTION 313. Global Securities.
If the Securities are distributed to the holders of Capital
Securities, such Securities distributed in respect of Capital Securities
that are held in global form by a Depositary will initially be issued as a
Global Security, unless such transfer cannot be effected through book-entry
settlement. If the Company shall establish that the Securities are to be
issued in the form of one or more Global Securities, then the Company shall
26
execute and the Trustee shall, in accordance with Section 303 and the
Company Order, authenticate and deliver one or more Global Securities that
(i) shall represent and shall be denominated in an amount equal to the
aggregate principal amount of all of the Securities to be issued in the
form of Global Securities and not yet cancelled, (ii) shall be registered
in the name of the Depositary for such Global Security or Securities or the
nominee of such Depositary and (iii) shall be delivered by the Trustee to
such Depositary or pursuant to such Depositary's instructions. Global
Securities shall bear a legend substantially to the following effect:
"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. Notwithstanding the provisions of
Section 305, unless and until it is exchanged in whole or in part for
Securities in definitive registered form, a Global Security representing
all or a part of the Securities may not be transferred in the manner
provided in Section 305 except as a whole by the Depositary to a nominee of
such Depositary or by a nominee of such Depositary to such Depositary or
another nominee of such Depositary or by such Depositary or any such
nominee to a successor Depositary or a nominee of such successor
Depositary. Every Security delivered upon registration or transfer of, or
in exchange for, or in lieu of, this Global Security shall be a Global
Security subject to the foregoing, except in the limited circumstances
described above. Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation
("DTC"), to the Company or its agent for registration of transfer, exchange
or payment, and any certificate issued is registered in the name of Cede &
Co. or in such other name as is requested by an authorized representative
of DTC (and any payment is to be made to Cede & Co. or to such other entity
as is requested by an authorized representative of DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an
interest herein."
Definitive Securities issued in exchange for all or a part of a
Global Security pursuant to this Section 313 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 in writing. Upon execution and authentication, the
Security Registrar shall deliver such definitive Securities to the persons
in whose names such definitive Securities are so registered.
At such time as all interests in Global Securities have been
redeemed, repurchased or canceled, such Global Securities shall be, upon
receipt thereof, canceled by the Trustee in accordance with standing
procedures and instructions existing between the Depositary and the
Trustee. At any time prior to such cancellation, if any interest in Global
Securities is exchanged for definitive Securities, redeemed, canceled or
27
transferred to a transferee who receives definitive Securities therefor or
any definitive Security is exchanged or transferred for part of Global
Securities, the principal amount of such Global Securities shall, in
accordance with the standing procedures and instructions existing between
the Depositary and the Trustee, be reduced or increased, as the case may
be, and an endorsement shall be made on such Global Securities by the
Trustee or the Custodian, at the direction of the Trustee, to reflect such
reduction or increase.
The Company and the Trustee may for all purposes, including the
making of payments due on the Securities, deal with the Depositary as the
authorized representative of the Holders for the purposes of exercising the
rights of Holders hereunder. The rights of the owner of any beneficial
interest in a Global Security shall be limited to those established by law
and agreements between such owners and depository participants or Euroclear
and Cedel; PROVIDED, that no such agreement shall give any rights to any
person against the Company or the Trustee, or their respective officers,
directors, employees and agents, without the written consent of the parties
so affected. Multiple requests and directions from and votes of the
Depositary as holder of Securities in global form with respect to any
particular matter shall not be deemed inconsistent to the extent they do
not represent an amount of Securities in excess of those held in the name
of the Depositary or its nominee.
If at any time the Depositary for any Securities represented by
one or more Global Securities notifies the Company that it is unwilling or
unable to continue as Depositary for such Securities or if at any time the
Depositary for such Securities shall no longer be eligible under this
Section 313, the Company shall appoint a successor Depositary with respect
to such Securities. If a successor Depositary for such Securities is not
appointed by the Company within 90 days after the Company receives such
notice or becomes aware of such ineligibility, the Company's election that
such Securities be represented by one or more Global Securities shall no
longer be effective and the Company shall execute, and the Trustee, upon
receipt of a Company Order for the authentication and delivery of
definitive Securities, will authenticate and make available for delivery
Securities in definitive registered form, in any authorized denominations,
in an aggregate principal amount equal to the principal amount of the
Global Security or Securities representing such Securities in exchange for
such Global Security or Securities.
The Company may at any time and in its sole discretion determine
that the Securities issued in the form of one or more Global Securities
shall no longer be represented by a Global Security or Securities. In such
event the Company shall execute, and the Trustee, upon receipt of a Company
Order for the authentication and delivery of definitive Securities, shall
authenticate and make available for delivery, Securities in definitive
registered form, in any authorized denominations, in an aggregate principal
28
amount equal to the principal amount of the Global Security or Securities
representing such Securities, in exchange for such Global Security or
Securities.
Notwithstanding any other provisions of this Indenture (other
than the provisions set forth in Section 314(a)), Global Securities may not
be transferred as a whole except by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary.
Interests of beneficial owners in Global Security may be
transferred or exchanged for definitive Securities and definitive
Securities may be transferred or exchanged for Global Securities in
accordance with rules of the Depositary and the provisions of Section 315.
Any Security in global form may be endorsed with or have
incorporated in the text thereof such legends or recitals or changes not
inconsistent with the provisions of this Indenture as may be required by
the Custodian, the Depositary or by the National Association of Securities
Dealers, Inc. in order for the Securities to be tradeable on the PORTAL
Market or as may be required for the Securities to be tradeable on any
other market developed for trading of securities pursuant to Rule 144A or
required to comply with any applicable law or any regulation thereunder or
with Regulation S or with the rules and regulations of any securities
exchange upon which the Securities may be listed or traded or to conform
with any usage with respect thereto, or to indicate any special limitations
or restrictions to which any particular Securities are subject.
SECTION 314. Restrictive Legend.
(a) Each Global Security and definitive Security that
constitutes a Restricted Security shall bear the following legend (the
"Private Placement Legend") on the face thereof until three years after the
later of the date of original issue and the last date on which the Company
or any Affiliate of the Company was the owner of such Capital Securities
(or any predecessor thereto) (the "Resale Restriction Termination Date"),
unless otherwise agreed by the Company and the Holder thereof:
"THIS SECURITY (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY
STATE SECURITIES LAWS AND NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN
THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM.
EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE SELLER MAY
BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THIS
SECURITY, BY ITS ACCEPTANCE HEREOF, REPRESENTS, ACKNOWLEDGES AND
29
AGREES FOR THE BENEFIT OF THE COMPANY THAT: (I) IT HAS ACQUIRED A
"RESTRICTED" SECURITY WHICH HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT; (II) IT WILL NOT OFFER, SELL OR OTHERWISE TRANSFER
THIS SECURITY PRIOR TO THE LATER OF THE DATE WHICH IS THREE YEARS
AFTER THE DATE OF ORIGINAL ISSUANCE HEREOF AND THE LAST DATE ON WHICH
THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF SUCH
RESTRICTED SECURITIES (OR ANY PREDECESSOR) EXCEPT (A) TO THE COMPANY,
(B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THIS SECURITY
IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON WHO THE
SELLER REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (D) OUTSIDE THE UNITED STATES
IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 UNDER THE
SECURITIES ACT, OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND, IN EACH CASE,
IN ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES OR ANY APPLICABLE JURISDICTION; AND (III) IT WILL, AND
EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF
THIS SECURITY OF THE RESALE RESTRICTIONS SET FORTH IN (II) ABOVE. ANY
OFFER, SALE OR OTHER DISPOSITION PURSUANT TO THE FOREGOING CLAUSES
(II)(D) AND (E) IS SUBJECT TO THE RIGHT OF THE ISSUER OF THIS SECURITY
AND THE PROPERTY TRUSTEE FOR SUCH SECURITIES TO REQUIRE THE DELIVERY
OF AN OPINION OF COUNSEL, CERTIFICATIONS OR OTHER INFORMATION
ACCEPTABLE TO THEM IN FORM AND SUBSTANCE."
Any Security (or security issued in exchange or substitution
therefor) as to which such restrictions on transfer shall have expired in
accordance with their terms may, upon satisfaction of the requirements of
Section 314(b) and surrender of such Security for exchange to the Security
Registrar in accordance with the provisions of this Section 314, be
exchanged for a new Security or Securities, of like tenor and aggregate
principal amount, which shall not bear the restrictive legend required by
this Section 314(a).
(b) Upon any sale or transfer of any Restricted Security
(including any interest in a Global Security) (i) that is effected pursuant
to an effective registration statement under the Securities Act or (ii) in
connection with which the Trustee receives certificates and other
information (including an opinion of counsel, if requested) reasonably
acceptable to the Company to the effect that such security will no longer
be subject to the resale restrictions under federal and state securities
laws, then (A) in the case of a Restricted Security in definitive form, the
Security Registrar or co-Registrar shall permit the holder thereof to
exchange such Restricted Security for a Security that does not bear the
legend set forth in Section 314(a), and shall rescind any such restrictions
on transfer and (B) in the case of Restricted Securities represented by a
Global Security, such Security shall no longer be subject to the
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restrictions contained in the legend set forth in Section 314(a) (but still
subject to the other provisions hereof). In addition, any Security (or
Security issued in exchange or substitution therefor) as to which the
restrictions on transfer described in the legend set forth in Section
314(a) have expired by their terms, may, upon surrender thereof (in
accordance with the terms of this Indenture) together with such
certifications and other information (including an Opinion of Counsel
having substantial experience in practice under the Securities Act and
otherwise reasonably acceptable to the Company, addressed to the Company
and the Trustee and in a form acceptable to the Company, to the effect that
the transfer of such Restricted Security has been made in compliance with
Rule 144 or such successor provision) acceptable to the Company and the
Trustee as either of them may reasonably require, be exchanged for a new
Security or Securities of like tenor and aggregate principal amount, which
shall not bear the restrictive legends set forth in Section 314(a).
Trustee shall receive a certificate, upon which the Trustee may
conclusively rely, from the Person transferring such Restricted Security,
stating that such transferor satisfies the requirements of this Section 314
and that all conditions precedent required for such transfer have occurred.
SECTION 315. Special Transfer Provisions.
At any time at the request of the beneficial holder of an
interest in a Security in global form, such beneficial holder shall be
entitled to obtain a definitive Security upon written request to the
Trustee in accordance with the standing instructions and procedures
existing between the Depositary and the Trustee for the issuance thereof.
Upon receipt of any such request, the Trustee will cause the aggregate
principal amount of the Security in global form to be reduced and,
following such reduction, the Company will execute and the Trustee will,
upon receipt of a Company Order for the authentication, authenticate and
deliver to such beneficial holder (or its nominee) a Security or Securities
in the appropriate aggregate principal amount in the name of such
beneficial holder (or its nominee) and bearing such restrictive legends as
may be required by this Indenture.
Any transfer of a beneficial interest in a Security in global
form which cannot be effected through book-entry settlement must be
effected by the delivery to the transferee (or its nominee) of a definitive
Security or Securities registered in the name of the transferee (or its
nominee) on the books maintained by the Trustee. With respect to any such
transfer, the Trustee will cause, in accordance with the standing
instructions and procedures existing between the Depositary and the
Trustee, the aggregate principal amount of the Security in global form to
be reduced and, following such reduction, the Company will execute and the
Trustee will, upon receipt of a Company Order for the authentication,
authenticate and deliver to the transferee (or such transferee's nominee,
as the case may be), a Security or Securities in the appropriate aggregate
31
principal amount in the name of such transferee (or its nominee) and
bearing such restrictive legends as may be required by this Indenture. In
connection with any such transfer, the Trustee may request a certificate,
upon which the Trustee may conclusively rely, containing such
representations and agreements relating to the restrictions on transfer of
such Security or Securities from such transferee (or such transferee's
nominee) as the Trustee may reasonably require.
