Exhibit 10.1
INDENTURE
BY AND BETWEEN
Heartland Financial USA, Inc.
AND
Wells Fargo Bank, National Association,
AS TRUSTEE
FLOATING RATE JUNIOR SUBORDINATED DEFERRABLE
INTEREST DEBENTURES DUE June 30, 2032
EFFECTIVE AS OF June 27, 2002
TABLE OF CONTENTS
ARTICLE I DEFINITIONS.....................................2
Section 1.1 Definitions of Terms.......................2
ARTICLE II ISSUE, DESCRIPTION, TERMS, CONDITIONS,
REGISTRATION AND EXCHANGE OF THE DEBENTURES....10
Section 2.1 Designation and Principal Amount..........10
Section 2.2 Maturity..................................10
Section 2.3 Form and Payment..........................10
Section 2.4 Intentionally Left Blank..................11
Section 2.5 Interest..................................11
Section 2.6 Execution and Authentications.............13
Section 2.7 Registration of Transfer and Exchange.....14
Section 2.8 Temporary Debentures......................17
Section 2.9 Mutilated, Destroyed, Lost or Stolen
Debentures................................18
Section 2.10 Cancellation..............................18
Section 2.11 Benefit of Indenture......................19
Section 2.12 Authentication Agent......................19
ARTICLE III REDEMPTION OF DEBENTURES.......................20
Section 3.1 Special Event Redemption..................20
Section 3.2 Optional Redemption by Company............20
Section 3.3 Notice of Redemption......................21
Section 3.4 Payment Upon Redemption...................22
Section 3.5 No Sinking Fund...........................23
ARTICLE IV EXTENSION OF INTEREST PAYMENT PERIOD...........23
Section 4.1 Extension of Interest Payment Period......23
Section 4.2 Notice of Extension.......................23
Section 4.3 Limitation on Transactions................24
ARTICLE V PARTICULAR COVENANTS OF THE COMPANY............25
Section 5.1 Payment of Principal and Interest.........25
Section 5.2 Maintenance of Agency.....................25
Section 5.3 Paying Agents.............................25
Section 5.4 Appointment to Fill Vacancy in Office of
Trustee...................................26
Section 5.5 Compliance with Consolidation Provisions..26
Section 5.6 Limitation on Transactions................27
Section 5.7 Covenants as to the Trust.................27
Section 5.8 Covenants as to Purchases.................28
Section 5.9 Waiver of Usury, Stay or Extension Laws...28
ARTICLE VI DEBENTUREHOLDERS' LISTS AND REPORTS BY THE
COMPANY AND THE TRUSTEE........................28
Section 6.1 Company to Furnish Trustee Names and
Addresses of Debentureholders.............28
Section 6.2 Preservation of Information Communications
with Debentureholders.....................29
Section 6.3 Reports by the Company....................29
Section 6.4 Reports by the Trustee....................30
ARTICLE VII REMEDIES OF THE TRUSTEE AND DEBENTUREHOLDERS ON
EVENT OF DEFAULT...............................31
Section 7.1 Events of Default.........................31
Section 7.2 Collection of Indebtedness and Suits for
Enforcement by Trustee....................32
Section 7.3 Application of Money Collected............34
Section 7.4 Limitation on Suits.......................34
Section 7.5 Rights and Remedies Cumulative; Delay or
Omission not Waiver.......................35
Section 7.6 Control by Debentureholders...............35
Section 7.7 Undertaking to Pay Costs..................36
Section 7.8 Direct Action; Right of Set-Off...........36
ARTICLE VIII FORM OF DEBENTURE AND ORIGINAL ISSUE...........37
Section 8.1 Form of Debenture.........................37
Section 8.2 Original Issue of Debentures..............37
ARTICLE IX CONCERNING THE TRUSTEE.........................37
Section 9.1 Certain Duties and Responsibilities of the
Trustee...................................37
Section 9.2 Notice of Defaults........................38
Section 9.3 Certain Rights of Trustee.................39
Section 9.4 Trustee Not Responsible for Recitals,
etc.......................................40
Section 9.5 May Hold Debentures.......................40
Section 9.6 Moneys Held in Trust......................40
Section 9.7 Compensation and Reimbursement............40
Section 9.8 Reliance on Officers' Certificate.........41
Section 9.9 Disqualification; Conflicting Interests...41
Section 9.10 Corporate Trustee Required; Eligibility...41
Section 9.11 Resignation and Removal; Appointment of
Successor.................................42
Section 9.12 Acceptance of Appointment by Successor....43
Section 9.13 Merger, Conversion, Consolidation or
Succession to Business....................44
Section 9.14 Preferential Collection of Claims Against
the Company...............................44
ARTICLE X CONCERNING THE DEBENTUREHOLDERS................44
Section 10.1 Evidence of Action by Holders.............44
Section 10.2 Proof of Execution by Debentureholders....45
Section 10.3 Who May be Deemed Owners..................45
Section 10.4 Certain Debentures Owned by Company
Disregarded...............................45
Section 10.5 Actions Binding on Future
Debentureholders..........................46
ARTICLE XI SUPPLEMENTAL INDENTURES........................46
Section 11.1 Supplemental Indentures Without the
Consent of Debentureholders...............46
Section 11.2 Supplemental Indentures with Consent of
Debentureholders..........................47
Section 11.3 Effect of Supplemental Indentures.........48
Section 11.4 Debentures Affected by Supplemental
Indentures................................48
Section 11.5 Execution of Supplemental Indentures......48
ARTICLE XII SUCCESSOR CORPORATION..........................49
Section 12.1 Company May Consolidate, etc..............49
Section 12.2 Successor Person Substituted..............49
Section 12.3 Evidence of Consolidation, etc. to
Trustee...................................50
ARTICLE XIII SATISFACTION AND DISCHARGE.....................50
Section 13.1 Satisfaction and Discharge of Indenture...50
Section 13.2 Discharge of Obligations..................50
Section 13.3 Deposited Money to be Held in Trust.......51
Section 13.4 Payment of Money Held by Paying Agents....51
Section 13.5 Repayment to Company......................52
ARTICLE XIV IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS.........................52
Section 14.1 No Recourse...............................52
ARTICLE XV MISCELLANEOUS PROVISIONS.......................52
Section 15.1 Effect on Successors and Assigns..........52
Section 15.2 Actions by Successor......................53
Section 15.3 Surrender of Company Powers...............53
Section 15.4 Notices...................................53
Section 15.5 Governing Law.............................53
Section 15.6 Treatment of Debentures as Debt...........53
Section 15.7 Compliance Certificates and Opinions......54
Section 15.8 Payments on Business Days.................54
Section 15.9 Application of Trust Indenture Act;
Conflict..................................54
Section 15.10 Counterparts..............................55
Section 15.11 Severability..............................55
Section 15.12 Assignment................................55
Section 15.13 Acknowledgment of Rights; Right of
Set Off...................................55
ARTICLE XVI SUBORDINATION OF DEBENTURES....................56
Section 16.1 Agreement to Subordinate..................56
Section 16.2 Default on Senior Debt, Subordinated
Debt or Additional Senior Obligations.....56
Section 16.3 Liquidation; Dissolution; Bankruptcy......56
Section 16.4 Subrogation...............................58
Section 16.5 Trustee to Effectuate Subordination.......59
Section 16.6 Notice by the Company.....................59
Section 16.7 Rights of the Trustee; Holders of Senior
Indebtedness..............................60
Section 16.8 Subordination may not be Impaired.........60
EXHIBIT
Exhibit A Floating Rate Junior Subordinated Deferrable
Interest Debenture of Heartland Financial USA, Inc.
INDENTURE
THIS INDENTURE, effective as of June 27, 2002, between
Heartland Financial USA, Inc., a Iowa corporation (the "Company")
and Wells Fargo Bank, National Association, a national banking
association with its principal place of business in the State of
Delaware (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 securities to be known as Floating
Rate Junior Subordinated Deferrable Interest Debentures due June
30, 2032 (hereinafter referred to as the "Debentures"), the form
and substance of such Debentures and the terms, provisions and
conditions thereof to be set forth as provided in this Indenture;
WHEREAS, Heartland Financial Capital Trust II, a Delaware
statutory business trust (the "Trust"), has offered in a private
placement up to Five Million Dollars ($5,000,000) aggregate
liquidation amount of its Trust Preferred Securities (as defined
herein) and proposes to invest the proceeds from such offering,
together with the proceeds of the issuance and sale by the Trust
to the Company of up to One Hundred Fifty Five Thousand Dollars
($155,000) aggregate liquidation amount of its Common Securities
(as defined herein), in up to Five Million One Hundred Fifty Five
Thousand Dollars ($5,155,000) aggregate principal amount of the
Debentures;
WHEREAS, the Company has requested that the Trustee execute
and deliver this Indenture;
WHEREAS, all requirements necessary to make this Indenture a
valid instrument in accordance with its terms, and to make the
Debentures, when executed by the Company and authenticated and
delivered by the Trustee, the valid obligations of the Company,
have been performed, and the execution and delivery of this
Indenture have been duly authorized in all respects;
WHEREAS, to provide the terms and conditions upon which the
Debentures are to be authenticated, issued and delivered, the
Company has duly authorized the execution of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid
agreement of the Company, in accordance with its terms, have been
done.
NOW, THEREFORE, in consideration of the premises set forth
herein and the purchase of the Debentures by the holders thereof,
it is mutually covenanted and agreed as follows for the equal and
ratable benefit of the holders of the Debentures as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions of Terms.
The terms defined in this Section 1.1 (except as otherwise
expressly provided in this Indenture or unless the context
otherwise requires) for all purposes of this Indenture and of any
indenture supplemental hereto shall have the respective meanings
specified in this Section 1.1 and shall include the plural as
well as the singular. All other terms used in this Indenture that
are defined in the Trust Indenture Act, or that are by reference
in the Trust Indenture Act and defined in the Securities Act
(except as herein otherwise expressly provided or unless the
context otherwise requires), shall have the meanings assigned to
such terms in the Trust Indenture Act and in the Securities Act
as in force at the date of the execution of this instrument and
as may be amended from time to time. All accounting terms used
herein and not expressly defined shall have the meanings assigned
to such terms in accordance with Generally Accepted Accounting
Principles.
"Accelerated Maturity Date" means if the Company elects to
accelerate the Maturity Date in accordance with Sections 2.2 (b)
and 2.2(c), the date selected by the Company which is prior to
the Scheduled Maturity Date, but is on an Interest Payment Date
after June 30, 2007.
"Additional Interest" means interest earned and to be paid
on interest that was not timely paid.
"Additional Senior Obligations" means all indebtedness of
the Company whether incurred on or prior to the date of this
Indenture or thereafter incurred, for claims in respect of
derivative products such as interest and foreign exchange rate
contracts, commodity contracts and similar arrangements;
provided, however, that Additional Senior Obligations does not
include claims in respect of Senior Debt or Subordinated Debt or
obligations which, by their terms, are expressly stated to be not
superior in right of payment to the Debentures or to rank pari
passu in right of payment with the Debentures. For purposes of
this definition, "claim" shall have the meaning assigned thereto
in Section 101(4) of the United States Bankruptcy Code of 1978,
as amended.
"Additional Sums" shall have the meaning set forth in
Section 2.5 (g).
"Administrative Trustees" shall have the meaning set forth
in the Trust Agreement.
"Affiliate" means, with respect to a specified Person, (i)
any Person directly or indirectly owning, controlling or holding
with power to vote 10% or more of the outstanding voting
securities or other ownership interests of the specified Person;
(ii) any Person 10% or more of whose outstanding voting
securities or other ownership interests are directly or
indirectly owned, controlled or held with power to vote by the
specified Person; (iii) any Person directly or indirectly
controlling, controlled by, or under common control with the
specified Person; (iv) a partnership in which the specified
Person is a general partner; (v) any officer or director of the
specified Person; and (vi) if the specified Person is an
individual, any entity of which the specified Person is an
officer, director or general partner.
"Authenticating Agent" means an authenticating agent with
respect to the Debentures appointed by the Trustee pursuant to
Section 2.12.
"Bankruptcy Law" means Title 11, U.S. Code, or any similar
federal or state law for the relief of debtors.
"Board of Directors" means the Board of Directors of the
Company or any duly authorized committee of such Board or any
other duly designated officers of the Company.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have
been duly adopted by the Board of Directors and to be in full
force and effect on the date of such certification.
"Business Day" means, with respect to the Debentures, any
day other than a Saturday or a Sunday or a day on which federal
or state banking institutions in Delaware or Minnesota are
authorized or required by law, executive order or regulation to
close, or a day on which the Corporate Trust Office of the
Trustee or the Property Trustee is closed for business.
"Calculation Agent" shall have the meaning set forth in
Section 2.5(d)(i).
"Capital Treatment Event" means the receipt by the Company
and the Trust of an Opinion of Counsel, rendered by a law firm
having a recognized national bank regulatory practice, to the
effect that, as a result of (a) any amendment to, or change
(including any announced prospective change) in, the laws (or any
regulations thereunder) of the United States or any political
subdivision thereof or therein, or (b) any official or
administrative pronouncement or action or judicial decision
interpreting or applying such laws or regulations, which
amendment or change is effective or which pronouncement or
decision is announced on or after the date of issuance of the
Trust Preferred Securities under the Trust Agreement, there is
more than an insubstantial risk of impairment of the Company's
ability to treat the Trust Preferred Securities (or any
substantial portion thereof) as Tier 1 capital (or the then
equivalent thereof), for purposes of the capital adequacy
guidelines of the Federal Reserve (or any successor thereto), as
then in effect and applicable to the Company; provided, however,
that the Trust or the Company shall have requested and received
such an Opinion of Counsel with regard to such matters within a
reasonable period of time after the Trust or the Company shall
have become aware of the probable occurrence of any such event.
"Certificate" means a certificate signed by the principal
executive officer, the principal financial officer, the principal
accounting officer, the treasurer or any vice president of the
Company. The Certificate need not comply with the provisions of
Section 15.7.
"Change in 1940 Act Law" shall have the meaning set forth in
the definition of
"Investment Company Event."
"Commission" means the Securities and Exchange Commission.
"Common Securities" means undivided common beneficial
interests in the assets of the Trust that rank pari passu with
the Trust Preferred Securities; provided, however, that upon the
occurrence of an Event of Default, the rights of holders of
Common Securities to payment in respect of distributions and
payments upon liquidation, redemption and otherwise are
subordinated to the rights of holders of Trust Preferred
Securities.
"Company" means Heartland Financial USA, Inc., a corporation
duly organized and validly existing under the laws of the State
of Iowa, and, subject to the provisions of Article XII, shall
also include its successors and assigns.
"Compounded Interest" shall have the meaning set forth in
Section 4.1.
"Corporate Trust Office" means the office of the Trustee or
the Property Trustee at which, at any particular time, its
corporate trust business shall be principally administered, which
office at the date hereof is located at 919 Market Street, Suite
700, Wilmington, Delaware 19801, Attention: Corporate Trust
Administration.
"Custodian" means any receiver, trustee, assignee,
liquidator, or similar official under any Bankruptcy Law.
"Debentures" shall have the meaning set forth in the
Recitals hereto.
"Debentureholder," "holder of Debentures," "registered
holder," or other similar term, means the Person or Persons in
whose name or names a particular Debenture shall be registered on
the books of the Company or the Trustee kept for that purpose in
accordance with the terms of this Indenture.
"Debenture Register" shall have the meaning set forth in
Section 2.7(b).
"Debt" means with respect to any Person, whether recourse is
to all or a portion of the assets of such Person and whether or
not contingent, (i) every obligation of such Person for money
borrowed; (ii) every obligation of such Person evidenced by
bonds, debentures, notes or other similar instruments, including
obligations incurred in connection with the acquisition of
property, assets or businesses; (iii) every reimbursement
obligation of such Person with respect to letters of credit,
bankers' acceptances or similar facilities issued for the account
of such Person; (iv) every obligation of such Person 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 such Person; and (vi) every obligation of the
type referred to in clauses (i) through (v) of another Person and
all dividends of another Person the payment of which, in either
case, such Person has guaranteed or is responsible or liable,
directly or indirectly, as obligor or otherwise.
"Default" means any event, act or condition that with notice
or lapse of time, or both, would constitute an Event of Default.
"Deferred Interest" shall have the meaning set forth in
Section 4.1.
"Dissolution Event" means that as a result of the occurrence
and continuation of a Special Event, the Trust is to be dissolved
in accordance with the Trust Agreement and the Debentures held by
the Property Trustee are to be distributed to the holders of the
Trust Securities issued by the Trust pro rata in accordance with
the Trust Agreement.
"Event of Default" means, with respect to the Debentures,
any event specified in Section 7.1, which has continued for the
period of time, if any, and after the giving of the notice, if
any, therein designated.
"Exchange Act," means the Securities Exchange Act of 1934 or
any successor statute thereto, in each case as amended from time
to time.
"Extended Interest Payment Period" shall have the meaning
set forth in Section 4.1.
"Federal Reserve" means the Board of Governors of the
Federal Reserve System.
"Floating Interest Rate" shall have the meaning set forth in
Section 2.5(a).
"Generally Accepted Accounting Principles" means such
accounting principles as are generally accepted at the time of
any computation required hereunder.
"Governmental Obligations" means securities that are (i)
direct obligations of the United States of America for the
payment of which its full faith and credit is pledged; or (ii)
obligations of a Person controlled or supervised by and acting as
an agency or instrumentality of the United States of America, the
payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States of America that, in
either case, are not callable or redeemable at the option of the
issuer thereof, and shall also include a depository receipt
issued by a bank (as defined in Section 3(a)(2) of the Securities
Act) as custodian with respect to any such Governmental
Obligation or a specific payment of principal of or interest on
any such Governmental Obligation held by such custodian for the
account of the holder of such depository receipt; provided,
however, that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the
holder of such depositary receipt from any amount received by the
custodian in respect of the Governmental Obligation or the
specific payment of principal of or interest on the Governmental
Obligation evidenced by such depositary receipt.
"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.
"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 in accordance
with the terms hereof.
"Interest Payment Date," has the meaning specified in
Section 2.5(a).
"Interest Reset Date" has the meaning specified in Section
2.5(d).
"Investment Company Act," means the Investment Company Act
of 1940 or any successor statute thereto, in each case as amended
from time to time.
"Investment Company Event" means the receipt by the Trust
and the Company of an Opinion of Counsel, rendered by a law firm
having a recognized national securities law 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 shall be considered an "investment company" that is required
to be registered under the Investment Company Act, which Change
in 1940 Act Law becomes effective on or after the date of
original issuance of the Trust Preferred Securities under the
Trust Agreement; provided, however, that the Trust or the Company
shall have requested and received such an Opinion of Counsel with
regard to such matters within a reasonable period of time after
the Trust or the Company shall have become aware of a Change in
1940 Act Law.
"Maturity Date" means the date on which the Debentures
mature and on which the principal shall be due and payable
together with all accrued and unpaid interest thereon including
Compounded Interest and Additional Interest, if any.
"Ministerial Action" shall have the meaning set forth in
Section 3.1.
"Officers' Certificate" means a certificate signed by the
Chief Executive Officer, President or a Vice President and by the
Treasurer or an Assistant Treasurer or the Secretary or an
Assistant Secretary of the Company that is delivered to the
Trustee in accordance with the terms hereof. Each such
certificate shall include the statements provided for in Section
15.7, if and to the extent required by the provisions thereof.
"Opinion of Counsel" means an opinion in writing of
independent, outside legal counsel for the Company that is
delivered to the Trustee in accordance with the terms hereof.
Each such opinion shall include the statements provided for in
Section 15.7, if and to the extent required by the provisions
thereof.
"Outstanding," when used with reference to the Debentures,
means, subject to the provisions of Section 10.4, as of any
particular time, all Debentures theretofore authenticated and
delivered by the Trustee under this Indenture, except (i)
Debentures theretofore canceled by the Trustee or any Paying
Agent, or delivered to the Trustee or any Paying Agent for
cancellation or that have previously been canceled; (ii)
Debentures or portions thereof for the payment or redemption of
which money or Governmental Obligations in the necessary amount
shall have been deposited in trust with the Trustee or with any
Paying Agent (other than the Company) or shall have been set
aside and segregated in trust by the Company (if the Company
shall act as its own Paying Agent); provided, however, that if
such Debentures or portions of such Debentures are to be redeemed
prior to the maturity thereof, notice of such redemption shall
have been given as provided in Article III or provision
satisfactory to the Trustee shall have been made for giving such
notice; and (iii) Debentures in lieu of or in substitution for
which other Debentures shall have been authenticated and
delivered pursuant to the terms of Section 2.7; provided,
however, that in determining whether the holders of the requisite
percentage of Debentures have given any such request, notice,
consent or waiver hereunder, Debentures held by the Company or
any Affiliate of the Company shall not be included; provided,
further, that the Trustee shall be protected in acting or relying
upon any request, notice, consent or waiver unless a Responsible
Officer of the Trustee shall have actual knowledge that the
holder of any such Debenture is the Company or an Affiliate
thereof.
"Paying Agent" means any paying agent or co-paying agent
appointed pursuant to Section 5.3.
"Person" means any individual, corporation, partnership,
trust, limited liability company, joint venture, joint-stock
company, unincorporated organization or other entity or
government or any agency or political subdivision thereof.
"Predecessor Debenture" means every previous Debenture
evidencing all or a portion of the same debt as that evidenced by
such particular Debenture; and, for the purposes of this
definition, any Debenture authenticated and delivered under
Section 2.9 in lieu of a lost, destroyed or stolen Debenture
shall be deemed to evidence the same debt as the lost, destroyed
or stolen Debenture.
"Property Trustee" has the meaning set forth in the Trust
Agreement.
"Resale Restriction Termination Date" means, with respect to
the offer, sale or other transfer of a Debenture, (a) the date
which is two years (or such shorter period of time as permitted
by Rule 144(k) under the Securities Act) after the later of the
original issue date of such Debenture and the last date on which
the Company or any Affiliate of the Company was the owner of such
Debenture (or any predecessor of the Debenture) and (b) such
later date, if any, as may be required by applicable laws.
"Redemption Date" shall have the meaning set forth in
Section 3.2(a).
"Redemption Price" shall have the meaning set forth in
Section 3.1.
"Responsible Officer" when used with respect to the Trustee
means any officer within the Corporate Trust Office of the
Trustee with direct responsibility for the administration of this
Indenture, including any vice president, any assistant vice
president, any assistant secretary or any other officer or
assistant officer of the Trustee customarily performing functions
similar to those performed by the Persons who at the time shall
be such officers or to whom such corporate trust matter is
referred because of that officer's knowledge of and familiarity
with the particular subject.
"Scheduled Maturity Date" means June 30, 2032.
"Securities Act," means the Securities Act of 1933 or any
successor statute thereto, in each case as amended from time to
time.
"Senior Debt" means the principal of (and premium, if any)
and interest, if any (including interest accruing on or after the
filing of any petition in bankruptcy or for reorganization
relating to the Company whether or not such claim for post-
petition interest is allowed in such proceeding), on all Debt,
whether incurred on or prior to the date of this Indenture or
thereafter incurred, unless, in the instrument creating or
evidencing the same or pursuant to which the same is outstanding,
it is provided that such obligations are not superior in right of
payment to the Debentures or to other Debt which is pari passu
with, or subordinated to, the Debentures; provided, however, that
Senior Debt shall not be deemed to include (i) any Debt of the
Company owed 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;
(ii) Debt which by its terms is subordinated to trade accounts
payable or accrued liabilities arising in the ordinary course of
business; and (iii) Debt which constitutes Subordinated Debt.
"Senior Indebtedness" shall have the meaning set forth in
Section 16.1.
"Special Event" means a Tax Event, an Investment Company
Event or a Capital Treatment Event.
"Subordinated Debt" means the principal of (and premium, if
any) and interest, if any (including interest accruing on or
after the filing of any petition in bankruptcy or for
reorganization relating to the Company whether or not such claim
for post-petition interest is allowed in such proceeding), on
Debt, whether incurred on or prior to the date of this Indenture
or thereafter incurred, which is by its terms expressly provided
to be junior and subordinate to Senior Debt of the Company (other
than the Debentures); provided, however, that Subordinated Debt
will not be deemed to include (i) any Debt 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, (ii) any Debt which by its
terms is subordinated to trade accounts payable or accrued
liabilities arising in the ordinary course of business; (iii)
Debt which constitutes Senior Debt and (iv) any Debt of the
Company under debt securities (and guarantees in respect of these
debt securities) initially issued to any trust, or a trustee of a
trust, partnership or other entity affiliated with the Company
that is, directly or indirectly, a financing vehicle of the
Company in connection with the issuance by that entity of
preferred securities or other securities which are intended to
qualify for Tier 1 capital treatment for purposes of the capital
adequacy guidelines of the Federal Reserve, as then in effect.