So long as the Securities are eligible for book-entry settlement,
or unless otherwise required by law, upon any transfer of a definitive
Security to a QIB in accordance with Rule 144A, unless otherwise requested
by the transferor, and upon receipt of the definitive Security or
Securities being so transferred, together with a certification, upon which
the Trustee may conclusively rely, from the transferor that the transferor
reasonably believes that the transferee is a QIB, the Trustee shall make an
endorsement on the Restricted Global Security to reflect an increase in the
aggregate principal amount of the Securities represented by the Restricted
Global Security, the Trustee shall cancel such definitive Security or
Securities and cause, in accordance with the standing instructions and
procedures existing between the Depositary and the Trustee, the aggregate
principal amount of Securities represented by the Restricted Global
Security to be increased accordingly.
So long as the Securities are eligible for book-entry settlement,
or unless otherwise required by law, upon any transfer of a definitive
Security in accordance with Regulation S, if requested by the transferor,
and upon receipt of the definitive Security or Securities being so
transferred, together with a certification, upon which the Trustee may
conclusively rely, from the transferor that the transfer was made in
accordance with Rule 903 or 904 of Regulation S or Rule 144 under the
Securities Act, the Trustee shall make or direct the Custodian to make, an
endorsement on the Regulation S Global Security to reflect an increase in
the aggregate principal amount of the Securities represented by the
Regulation S Global Security, the Trustee shall cancel such definitive
Security or Securities and cause, or direct the Custodian to cause, in
accordance with the standing instructions and procedures existing between
the Depositary and the Custodian, the aggregate principal amount of
Securities represented by the Regulation S Global Security to be increased
accordingly.
If a holder of a beneficial interest in the Restricted Global
Security wishes at any time to exchange its interest in the Restricted
Global Security for an interest in the Regulation S Global Security, or to
transfer its interest in the Restricted Global Security to a person who
wishes to take delivery thereof in the form of an interest in the
Regulation S Global Security, such holder may, subject to the rules and
procedures of the Depositary and to the requirements set forth in the
following sentence, exchange or cause the exchange or transfer or cause the
32
transfer of such interest for an equivalent beneficial interest in the
Regulation S Global Security. Upon receipt by the Trustee, as transfer
agent of (i) instructions given in accordance with the Depositary's
procedures from or on behalf of a holder of a beneficial interest in the
Restricted Global Security, directing the Trustee (via DWAC), as transfer
agent, to credit or cause to be credited a beneficial interest in the
Regulation S Global Security in an amount equal to the beneficial interest
in the Restricted Global Security to be exchanged or transferred, (ii) a
written order given in accordance with the Depositary's procedures
containing information regarding the Euroclear or Cedel account to be
credited with such increase and the name of such account and (iii) a
certificate, upon which the Trustee may conclusively rely, given by the
holder of such beneficial interest stating that the exchange or transfer of
such interest has been made pursuant to and in accordance with Rule 903 or
Rule 904 of Regulation S or Rule 144 under the Securities Act, the Trustee,
as transfer agent, shall promptly deliver appropriate instructions to the
Depositary (via DWAC), its nominee, or the custodian for the Depositary, as
the case may be, to reduce or reflect on its records a reduction of the
Restricted Global Security by the aggregate principal amount of the
beneficial interest in such Restricted Global Security to be so exchanged
or transferred from the relevant participant, and the Trustee, as transfer
agent, shall promptly deliver appropriate instructions (via DWAC) to the
Depositary, its nominee, or the custodian for the Depositary, as the case
may be, concurrently with such reduction, to increase or reflect on its
records an increase of the principal amount of such Regulation S Global
Security by the aggregate principal amount of the beneficial interest in
such Restricted Global Security to be so exchanged or transferred, and to
credit or cause to be credited to the account of the person specified in
such instructions (who may be Morgan Guaranty Trust Company of New York,
Brussels office, as operator of Euroclear or Cedel or another agent member
of Euroclear or Cedel, or both, as the case may be, acting for and on
behalf of them) a beneficial interest in such Regulation S Global Security
equal to the reduction in the principal amount of such Restricted Global
Security.
If a holder of a beneficial interest in the Regulation S Global
Security wishes at any time to exchange its interest in the Regulation S
Global Security for an interest in the Restricted Global Security, or to
transfer its interest in the Regulation S Global Security to a person who
wishes to take delivery thereof in the form of an interest in the
Restricted Global Security, such holder may, subject to the rules and
procedures of Euroclear or Cedel and the Depositary, as the case may be,
and to the requirements set forth in the following sentence, exchange or
cause the exchange or transfer or cause the transfer of such interest for
an equivalent beneficial interest in such Restricted Global Security. Upon
receipt by the Trustee, as transfer agent of (i) instructions given in
accordance with the procedures of Euroclear or Cedel and the Depositary, as
the case may be, from or on behalf of a beneficial owner of an interest in
33
the Regulation S Global Security directing the Trustee, as transfer agent,
to credit or cause to be credited a beneficial interest in the Restricted
Global Security in an amount equal to the beneficial interest in the
Regulation S Global Security to be exchanged or transferred, (ii) a written
order given in accordance with the procedures of Euroclear or Cedel and the
Depositary, as the case may be, containing information regarding the
account with the Depositary to be credited with such increase and the name
of such account and (iii) prior to the expiration of the Restricted Period,
a certificate, upon which the Trustee may conclusively rely, given by the
holder of such beneficial interest and stating that the person transferring
such interest in such Regulation S Global Security reasonably believes that
the person acquiring such interest in the Restricted Global Security is a
QIB and is obtaining such beneficial interest in a transaction meeting the
requirements of Rule 144A and any applicable securities laws of any state
of the United States or any other jurisdiction, the Trustee, as transfer
agent, shall promptly deliver (via DWAC) appropriate instructions to the
Depositary, its nominee, or the custodian for the Depositary, as the case
may be, to reduce or reflect on its records a reduction of the Regulation S
Global Security by the aggregate principal amount of the beneficial
interest in such Regulation S Global Security to be exchanged or
transferred, and the Trustee, as transfer agent, shall promptly deliver
(via DWAC) appropriate instructions to the Depositary, its nominee, or the
custodian for the Depositary, as the case may be, concurrently with such
reduction, to increase or reflect on its records an increase of the
principal amount of the Restricted Global Security by the aggregate
principal amount of the beneficial interest in the Regulation S Global
Security to be so exchanged or transferred, and to credit or cause to be
credited to the account of the person specified in such instructions a
beneficial interest in the Restricted Global Security equal to the
reduction in the principal amount of the Regulation S Global Security.
After the expiration of the Restricted Period (as defined below), the
certification requirement set forth in clause (iii) of the second sentence
of the above paragraph will no longer apply to such exchanges and
transfers.
If a holder of a definitive Security wishes at any time to
exchange its Security for a beneficial interest in any Global Security (or
vice versa), or to transfer its definitive Security to a person who wishes
to take delivery thereof in the form of a beneficial interest in a Global
Security (or vice versa), such Securities and beneficial interests may be
exchanged or transferred for one another only in accordance with such
procedures as are substantially consistent with the provisions of the two
preceding paragraphs (including the certification requirements intended to
ensure that such exchanges or transfers comply with Rule 144, Rule 144A or
Regulation S, as the case may be) and as may be from time to time adopted
by the Company and the Trustee.
34
Any beneficial interest in one of the Global Securities that is
transferred to a person who takes delivery in the form of an interest in
the other Global Security will, upon transfer, cease to be an interest in
such Global Security and become an interest in the other Global Security
and, accordingly, will thereafter be subject to all transfer restrictions
and other procedures applicable to beneficial interests in such other
Global Security for as long as it remains such an interest.
Prior to or on the 40th day after the later of the commencement
of the offering of the Capital Securities and the Closing Date (the
"Restricted Period"), beneficial interests in a Regulation S Global
Security may only be held through Morgan Guaranty Trust Company of New
York, Brussels Office, as operator of Euroclear or Cedel or another agent
member of Euroclear and Cedel acting for and on behalf of them, unless
delivery is made through the Restricted Global Security in accordance with
the certification requirements hereof. During the Restricted Period,
interests in the Regulation S Global Security, if any, may be exchanged for
interests in the Restricted Global Security or for definitive Securities
only in accordance with the certification requirements described above.
ARTICLE FOUR
SATISFACTION AND DISCHARGE; DEFEASANCE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect (except as to
any surviving rights of registration of transfer or exchange of Securities
herein expressly provided for), and the Trustee, on written demand of and
at the expense of the Company, shall execute instruments supplied by the
Company acknowledging satisfaction and discharge of this Indenture, when
(i) either (A) all Securities theretofore authenticated and delivered
(other than (1) Securities which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 306 and (2)
Securities for whose payment money has theretofore been deposited in trust
or segregated and held in trust by the Company and thereafter repaid to the
Company or discharged from such trust, as provided in Section 1003) have
been delivered to the Trustee for cancellation; or (B) all such Securities
not theretofore delivered to the Trustee for cancellation (1) have become
due and payable, or (2) will become due and payable at their Maturity
within one year, or (3) if redeemable at the option of the Company, are to
be called for redemption within one year under arrangements satisfactory to
the Trustee for the giving of notice of redemption by the Trustee in the
name, and of the expense, of the Company and the Company, in the case of
(1), (2) or (3) above, has deposited or caused to be deposited with the
Trustee as funds in trust for the purpose an amount sufficient to pay and
discharge the entire indebtedness on such Securities not theretofore
35
delivered to the Trustee for cancellation, for principal and interest to
the date of such deposit (in the case of Securities which have become due
and payable) or to the Maturity or Redemption Date, as the case may be;
(ii) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and (iii) the Company has delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607 and, if money
shall have been deposited with the Trustee pursuant to subclause (B) of
clause (i) of this Section, the obligations of the Trustee under Section
402 and the last paragraph of Section 1003 shall survive.
SECTION 402. Legal Defeasance.
In addition to discharge of this Indenture pursuant to Section
401, in the case of any Securities with respect to which the exact amount
described in subparagraph (a) of Section 404 can be determined at the time
of making the deposit referred to in such subparagraph (a), the Company
shall be deemed to have paid and discharged the entire indebtedness on all
the Securities as provided in this Section on and after the date the
conditions set forth in Section 404 are satisfied, and the provisions of
this Indenture with respect to the Securities shall no longer be in effect
(except as to (i) rights of registration of transfer and exchange of
Securities, (ii) substitution of mutilated, defaced, destroyed, lost or
stolen Securities, (iii) maintenance of a Paying Agent, (iv) rights of
Holders of Securities to receive, solely from the trust fund described in
subparagraph (a) of Section 404, payments of principal thereof and
interest, if any, thereon upon the original stated due dates therefor (but
not upon acceleration), (v) the rights, obligations, duties and immunities
of the Trustee hereunder, (vi) this Section 402 and (vii) the rights of the
Holders of Securities as beneficiaries hereof with respect to the property
so deposited with the Trustee payable to all or any of them) (hereinafter
called "Legal Defeasance"), and the Trustee, at the cost and expense of the
Company, shall execute proper instruments acknowledging the same.