"Subsidiary" means, with respect to any Person, (i) any
corporation at least a majority of whose outstanding Voting Stock
shall at the time be owned, directly or indirectly, by such
Person or by one or more of its Subsidiaries or by such Person
and one or more of its Subsidiaries; (ii) any general
partnership, limited liability company, joint venture or similar
entity, at least a majority of whose outstanding partnership or
similar interests shall at the time be owned by such Person, or
by one or more of its Subsidiaries, or by such Person and one or
more of its Subsidiaries; and (iii) any limited partnership of
which such Person or any of its Subsidiaries is a general
partner.
"Tax Event" means the receipt by the Company and the Trust
of an Opinion of Counsel, rendered by a law firm having a
recognized federal tax law practice, to the effect that, as a
result of any amendment to, or change (including any announced
prospective change) in, the laws (or any regulations thereunder)
of the United States or any political subdivision or taxing
authority thereof or therein, or as a result of any official
administrative pronouncement or judicial decision interpreting or
applying such laws or regulations, which amendment or change is
effective or which pronouncement or decision is announced on or
after the date of issuance of the Trust Preferred Securities
under the Trust Agreement, there is more than an insubstantial
risk that (i) the Trust is, or shall be within 90 days after the
date of such Opinion of Counsel, subject to United States federal
income tax with respect to income received or accrued on the
Debentures; (ii) interest payable by the Company on the
Debentures is not, or within 90 days after the date of such
Opinion of Counsel, shall not be, deductible by the Company, in
whole or in part, for United States federal income tax purposes;
or (iii) the Trust is, or shall be within 90 days after the date
of such Opinion of Counsel, subject to more than a de minimis
amount of other taxes, duties, assessments or other governmental
charges; provided, however, that the Trust or the Company shall
have requested and received such an Opinion of Counsel with
regard to such matters within a reasonable period of time after
the Trust or the Company shall have become aware of the
occurrence or the possible occurrence of any of the events
described in clauses (i) through (iii) above.
"Three-Month LIBOR" shall have the meaning set forth in
Section 2.5(d).
"Trust" means Heartland Financial Capital Trust II, a
Delaware statutory business trust.
"Trust Agreement" means the Amended and Restated Trust
Agreement, effective as of June 27, 2002, of the Trust, as
amended from time to time.
"Trust Preferred Securities" means undivided preferred
beneficial interests in the assets of the Trust that rank pari
passu with Common Securities issued by the Trust; provided,
however, that upon the occurrence of an Event of Default, the
rights of holders of Common Securities to payment in respect of
distributions and payments upon liquidation, redemption and
otherwise are subordinated to the rights of holders of Trust
Preferred Securities.
"Trust Preferred Securities Guarantee" means any guarantee
that the Company may enter into with the Trustee or other Persons
that operates directly or indirectly for the benefit of holders
of Trust Preferred Securities.
"Trustee" means Wells Fargo Bank, National Association and,
subject to the provisions of Article IX, shall also include its
successors and assigns in each such Person's capacity as trustee
hereunder, and, if at any time there is more than one Person
acting in such capacity hereunder, "Trustee" shall mean each such
Person.
"Trust Indenture Act," means the Trust Indenture Act of 1939
or any successor statute thereto, in each case as amended from
time to time.
"Trust Securities" means the Common Securities and Trust
Preferred Securities, collectively.
"Voting Stock," as applied to stock of any Person, means
shares, interests, participations or other equivalents in the
equity interest (however designated) in such Person having
ordinary voting power for the election of a majority of the
directors (or the equivalent) of such Person, other than shares,
interests, participations or other equivalents having such power
only by reason of the occurrence of a contingency.
ARTICLE II
ISSUE, DESCRIPTION, TERMS, CONDITIONS,REGISTRATION AND EXCHANGE
OF THE DEBENTURES
Section 2.1 Designation and Principal Amount.
There is hereby authorized Debentures designated the
"Floating Rate Junior Subordinated Deferrable Interest Debentures
due June 30, 2032," limited in aggregate principal amount to Five
Million One Hundred Fifty Five Thousand Dollars ($5,155,000)
which amount shall be as set forth in any written order of the
Company for the authentication and delivery of Debentures
pursuant to Section 2.6.
Section 2.2 Maturity.
(a) The Maturity Date shall be either:
(i) the Scheduled Maturity Date; or
(ii) if the Company elects to accelerate the
Maturity Date to be a date prior to the Scheduled
Maturity Date in accordance with Sections 2.2(b)
and 2.2(c), the Accelerated Maturity Date.
(b) The Company may at any time before the day which
is 90 days before the Scheduled Maturity Date and after June
30, 2007, elect to shorten the Maturity Date only once to
the Accelerated Maturity Date provided that the Company has
received the prior approval of the Federal Reserve if then
required under applicable capital guidelines, policies or
regulations of the Federal Reserve.
(c) If the Company elects to accelerate the Maturity
Date in accordance with Section 2.2(b), the Company shall
give notice to the Trustee and the Trust (unless the
Property Trustee is not the holder of the Debentures, in
which case the Trustee will give notice to the holders of
the Debentures) of the acceleration of the Maturity Date and
the Accelerated Maturity Date at least 30 days and no more
than 180 days before the Accelerated Maturity Date.
Section 2.3 Form and Payment.
The Debentures shall be issued in certificated form,
registered in the name of the holder thereof, without interest
coupons. The Debentures, including the Certificate of
Authentication, shall be substantially in the form of Exhibit A
hereto. Prior to the Resale Restriction Termination Date, the
Debentures will be issued and may only be transferred in a
minimum aggregate principal amount of $100,000. Subsequent to the
Resale Restriction Termination Date, the Debentures may only be
transferred in a minimum aggregate principal amount of $100,000.
Any attempted transfer not in accordance with the preceding two
sentences shall be void and of no effect whatsoever.
Principal and interest on the Debentures issued in
certificated form shall be payable, the transfer of such
Debentures shall be registrable and such Debentures shall be
exchangeable for Debentures bearing identical terms and
provisions at or through the office or agency of the Trustee;
provided, however, that payment of interest may be made at the
option of the Company by check mailed to the holder at such
address as shall appear in the Debenture Register or by wire
transfer to an account maintained by the holder as specified in
the Debenture Register, provided that the holder provides proper
transfer instructions by the regular record date. Notwithstanding
the foregoing, so long as the holder of any Debentures is the
Property Trustee, the payment of principal of and interest
(including Compounded Interest and Additional Interest, if any)
on such Debentures held by the Property Trustee shall be made at
such place and to such account as may be designated by the
Property Trustee.
Section 2.4 Intentionally Left Blank.
Section 2.5 Interest.
(a) Each Debenture shall bear interest at the rate of
3.65% per annum over the Three-Month LIBOR Rate, calculated
on each Interest Reset Date (the "Floating Interest Rate"),
from the original date of issuance until the principal
thereof becomes due and payable, and on any overdue
principal and (to the extent that payment of such interest
is enforceable under applicable law) on any overdue
installment of interest at the Floating Interest Rate,
compounded quarterly, payable (subject to the provisions of
Article IV) quarterly in arrears on March 30, June 30,
September 30 and December 30 of each year (each such date,
an "Interest Payment Date," and each quarterly period, an
"Interest Payment Period"), commencing on September 30, 2002
to the Person in whose name such Debenture or any
Predecessor Debenture is registered, at the close of
business on the regular record date for such interest
installment, which shall be the 15th of the last month of
each Interest Payment Period.
(b) The Floating Interest Rate for each Interest
Payment Period will be set on the second London business day
preceding each Interest Payment Date; provided, that the
initial Floating Interest Rate will be set on June 27, 2002.
If the Interest Reset Date is not a Business Day, then such
Interest Reset Date shall be the next succeeding day which
is a Business Day. In no event shall the Floating Interest
Rate exceed 12% prior to June 30, 2007.
(c) The amount of interest payable for any Interest
Payment Period shall be computed on the basis of a 360-day
year and the actual number of days in such Interest Payment
Period. In the event that any date on which interest is
payable on the Debentures is not a Business Day, then
payment of interest payable on such date shall be made on
the next succeeding day which is a Business Day except that,
if such Business Day is in the next succeeding calendar
year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and
effect as if made on the date such payment was originally
payable.
(d) The "Three-Month LIBOR Rate" shall mean the rate
determined in accordance with the following provisions:
(i) On the second London Business Day
(provided that on such day commercial banks are
open for business (including dealings in foreign
currency deposits) in London (a "LIBOR Banking
Day") preceding each January 15, April 15, July 15
and October 15 (except with respect to the first
Interest Payment Period commencing June 27, 2002)
(each such date, an "Interest Reset Date"), Wells
Fargo Bank, National Association (the "Calculation
Agent"), will determine the Three-Month LIBOR Rate
which shall be the rate for deposits in the London
interbank market in U.S. dollars having a three-
month maturity which appears on the Telerate Page
3750 as of 11:00 a.m., London time, on such
Interest Reset Date. "Telerate Page 3750" means
the display on Page 3750 of the Bloomberg
Financial Markets Commodities News (or such other
page as may replace that page on that service for
the purpose of displaying London interbank offered
rates of major banks for U.S. dollar deposits). If
the Three-Month LIBOR Rate on such Interest Reset
Date does not appear on the Telerate Page 3750,
such Three-Month LIBOR Rate will be determined as
described in (ii) below. "LIBOR Business Day"
means any day that is not a Saturday, Sunday or
other day on which commercial banking institutions
in New York, New York or Wilmington, Delaware are
authorized or obligated by law or executive order
to be closed. If such rate is superseded on
Telerate Page 3750 by a corrected rate before
12:00 noon (London time) on the same Interest
Reset Date, the corrected rate as so substituted
will be the applicable LIBOR for that Interest
Reset Date.
(ii) If, on any Interest Reset Date, such
rate does not appear on Telerate Page 3750 as
reported by Bloomberg Financial Markets
Commodities News or such other page as may replace
such Telerate Page 3750, the Calculation Agent
shall determine the arithmetic mean of quotations
of the Reference Banks (defined below) to leading
banks in the London interbank market for three-
month U.S. Dollar deposits in Europe (in an amount
determined by the Calculation Agent by reference
to requests for quotations as of approximately
11:00 a.m. (London time) on the Interest Reset
Date made by the Calculation Agent to the
Reference Banks. If, on any Interest Reset Date,
only one or none of the Reference Banks provide
such a quotation, LIBOR shall be deemed to be the
arithmetic mean of the offered quotations that at
least two leading banks in the City of New York
(as selected by the Calculation Agent) are quoting
on the relevant Interest Reset Date for three-
month U.S. Dollar deposits in Europe at
approximately 11:00 a.m. (London time) (in an
amount determined by the Calculation Agent). As
used herein, "Reference Banks" means four major
banks in the London interbank market selected by
the Calculation Agent.
(iii) If the Calculation Agent is required but is
unable to determine a rate in accordance with at
least one of the procedures provided above, LIBOR
shall be LIBOR in effect on the previous Interest
Reset Date (whether or not LIBOR for such period was
in fact determined on such Interest Reset Date)
(e) The Trustee shall provide written notice of the
Floating Interest Rate as certified by the Calculation Agent
to each holder of Debentures as set forth in the Debenture
Register no later than five Business Days following each
Interest Reset Date.
(f) If, at any time while the Trust or the Property
Trustee is the holder of any Debentures, the Trust or the
Property Trustee is subject to or is required to pay any
taxes, duties, assessments or governmental charges of
whatever nature (including withholding taxes) imposed by the
United States, or any other taxing authority, then, in any
case, the Company shall pay as additional amounts
("Additional Sums") on the Debentures held by the Trust or
the Property Trustee, such additional amounts as shall be
required so that the net amounts received and retained by
the Trust and the Property Trustee after the withholding or
paying of such taxes, duties, assessments or other
governmental charges shall be equal to the amounts the Trust
and the Property Trustee would have received and retained
had no such taxes, duties, assessments or other government
charges been imposed.
(g) The Floating Interest Rate will in no event be
higher than the maximum rate permitted by the law of the
State of Iowa, or, if higher, the law of the United States
of America.
Section 2.6 Execution and Authentications.
(a) The Debentures shall be signed on behalf of the
Company by its Chief Executive Officer, President or one of
its Vice Presidents, under its corporate seal, if any,
attested by its Secretary or one of its Assistant
Secretaries. Signatures may be in the form of a manual or
facsimile signature. The Company may use the facsimile
signature of any Person who shall have been a Chief
Executive Officer, President or Vice President thereof, or
of any Person who shall have been a Secretary or Assistant
Secretary thereof, notwithstanding the fact that at the time
the Debentures shall be authenticated and delivered or
disposed of such Person shall have ceased to be the Chief
Executive Officer, President or a Vice President, or the
Secretary or an Assistant Secretary, of the Company (and any
such signature shall be binding on the Company). The
corporate seal of the Company, if any, may be in the form of
a facsimile of such seal and may be impressed, affixed,
imprinted or otherwise reproduced on the Debentures. The
Debentures may contain such notations, legends or
endorsements required by law, stock exchange rule or usage.
Each Debenture shall be dated the date of its authentication
by the Trustee. A Debenture shall not be valid until
authenticated manually by an authorized signatory of the
Trustee, or by an Authenticating Agent. Such signature shall
be conclusive evidence that the Debenture so authenticated
has been duly authenticated and delivered hereunder and that
the holder is entitled to the benefits of this Indenture.
(b) At any time and from time to time after the
execution and delivery of this Indenture, the Company may
deliver Debentures executed by the Company to the Trustee
for authentication, together with a written order of the
Company for the authentication and delivery of such
Debentures signed by its Chief Executive Officer, President
or any Vice President and its Treasurer or any Assistant
Treasurer, and the Trustee in accordance with such written
order shall authenticate and deliver such Debentures.
(c) In authenticating such Debentures and accepting
the additional responsibilities under this Indenture in
relation to such Debentures, the Trustee shall be entitled
to receive, and (subject to Section 9.1(b)) shall be fully
protected in relying upon, an Opinion of Counsel stating
that the form and terms thereof have been established in
conformity with the provisions of this Indenture.
(d) The Trustee shall not be required to authenticate
such Debentures if the issue of such Debentures pursuant to
this Indenture shall affect the Trustee's own rights,
duties or immunities under the Debentures and this Indenture
or otherwise in a manner that is not reasonably acceptable
to the Trustee.
Section 2.7 Registration of Transfer and Exchange.
(a) Subject to Section 2.3, Debentures may be
exchanged upon presentation thereof at the office or agency
of the Company designated for such purpose in Wilmington,
Delaware or at the office of the Debenture Registrar, for
other Debentures and for a like aggregate principal amount
in denominations of integral multiples of $1,000, upon
payment of a sum sufficient to cover any tax or other
governmental charge in relation thereto, all as provided in
this Section 2.7. In respect of any Debentures so
surrendered for exchange, the Company shall execute, the
Trustee, upon written order of the Company, shall
authenticate and such office or agency shall deliver in
exchange therefore the Debenture or Debentures that the
Debentureholder making the exchange shall be entitled to
receive, bearing numbers not contemporaneously outstanding.
(b) The Company shall keep, or cause to be kept, at
its office or agency designated for such purpose in
Wilmington, Delaware or at the office of the Debenture
Registrar or such other location designated by the Company a
register or registers (herein referred to as the "Debenture
Register") in which, subject to such reasonable regulations
as it may prescribe, the Company shall register the
Debentures and the transfers of Debentures as provided in
this Article II and which at all reasonable times shall be
open for inspection by the Trustee. The registrar for the
purpose of registering Debentures and transfer of Debentures
as herein provided shall initially be the Trustee and
thereafter as may be appointed by the Company as authorized
by Board Resolution (the "Debenture Registrar"). Subject to
Section 2.3, upon surrender for transfer of any Debenture at
the office or agency of the Company designated for such
purpose, the Company shall execute, the Trustee, upon
written order of the Company, shall authenticate and such
office or agency shall deliver in the name of the transferee
or transferees a new Debenture or Debentures for a like
aggregate principal amount. All Debentures presented or
surrendered for exchange or registration of transfer, as
provided in this Section 2.7, shall be accompanied (if so
required by the Company or the Debenture Registrar) by a
written instrument or instruments of transfer, in form
satisfactory to the Company or the Debenture Registrar, duly
executed by the registered holder or by such holder's duly
authorized attorney in writing.
(c) Notwithstanding anything herein to the contrary,
Debentures may not be transferred except in compliance with
the restricted securities legends set forth below, unless
otherwise determined by the Company, upon the advice of
legal counsel, in accordance with applicable law:
THIS DEBENTURE HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), ANY STATE
SECURITIES LAWS OR ANY OTHER APPLICABLE SECURITIES LAWS.
NEITHER THIS DEBENTURE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE
OF SUCH REGISTRATION OR UNLESS THE TRANSACTION IS EXEMPT
FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. PRIOR TO (X)
THE DATE WHICH IS TWO YEARS (OR SUCH SHORTER PERIOD OF TIME
AS PERMITTED BY RULE 144(k) UNDER THE SECURITIES ACT) AFTER
THE LATER OF (i) THE ORIGINAL ISSUE DATE HEREOF OR (ii) THE
LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE
COMPANY WAS THE OWNER OF THIS DEBENTURE (OR ANY PREDECESSOR
OF THIS DEBENTURE) AND (Y) SUCH LATER DATE, IF ANY, AS MAY
BE REQUIRED BY APPLICABLE LAWS (THE "RESALE RESTRICTION
TERMINATION DATE"), THE HOLDER OF THIS DEBENTURE BY ITS
ACCEPTANCE HEREOF AGREES FOR THE BENEFIT OF THE COMPANY TO
OFFER, SELL OR OTHERWISE TRANSFER THIS DEBENTURE ONLY (A) TO
THE COMPANY OR AN AFFILIATE OF THE COMPANY, (B) PURSUANT TO
A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE
UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THIS DEBENTURE
IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A ("RULE 144A")
PROMULGATED UNDER THE SECURITIES ACT, TO A PERSON IT
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS
DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR
FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN
COMPLIANCE WITH RULE 144A, (D) TO AN INSTITUTIONAL
"ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH
(A)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT
THAT IS ACQUIRING THIS DEBENTURE FOR ITS OWN ACCOUNT, OR FOR
THE ACCOUNT OF SUCH AN INSTITUTIONAL "ACCREDITED INVESTOR,"
FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER
OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF
THE SECURITIES ACT, OR (E) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S
RIGHT PRIOR TO ANY SUCH OFFER, SALE, TRANSFER OR OTHER
DISPOSITION (i) PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE
THE DELIVERY BY THE HOLDER OF AN OPINION OF COUNSEL,
CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY TO THE
COMPANY 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 AND (ii) IN
EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE
OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS
DEBENTURE IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO
THE TRUSTEE AND THE REGISTRAR IN CONNECTION WITH ANY
TRANSFER OF THIS DEBENTURE PRIOR TO THE RESALE RESTRICTION
TERMINATION DATE. THE HOLDER MUST CHECK THE APPROPRIATE BOX
SET FORTH ON THE CERTIFICATE OF TRANSFER RELATING TO THE
MANNER OF SUCH TRANSFER AND SUBMIT THE CERTIFICATE OF
TRANSFER TO THE TRUSTEE AND THE REGISTRAR. THIS LEGEND WILL
BE REMOVED UPON REQUEST OF THE HOLDER AFTER THE EARLIER OF
(i) THE TRANSFER OF THE DEBENTURE EVIDENCED HEREBY PURSUANT
TO CLAUSE (B) ABOVE OR (ii) THE RESALE RESTRICTION
TERMINATION DATE. THE HOLDER WILL, AND EACH SUBSEQUENT
HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS
DEBENTURE OF THE RESALE RESTRICTIONS REFERRED TO HEREIN.
PRIOR TO THE RESALE RESTRICTION TERMINATION DATE, THIS
DEBENTURE MAY BE TRANSFERRED OR EXCHANGED ONLY IN A MINIMUM
AGGREGATE PRINCIPAL AMOUNT OF NOT LESS THAN $100,000. ANY
ATTEMPTED TRANSFER OF THIS DEBENTURE IN AN AGGREGATE
PRINCIPAL AMOUNT OF LESS THAN $100,000 PRIOR TO THE RESALE
RESTRICTION TERMINATION DATE SHALL BE DEEMED TO BE VOID AND
OF NO LEGAL EFFECT WHATSOEVER. AFTER SUCH RESALE
RESTRICTION TERMINATION DATE, ANY ATTEMPTED TRANSFER OF THIS
DEBENTURE IN AN AGGREGATE PRINCIPAL AMOUNT OF LESS THAN
$100,000 SHALL BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT
WHATSOEVER. ANY SUCH PURPORTED TRANSFEREE SHALL BE DEEMED
NOT TO BE THE HOLDER OF THIS DEBENTURE FOR ANY PURPOSE,
INCLUDING, BUT NOT LIMITED TO, THE RIGHT TO RECEIVE INTEREST
PAYMENTS ON THIS DEBENTURE, AND SUCH PURPORTED TRANSFEREE
SHALL BE DEEMED TO HAVE NO INTEREST WHATSOEVER IN THIS
DEBENTURE.
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO
THE REGISTRAR SUCH CERTIFICATES AND OTHER INFORMATION AS MAY
BE REQUIRED BY THE INDENTURE TO CONFIRM THAT THE TRANSFER
COMPLIES WITH THE FOREGOING RESTRICTIONS.
(d) No service charge shall be made for any exchange or
registration of transfer of Debentures, or issue of new
Debentures in case of partial redemption, but the Company
may require payment of a sum sufficient to cover any tax or
other governmental charge in relation thereto. Other than
exchanges pursuant to Section 2.8, the Company shall not be
required (i) to issue, exchange or register the transfer of
any Debentures during a period beginning at the opening of
15 business days before the day of the mailing of a notice
of redemption of less than all the Outstanding Debentures
and ending at the close of business on the day of such
mailing; nor (ii) to register the transfer of or exchange
any Debentures or portions thereof called for redemption.
(e) Nothing herein withstanding, the Property Trustee
shall not be authorized, other than in the case of Default,
to cause the transfer of a Debenture issued hereunder except
(i) upon prior consent and authorization by the
Administrative Trustees or (ii) upon order of a court of
competent jurisdiction.
(f) Debentures may only be transferred, in whole or in
part, in accordance with the terms and conditions set forth
in this Indenture. Any transfer or purported transfer of any
Debenture not made in accordance with this Indenture shall
be null and void.
Section 2.8 Temporary Debentures.
Pending the preparation of definitive Debentures, the
Company may execute, and the Trustee shall authenticate and
deliver, temporary Debentures (printed, lithographed, or
typewritten). Such temporary Debentures shall be substantially in
the form of the definitive Debentures in lieu of which they are
issued, but with such omissions, insertions and variations as may
be appropriate for temporary Debentures, all as may be determined
by the Company. Every temporary Debenture shall be executed by
the Company and be authenticated by the Trustee upon the same
conditions and in substantially the same manner, and with like
effect, as the definitive Debentures. Without unnecessary delay
the Company shall execute and shall furnish definitive Debentures
and thereupon any or all temporary Debentures may be surrendered
in exchange therefor (without charge to the holders), at the
office or agency of the Company designated for that purpose in
Wilmington, Delaware or such other office or agency as the
Company shall designate for that purpose pursuant to Section 5.2
hereof, and the Trustee shall authenticate, upon written order of
the Company, and such office or agency shall deliver in exchange
for such temporary Debentures an equal aggregate principal amount
of definitive Debentures, unless the Company advises the Trustee
to the effect that definitive Debentures need not be
authenticated and furnished until further notice from the
Company. Until so exchanged, the temporary Debentures shall be
entitled to the same benefits under this Indenture as definitive
Debentures authenticated and delivered hereunder.
Section 2.9 Mutilated, Destroyed, Lost or Stolen
Debentures.