SECTION 403. Covenant Defeasance.
In the case of any Securities with respect to which the exact
amount described in subparagraph (a) of Section 404 can be determined at
the time of making the deposit referred to in such subparagraph (a), (x)
the Company shall be released from its obligations under any covenants
specified in or pursuant to this Indenture (except as to (i) rights of
registration of transfer and exchange of Securities, (ii) substitution of
mutilated, defaced, destroyed, lost or stolen Securities, (iii) maintenance
of a Paying Agent, (iv) rights of Holders of Securities to receive, from
the Company pursuant to Section 1001, payments of principal thereof and
36
interest, if any, thereon upon the original stated due dates therefor (but
not upon acceleration), (v) the rights, obligations, duties and immunities
of the Trustee hereunder and (vi) the rights of the Holders of Securities
as beneficiaries hereof with respect to the property so deposited with the
Trustee payable to all or any of them), and (y) the occurrence of any event
specified in Section 501(3) (with respect to any of the covenants specified
in or pursuant to this Indenture) shall be deemed not to be or result in an
Event of Default, in each case with respect to the Outstanding Securities
as provided in this Section on and after the date the conditions set forth
in Section 404 are satisfied (hereinafter called "Covenant Defeasance"),
and the Trustee, at the cost and expense of the Company, shall execute
proper instruments acknowledging the same. For this purpose, such Covenant
Defeasance means that the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any
such covenant (to the extent so specified in the case of Section 501(3)),
whether directly or indirectly by reason of any reference elsewhere herein
to any such covenant or by reason of any reference in any such covenant to
any other provision herein or in any other document, but the remainder of
this Indenture and the Securities shall be unaffected thereby.
SECTION 404. Conditions to Legal Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either
Section 402 or 403 to the Outstanding Securities:
(a) with reference to Section 402 or 403, the Company has
irrevocably deposited or caused to be irrevocably deposited with the
Trustee as funds in trust, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of Securities (i) cash in
an amount, (ii) direct obligations of the United States of America, backed
by its full faith and credit ("U.S. Government Obligations"), maturing as
to principal and interest, if any, at such times and in such amounts as
will ensure the availability of cash, (iii) obligations of a Person
controlled or supervised by and acting as an agency or instrumentality of
the United States of America the timely payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of
America, or (iv) a combination thereof, in each case sufficient, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to
pay and discharge the principal of and interest, if any, on all Securities
on each date that such principal or interest, if any, is due and payable;
(b) in the case of Legal Defeasance under Section 402, the
Company has delivered to the Trustee an Opinion of Counsel based on the
fact that (i) the Company has received from, or there has been published
by, the Internal Revenue Service a ruling or (ii), since the date hereof,
there has been a change in the applicable U.S. federal income tax law, in
either case to the effect that, and such opinion shall confirm that, the
37
Holders of the Securities of such series will not recognize income, gain or
loss for federal income tax purposes as a result of such deposit and Legal
Defeasance and will be subject to 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 deposit and Legal Defeasance had not occurred;
(c) in the case of Covenant Defeasance under Section 403, the
Company has delivered to the Trustee an Opinion of Counsel to the effect
that, and such opinion shall confirm that, the Holders of the Securities
will not recognize income, gain or loss for federal income tax purposes as
a result of such deposit and Covenant Defeasance and will be subject to
federal income tax on the same amount in the same manner and at the same
times as would have been the case if such deposit and Covenant Defeasance
had not occurred;
(d) such Legal Defeasance or Covenant Defeasance will not result
in a breach or violation of, or constitute a default under, any agreement
or instrument to which the Company is a party or by which it is bound; and
(e) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent contemplated by this provision have been complied with.
SECTION 405. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003,
all money and U.S. Government Obligations deposited with the Trustee
pursuant to Section 401 shall be held in trust and such money and all money
from such U.S. Government Obligations shall be applied by it, in accordance
with the provisions of the Securities and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting
as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal and interest for whose payment such
money and U.S. Government Obligations has been deposited with the Trustee.
SECTION 406. Indemnity for U.S. Government Obligations.
The Company shall pay and indemnify the Trustee and its officers,
directors, employees and agents against any tax, fee or other charge
imposed on or assessed against the U.S. Government Obligations deposited
pursuant to Section 404 or the principal or interest received in respect of
such obligations other than any such tax, fee or other charge that by law
is for the account of the Holders of Outstanding Securities.
38
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default" wherever used herein, means any one of the
following events that has occurred and is continuing (whatever the reason
for such Event of Default and whether it shall be occasioned by the
provisions of Article Eleven or be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or
governmental body):
(i) failure for 30 days to pay any interest on the Securities
when due (subject to the deferral of any due date in the case of an
Extension Period); or
(ii) failure to pay any principal on the Securities when due,
whether at Maturity, upon redemption, by declaration of acceleration or
otherwise;
(iii) failure to observe or perform in any material respect any
other covenant herein that continues 90 days after written notice to the
Company from the Trustee or the holders of at least 25% in aggregate
principal amount of the Outstanding Securities; or
(iv) entry by a court having jurisdiction in the premises of (A)
a decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or (B) a decree or order
adjudging the Company a bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company under any applicable Federal or
State law, at appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company or of
substantially all of the property of the Company, or ordering the winding
up or liquidation of its affairs, and the continuance of any such decree or
order for relief or any such other decree or order unstayed and in effect
for a period of 90 consecutive days; or
(v) (i) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or (ii) the consent by the Company
or to the entry of a decree or order for relief in respect of itself in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or to the
39
commencement of any bankruptcy or insolvency case or proceeding against the
Company, or (iii) the filing by the Company of a petition or answer or
consent seeking reorganization or relief under any applicable Federal or
State law, or (iv) the consent by the Company to the filing of such
petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of all or substantially all of the property of
the Company, or (v) the making by the Company of an assignment for the
benefit of creditors.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default occurs and is continuing, then and in
every such case the Trustee or the Holders of not less than 25% in
aggregate principal amount of the Outstanding Securities shall have the
right to declare the principal of and the interest on all the Securities
and any other amounts payable hereunder to be due and payable immediately,
PROVIDED, HOWEVER, that if upon an Event of Default, the Trustee or the
Holders of at least 25% in aggregate principal amount of the Outstanding
Securities fail to declare the payment of all amounts on the Securities to
be immediately due and payable, the holders of at least 25% in aggregate
liquidation amount of Capital Securities then outstanding shall have such
right, by a notice in writing to the Company (and to the Trustee if given
by Holders or the holders of Capital Securities) and upon any such
declaration such principal and all accrued interest shall become
immediately due and payable.
At any time after such a declaration of acceleration has been
made and before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter provided in this Article, the
Holders of a majority in aggregate principal amount of the Outstanding
Securities, by written notice to the Company and the Trustee, may rescind
and annul such declaration and its consequences if (i) the Company has paid
or deposited with the Trustee a sum sufficient to pay (A) all overdue
interest on all Securities, (B) the principal of (and premium, if any, on)
any Securities which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate borne by the Securities, (C)
to the extent that payment of such interest is lawful, interest upon
overdue interest at the rate borne by the Securities, and (D) all sums paid
or advanced by the Trustee hereunder and the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and
counsel; and (ii) all Events of Default, other than the non-payment of the
principal of Securities which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513. Should
the Holders of such Securities fail to annul such declaration and waive
such default, the holders of a majority in aggregate liquidation amount of
the Capital Securities then outstanding shall have such right. No such
40
rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee
The Company covenants that if
(i) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(ii) default is made in the payment of the principal of any
Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of
the Holders of such Securities, the whole amount then due and payable on
such Securities for principal and interest, and, to the extent that payment
thereof shall be legally enforceable, interest on any overdue principal and
on any overdue 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 the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and
counsel.
If an Event of Default occurs and is continuing, the Trustee may
in its discretion proceed to protect and enforce its rights and the rights
of the Holders by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any such rights, whether
for the specific enforcement of any covenant or agreement in this Indenture
or in aid of the exercise of any power granted herein, or to enforce any
other proper remedy.
SECTION 504. Trustee may File Proofs of Claim.
In case of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other similar
judicial proceeding relative to the Company (or any other obligor upon the
Securities), its property or its creditors, the Trustee shall be entitled
and empowered, by intervention in such proceeding or otherwise, to take any
and all actions authorized under the Trust Indenture Act in order to have
claims of the Holders and the Trustee allowed in any such proceeding. In
particular, the Trustee shall be authorized to collect and receive any
moneys or other property payable or deliverable on any such claims and to
distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of
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such payments directly to the Holders, to pay to the Trustee any amount due
it for the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, and any other amounts due the Trustee
under Section 607. No provision of this Indenture shall be deemed to
authorize the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof or
to authorize the Trustee to vote in respect of the claim of any Holder in
any such proceeding.
SECTION 505. Trustee may Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trust without the
possession of any of the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee of any express trust,
and any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, be for the ratable benefit of the Holders
of the Securities in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected.
Subject to Article Eleven, any money collected by the Trustee
pursuant to this Article shall be applied in the following order, at the
date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal, upon presentation of the Securities and the
notation thereon of the payment, if only partially paid, and upon surrender
thereof, if fully paid;
FIRST: To the payment of all amounts due the Trustee under
Section 607; and
SECOND: To the payment of the amounts then due and unpaid for
principal of and interest on the Securities in respect of which or for the
benefit of which such money has been collected, ratably, without preference
or priority of any kind, according to the amounts due and payable as such
Securities for principal and interest, respectively.
THIRD: To the Company, if any balance shall remain.
SECTION 507. Limitation on Suits.
No Holder of any Security shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy
hereunder, unless
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(i) such Holder has previously given written notice to the
Trustee of a continuing Event of Default;
(ii) the Holders of not less than 25% in principal amount of the
Outstanding Securities shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name
as Trustee hereunder;
(iii) such Holder or Holders have offered to the Trustee indemnity
satisfactory to it against the costs, expenses and liabilities to be
incurred in compliance with such request;
(iv) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding;
and
(v) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Securities; it being understood and
intended that no one or more Holders shall have any right in any manner
whatever by virtue of, or by availing of, any provision of this Indenture
to affect, disturb or prejudice the rights of any other Holders, or to
obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal and
Interest; Capital Security Holders' Rights.
Notwithstanding any other provision in this Indenture, the Holder
of any Security shall have the right, which is absolute and unconditional,
to receive payment of the principal of and (subject to Section 307)
interest on such Security on the Stated Maturity expressed in such Security
(or, in the case of redemption, on the Redemption Date) and to institute
suit for the enforcement of any such payment, and such rights shall not be
impaired without the consent of such Holder.
If an Event of Default constituting the failure to pay interest
or principal on the Securities on the date such interest or principal is
otherwise payable has occurred and is continuing, then a holder of Capital
Securities may directly institute a proceeding for enforcement of payment
to such holder directly of the principal of or interest on the Securities
having a principal amount equal to the aggregate liquidation amount of the
Capital Securities as such holder on or after the respective due date
specified in the Securities. The Company may not amend this Section
without the prior written consent of the holders of all of the Capital
Securities. Notwithstanding any payment made to such holder of Capital
Securities by the Company in connection with such a Direct Action (as
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defined in the Declaration), the Company shall remain obligated to pay the
principal of or interest on the Securities held by the Trust or the
Property Trustee and the Company shall be subrogated to the rights of the
holder of such Capital Securities with respect to payments on the Capital
Securities to the extent of any payments made by the Company to such holder
in any Direct Action. A holder of Capital Securities will not be able to
exercise directly any other remedy available to the Holders of the
Securities.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has
been discontinued or abandoned for any reason, or has been determined
adversely to the Trustee or to such Holder, then and in every such case,
subject to any determination in such proceeding, the Company, the Trustee
and the Holders shall be restored severally and respectively to their
former positions hereunder and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had
been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 306, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders is intended to be exclusive of
any other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder,
or otherwise, shall not prevent the concurrent assertion or employment of
any other appropriate right or remedy.