(a) In case any temporary or definitive Debenture
shall become mutilated or be destroyed, lost or stolen, the
Company (subject to the next succeeding sentence) shall
execute, and upon the Company's written order and request
the Trustee (subject as aforesaid) shall authenticate and
deliver, a new Debenture bearing a number not
contemporaneously outstanding, in exchange and substitution
for the mutilated Debenture, or in lieu of and in
substitution for the Debenture so destroyed, lost, stolen or
mutilated. In every case the applicant for a substituted
Debenture shall furnish to the Company and the Trustee such
security or indemnity as may be required by them to hold
each of them harmless, and, in every case of destruction,
loss or theft, the applicant shall also furnish to the
Company and the Trustee evidence to their satisfaction of
the destruction, loss or theft of the applicant's Debenture
and of the ownership thereof. The Trustee may authenticate
any such substituted Debenture and deliver the same upon the
written order and request or authorization of the Chief
Executive Officer, President or any Vice President and the
Treasurer or any Assistant Treasurer of the Company. Upon
the issuance of any substituted Debenture, the Company may
require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith. In case any
Debenture that has matured or is about to mature shall
become mutilated or be destroyed, lost or stolen, the
Company may, instead of issuing a substitute Debenture, pay
or authorize the payment of the same (without surrender
thereof except in the case of a mutilated Debenture) if the
applicant for such payment shall furnish to the Company and
the Trustee such security or indemnity as they may require
to hold them harmless, and, in case of destruction, loss or
theft, evidence to the satisfaction of the Company and the
Trustee of the destruction, loss or theft of such Debenture
and of the ownership thereof.
(b) Every replacement Debenture issued pursuant to the
provisions of this Section 2.9 shall constitute an
additional contractual obligation of the Company whether or
not the mutilated, destroyed, lost or stolen Debenture shall
be found at any time, or be enforceable by anyone, and shall
be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Debentures duly
issued hereunder. All Debentures shall be held and owned
upon the express condition that the foregoing provisions are
exclusive with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Debentures, and shall
preclude (to the extent lawful) any and all other rights or
remedies, notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other
securities without their surrender.
Section 2.10 Cancellation.
All Debentures surrendered for the purpose of payment,
redemption, exchange or registration of transfer shall, if
surrendered to the Company or any Paying Agent, be delivered to
the Trustee for cancellation, or, if surrendered to the Trustee,
shall be canceled by it, and no Debentures shall be issued in
lieu thereof except as expressly required or permitted by any of
the provisions of this Indenture. On request of the Company at
the time of such surrender, the Trustee shall deliver to the
Company canceled Debentures held by the Trustee. In the absence
of such request the Trustee may dispose of canceled Debentures in
accordance with its standard procedures and deliver a certificate
of disposition to the Company. If the Company shall otherwise
acquire any of the Debentures, however, such acquisition shall
not operate as a redemption or satisfaction of the indebtedness
represented by such Debentures unless and until the same are
delivered to the Trustee for cancellation.
Section 2.11 Benefit of Indenture.
Nothing in this Indenture or in the Debentures, express or
implied, shall give or be construed to give to any Person, other
than the parties hereto and the holders of the Debentures (and,
with respect to the provisions of Article XVI, the holders of the
Senior Indebtedness) any legal or equitable right, remedy or
claim under or in respect of this Indenture, or under any
covenant, condition or provision herein contained; all such
covenants, conditions and provisions being for the sole benefit
of the parties hereto and of the holders of the Debentures (and,
with respect to the provisions of Article XVI, the holders of the
Senior Indebtedness).
Section 2.12 Authentication Agent.
(a) So long as any of the Debentures remain
Outstanding there may be an Authenticating Agent for any or
all such Debentures, and the Trustee shall have the right to
appoint such Authenticating Agent. Said Authenticating Agent
shall be authorized to act on behalf of the Trustee to
authenticate Debentures issued upon exchange, transfer or
partial redemption thereof, and Debentures so authenticated
shall be entitled to the benefits of this Indenture and
shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. All references in
this Indenture to the authentication of Debentures by the
Trustee shall be deemed to include authentication by an
Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall be a corporation that
has a combined capital and surplus, as most recently
reported or determined by it, sufficient under the laws of
any jurisdiction under which it is organized or in which it
is doing business to conduct a trust business, and that is
otherwise authorized under such laws to conduct such
business and is subject to supervision or examination by
federal or state authorities. If at any time any
Authenticating Agent shall cease to be eligible in
accordance with these provisions, it shall resign
immediately.
(b) Any Authenticating Agent may at any time resign by
giving written notice of resignation to the Trustee and to
the Company. The Trustee may at any time (and upon request
by the Company shall) terminate the agency of any
Authenticating Agent by giving written notice of termination
to such Authenticating Agent and to the Company. Upon
resignation, termination or cessation of eligibility of any
Authenticating Agent, the Trustee may appoint an eligible
successor Authenticating Agent acceptable to the Company.
Any successor Authenticating Agent, upon acceptance of its
appointment hereunder, shall become vested with all the
rights, powers and duties of its predecessor hereunder as if
originally named as an Authenticating Agent pursuant hereto.
ARTICLE III
REDEMPTION OF DEBENTURES
Section 3.1 Special Event Redemption.
If, prior to June 30, 2007, a Special Event has occurred and
is continuing, then, notwithstanding Section 3.2(a) but subject
to Section 3.2(b), the Company shall have the right upon not less
than 30 days' nor more than 60 days' notice to the holders of the
Debentures to redeem the Debentures, in whole but not in part,
for cash within 180 days following the occurrence of such Special
Event (the "180-Day Period") at a redemption price equal to One
Hundred Three Percent (103%) of the principal amount to be
redeemed plus any accrued and unpaid interest thereon to the date
of such redemption (the "Redemption Price"), provided that if at
the time there is available to the Company the opportunity to
eliminate, within the 180-Day Period, a Tax Event by taking some
ministerial action (a "Ministerial Action"), such as filing a
form or making an election, or pursuing some other similar
reasonable measure which has no adverse effect on the Company,
the Trustee, the Trust or the holders of the Trust Securities
issued by the Trust, the Company shall pursue such Ministerial
Action in lieu of redemption. The Redemption Price shall be paid
prior to 12:00 noon, New York time, on the date of such
redemption or such earlier time as the Company determines,
provided that the Company shall deposit with the Trustee an
amount sufficient to pay the Redemption Price by 10:00 a.m., New
York time, on the date such Redemption Price is to be paid.
Section 3.2 Optional Redemption by Company.
(a) Subject to the provisions of Section 3.2(b),
except as otherwise may be specified in this Indenture, the
Company shall have the right to redeem the Debentures, in
whole or in part, from time to time, on any Interest Payment
Date after June 30, 2007 (each a "Redemption Date"), at a
Redemption Price equal to 100% of the principal amount to be
redeemed plus any accrued and unpaid interest thereon to the
Redemption Date. Any redemption pursuant to this Section
3.2(a) shall be made upon not less than 30 days' nor more
than 60 days' notice to the holder of the Debentures, at the
Redemption Price. If the Debentures are only partially
redeemed pursuant to this Section 3.2, the Debentures shall
be redeemed pro rata or by lot or in such other manner as
the Trustee shall in good faith deem appropriate and fair in
its sole discretion. The Redemption Price shall be paid
prior to 12:00 noon, New York time, on the Redemption Date
or at such earlier time as the Company determines provided
that the Company shall deposit with the Trustee an amount
sufficient to pay the Redemption Price by 10:00 a.m., New
York time, on the Redemption Date.
(b) Any redemption of Debentures pursuant to Section
3.1 or Section 3.2 shall be subject to the Company obtaining
the prior approval of the Federal Reserve, if such approval
is then required under the applicable capital guidelines,
policies or regulations of the Federal Reserve, and any
other required regulatory approvals.
(c) If a partial redemption of the Debentures would
result in the delisting of the Trust Preferred Securities
issued by the Trust from any national securities exchange or
other organization on which the Trust Preferred Securities
are then listed, if any, the Company shall not be permitted
to effect such partial redemption and may only redeem the
Debentures in whole.
(d) Subject to the provisions of this Section 3.2, the
Company shall have the right to redeem Debentures in a
principal amount equal to the Liquidation Amount (as defined
in the Trust Agreement) of any Trust Preferred Securities
purchased and beneficially owned by the Company, plus an
additional principal amount of Debentures equal to the
Liquidation Amount (as defined in the Trust Agreement) of
that number of Common Securities that bears the same
proportion to the total number of Common Securities then
outstanding as the number of Trust Preferred Securities to
be redeemed bears to the total number of Trust Preferred
Securities then outstanding. Such Debentures shall be
redeemed pursuant to this Section 3.2(d) only in exchange
for and upon surrender by the Company to the Property
Trustee of the Trust Preferred Securities and a
proportionate amount of Common Securities, whereupon the
Property Trustee shall cancel the Trust Preferred Securities
and Common Securities so surrendered and a Like Amount (as
defined in the Trust Agreement) of Debentures shall be
extinguished by the Trustee and shall no longer be deemed
Outstanding.
Section 3.3 Notice of Redemption.
In case the Company shall desire to exercise such right to
redeem all or, as the case may be, a portion of the
Debentures in accordance with the right reserved so to do,
the Company shall, or shall cause the Trustee to upon
receipt of at least 45 days' written notice from the Company
(which notice shall, in the event of a partial redemption,
include a representation to the effect that such partial
redemption will not result in the delisting of the Trust
Preferred Securities as described in Section 3.2(c) above),
give notice of such redemption to holders of the Debentures
to be redeemed by mailing, first class postage prepaid, a
notice of such redemption not less than 30 days and not more
than 180 days before the date fixed for redemption to such
holders at their last addresses as they shall appear upon
the Debenture Register unless a shorter period is specified
in the Debentures to be redeemed. Any notice that is mailed
in the manner herein provided shall be conclusively presumed
to have been duly given, whether or not the registered
holder receives the notice. In any case, failure duly to
give such notice to the holder of any Debenture designated
for redemption in whole or in part, or any defect in the
notice, shall not affect the validity of the proceedings for
the redemption of any other Debentures. In the case of any
redemption of Debentures prior to the expiration of any
restriction on such redemption provided in the terms of such
Debentures or elsewhere in this Indenture, the Company shall
furnish the Trustee with an Officers' Certificate evidencing
compliance with any such restriction. Each such notice of
redemption shall specify the date fixed for redemption and
the Redemption Price and shall state that payment of the
Redemption Price shall be made at the office or agency of
the Company or at the Corporate Trust Office of the Trustee,
upon presentation and surrender of such Debentures, that
interest accrued to the date fixed for redemption shall be
paid as specified in said notice and that from and after
said date interest shall cease to accrue. If less than all
the Debentures are to be redeemed, the notice to the holders
of the Debentures shall specify the particular Debentures to
be redeemed. If the Debentures are to be redeemed in part
only, the notice shall state the portion of the principal
amount thereof to be redeemed and shall state that on and
after the redemption date, upon surrender of such Debenture,
a new Debenture or Debentures in principal amount equal to
the unredeemed portion thereof will be issued to the holder.
If less than all the Debentures are to be redeemed, the
Company shall give the Trustee at least 45 days' notice in
advance of the date fixed for redemption as to the aggregate
principal amount of Debentures to be redeemed, and thereupon
the Trustee shall select, pro rata or by lot or in such
other manner as it shall in good faith deem appropriate and
fair in its sole discretion, the portion or portions (equal
to $1,000 or any integral multiple thereof) of the
Debentures to be redeemed and shall thereafter promptly
notify the Company in writing of the numbers of the
Debentures to be redeemed, in whole or in part. The Company
may, if and whenever it shall so elect pursuant to the terms
hereof, by delivery of instructions signed on its behalf by
its Chief Executive Officer, its President or any Vice
President, instruct the Trustee or any Paying Agent to call
all or any part of the Debentures for redemption and to give
notice of redemption in the manner set forth in this Section
3.3, such notice to be in the name of the Company or its own
name as the Trustee or such Paying Agent may deem advisable.
In any case in which notice of redemption is to be given by
the Trustee or any such Paying Agent, the Company shall
deliver or cause to be delivered to, or permit to remain
with, the Trustee or such Paying Agent, as the case may be,
such Debenture Register, transfer books or other records, or
suitable copies or extracts therefrom, sufficient to enable
the Trustee or such Paying Agent to give any notice by mail
that may be required under the provisions of this Section
3.3.
Section 3.4 Payment Upon Redemption.
(a) If the giving of notice of redemption shall have
been completed as above provided, the Debentures or portions
of Debentures to be redeemed specified in such notice shall
become due and payable on the date and at the place stated
in such notice at the applicable Redemption Price, and
interest on such Debentures or portions of Debentures shall
cease to accrue on and after the date fixed for redemption,
unless the Company shall default in the payment of such
Redemption Price with respect to any such Debenture or
portion thereof. On presentation and surrender of such
Debentures on or after the date fixed for redemption at the
place of payment specified in the notice, said Debentures
shall be paid and redeemed at the Redemption Price (but if
the date fixed for redemption is an Interest Payment Date,
the interest installment payable on such date shall be
payable to the registered holder at the close of business on
the applicable record date).
(b) Upon presentation of any Debenture that is to be
redeemed in part only, the Company shall execute and the
Trustee or the Authenticating Agent, upon written order of
the Company, shall authenticate and the office or agency
where the Debenture is presented shall deliver to the holder
thereof, at the expense of the Company, a new Debenture of
authorized denomination in principal amount equal to the
unredeemed portion of the Debenture so presented.
Section 3.5 No Sinking Fund.
The Debentures are not entitled to the benefit of any
sinking fund.
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
Section 4.1 Extension of Interest Payment Period.
The Company shall have the right, at any time and from time
to time during the term of the Debentures so long as no Event of
Default has occurred and is continuing, to defer payments of
interest by extending the interest payment period of such
Debentures for a period not exceeding 20 consecutive quarters
(the "Extended Interest Payment Period"), during which Extended
Interest Payment Period no interest shall be due and payable;
provided that no Extended Interest Payment Period may extend
beyond the Maturity Date or end on a date other than an Interest
Payment Date. To the extent permitted by applicable law,
interest, the payment of which has been deferred because of the
extension of the interest payment period pursuant to this Section
4.1, shall bear interest thereon at the Floating Interest Rate in
effect for each period compounded quarterly for each quarter of
the Extended Interest Payment Period ("Compounded Interest"). At
the end of the Extended Interest Payment Period, the Company
shall calculate (and deliver such calculation to the Trustee) and
pay all interest accrued and unpaid on the Debentures, including
any Additional Interest and Compounded Interest (together,
"Deferred Interest") that shall be payable to the holders of the
Debentures in whose names the Debentures are registered in the
Debenture Register on the first record date after the end of the
Extended Interest Payment Period. Before the termination of any
Extended Interest Payment Period, the Company may further extend
such period so long as no Event of Default has occurred and is
continuing, provided that such period together with all such
further extensions thereof shall not exceed 20 consecutive
quarters, or extend beyond the Maturity Date of the Debentures or
end on a date other than an Interest Payment Date. Upon the
termination of any Extended Interest Payment Period and upon the
payment of all Deferred Interest then due, the Company may
commence a new Extended Interest Payment Period, subject to the
foregoing requirements. No interest shall be due and payable
during an Extended Interest Payment Period, except at the end
thereof, but the Company may prepay at any time all or any
portion of the interest accrued during an Extended Interest
Payment Period.
Section 4.2 Notice of Extension.
(a) If the Property Trustee is the only registered
holder of the Debentures at the time the Company selects an
Extended Interest Payment Period, the Company shall give
written notice to the Administrative Trustees, the Property
Trustee and the Trustee of its selection of such Extended
Interest Payment Period two Business Days before the earlier
of (i) the next succeeding date on which Distributions on
the Trust Securities issued by the Trust are payable; or
(ii) the date the Trust is required to give notice of the
record date, or the date such Distributions are payable, to
any applicable self-regulatory organization or to holders of
the Trust Preferred Securities issued by the Trust.
(b) If the Property Trustee is not the only holder of
the Debentures at the time the Company selects an Extended
Interest Payment Period, the Company shall give the holders
of the Debentures and the Trustee written notice of its
selection of such Extended Interest Payment Period at least
two Business Days before the earlier of (i) the next
succeeding Interest Payment Date; or (ii) the date the
Company is required to give notice of the record or payment
date of such interest payment to any applicable self-
regulatory organization, if any, or to holders of the
Debentures.
(c) The quarter in which any notice is given pursuant
to paragraphs (a) or (b) of this Section 4.2 shall be
counted as one of the 20 quarters permitted in the maximum
Extended Interest Payment Period permitted under Section
4.1.
Section 4.3 Limitation on Transactions.
If (i) the Company shall exercise its right to defer payment
of interest as provided in Section 4.1; or (ii) there shall have
occurred and be continuing any Event of Default, then
(a) the Company shall not, and will not permit any
Subsidiary to, declare or pay any dividends on, make any
distributions with respect to, or redeem, purchase, acquire
or make a liquidation payment with respect to, any of its
capital stock (other than (1) dividends or distributions in
shares of, or options, warrants or rights to subscribe for
or purchase shares of, common stock of the Company or such
Subsidiary, (2) any declaration of a dividend in connection
with the implementation of a shareholder's rights plan, or
the issuance of stock under any such plan in the future, or
the redemption or repurchase of any such rights pursuant
thereto, (3) purchases of common stock of the Company
related to the issuance of such common stock under any of
the Company's employee benefit plans for its directors,
officers or employees, (4) as a result of a reclassification
of any class or series of the Company's capital stock solely
into another class or series of the Company's capital stock,
or (5) declarations or payments of dividends or
distributions payable by a Subsidiary of the Company to the
Company or to any of the Company's Subsidiaries);
(b) the Company shall not, and will not permit any
Subsidiary to, make any payment of interest, principal or
premium, if any, or repay, repurchase or redeem any debt
securities issued by the Company which rank pari passu with
or junior to the Debentures;
(c) the Company shall not 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 with or junior to the Debentures;
provided, however, that notwithstanding the foregoing the
Company may make payments pursuant to its obligations under
the Trust Preferred Securities Guarantee; and
(d) the Company shall not redeem, purchase or acquire
less than all of the Outstanding Debentures or any of the
Trust Preferred Securities.
ARTICLE V
PARTICULAR COVENANTS OF THE COMPANY
Section 5.1 Payment of Principal and Interest.
The Company shall duly and punctually pay or cause to be
paid the principal of and interest on the Debentures at the time
and place and in the manner provided herein.
Section 5.2 Maintenance of Agency.
So long as any of the Debentures remain Outstanding, the
Company shall maintain, or shall cause to be maintained, an
office or agency in Wilmington, Delaware, and at such other
location or locations as may be designated as provided in this
Section 5.2, where (i) Debentures may be presented for payment;
(ii) Debentures may be presented as hereinabove authorized for
registration of transfer and exchange; and (iii) notices and
demands to or upon the Company in respect of the Debentures and
this Indenture may be given or served, such designation to
continue with respect to such office or agency until the Company
shall, by written notice signed by its Chief Executive Officer,
President or an Executive Vice President and delivered to the
Trustee, designate some other office or agency for such purposes
or any of them. 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, 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, notices and demands. In
addition to any such office or agency, the Company may from time
to time designate one or more offices or agencies outside of
Wilmington, Delaware where the Debentures may be presented for
registration or transfer and for exchange in the manner provided
herein, and the Company may from time to time rescind such
designation as the Company may deem desirable or expedient;
provided, however, that no such designation or rescission shall
in any manner relieve the Company of its obligation to maintain
any such office or agency in Wilmington, Delaware for the
purposes above mentioned. The Company shall give the Trustee
prompt written notice of any such designation or rescission
thereof.
Section 5.3 Paying Agents.
(a) The Trustee shall be the initial Paying Agent. If
the Company shall appoint one or more Paying Agents for the
Debentures, other than the Trustee, the Company shall cause
each such Paying Agent to execute and deliver to the Trustee
an instrument in which such agent shall agree with the
Trustee, subject to the provisions of this Section 5.3:
(i) that it shall hold all sums held by it
as such agent for the payment of the principal of
or interest on the Debentures (whether such sums
have been paid to it by the Company or by any
other obligor of such Debentures) in trust for the
benefit of the Persons entitled thereto;
(ii) that it shall give the Trustee notice of
any failure by the Company (or by any other
obligor of such Debentures) to make any payment of
the principal of or interest on the Debentures
when the same shall be due and payable;
(iii) that it shall, at any time during
the continuance of any failure referred to in the
preceding paragraph (a)(ii) above, upon the
written request of the Trustee, forthwith pay to
the Trustee all sums so held in trust by such
Paying Agent; and
(iv) that it shall perform all other duties
of Paying Agent as set forth in this Indenture.
(b) If the Company shall act as its own Paying Agent
with respect to the Debentures, it shall on or before each
due date of the principal of or interest on such Debentures,
set aside, segregate and hold in trust for the benefit of
the Persons entitled thereto a sum sufficient to pay such
principal or interest so becoming due on Debentures until
such sums shall be paid to such Persons or otherwise
disposed of as herein provided and shall promptly notify the
Trustee of such action, or any failure (by it or any other
obligor on such Debentures) to take such action. Whenever
the Company shall have one or more Paying Agents for the
Debentures, it shall, prior to each due date of the
principal of or interest on any Debentures, deposit with the
Paying Agent a sum sufficient to pay the principal or
interest so becoming due, such sum to be held in trust for
the benefit of the Persons entitled to such principal or
interest, and (unless such Paying Agent is the Trustee) the
Company shall promptly notify the Trustee of this action or
failure so to act.
(c) Notwithstanding anything in this Section 5.3 to
the contrary, (i) the agreement to hold sums in trust as
provided in this Section 5.3 is subject to the provisions of
Section 13.3 and 13.4; and (ii) 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 direct
any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be
held by the Trustee upon the same terms and conditions 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.
Section 5.4 Appointment to Fill Vacancy in Office of
Trustee.
The Company, whenever necessary to avoid or fill a vacancy
in the office of Trustee, shall appoint, in the manner provided
in Section 9.11, a Trustee, so that there shall at all times be a
Trustee hereunder.
Section 5.5 Compliance with Consolidation Provisions.
The Company shall not, while any of the Debentures remain
Outstanding, consolidate with, or merge into, or sell or convey
all or substantially all of its property to any other company
unless the provisions of Article XII hereof are complied with.
Section 5.6 Limitation on Transactions.
If Debentures are issued to the Trust or a trustee of the
Trust in connection with the issuance of Trust Securities by the
Trust and (i) there shall have occurred any event that would
constitute an Event of Default; (ii) the Company shall be in
default with respect to any of its obligations under the Trust
Preferred Securities Guarantee relating to the Trust; or (iii)
the Company shall have given notice of its election to defer
payments of interest on such Debentures by extending the interest
payment period as provided in this Indenture and such period, or
any extension thereof, shall be continuing, then
(a) the Company shall not, and will not permit any
Subsidiary to, declare or pay any dividends on, make any
distributions with respect to, or redeem, purchase, acquire
or make a liquidation payment with respect to, any of its
capital stock (other than (1) dividends or distributions in
shares of, or options, warrants or rights to subscribe for
or purchase shares of, common stock of the Company or such
Subsidiary, (2) any declaration of a dividend in connection
with the implementation of a shareholder's rights plan, or
the issuance of stock under any such plan in the future, or
the redemption or repurchase of any such rights pursuant
thereto, (3) purchases of common stock of the Company
related to the issuance of such common stock under any of
the Company's employee benefit plans for its directors,
officers or employees, (4) as a result of a reclassification
of any class or series of the Company's capital stock solely
into another class or series of the Company's capital stock,
or (5) declarations or payments of dividends or
distributions payable by a Subsidiary of the Company to the
Company or to any of the Company's Subsidiaries);
(b) the Company shall not, and will not permit any
Subsidiary to, make any payment of interest, principal or
premium, if any, or repay, repurchase or redeem any debt
securities issued by the Company which rank pari passu with
or junior to the Debentures;
(c) the Company shall not 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 with or junior in interest to the
Debentures; provided, however, that the Company may make
payments pursuant to its obligations under the Trust
Preferred Securities Guarantee; and
(d) the Company shall not redeem, purchase or acquire
less than all of the Outstanding Debentures or any of the
Trust Preferred Securities.
Section 5.7 Covenants as to the Trust.