SECTION 511. Delay or Omission not Waiver.
No delay or omission of the Trustee or of any Holder of any
Security to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such
Event of Default or an acquiescence therein. Every right and remedy given
by this Article or by law to the Trustee or to the Holders may be exercised
from time to time, and as often as may be deemed expedient, by the Trustee
or by the Holders, as the case may be.
SECTION 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities shall have the right to direct the time, method and place of
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conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee, provided that
(i) such direction shall not be in conflict with any rule of law
or with this Indenture; and
(ii) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
Subject to Sections 902 and 1008 hereof, the Holders of not less
than a majority in principal amount of the Outstanding Securities may on
behalf of the Holders of all the Securities waive any past default
hereunder and its consequences, except a default
(i) in the payment of the principal of or interest on any
Security (unless such default has been cured and a sum sufficient to pay
all matured installments of interest and principal due otherwise than by
acceleration has been deposited with the Trustee); or
(ii) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security affected;
PROVIDED, HOWEVER, that such waiver or modification to such waiver shall
not be effective until the holders of a majority in liquidation preference
of Capital Securities shall have consented to such waiver or modification
to such waiver; PROVIDED FURTHER, that if the consent of the Holder of each
of the Outstanding Securities is required, such waiver shall not be
effective until each holder of the Capital Securities shall have consented
to such waiver.
Upon any such waiver, such default shall cease to exist,
effective as of the date specified in such waiver (and effective
retroactively to the date of default, if so specified) and any Event of
Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, a court may require any party
litigant in such suit to file an undertaking to pay the costs of such suit,
and may assess costs against any such party litigant, in the manner and to
the extent provided in the Trust Indenture Act; PROVIDED, that neither this
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Section nor the Trust Indenture Act shall be deemed to authorize any court
to require such an undertaking or to make such an assessment in any suit
instituted by the Company or the Trustee or in any suit for the enforcement
of the right to receive the principal of and interest on any Security.
SECTION 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension
law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and the Company
(to the extent that it may lawfully do so) hereby expressly waives all
benefit or advantage of any such law and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee,
but will suffer and permit the execution of every such power as though no
such law had been enacted.
ARTICLE SIX
TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as
provided by the Trust Indenture Act. Notwithstanding the foregoing, no
provision of this Indenture shall require the Trustee to expend or risk its
own funds or otherwise incur any financial liability in the performance of
any of its duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that repayment of
such funds or indemnity satisfactory to it against such risk or liability
is not reasonably assured to it. Whether or not therein expressly so
provided, every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
The Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction
of the Holders of a majority in principal amount of the Outstanding
Securities, relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust
or power conferred upon the Trustee, under this Indenture with respect to
the Securities.
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SECTION 602. Notice of Defaults.
The Trustee shall give the Holders notice of any default known to
it hereunder as and to the extent provided by the Trust Indenture Act;
PROVIDED, HOWEVER, that except in the case of a default in the payment of
the principal of or interest on any Security, 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 determine that the
withholding of such notice is in the interests of the Holders of
Securities; PROVIDED, FURTHER, that in the case of any default of the
character specified in Section 501(3), no such notice to Holders shall be
given until at least 30 days after the occurrence thereof. For the purpose
of this Section, the term "default" means any event which is, or after
notice or lapse of time or both would become, an Event of Default. For
purposes of this Section, the Trustee shall not be deemed to have knowledge
of a default unless a Responsible Officer of the Trustee has actual
knowledge of such default or has received written notice of such default in
the manner contemplated by Section 105.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(i) the Trustee may conclusively rely and shall be protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document believed by it in good faith to be genuine and to
have been signed or presented by the proper party or parties;
(ii) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order and
any resolution of the Board of Directors shall be sufficiently evidenced by
a Board Resolution;
(iii) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, conclusively rely upon an Officers' Certificate;
(iv) the Trustee may consult with counsel of its choice (and such
counsel may be counsel to the Company or any of its Affiliates and may
include any of its employees) and the advice of such counsel or any Opinion
of Counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon;
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(v) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities which might
be incurred by it in compliance with such request or direction;
(vi) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the
Company, personally or by agent or attorney;
(vii) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder; and
(viii) any application by the Trustee for written instructions from
the Company may, at the option of the Trustee, set forth in writing any
action proposed to be taken or omitted by the Trustee under this Indenture
and the date on and/or after which such action shall be taken or such
omission shall be effective. The Trustee shall not be liable to the Company
for any action taken by, or omission of, the Trustee in accordance with a
proposal included in such application on or after the date specified in
such application (which date shall not be less than five Business Days
after the date any officer of the Company actually receives such
application, unless any such officer shall have consented in writing to any
earlier date) unless prior to taking any such action (or the effective date
in the case of an omission), the Trustee shall have received written
instructions in response to such application specifying the action to be
taken or omitted.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements
of the Company, and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities, the Trustee shall not
be accountable for the use or application by the Company of Securities or
the proceeds thereof.
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SECTION 605. Trustee and Other Agents may Hold Securities.
The Trustee, any Paying Agent, any Security Registrar, or any
other agent of the Company, in its individual or any other capacity, may
become the owner or pledgee of Securities and, subject to Sections 608 and
613, may otherwise deal with the Company with the same rights it would have
if it were not Trustee, Paying Agent, Security Registrar, or such other
agent. Money held by the Trustee in trust hereunder shall not be invested
by the Trustee pending distribution thereof to the holders of the
Securities.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The
Trustee shall be under no liability for interest on any money received by
it hereunder except as otherwise agreed in writing with the Company.
SECTION 607. Compensation; Reimbursement; and Indemnity.
The Company, as issuer of the Securities, agrees, except as
provided in any written agreement between the Company and the
Trustee,
(i) to pay to the Trustee from time to time such compensation as
the Company and the Trustee shall from time to time agree in writing for
all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(ii) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(iii) to indemnify each of the Trustee and any predecessor Trustee
and their respective officers, directors, employees and agents, for, and to
hold it harmless against, any and all loss, damage, claim, liability or
expense, including taxes (other than taxes based on the income, revenues or
gross receipts of the Trustee) incurred without negligence or bad faith on
its part, arising out of or in connection with the acceptance or
administration of this trust or the trusts hereunder, including the costs
and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder.
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The obligations of the Company under this Section to compensate
the Trustee, to pay or reimburse the Trustee for expenses, disbursements
and advances and to indemnify and hold harmless the Trustee shall
constitute additional indebtedness hereunder and shall survive the
satisfaction and discharge of this Indenture. As security for the
performance of such obligations of the Company, the Trustee shall have a
lien prior to the Securities upon all property and lands held or collected
by the Trustee as such, except funds held in trust for the payment of
principal of (and premiums, if any, on) or interest on particular
Securities.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 501(iv) or Section
501(v), the expenses (including the reasonable charges and expenses of its
agents and 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 or the resignation or removal of the Trustee.
SECTION 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within
the meaning of the Trust Indenture Act, the Trustee shall either eliminate
such interest or resign, to the extent and in the manner provided by, and
subject to the provisions of, the Trust Indenture Act and this Indenture.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
Person that is eligible pursuant to the Trust Indenture Act to act as such
and has a combined capital and surplus of at least $50,000,000 and has its
Corporate Trust Office in New York, New York. If such Person publishes
reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such Person
shall be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment
of a successor Trustee pursuant to this Article shall become effective
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until the acceptance of appointment by the successor Trustee under Section
611.
(b) The Trustee may resign at any time by giving written notice
thereof to the Company. If an instrument of acceptance by a successor
Trustee shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a
successor Trustee.
(c) The Trustee may be removed at any time by Act of the Holders
of a majority in principal amount of the Outstanding Securities, delivered
to the Trustee and to the Company. If an instrument of acceptance by a
successor Trustee shall not have been delivered to the Trustee within 30
days after the giving of such notice of removal, the removed Trustee may
petition any court of competent jurisdiction for the appointment of a
successor Trustee.
(d) If at any time:
(i) the Trustee shall fail to comply with Section 608 after
written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Security for at least six months, or
(ii) the Trustee shall cease to be eligible under Section
609 and shall fail to resign after written request therefor by the Company
or by any such Holder, or
(iii) the Trustee shall become incapable of acting or shall
be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then, in any such case, (i)
the Company may remove the Trustee, or (ii) subject to Section 514, any
Holder who has been a bona fide Holder of a Security for at least six
months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of Trustee for any
cause, the Company shall promptly appoint a successor Trustee. If, within
one year after such resignation, removal or incapability, or the occurrence
of such vacancy, a successor Trustee shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities
delivered to the Company and the Retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment, become
the successor Trustee and supersede the successor Trustee appointed by the
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Company. If no successor Trustee shall have been so appointed by the
Company or the Holders and accepted appointment in the manner hereinafter
provided, any Holder who has been a bona fide Holder of a Security for at
least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the appointment
of a successor Trustee.
(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee to all
Holders in the manner provided in Section 106. Each notice shall include
the name of the successor Trustee and the address of its Corporate Trust
Office.
SECTION 611. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested
with all the rights, powers, trusts and duties of the retiring Trustee;
PROVIDED that, on request of the Company or the successor Trustee, such
retiring Trustee shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor Trustee all the rights, powers
and trusts of the retiring Trustee and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such
retiring Trustee hereunder. Upon acceptance of appointment by a successor
Trustee as provided in this Section 611, the Company shall mail notice of
the succession of such Trustee hereunder to the Holders of the Securities
as they appear on the Security Register. Upon request of any such
successor Trustee, the Company shall execute any and all instruments for
more fully and certainly vesting in and confirming to such successor
Trustee all such rights, powers and trusts.
No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
The Trustee shall not be liable for the acts or omissions of any
successor Trustee. The Trustee shall be paid all amounts owed to it upon
its removal.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party,
or any corporation succeeding to all or substantially all the corporate
52
trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided such corporation shall be otherwise qualified and
eligible under this Article, without the execution or filing of any paper
or any further act on the part of any of the parties hereto. In case any
Securities shall have been authenticated, but not made available for
delivery, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and make available for delivery the Securities so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or becomes a creditor of the
Company (or any other obligor upon the Securities), the Trustee shall be
subject to the provisions of the Trust Indenture Act regarding the
collection of claims against the Company (or any such other obligor).
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(i) semi-annually not later than June 30 and December 31 in each year, a
list, in such form as the Trustee may reasonably require, of the names and
addresses of the Holders to the extent the Company has knowledge thereof as
of a date not more than 15 days prior to the delivery thereof and (ii) at
such other times as the Trustee may request in writing, within 30 days
after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such
list is furnished, excluding from any such list names and addresses
received by the Trustee in its capacity as Security Registrar.
SECTION 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the
most recent list furnished to the Trustee as provided in Section 701, and
the names and addresses of Holders received by the Trustee in its capacity
as Security Registrar. The Trustee may destroy any list furnished to it as
provided in Section 701 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and
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the corresponding rights and duties of the Trustee, shall be as provided by
the Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor
the Trustee nor any officer, director, employee or agent of either of them
shall be held accountable by reason of any disclosure of information as to
names and addresses of Holders made pursuant to the Trust Indenture Act.
SECTION 703. Reports by Trustee.
(a) The Trustee shall transmit to Holders no later than 60 days after
May 15 of each year commencing in 1997 such reports concerning the Trustee
and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant
thereto.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange
upon which the Securities are listed, with the Commission and with the
Company. The Company will notify the Trustee in writing when the
Securities are listed on any stock exchange.
SECTION 704. Reports by Company.
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and
such summaries thereof, as may be required pursuant to the Trust Indenture
Act at the times and in the manner provided pursuant to such Act; PROVIDED
that any such information, documents or reports required to be filed with
the Commission pursuant to Section 13(a) or 15(d) of the Securities and
Exchange Act of 1934 shall be filed with the Trustee within 15 days after
the same is so required to be filed with the Commission. 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).
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ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other
Person or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, unless:
(i) the Person formed by such consolidation or into which the
Company is merged or the Person that acquires by conveyance or transfer, or
which leases, the properties and assets of the Company substantially as an
entirety shall be a corporation, partnership or trust, shall be organized
and existing under the laws of the United States of America or any State or
the District of Columbia, and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the principal
of (and premium, if any) and interest (including any additional interest)
on all the Securities and the performance of every covenant of this
Indenture on the part of the Company to be performed or observed;
(ii) immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of time, or
both, would become an Event of Default, shall have happened and be
continuing;
(iii) for so long as Securities registered on the Securities
Register in the name of the Trust (or the Property Trustee) are
outstanding, such consolidation, merger, conveyance, transfer or lease is
permitted under the Declaration and the Guarantee and does not give rise to
any breach or violation of the Declaration or the Guarantee;
(iv) any such lease shall provide that it will remain in effect
so long as any Securities are Outstanding; and
(v) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such consolidation,
merger, conveyance, transfer or lease and any such supplemental indenture
complies with this Article and that all conditions precedent herein
provided for relating to such transaction have been complied with; and the
Trustee, subject to Section 601, may rely upon such Officers' Certificate
and Opinion of Counsel as conclusive evidence that such transaction
complies with this Section 801.
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SECTION 802. Successor Person Substituted.
Upon any consolidation or merger by the Company with or into any
other Person, or any conveyance, transfer or lease by the Company of its
properties and assets substantially as an entirety to any Person in
accordance with Section 801, the successor Person formed by such
consolidation or into which the Company is merged or to which such
conveyance, transfer or lease is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this
Indenture with the same effect as if such successor Person had been named
as the Company herein; and, in the event of any such conveyance, transfer
or lease the Company shall be discharged from all obligations and covenants
under the Indenture and the Securities and may be dissolved and liquidated.
Such successor Person may cause to be signed, and may issue
either in its own name or in the name of the Company, any or all of the
Securities issuable hereunder which theretofore shall not have been signed
by the Company and delivered to the Trustee; 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 shall,
upon receipt of a Company Order for the authentication, authenticate and
shall make available for delivery any Securities which previously shall
have been signed and delivered by the officers of the Company to the
Trustee for authentication pursuant to such provisions and any Securities
which such successor Person thereafter shall cause to be signed and
delivered to the Trustee on its behalf for the purpose pursuant to such
provisions. 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.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized
by a Board Resolution, and the Trustee, at any time and from time to time,
may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(i) to evidence the succession of another Person to the Company
and the assumption by any such successor of the covenants of the Company
herein and in the Securities; or
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(ii) to add to the covenants of the Company for the benefit of
the Holders, or to surrender any right or power herein conferred upon the
Company; or
(iii) to cure any ambiguity or defect, to correct or supplement
any provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not be inconsistent with
the provisions of this Indenture, PROVIDED that such action pursuant to
this clause (iii) shall not adversely affect the interests of the Holders
of the Securities or, so long as any of the Capital Securities shall remain
outstanding, the holders of the Capital Securities; or
(iv) to comply with any requirement of the Commission in order to
effect or maintain the qualification of this Indenture under the Trust
Indenture Act.
SECTION 902. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities, by Act of said Holders
delivered to the Company and the Trustee, the Company, when authorized by a
Board Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders under this Indenture;
PROVIDED, HOWEVER, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Security affected thereby,
(i) change the Stated Maturity of, the principal of, or any
installment of interest on, any Security, or reduce the principal amount
thereof or the rate of interest thereon or extend the time of payment of
interest thereon (except such extension as is contemplated hereby), or
change the place of payment where, or the coin or currency in which, any
Security or interest thereon is payable, or impair the right to institute
suit for the enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption, on or after the Redemption
Date), or modify the provisions of this Indenture with respect to the
subordination of the Securities in a manner adverse to the Holders,
(ii) reduce the percentage in principal amount of the
Outstanding Securities, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or
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(iii) modify any of the provisions of this Section, Section
513 or Section 1008, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby; PROVIDED, that, so long as any of the Capital Securities remains
outstanding, no such amendment shall be made that adversely affects the
holders of the Capital Securities, and no termination of this Indenture
shall occur, and no waiver of any Event of Default or compliance with any
covenant under this Indenture shall be effective, without the prior consent
of the holders of at least a majority of the aggregate liquidation
preference of the outstanding Capital Securities unless and until the
principal of and any premium on the Securities and all accrued and unpaid
interest thereon have been paid in full.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the
substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trust created by, any
supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be
entitled to receive, and (subject to Section 601) shall be fully protected
in relying upon, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into such supplemental
indenture which affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all
purposes; and every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.
SECTION 905. Conformity With Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required
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by the Trustee, bear a notation in form approved by the Trustee as to any
matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities so modified as to conform, in the opinion of
the Trustee and the Company, to any such supplemental indenture may be
prepared and executed by the Company and authenticated, upon receipt of a
Company Order for the authentication, and made available for delivery by
the Trustee in exchange for Outstanding Securities.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal and Interest.
The Company will duly and punctually pay the principal of and
interest on the Securities in accordance with the terms of the Securities
and this Indenture and comply with all other terms and conditions and
agreements contained herein.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in The City of New York an office or
agency (which initially shall be the Corporate Trust Office of the Trustee)
where Securities may be presented or surrendered for registration of
transfer or exchange, where Securities may be surrendered for conversion
and where notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served. The Company will give prompt
written notice to the Trustee of the location, and any change in location,
of such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices
and demands may be made or served at the Corporate Trust Office of the
Trustee, and the Company hereby appoints the Trustee as its agent to
receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more
other offices or agencies in the United States where the Securities may be
presented or surrendered for any or all such purposes and may from time to
time rescind such designations; PROVIDED, HOWEVER, that no such designation
or rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in the United States for such purposes. The
Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such
other office or agency.
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SECTION 1003. Money for Security Payments to be Held in Trust.
If the Company shall at any time act as its own Paying Agent, it
will, on, or at the option of the Company, before each due date of the
principal of or interest on any of the Securities, segregate and hold in
trust for the benefit of the Persons entitled thereto a sum sufficient to
pay the principal or interest so becoming due until such sums shall be paid
to such Persons or otherwise disposed of as herein provided and will
promptly notify the Trustee in writing of its action or failure so to act.
In such case the Company shall not invest the amount so segregated and held
in trust pending the distribution thereof.
Whenever the Company shall have one or more Paying Agents, it
will, on or prior to each due date of the principal of or interest on any
Securities, deposit with a Paying Agent a sum sufficient to pay such
amount, such sum to be held as provided by the Trust Indenture Act, and
(unless such Paying Agent is the Trustee) the Company will promptly notify
the Trustee in writing of its action or failure so to act; PROVIDED,
HOWEVER, that any such deposit on a due date shall be initiated prior to
12:00 noon (New York time) on a Business Day prior to the due date in
same-day funds.
The Company will cause each Paying Agent other than the Trustee
to execute and deliver to the Trustee an instrument in which such Paying
Agent shall agree with the Trustee, subject to the provisions of this
Section, that such Paying Agent will (i) comply with the provisions of the
Trust Indenture Act applicable to it as a Paying Agent and (ii) during the
continuance of any default by the Company (or any other obligor upon the
Securities) in the making of any payment in respect of the Securities, upon
the written request of the Trustee, forthwith pay to the Trustee all sums
held in trust by such Paying Agent as such.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay,
or by Company Order direct any Paying Agent to pay, to the Trustee all sums
held in the trust by the Company or such Paying Agent, such sums to be held
by the Trustee upon the same trusts as those upon which such sums were held
by the Company or such Paying Agent; and, upon such payment by any Paying
Agent to the Trustee, such Paying Agent shall be released from all further
liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal or interest
that has become due and payable shall be paid to the Company on Company
Request, or (if then held by the Company) shall be discharged from such
trust, if such principal or interest has not been claimed by the Holder of
the Security upon which such payments are due within one year of the date
such principal and interest became due and payable; and the Holder of such
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Security shall thereafter, as an unsecured general creditor, look only to
the Company for payment thereof, and all liability of the Trustee and its
officers, directors, employees and agents or such Paying Agent and its
officers, directors, employees and agents with respect to such trust money,
and all liability of the Company and its officers, directors, employees and
agents as trustee thereof, shall thereupon cease.
SECTION 1004. Statements by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after
the end of each fiscal year of the Company ending after the date hereof, an
Officers' Certificate, stating whether or not to the best knowledge of the
signers thereof the Company is in default in the performance and observance
of any of the material terms, provisions and conditions of this Indenture
(without regard to any period of grace or requirement of notice provided
hereunder) and, if the Company shall be in default, specifying all such
defaults and the nature and status thereof of which they may have
knowledge.
SECTION 1005. Existence.
Subject to Article Eight, the Company will do or cause to be done
all things necessary to preserve and keep in full force and effect its
existence, rights (charter and statutory) and franchises; PROVIDED,
HOWEVER, that the Company shall not be required to preserve any such right
or franchise if the Company shall determine that the preservation thereof
is no longer desirable in the conduct of the business of the Company and
that the loss thereof is not disadvantageous in any material respect to the
Holders and, while any Capital Securities are outstanding, the holders of
the Capital Securities.
SECTION 1006. Maintenance of Properties.
The Company will cause all of its properties used or useful in
the conduct of its business or the business of any Subsidiary to be
maintained and kept in good condition, repair and working order and
supplied with all necessary equipment and will cause to be made all
necessary repairs, renewals, replacements and improvements thereof, all as
in the judgment of the Company may be necessary so that the business
carried on in connection therewith may be properly and advantageously
conducted at all times; PROVIDED, HOWEVER, that nothing in this Section
shall prevent the Company from discontinuing the operation or maintenance
of any such properties if such discontinuance is, in the judgment of the
Company, desirable in the conduct of its business or the business of any
Subsidiary and not disadvantageous in any material respect to the Holders.
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SECTION 1007. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (i) all taxes,
assessments and governmental charges levied or imposed upon the Company or
any Subsidiary or upon the income, profits or property of the Company or
any Subsidiary, and (ii) all lawful claims for labor, materials and
supplies which, if unpaid, might by law become a lien upon the property of
the Company or any Subsidiary that comprise more than 10% of the assets of
the Company and its Subsidiaries, taken as a whole; PROVIDED, HOWEVER,
that the Company shall not be required to pay or discharge or cause to be
paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
SECTION 1008. Waiver of Certain Covenants.