For so long as the Trust Securities of the Trust remain
outstanding, the Company shall (i) maintain 100% direct or
indirect ownership of the Common Securities of the Trust;
provided, however, that any permitted successor of the Company
under this Indenture may succeed to the Company's ownership of
the Common Securities; (ii) not voluntarily terminate, wind up or
liquidate the Trust, except upon prior approval of the Federal
Reserve if then so required under applicable capital guidelines,
policies or regulations of the Federal Reserve; and (iii) use its
reasonable efforts to cause the Trust (a) to remain a business
trust (and to avoid involuntary dissolution, termination, winding
up or liquidation), except in connection with a distribution of
Debentures, the redemption of all of the Trust Securities of the
Trust or certain mergers, consolidations or amalgamations, each
as permitted by the Trust Agreement and (b) to otherwise continue
not to be treated as an association taxable as a corporation or
partnership for United States federal income tax purposes. In
connection with the distribution of the Debentures to the holders
of the Trust Preferred Securities issued by the Trust upon a
Dissolution Event, the Company shall use its reasonable efforts
to list such Debentures on any applicable stock exchange or self-
regulatory organization as the Trust Preferred Securities are
then listed, if any.
Section 5.8 Covenants as to Purchases.
Except upon the exercise by the Company of its right to
redeem the Debentures pursuant to Section 3.1 upon the occurrence
and continuation of a Special Event, the Company shall not
purchase any Debentures, in whole or in part, held by the
Property Trustee on behalf of the Trust prior to June 30, 2007.
Section 5.9 Waiver of Usury, Stay or Extension Laws.
The Company shall not at any time insist upon, or plead, or
in any manner whatsoever claim or take the benefit or advantage
of, any usury, stay or extension law wherever enacted, now or at
any time hereafter in force, which may affect the covenants or
the performances 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 VI
DEBENTUREHOLDERS' LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
Section 6.1 Company to Furnish Trustee Names and
Addresses of Debentureholders.
The Company shall furnish or cause to be furnished to the
Trustee (a) on a quarterly basis on each regular record date (as
described in Section 2.5) a list, in such form as the Trustee may
reasonably require, of the names and addresses of the holders of
the Debentures as of such regular record date, provided that the
Company shall not be obligated to furnish or cause to furnish
such list at any time that the list shall not differ in any
respect from the most recent list furnished to the Trustee by the
Company (in the event the Company fails to provide such list on a
quarterly basis, the Trustee shall be entitled to rely on the
most recent list provided by the Company); and (b) at such other
times as the Trustee may request in writing within 30 days after
the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the
time such list is furnished; provided, however, that, in either
case, no such list need be furnished if the Trustee shall be the
Debenture Registrar.
Section 6.2 Preservation of Information Communications
with Debentureholders.
(a) The Trustee shall preserve, in as current a form
as is reasonably practicable, all information as to the
names and addresses of the holders of Debentures contained
in the most recent list furnished to it as provided in
Section 6.1 and as to the names and addresses of holders of
Debentures received by the Trustee in its capacity as
Debenture Registrar (if acting in such capacity).
(b) The Trustee may destroy any list furnished to it
as provided in Section 6.1 upon receipt of a new list so
furnished.
(c) Debentureholders may communicate with other
Debentureholders with respect to their rights under this
Indenture or under the Debentures, subject to Section 312(b)
of the Trust Indenture Act if applicable.
Section 6.3 Reports by the Company.
(a) The Company covenants and agrees to transmit to
the Trustee such additional information, documents and
reports with respect to compliance by the Company with the
conditions and covenants provided for in this Indenture as
may be required from time to time by such rules and
regulations, including Section 314(a)(4) of the Trust
Indenture Act, if applicable.
(b) The Company covenants and agrees to transmit to
the Trustee in the same form as filed with the Federal
Reserve (i) its annual audited consolidated financial
statements within 90 days following the end of its fiscal
year, (ii) its quarterly consolidated financial statements
within 45 days after the end of the first three fiscal
quarters of each fiscal year (each a "Quarter"), and (iii)
the following financial data for each Quarter, within 45
days after the end of each Quarter, and for each fiscal
year, within 90 days after the end of each fiscal year:
Capital: ratio of "Tier 1 Capital" to risk
weighted assets;
Asset Quality: ratio of nonperforming assets to
loans and other real estate owned, ratio of reserves to
nonperforming loans, and ratio of net charge-offs to
loans;
Earnings: return on assets, net interest margin,
and efficiency ratio; and
Liquidity: ratio of loans to assets, ratio of
loans to deposits, total assets, and net income.
Section 6.4 Reports by the Trustee.
(a) On or before July 15 in each year in which any of
the Debentures are Outstanding, the Trustee shall transmit
by mail, first class postage prepaid, to the
Debentureholders, as their names and addresses appear upon
the Debenture Register, a brief report dated as of the
preceding May 15, if and to the extent required under
Section 313(a) of the Trust Indenture Act, if applicable (it
being understood that no such report shall be required if
none of the events set forth in Section 313(a) of the Trust
Indenture Act has occurred during the period to which such
report would relate).
(b) The Trustee shall comply with Sections 313(b) and
313(c) of the Trust Indenture Act, if applicable.
(c) A copy of each such report shall, at the time of
such transmission to Debentureholders, be filed by the
Trustee with the Company, with each stock exchange or
applicable self-regulatory organization upon which any
Debentures are listed (if so listed) and also with the
Commission. The Company agrees to notify the Trustee when
any Debentures become listed on any stock exchange or other
applicable self-regulatory organization.
(d) If at any time following the date hereof the
Property Trustee no longer holds the Debentures, the Trustee
covenants and agrees to transmit by mail, first class
postage prepaid, to the Debentureholders, as their names and
addresses appear upon the Debenture Register, any
information, documents and reports required to be
transmitted to the Trustee pursuant to Section 6.3 as soon
as practicable after the receipt of such information from
the Company.
ARTICLE VII
REMEDIES OF THE TRUSTEE AND DEBENTUREHOLDERS
ON EVENT OF DEFAULT
Section 7.1 Events of Default.
(a) Whenever used herein with respect to the
Debentures, "Event of Default" means any one or more of the
following events that has occurred and is continuing:
(i) the Company defaults in the payment of
any installment of interest upon any of the
Debentures, as and when the same shall become due
and payable, and continuance of such default for a
period of 30 days; provided, however, that a valid
extension of an interest payment period by the
Company in accordance with the terms of this
Indenture shall not constitute a default in the
payment of interest for this purpose;
(ii) the Company defaults in the payment of
the principal on the Debentures as and when the
same shall become due and payable whether at
maturity, upon redemption, by declaration or
otherwise;
(iii) the Company fails to observe or
perform any other of its covenants or agreements
with respect to the Debentures for a period of 90
days after the date on which written notice of
such failure, requiring the same to be remedied
and stating that such notice is a "Notice of
Default" hereunder, shall have been given to the
Company by the Trustee, by registered or certified
mail, or to the Company and the Trustee by the
holders of at least 25% in principal amount of the
Debentures at the time Outstanding;
(iv) the Company pursuant to or within the
meaning of any Bankruptcy Law (1) commences a
voluntary case; (2) consents to the entry of an
order for relief against it in an involuntary
case; (3) consents to the appointment of a
Custodian of it or for all or substantially all of
its property; or (4) makes a general assignment
for the benefit of its creditors;
(v) a court of competent jurisdiction enters
an order under any Bankruptcy Law that (1) is for
relief against the Company in an involuntary case;
(2) appoints a Custodian of the Company for all or
substantially all of its property; or (3) orders
the liquidation of the Company, and the order or
decree remains unstayed and in effect for 90 days;
or
(vi) the Trust shall have voluntarily or
involuntarily dissolved, wound-up its business or
otherwise terminated its existence except in
connection with (1) the distribution of Debentures
to holders of Trust Securities in liquidation of
their interests in the Trust; (2) the redemption
of all of the outstanding Trust Securities of the
Trust; or (3) certain mergers, consolidations or
amalgamations, each as permitted by the Trust
Agreement.
(b) In each and every such case referred to in items
(i) through (vi) of Section 7.1(a), unless the principal of
all the Debentures shall have already become due and
payable, either the Trustee or the holders of not less than
25% in aggregate principal amount of the Debentures then
Outstanding hereunder, by notice in writing to the Company
(and to the Trustee if given by such Debentureholders) may
declare the principal of all the Debentures to be due and
payable immediately, and upon any such declaration the same
shall become and shall be immediately due and payable,
notwithstanding anything contained in this Indenture or in
the Debentures.
(c) At any time after the principal of the Debentures
shall have been so declared due and payable, and before any
judgment or decree for the payment of the money due shall
have been obtained or entered as hereinafter provided, the
holders of a majority in aggregate principal amount of the
Debentures then Outstanding hereunder, 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
all matured installments of interest upon all the Debentures
and the principal of any and all Debentures that shall have
become due otherwise than by acceleration (with interest
upon such principal, and, to the extent that such payment is
enforceable under applicable law, upon overdue installments
of interest, at the rate per annum expressed in the
Debentures to the date of such payment or deposit) and the
amount payable to the Trustee under Section 9.7; and (ii)
any and all Events of Default under this Indenture, other
than the nonpayment of principal on Debentures that shall
not have become due by their terms, shall have been remedied
or waived as provided in Section 7.6. No such rescission and
annulment shall extend to or shall affect any subsequent
default or impair any right consequent thereon.
(d) In case the Trustee shall have proceeded to
enforce any right with respect to Debentures under this
Indenture and such proceedings shall have been discontinued
or abandoned because of such rescission or annulment or for
any other reason or shall have been determined adversely to
the Trustee, then and in every such case the Company and the
Trustee shall be restored respectively to their former
positions and rights hereunder, and all rights, remedies and
powers of the Company and the Trustee shall continue as
though no such proceedings had been taken.
Section 7.2 Collection of Indebtedness and Suits for
Enforcement by Trustee.
(a) The Company covenants that (i) in case it shall
default in the payment of any installment of interest on any
of the Debentures, and such default shall have continued for
a period of 90 Business Days; or (ii) in case it shall
default in the payment of the principal of any of the
Debentures when the same shall have become due and payable,
whether upon maturity of the Debentures or upon redemption
or upon declaration or otherwise, then, upon demand of the
Trustee, the Company shall pay to the Trustee, for the
benefit of the holders of the Debentures, the whole amount
that then shall have become due and payable on all such
Debentures for principal or interest, or both, as the case
may be, with interest upon the overdue principal and (to the
extent that payment of such interest is enforceable under
applicable law; and, if the Debentures are held by the Trust
or a trustee of the Trust, without duplication of any other
amounts paid by the Trust or trustee in respect thereof)
upon overdue installments of interest at the rate per annum
expressed in the Debentures; and, in addition thereto, such
further amount as shall be sufficient to cover the costs and
expenses of collection, and the amount payable to the
Trustee under Section 9.7.
(b) If the Company shall fail to pay such amounts set
forth in section 7.2(a) forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust,
shall be entitled and empowered to institute any action or
proceedings at law or in equity for the collection of the
sums so due and unpaid, and may prosecute any such action or
proceeding to judgment or final decree, and may enforce any
such judgment or final decree against the Company or other
obligor upon the Debentures and collect any money adjudged
or decreed to be payable in the manner provided by law out
of the property of the Company or other obligor upon the
Debentures, wherever situated.
(c) In case of any receivership, insolvency,
liquidation, bankruptcy, reorganization, readjustment,
arrangement, composition or judicial proceedings affecting
the Company or the creditors or property of either, the
Trustee shall have power to intervene in such proceedings
and take any action therein that may be permitted by the
court and shall (except as may be otherwise provided by law)
be entitled to file such proofs of claim and other papers
and documents as may be necessary or advisable in order to
have the claims of the Trustee and of the holders of the
Debentures allowed for the entire amount due and payable by
the Company under this Indenture at the date of institution
of such proceedings and for any additional amount that may
become due and payable by the Company after such date, and
to collect and receive any money or other property payable
or deliverable on any such claim, and to distribute the same
after the deduction of the amount payable to the Trustee
under Section 9.7; and any receiver, assignee or trustee in
bankruptcy or reorganization is hereby authorized by each of
the holders of the Debentures to make such payments to the
Trustee, and, in the event that the Trustee shall consent to
the making of such payments directly to such
Debentureholders, to pay to the Trustee any amount due it
under Section 9.7.