Except as otherwise specified or as contemplated by Section 301
for Securities, the Company may, with respect to the Securities, omit in
any particular instance to comply with any term, provision or condition set
forth in any covenant provided pursuant to Section 901(ii) for the benefit
of the Holders if before the time for such compliance the Holders of at
least a majority in principal amount of the Outstanding Securities shall,
by Act of such Holders, either waive such compliance in such instance or
generally waive compliance with such term, provision or condition, but no
waiver shall extend to or affect such term, provision or condition except
to the extent so expressly waived, and, until such waiver shall become
effective, the obligations of the Company and the duties of the Trustee in
respect of any such term, provision or condition shall remain in full force
and effect.
SECTION 1009. Payment of the Trust's Costs and Expenses.
Since the Trust is being formed solely to facilitate an
investment in the Securities, the Company, as borrower, hereby covenants to
pay all debts and obligations (other than with respect to the Capital
Securities and Common Securities) and all costs and expenses of the Trust
(including, but not limited to, all costs and expenses relating to the
organization of the Trust, the fees and expenses of the Trustees and their
agents and counsel and all costs and expenses relating to the operation of
the Trust) and to pay any and all taxes, duties, assessments or
governmental charges of whatever nature (other than withholding taxes)
imposed on the Trust by the United States, or any other taxing authority,
so that the net amounts received and retained by the Trust and the Property
Trustee after paying such expenses will be equal to the amounts the Trust
and the Property Trustee would have received had no such costs or expenses
been incurred by or imposed on the Trust, provided that the Trust is the
holder of the Junior Subordinated Debentures. The foregoing obligations of
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the Company are for the benefit of, and shall be enforceable by, any person
to whom any such debts, obligations, costs, expenses and taxes are owed
(each, a "Creditor") whether or not such Creditor has received notice
thereof. Any such Creditor may enforce such obligations of the Company
directly against the Company, and the Company irrevocably waives any right
or remedy to require that any such Creditor take any action against the
Trust or any other person before proceeding against the Company. The
Company shall execute such additional agreements as may be necessary or
desirable to give full effect to the foregoing.
SECTION 1010. Restrictions on Payments and Distributions.
The Company will not, and will not permit any Subsidiary to, (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 or (ii) make any payment of principal, interest or
premium, if any, on or repay or repurchase or redeem any debt securities of
the Company that rank PARI PASSU with or junior in interest to the
Securities or make any guarantee payments with respect to any guarantee by
the Company of the debt securities of any Subsidiary if such guarantee
ranks PARI PASSU with or junior in interest to the Securities (other than
(A) repurchases, redemptions or other acquisitions of shares of capital
stock of the Company in connection with any employment contract, benefit
plan or other similar arrangement with or for the benefit of any one or
more employees, officers, directors or consultants or in connection with a
dividend reinvestment or stockholder stock purchase plan, (B) as a result
of an exchange or conversion of any class or series of the Company's
capital stock (or any capital stock of a subsidiary of the Company) for any
other class or series of the Company's capital stock or of any class or
series of the Company's indebtedness for any class or series of the
Company's capital stock, (C) 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, (D) any declaration of a dividend in connection with any
stockholder's rights plan, or the issuance of rights, stock or other
property under any stockholder's rights plan, or the redemption or
repurchase of rights pursuant thereto or (E) any dividend in the form of
stock, warrants, options or other rights where the dividend stock or the
stock issuable upon exercise of such warrants, options, or other rights is
the same stock as that on which the dividend is being paid or ranks PARI
PASSU with or junior to such stock) if at such time (x) there shall have
occurred any event of which the Company has actual knowledge that (1) with
the giving of notice or the lapse of time, or both, would constitute an
Event of Default and (2) in respect of which the Company shall not have
taken reasonable steps to cure, (y) the Company shall be in default with
respect to its payment of any obligations under the Guarantee or (z) the
Company shall have given notice of its election of an Extension Period as
provided herein and shall not have rescinded such notice, or such Extension
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Period, or any extension thereof, shall be continuing. For purposes of
this Section 1010, "actual knowledge" means actual knowledge of the
Chairman, the Vice Chairman the Chief Financial Officer and the Controller
of the Company.
ARTICLE ELEVEN
SUBORDINATION OF SECURITIES
SECTION 1101. Securities Subordinate to Indebtedness.
The Company covenants and agrees, and each Holder of a Security,
by his acceptance thereof, likewise covenants and agrees, that, to the
extent and in the manner hereinafter set forth in this Article (subject to
Article Four), the payment of the principal of and interest on each and all
of the Securities are hereby expressly made subordinate and subject in
right of payment to the prior payment in full in cash of all Indebtedness.
The provisions of this Article Eleven are made for the benefit of
the holders of Indebtedness and such holders are made obligees hereunder
and any one or more of them may enforce such provisions. Holders of
Indebtedness need not prove reliance on the subordination provisions
hereof.
SECTION 1102. Default on Indebtedness.
In the event and during the continuation of any default in the
payment of principal, premium, interest or any other payment due on any
Indebtedness, or in the event that any event of default with respect to any
Indebtedness shall have occurred and be continuing and shall have resulted
in such Indebtedness becoming or being declared due and payable prior to
the date on which it would otherwise have become due and payable (unless
and until such event of default shall have been cured or waived or shall
have ceased to exist and such acceleration shall have been rescinded or
annulled) or in the event any judicial proceeding shall be pending with
respect to any such default in payment or such event of default, then no
payment shall be made by the Company with respect to the principal
(including redemption payments) of, or interest on, the Securities.
In the event that, notwithstanding the foregoing, any payment
shall be received by the Trustee or any Holder when such payment is
prohibited by the preceding paragraph of this Section 1102, such payment
shall be held in trust for the benefit of, and shall be paid over or
delivered to, the holders of Indebtedness or their respective
representatives, or to the trustee or trustees under any indenture pursuant
to which any of such Indebtedness may have been issued, as their respective
interests may appear, but only to the extent that the holders of the
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Indebtedness (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 the Indebtedness and only the amounts specified in
such notice to the Trustee shall be paid to the holders of Indebtedness.
SECTION 1103. Prior Payment of Indebtedness Upon Acceleration of
Securities.
In the event that the Securities are declared due and payable
before their Stated Maturity, then and in such event the holders of the
Indebtedness outstanding at the time such Securities so become due and
payable shall be entitled to receive payment in full of all amounts then
due on or in respect of such Indebtedness (including any amounts due upon
acceleration), or provision shall be made for such payment in cash or cash
equivalents or otherwise in a manner satisfactory to the holders of
Indebtedness, before the Holders of the Securities are entitled to receive
any payment or distribution of any kind or character, whether in cash,
properties or securities, by the Company on account of the principal of or
interest on the Securities or on account of the purchase or other
acquisition of Securities by the Company or any Subsidiary; PROVIDED,
HOWEVER, that holders of Indebtedness shall not be entitled to receive
payment of any such amounts to the extent that such holders would be
required by the subordination provisions of such Indebtedness to pay such
amounts over to the obligees on trade accounts payable or other liabilities
arising in the ordinary course of the Company's business.
In the event that, notwithstanding the foregoing, any payment
shall be received by the Trustee or any Holder when such payment is
prohibited by the preceding paragraph of this Section 1103, such payment
shall be held in trust for the benefit of, and shall be paid over or
delivered to, the holders of Indebtedness or their respective
representatives, or to the trustee or trustees under any indenture pursuant
to which any of such Indebtedness may have been issued, as their respective
interests may appear, but only to the extent that the holders of the
Indebtedness (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 the Indebtedness and only the amounts specified in
such notice to the Trustee shall be paid to the holders of Indebtedness.
SECTION 1104. 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 principal
of, and premium, if any, and interest due or to become due upon all
Indebtedness (including interest after the commencement of any bankruptcy,
65
insolvency, receivership or other proceedings at the rate specified in the
applicable Indebtedness, whether or not such interest is an allowable claim
in any such proceeding) shall first be paid in full, or payment thereof
provided for in money in accordance with its terms, before any payment is
made on account of the principal or interest on the Securities; and upon
any such dissolution or winding-up or liquidation or reorganization any
payment by the Company, or distribution of substantially all of the assets
of the Company of any kind or character, whether in cash, property or
securities, to which the Holders of the Securities or the Trustee would be
entitled, except for the provisions of this Article Eleven, 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 Holders of the Securities or by the Trustee under this Indenture if
received by them or it, directly to the holders of Indebtedness (pro rata
to such holders on the basis of the respective amounts of 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 any Indebtedness may have been issued,
as their respective interests may appear, to the extent necessary to pay
all Indebtedness in full (including interest after the commencement of any
bankruptcy, insolvency, receivership or other proceedings at the rate
specified in the applicable Indebtedness, whether or not such interest is
in an allowable claim in any such proceeding) or to provide for such
payment in money in accordance with its terms, after giving effect to any
concurrent payment or distribution to or for the holders of Indebtedness,
before any payment or distribution is made to the Holders of Securities or
to the Trustee or the Property Trustee on behalf of the Holders of Capital
Securities; PROVIDED, HOWEVER, that such holders of Indebtedness shall not
be entitled to receive payment of any such amounts to the extent that such
holders would be required by the subordination provisions of such
Indebtedness to pay such amounts over to the obligees on trade accounts
payable or other liabilities arising in the ordinary course of the
Company's business.
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in
cash, property or securities, prohibited by the foregoing, shall be
received by the Trustee or the Holders of the Securities before all
Indebtedness is paid in full (including interest after commencement of any
bankruptcy, insolvency, receivership or other proceedings at the rate
specified in the applicable Indebtedness, whether or not such interest is
an allowable claim in any such proceeding), 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 Indebtedness or their representative or
representatives, or to the trustee or trustees under any indenture pursuant
to which any instruments evidencing any Indebtedness may have been issued,
as their respective interests may appear, as calculated by the Company, for
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application to the payment of all Indebtedness remaining unpaid to the
extent necessary to pay all Indebtedness in full in money in accordance
with its terms, after giving effect to any concurrent payment or
distribution to or for the holders of such Indebtedness.
Any holder of Indebtedness may file any proof of claim or similar
instrument on behalf of the Trustee and the Holders if such instrument has
not been filed by the date which is 30 days prior to the date specified for
filing thereof.
For purposes of this Article Eleven, 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 Eleven with respect to the Securities to the payment of all
Indebtedness that may at the time be outstanding, PROVIDED, HOWEVER, that
(i) the Indebtedness is assumed by the new corporation, if any, resulting
from any such reorganization or readjustment, and (ii) the rights of the
holders of the Indebtedness are not, without the consent of such holders,
altered by such reorganization or readjustment. The consolidation of the
Company with, or merger of the Company into, another corporation or the
liquidation or dissolution of the Company following the conveyance or
transfer of its property as an entirety, or substantially as an entirety,
to another corporation upon the terms and conditions provided for in
Article Eight hereof shall not be deemed a dissolution, winding-up,
liquidation or reorganization for the purposes of this Section 1104 if such
other corporation shall, as a part of such consolidation, merger,
conveyance or transfer, comply with the conditions stated in Article Eight
hereof. Nothing in Section 1103 or in this Section 1104 shall apply to
claims of, or payments to, the Trustee under or pursuant to Section 607.
SECTION 1105. Subrogation.
Subject to the payment in full of all Indebtedness to the extent
provided in Sections 1103 and 1104, the rights of the Holders of the
Securities shall be subrogated to the rights of the holders of Indebtedness
to receive payments or distributions of cash, property or securities of the
Company applicable to the 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 the Indebtedness of any cash, property or securities to which the
Holders of the Securities or the Trustee would be entitled except for the
provisions of this Article Eleven, shall, as between the Company, its
creditors other than holders of Indebtedness, and the Holders of the
Securities, be deemed to be a payment by the Company to or on account of
the Indebtedness. It is understood that the provisions of this Article
Eleven are and are intended solely for the purposes of defining the
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relative rights of the Holders of the Securities, on the one hand, and the
holders of the Indebtedness on the other hand.
Nothing contained in this Article Eleven 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 Indebtedness, 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 other than the holders of the Indebtedness, nor
shall anything herein or therein prevent the Trustee or the Holder of any
Security from exercising all remedies otherwise permitted by applicable law
upon default under this Indenture, subject to the rights, if any, under
this Article Eleven of the holders of Indebtedness in respect of cash,
property or securities of the Company received upon the exercise of any
such remedy.
Upon any payment or distribution of assets of the Company
referred to in this Article Eleven, the Trustee, subject to the provisions
of Section 601, and the Holders of the Securities, shall be entitled to
rely conclusively 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 Holders of
the Securities, for the purposes of ascertaining the Persons entitled to
participate in such distribution, the holders of the 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 Eleven.
SECTION 1106. Trustee to Effectuate Subordination.
Each Holder of a Security by acceptance thereof authorizes and
directs the Trustee on such Holder's behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article Eleven and appoints the Trustee such Holder's attorney-in-fact for
any and all such purposes.
SECTION 1107. Notice by the Company.
The Company shall give prompt written notice to a Responsible
Officer of the Trustee of any fact known to the Company that would prohibit
the making of any payment of monies to or by the Trustee in respect of the
Securities pursuant to the provisions of this Article Eleven.
Notwithstanding the provisions of this Article Eleven or any other
68
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 Eleven, unless and until a
Responsible Officer of the Trustee shall have received written notice
thereof at the Corporate Trust Office of the Trustee from the Company or a
holder or holders of Indebtedness or from any trustee therefor; and before
the receipt of any such written notice, the Trustee, subject to the
provisions of Section 601, shall be entitled in all respects to assume that
no such facts exist; PROVIDED, HOWEVER, that if the Trustee shall not have
received the notice provided for in this Section 1107 at least three
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 three Business Days prior to such date.
The Trustee, subject to the provisions of Section 601, shall be
entitled to rely conclusively on the delivery to it of a written notice by
a Person representing himself to be a holder of Indebtedness (or a trustee
on behalf of such holder) to establish that such notice has been given by a
holder of 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 Indebtedness to participate in any payment or distribution
pursuant to this Article Eleven, the Trustee may request such Person to
furnish evidence to the reasonable satisfaction of the Trustee as to the
amount of 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 Eleven, and
if such evidence is not furnished the Trustee may defer any payment to such
Person pending judicial determination as to the right of such Person to
receive such payment.
SECTION 1108. Rights of the Trustee; Holders of Indebtedness.
The Trustee in its individual capacity shall be entitled to all
the rights set forth in this Article Eleven in respect of any Indebtedness
at any time held by it, to the same extent as any other holder of
Indebtedness, and nothing in this Indenture shall deprive the Trustee of
any of its rights as such holder.
With respect to the holders of Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article Eleven, and no
69
implied covenants or obligations with respect to the holders of
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
Indebtedness and, subject to the provisions of Section 601, the Trustee
shall not be liable to any holder of Indebtedness if it shall pay over or
deliver to holders of Securities, the Company or any other Person money or
assets to which any holder of Indebtedness shall be entitled by virtue of
this Article Eleven or otherwise.
SECTION 1109. Subordination May Not Be Impaired.
No right of any present or future holder of any Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the
Company or by any act or failure to act, in good faith, by any such holder,
or by any noncompliance by the Company 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 Indebtedness may, at any time and from time to
time, without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the
Securities and without impairing or releasing the subordination provided in
this Article or the obligations hereunder of the Holders of the Securities
to the holders of 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, Indebtedness or otherwise amend or supplement in any
manner Indebtedness or any instrument evidencing the same or any agreement
under which Indebtedness is outstanding; (ii) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing
Indebtedness; (iii) release any Person liable in any manner for the
collection of Indebtedness; and (iv) exercise or refrain from exercising
any rights against the Company and any other Person.
ARTICLE TWELVE
REDEMPTION OF SECURITIES
SECTION 1201. Optional Redemption; Conditions to Optional Redemption.
At any time on or after February 1, 2007, the Company shall have
the right, subject to the last paragraph of Section 307 and to the receipt
of any necessary prior approval of the Federal Reserve, to redeem the
Securities, in whole or in part, from time to time, at a Redemption Price
equal to 100% of the principal amount of Securities to be redeemed plus any
70
accrued but unpaid interest (including any Additional Interest) to the
Redemption Date.
If a Special Event shall occur and be continuing, the Company
shall have the right, subject to the last paragraph of this Section 1201
and to the receipt of any necessary prior approval of the Federal Reserve,
to redeem within 120 days following the occurrence of the Special Event,
upon not less than 30 days nor more than 60 days notice, the Securities in
whole, but not in part, at a Redemption Price equal to 100% of the
principal amount of Securities then outstanding plus accrued but unpaid
interest (including any Additional Interest) to the Redemption Date.
For so long as the Trust is the Holder of all Securities
Outstanding, the proceeds of any redemption described in this Section 1201
shall be used by the Trust to redeem Common Securities and Capital
Securities in accordance with their terms. The Company shall not redeem
the Securities in part unless all accrued and unpaid interest (including
any Additional Interest) has been paid in full on all Securities
outstanding for all quarterly interest periods terminating on or prior to
the Redemption Date.
SECTION 1202. Applicability of Article.
Redemption of Securities at the election of the Company, as
permitted by Section 1201, shall be made in accordance with such provision
and this Article.
SECTION 1203. Election to Redeem; Notice to Trustee.
The election of the Company to redeem Securities pursuant to
Section 1201 shall be evidenced by a Board Resolution. In case of any
redemption at the election of the Company, the Company shall, at least 45
days and no more than 60 days prior to the Redemption Date fixed by the
Company, notify the Trustee in writing of such Redemption Date and of the
principal amount of Securities to be redeemed and provide a copy of the
notice of redemption given to Holders of Securities to be redeemed pursuant
to Section 1205.
SECTION 1204. Selection by Trustee of Securities to be Redeemed.
If less than all the Securities are to be redeemed (unless such
redemption affects only a single Security), the particular Securities to be
redeemed shall be selected by lot (or such other method of selection as the
Trustee may customarily employ) not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities not
previously called for redemption.
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The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption as aforesaid and, in case of any
Securities selected for partial redemption as aforesaid, the principal
amount thereof to be redeemed.
The provisions of the two preceding paragraphs shall not apply
with respect to any redemption affecting only a single Security, whether
such Security is to be redeemed in whole or in part. In the case of any
such redemption in part, the unredeemed portion of the principal amount of
the Security shall be in an authorized denomination (which shall not be
less than the minimum authorized denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall
relate, in the case of any Securities redeemed or to be redeemed only in
part, to the portion of the principal amount of such Securities which has
been or is to be redeemed.
SECTION 1205. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 (provided that the Trustee shall itself
have received notice not less than 45 days prior to the Redemption Date)
nor more than 60 days prior to the Redemption Date, to each Holder of
Securities to be redeemed, at his address appearing in the Security
Register.
All notices of redemption shall identify the Securities to be
redeemed (including CUSIP number) and shall state:
(i) the Redemption Date,
(ii) the Redemption Price,
(iii) that on the Redemption Date the Redemption Price will become
due and payable upon each such Security to be redeemed and that interest
thereon will cease to accrue on and after said date, and
(iv) the place or places where such Securities are to be
surrendered for payment of the Redemption Price.
Notice of redemption of Securities to be redeemed at the election
of the Company shall be given by the Company or, at the Company's request,
by the Trustee in the name and at the expense of the Company.
72
SECTION 1206. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit
with the Trustee or with a Paying Agent (or, if the Company is acting as
its own Paying Agent, segregate and hold in trust as provided in Section
1003) an amount of money sufficient to pay the Redemption Price of, and
(except if the Redemption Date shall be an Interest Payment Date) accrued
interest (including any Additional Interest) on, all the Securities which
are to be redeemed on that date; PROVIDED, HOWEVER, that any such deposit
on a Redemption Date shall be initiated prior to 12:00 noon (New York time)
in same-day funds.
SECTION 1207. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such
date (unless the Company shall default in the payment of the Redemption
Price and accrued interest (including any Additional Interest)) such
Securities shall cease to bear interest. Upon surrender of any such
Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued
interest to the Redemption Date; PROVIDED, HOWEVER, that installments of
interest whose Stated Maturity is on or prior to the Redemption Date shall
be payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant
Record Dates according to their terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid, bear
interest from the Redemption Date at the rate borne by the Security.
SECTION 1208. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be
surrendered at a place of payment therefor (with, if the Company or the
Trustee so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company and the Trustee duly executed
by, the Holder therefor or his attorney duly authorized in writing), and
the Company shall execute, and the Trustee shall, upon receipt of a Company
Order for the authentication, authenticate and deliver to the Holder of
such Security without service charge, a new Security or Securities, of any
authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal
of the Security so surrendered.
73
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
74
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, all as of the day and year first above written.
OLD KENT FINANCIAL CORPORATION
By:__________________________________________
Name:
Title:
BANKERS TRUST COMPANY, as Trustee
By:__________________________________________
Name:
Title:
EXHIBIT A
OLD KENT FINANCIAL CORPORATION
Floating Rate Junior Subordinated Debenture due 2027
$___________
No. __
CUSIP No. ___________
OLD KENT FINANCIAL CORPORATION, a corporation duly organized and
existing under the laws of the State of Michigan (herein called the
"Company", which term includes any successor corporation under the
Indenture hereinafter referred to), for value received, hereby promises to
pay to Bankers Trust Company, as Trustee, or registered assigns, the
principal sum of ____________________ ($________) on February 1, 2027, and
to pay interest on said principal sum from January 31, 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, quarterly
(subject to deferral as set forth herein) in arrears on the 1st day of
February, May, August and November of each year, commencing May 1, 1997, at
a variable per annum rate equal to LIBOR (as defined in the Indenture) plus
.80% until the principal hereof shall have become due and payable (plus
Additional Interest, if any), and on any overdue principal 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. The amount of interest payable for any period will be
computed on the actual number of days elapsed and a year of 360 days. The
amount of interest payable for any period shorter than a full quarterly
period for which interest is computed, will be computed on the basis of
actual number of days elapsed in such 90-day quarterly period. In the
event that any date on which interest is payable on this Security is not a
Business Day, then a payment of the 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) except that, if
such Business Day falls in the next calendar year, such payment will be
made on the immediately preceding Business Day, in each case, with the same
force and effect as if made on the date the payment was originally payable.
A "Business Day" shall mean any day other than a Saturday or a Sunday or a
day on which banking institutions in the City of New York and Grand Rapids,
Michigan are authorized or required by law or executive order to remain
closed or a day on which the Corporate Trust Office of the Trustee, or the
principal office of the Property Trustee under the Declaration, is closed
for business. 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 the Securities (or one or
more Predecessor Securities, as defined in the Indenture) is registered at
the close of business on the Regular Record Date for such interest
installment, which shall be the first day of the month of such Interest
Payment Date. Any such interest installment not so punctually paid or duly
provided for shall forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose name the
Securities for one or more Predecessor Securities is registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities not less than 10 days prior to such Special
Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in said Indenture.
The Company shall have the right at any time during the term of
this Security, from time to time, so long as no Event of Default has
occurred or is continuing to defer payment of interest on such Security for
up to 20 quarterly periods (an "Extension Period"), provided that no
Extension Period may extend past the Maturity of this Security. There may
be multiple Extension Periods of varying lengths during the term of this
Security. At the end of each Extension Period, if any, the Company shall
pay all interest then accrued and unpaid, together with interest thereon,
compounded quarterly at the rate specified on this Security to the extent
permitted by applicable law. During any such Extension Period, the Company
may not, and may not permit any subsidiary of the Company to, (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 or (ii) make any payment of principal, interest or premium, if any,
on or repay, repurchase or redeem any debt securities of the Company that
rank PARI PASSU with or junior in interest to the Securities or make any
guarantee payments with respect to any guarantee by the Company of the debt
securities of any subsidiary of the Company if such guarantee ranks PARI
PASSU or junior in interest to the Securities (other than (A) repurchases,
redemptions or other acquisitions of shares of capital stock of the Company
in connection with any employment contract, benefit plan or other similar
arrangement with or for the benefit of any one or more employees, officers,
directors or consultants or in connection with a dividend reinvestment or
stockholder stock purchase plan, (B) as a result of an exchange or
conversion of any class or series of the Company's capital stock (or any
capital stock of a subsidiary of the Company) for any other class or series
of the Company's capital stock or of any class or series of the Company's
indebtedness for any class or series of the Company's capital stock, (C)
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, (D) any declaration of
a dividend in connection with any shareholder's rights plan, or the
issuance of rights, stock or other property under any shareholder's rights
plan, or the redemption or repurchase of rights pursuant thereto or (E) any
dividend in the form of stock, warrants, options or other rights where the
dividend stock or the stock issuable upon exercise of such warrants,
options, or other rights is the same stock as that on which the dividend is
-2-
being paid or ranks PARI PASSU with or junior to such stock). Prior to the
termination of any such Extension Period, the Company may further extend
the interest payment period, provided that no Extension Period may exceed
20 consecutive quarterly periods or extend beyond the Stated Maturity of
the Securities. Upon the termination of any such Extension Period and the
payment of all amounts then due on any Interest Payment Date, the Company
may elect to begin a new Extension Period subject to the above
requirements. No interest shall be due and payable during an Extension
Period, except at the end thereof. The Company shall give the Trustee
notice of its election of such Extension Period at least one Business Day
prior to the record date for the related interest payment.
Payment of the principal of and interest on this Security will be
made at the office or agency of the Paying Agent maintained for that
purpose in the United States, in such coin or currency of the United States
of America as at the time of payment is legal tender for payment of public
and private debts; PROVIDED, HOWEVER, that at the option of the Company,
payment of interest may be made (i) by check mailed to the address of the
Person entitled thereto as such address shall appear in the Security
Register or (ii) by wire transfer in immediately available funds at such
place and to such account as may be designated by the Person entitled
thereto as specified in the Security Register.
The indebtedness evidenced by this Security is, to the extent
provided in the Indenture, subordinate and subject in right of payment to
the prior payment in full of all 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, (i) agrees to and shall be
bound by such provisions, (ii) authorizes and directs the Trustee on his
behalf to take such action as may be necessary or appropriate to effectuate
the subordination so provided and (iii) appoints the Trustee his
attorney-in-fact for any and all such purposes. Each Holder hereof, by his
acceptance hereof, waives all notice of the acceptance of the subordination
provisions contained herein and in the Indenture by each holder of
Indebtedness, whether now outstanding or hereafter incurred, and waives
reliance by each such holder upon said provisions.
Reference is hereby made to the further provisions of the
Indenture summarized on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed
by the Trustee referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
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IN WITNESS WHEREOF, Old Kent Financial Corporation has caused
this instrument to be duly executed.
Dated: ________, __
OLD KENT FINANCIAL CORPORATION
By:_____________________________________
Name:
Title:
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[Form of Reverse of Security]
This Security is one of a duly authorized issue of Securities of
Old Kent Financial Corporation (the "Company"), designated as its Floating
Rate Junior Subordinated Debentures due 2027 (herein called the
"Securities"), issued under an Indenture, dated as of January 31, 1997
(herein called the "Indenture"), between the Company and Bankers Trust
Company, a New York banking corporation, as Trustee (herein called the
"Trustee," which term includes any successor trustee under the Indenture),
to which Indenture and all indentures supplemental thereto reference is
hereby made for a statement of the respective rights, limitations of
rights, duties and immunities thereunder of the Trustee, the Company and
the Holders of the Securities, and of the terms upon which the Securities
are, and are to be, authenticated and delivered.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
At any time on or after February 1, 2007, the Company shall have
the right, subject to the terms and conditions of Article Twelve of the
Indenture, to redeem this Security at the option of the Company, in whole
or in part, at a Redemption Price equal to the principal amount so redeemed
plus accrued but unpaid interest (including any Additional Interest) to the
Redemption Date.
If a Special Event as defined in Article Twelve of the Indenture
shall occur and be continuing, the Company shall have the right, subject to
the terms and conditions of Article Twelve of the Indenture, to redeem this
Security at the option of the Company, without premium or penalty, in whole
but not in part, at a Redemption Price equal to 100% of the principal
amount so redeemed plus accrued but unpaid interest (including any
Additional Interest) to the Redemption Date. Any redemption pursuant to
this paragraph will be made upon not less than 30 nor more than 60 days
notice, at the Redemption Price. If the Securities are only partially
redeemed by the Company, the Securities will be redeemed by lot (or such
other method of selection as the Trustee may customarily employ). In the
event of redemption of this Security in part only, a new Security or
Securities for the unredeemed portion hereof will be issued in the name of
the Holder hereof upon the cancellation hereof.
If an Event of Default with respect to the Securities shall occur
and be continuing, the principal of the Securities may be declared due and
payable in the manner, with the effect and subject to the conditions
provided in the Indenture.
The Indenture contains provisions for satisfaction and discharge
or legal defeasance of the entire indebtedness of this Security and for the
defeasance of certain covenants under the Indenture at any time upon
-5-
compliance by the Company with certain conditions set forth in the
Indenture.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of Holders of not less than a majority in
principal amount of the Outstanding Securities affected by such
modification, to modify the Indenture in a manner affecting the rights of
the Holders of the Securities; PROVIDED that so such modification may,
without the consent of the Holder of each Outstanding Security affected
thereby, (i) except to the extent permitted and subject to the conditions
set forth in the Indenture with respect to the extension of the Maturity of
the Security, change the maturity of, the principal of, or any installment
of interest on, the Security or reduce the principal amount thereof, or the
rate of payment of interest thereon, or change the place of payment where,
or the coin or currency in which, this Security or interest thereon is
payable, or impair the right to institute suit for the enforcement of such
payment on or after the Maturity thereof (or, in the case of redemption, on
or after the Redemption Date), or modify the provisions of the Indenture
with respect to the subordination of the Securities in a manner adverse to
the Holders, (ii) reduce the percentage in principal amount of the
Outstanding Securities, the consent of whose Holders is required for such
supplemental Indenture or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of the Indenture or certain
defaults hereunder and their consequences) provided for in the Indenture or
(iii) modify any of the provisions of Section 513, Section 902 or Section
1008 of the Indenture, except to increase any such percentage or to provide
that certain other provisions of the Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby, PROVIDED that, so long as any of the Capital Securities remains
outstanding, no such amendment shall be made that adversely affects the
holders of the Capital Securities, and no termination of the Indenture
shall occur, and no waiver of an Event of Default or compliance with any
covenant under this Indenture shall be effective, without the prior consent
of the holders of at least a majority of the aggregate liquidation
preference of the outstanding Capital Securities unless and until the
principal of and any premium on the Securities and all accrued and unpaid
interest thereon have been paid in full.
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
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the
Security Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company in New York, New York
-6-
(which initially shall be the Corporate Trust Office of the Trustee), duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by,
the Holder hereof or his attorney duly authorized in writing, and thereupon
one or more new Securities, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees. No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in
connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name this Security is registered as
the owner hereof for all purposes, whether or not this Security be overdue,
and neither the Company, the Trustee nor any such agent shall be affected
by notice to the contrary.
The Securities are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set
forth, Securities are exchangeable for a like aggregate principal amount of
Securities of a different authorized denomination, as requested by the
Holder surrendering the same.
THE SECURITIES AND THE INDENTURE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.
This is one of the Securities referred to in the within-mentioned
Indenture.
BANKERS TRUST COMPANY,
as Trustee
By:__________________________________________
Authorized Signatory
Dated: ________ __, ____
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In connection with any transfer of this Security occurring prior
to the date which is the earlier of (i) the date of the declaration by the
Commission of the effectiveness of a registration statement under the
Securities Act covering resales of this Security (which effectiveness shall
not have been suspended or terminated at the date of the transfer) and (ii)
three years after the later of the date of original issue and the last date
on which the Company or any affiliate of the Company was the owner of such
Security (or any predecessor thereto) (the "Resale Restriction Termination
Date"), the undersigned confirms that it has not utilized any general
solicitation or general advertising in connection with the transfer:
[CHECK ONE]
(1) ___ to the Company or a subsidiary thereof; or
(2) ___ pursuant to and in compliance with Rule 144A under the Securities
Act of 1933, as amended; or
(3) ___ outside the United States to a "foreign person" in compliance
with Rule 904 of Regulation S under the Securities Act of 1933,
as amended; or
(4) ___ pursuant to the exemption from registration provided by Rule 144
under the Securities Act of 1933, as amended; or
(5) ___ pursuant to an effective registration statement under the
Securities Act of 1933, as amended; or
(6) ___ pursuant to another available exemption from the registration
requirements of the Securities Act of 1933, as amended.
Unless one of the boxes is checked, the Trustee will refuse to register any
of the Securities evidenced by this certificate in the name of any person
other than the registered Holder thereof; PROVIDED, HOWEVER, that if box
(3), (4) or (6) is checked, the Company or the Trustee may require, prior
to registering any such transfer of the Securities, in its sole discretion,
such written legal opinions, certifications (including an investment letter
in the case of box (3)) and other information as the Trustee or the Company
has reasonably requested to confirm that such transfer is being made
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act of 1933, as amended.
If none of the foregoing boxes is checked, the Trustee or Registrar shall
not be obligated to register this Security in the name of any person other
than the Holder hereof unless and until the conditions to any such transfer
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of registration set forth herein and in Section 315 of the Indenture shall
have been satisfied.
Dated: __________________ Signed:_________________________________
(Sign exactly as name appears on
the other side of this Security)
Signature Guarantee: ___________________
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing
this Security for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act and is aware that the sale to it is being made in reliance
on Rule 144A and acknowledges that it has received such information
regarding the Company as the undersigned has requested pursuant to Rule
144A or has determined not to request such information and that it is aware
that the transferor is relying upon the undersigned's foregoing
representations in order to claim the exemption from registration provided
by Rule 144A.
Dated: ________ _____________________________________________
NOTICE: To be executed by an executive
officer
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