(d) All rights of action and of asserting claims under
this Indenture, or under any of the terms established with
respect to the Debentures, may be enforced by the Trustee
without the possession of any of such Debentures, or the
production thereof at any trial or other proceeding relative
thereto, and any such suit or proceeding instituted by the
Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment shall, after
provision for payment to the Trustee of any amounts due
under Section 9.7, be for the ratable benefit of the holders
of the Debentures. If an Event of Default hereunder occurs
and is continuing, the Trustee may in its discretion proceed
to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the
Trustee shall in good faith deem most effectual to protect
and enforce any of such rights, either at law or in equity
or in bankruptcy or otherwise, whether for the specific
enforcement of any covenant or agreement contained in this
Indenture or in aid of the exercise of any power granted in
this Indenture, or to enforce any other legal or equitable
right vested in the Trustee by this Indenture or by law.
Nothing contained herein shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on
behalf of any Debentureholder any plan of reorganization,
arrangement, adjustment or composition affecting the
Debentures or the rights of any holder thereof or to
authorize the Trustee to vote in respect of the claim of any
Debentureholder in any such proceeding.
Section 7.3 Application of Money Collected.
Any money or other assets collected by the Trustee pursuant
to this Article VII with respect to the Debentures 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 or other
assets on account of principal or interest, upon presentation of
the Debentures, and notation thereon the payment, if only
partially paid, and upon surrender thereof if fully paid:
FIRST: To the payment of reasonable costs and expenses of
collection and of all amounts payable to the Trustee under
Section 9.7;
SECOND: To the payment of all Senior Indebtedness of the
Company if and to the extent required by Article XVI; and
THIRD: To the payment of the amounts then due and unpaid
upon the Debentures for principal and interest, in respect of
which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to
the amounts due and payable on such Debentures for principal and
interest, respectively.
Section 7.4 Limitation on Suits.
(a) Except as set forth in this Indenture, no holder
of any Debenture shall have any right by virtue or by
availing of any provision of this Indenture to institute any
suit, action or proceeding in equity or at law upon or under
or with respect to this Indenture or for the appointment of
a receiver or trustee, or for any other remedy hereunder,
unless (i) such holder previously shall have given to the
Trustee written notice of an Event of Default and of the
continuance thereof with respect to the Debentures
specifying such Event of Default, as hereinbefore provided;
(ii) the holders of not less than 25% in aggregate principal
amount of the Debentures then Outstanding shall have made
written request upon the Trustee to institute such action,
suit or proceeding in its own name as trustee hereunder;
(iii) such holder or holders shall have offered to the
Trustee such reasonable security or indemnity as it may
require against the costs, expenses and liabilities to be
incurred therein or thereby; and (iv) the Trustee for 60
days after its receipt of such notice, request and offer of
security or indemnity, shall have failed to institute any
such action, suit or proceeding, and during such 60 day
period, the holders of a majority in principal amount of the
Debentures do not give the Trustee a direction inconsistent
with the request.
(b) Notwithstanding anything contained herein to the
contrary or any other provisions of this Indenture, the
right of any holder of the Debentures to receive payment of
the principal of and interest on the Debentures, as therein
provided, on or after the respective due dates expressed in
such Debenture (or in the case of redemption, on the
redemption date), or to institute suit for the enforcement
of any such payment on or after such respective dates or
redemption date, shall not be impaired or affected without
the consent of such holder and by accepting a Debenture
hereunder it is expressly understood, intended and
covenanted by the taker and holder of every Debenture with
every other such taker and holder and the Trustee, that no
one or more holders of the Debentures shall have any right
in any manner whatsoever by virtue or by availing of any
provision of this Indenture to affect, disturb or prejudice
the rights of the holders of any other of such Debentures,
or to obtain or seek to obtain priority over or preference
to any other such holder, or to enforce any right under this
Indenture, except in the manner herein provided and for the
equal, ratable and common benefit of all holders of
Debentures. For the protection and enforcement of the
provisions of this Section 7.4, each and every
Debentureholder and the Trustee shall be entitled to such
relief as can be given either at law or in equity.
Section 7.5 Rights and Remedies Cumulative; Delay or
Omission not Waiver.
(a) Except as otherwise expressly provided herein, all
powers and remedies given by this Article VII to the Trustee
or to the Debentureholders shall, to the extent permitted by
law, be deemed cumulative and not exclusive of any other
powers and remedies available to the Trustee or the holders
of the Debentures, by judicial proceedings or otherwise, to
enforce the performance or observance of the covenants and
agreements contained in this Indenture or otherwise
established with respect to such Debentures.
(b) No delay or omission of the Trustee or of any
holder of any of the Debentures to exercise any right or
power accruing upon any Event of Default occurring and
continuing as aforesaid shall impair any such right or
power, or shall be construed to be a waiver of any such
default or an acquiescence therein; and, subject to the
provisions of Section 7.4, every power and remedy given by
this Article VII or by law to the Trustee or the
Debentureholders may be exercised from time to time, and as
often as shall be deemed expedient, by the Trustee or by the
Debentureholders.
Section 7.6 Control by Debentureholders.
The holders of a majority in aggregate principal amount of
the Debentures at the time Outstanding, determined in accordance
with Article X, shall have the right to direct the time, method
and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred on the
Trustee; provided, however, that such direction shall not be in
conflict with any rule of law or with this Indenture. Subject to
the provisions of Section 9.1(b), the Trustee shall have the
right to decline to follow any such direction if the Trustee in
good faith shall, by a Responsible Officer or Officers of the
Trustee, determine that the proceeding so directed would involve
the Trustee in personal liability. The holders of a majority in
aggregate principal amount of the Debentures at the time
Outstanding affected thereby, determined in accordance with
Article X, may on behalf of the holders of all of the Debentures
waive any past default in the performance of any of the covenants
contained herein and its consequences, except (i) a default in
the payment of the principal of or interest on, any of the
Debentures as and when the same shall become due by the terms of
such Debentures otherwise than by acceleration (unless such
default has been cured and a sum sufficient to pay all matured
installments of interest and principal has been deposited with
the Trustee (in accordance with Section 7.1(c)); (ii) a default
in the covenants contained in Section 5.7; or (iii) in respect of
a covenant or provision hereof which cannot be modified or
amended without the consent of the holder of each Outstanding
Debenture affected; provided, however, that if the Debentures are
held by the Trust or a trustee of the Trust, such waiver or
modification to such waiver shall not be effective until the
holders of a majority in liquidation preference of Trust
Securities shall have consented to such waiver or modification to
such waiver; provided further, that if the consent of the holder
of each Outstanding Debenture is required, such waiver shall not
be effective until each holder of the Trust Securities of the
Trust shall have consented to such waiver. Upon any such waiver,
the default covered thereby shall be deemed to be cured for all
purposes of this Indenture and the Company, the Trustee and the
holders of the Debentures shall be restored to their former
positions and rights hereunder, respectively; but no such waiver
shall extend to any subsequent or other default or impair any
right consequent thereon.
Section 7.7 Undertaking to Pay Costs.
All parties to this Indenture agree, and each holder of any
Debentures by such holder's acceptance thereof shall be deemed to
have agreed, that any court may in its discretion require, in any
suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action
taken or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable
costs, including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits and good
faith of the claims or defenses made by such party litigant; but
the provisions of this Section 7.7 shall not apply to any suit
instituted by the Trustee, to any suit instituted by any
Debentureholder, or group of Debentureholders holding more than
10% in aggregate principal amount of the Outstanding Debentures,
to any suit instituted by any Debentureholder for the enforcement
of the payment of the principal of or interest on the Debentures,
on or after the respective due dates expressed in such Debenture
or established pursuant to this Indenture or to any suit
instituted against the Trustee unless it shall have been finally
adjudicated in such suit that the Trustee was negligent,
committed an act of willful misconduct, or acted in bad faith.
Section 7.8 Direct Action; Right of Set-Off.
In the event that an Event of Default has occurred and is
continuing and such event is attributable to the failure of the
Company to pay interest on or principal of the Debentures on an
Interest Payment Date or Maturity Date, as applicable, then a
holder of Trust Preferred Securities may institute a legal
proceeding directly against the Company for enforcement of
payment to such holder of the principal of or interest on such
Debentures having a principal amount equal to the aggregate
Liquidation Amount of the Trust Preferred Securities of such
holder (a "Direct Action"). In connection with such Direct
Action, the Company will have a right of set-off under this
Indenture to the extent of any payment made by the Company to
such holder of the Trust Preferred Securities with respect to
such Direct Action.
ARTICLE VIII
FORM OF DEBENTURE AND ORIGINAL ISSUE
Section 8.1 Form of Debenture.
The Debenture and the Trustee's Certificate of
Authentication to be endorsed thereon are to be substantially in
the forms contained as Exhibit A to this Indenture, attached
hereto and incorporated herein by reference.
Section 8.2 Original Issue of Debentures.
Debentures in the aggregate principal amount of Five Million
One Hundred Fifty Five Thousand Dollars ($5,155,000) may, upon
execution of this Indenture, be executed by the Company and
delivered to the Trustee for authentication. The Trustee shall
thereupon authenticate and deliver said Debentures to or upon the
written order of the Company, signed by its Chief Executive
Officer, President, or any Vice President and its Treasurer or an
Assistant Treasurer, without any further action by the Company.
ARTICLE IX
CONCERNING THE TRUSTEE
Section 9.1 Certain Duties and Responsibilities of the
Trustee.
(a) The Trustee, prior to the occurrence of an Event
of Default and after the curing of all Events of Default
that may have occurred, shall undertake to perform with
respect to the Debentures such duties and only such duties
as are specifically set forth in this Indenture. In case an
Event of Default has occurred that has not been cured or
waived, the Trustee shall exercise such of the rights and
powers vested in it by this Indenture, and use the same
degree of care and skill in their exercise, as a prudent
Person would exercise or use under the circumstances in the
conduct of its own affairs. No implied covenants shall be
read into this Indenture against the Trustee.
(b) No provision of this Indenture shall be construed
to relieve the Trustee from liability for its own negligent
action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) prior to the occurrence of an Event of
Default and after the curing or waiving of all
such Events of Default that may have occurred:
(A) the duties and obligations of
the Trustee shall with respect to the
Debentures be determined solely by the
express provisions of this Indenture, and the
Trustee shall not be liable with respect to
the Debentures except for the performance of
such duties and obligations as are
specifically set forth in this Indenture, and
no implied covenants or obligations shall be
read into this Indenture against the Trustee;
and
(B) in the absence of bad faith on
the part of the Trustee, the Trustee may with
respect to the Debentures conclusively rely,
as to the truth of the statements and the
correctness of the opinions expressed
therein, upon any certificates or opinions
furnished to the Trustee and conforming to
the requirements of this Indenture; but in
the case of any such certificates or opinions
that by any provision hereof are specifically
required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the
same to determine whether or not they conform
to the requirements of this Indenture;
(ii) the Trustee shall not be liable for any
error of judgment made in good faith by a
Responsible Officer or Responsible Officers of the
Trustee, unless it shall be proved that the
Trustee was negligent in ascertaining the
pertinent facts;
(iii) 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 not less than a
majority in principal amount of the Debentures at
the time Outstanding relating to the time, method
and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee under
this Indenture with respect to the Debentures; and
(iv) none of the provisions contained in this
Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur personal
financial liability in the performance of any of
its duties or in the exercise of any of its rights
or powers, if there is reasonable ground for
believing that the repayment of such funds or
liability is not reasonably assured to it under
the terms of this Indenture or adequate indemnity
against such risk is not reasonably assured to it.
Section 9.2 Notice of Defaults.
Within five (5) Business Days after actual knowledge by a
Responsible Officer of the Trustee of the occurrence of any
default hereunder with respect to the Debentures, the Trustee
shall transmit by mail to all holders of the Debentures, as their
names and addresses appear in the Debenture Register, notice of
such default, unless such default shall have been cured or
waived; provided, however, that, except in the case of a default
in the payment of the principal or interest (including any
Additional Interest) on any Debenture, 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 the
directors and/or Responsible Officers of the Trustee determines
in good faith that the withholding of such notice is in the
interests of the holders of such Debentures; and provided,
further, that in the case of any default of the character
specified in Section 7.1(a)(iii), no such notice to holders of
Debentures need be sent until at least 30 days after the
occurrence thereof. For the purposes of this Section 9.2, the
term "default" means any event which is, or after notice or lapse
of time or both, would become, an Event of Default with respect
to the Debentures.
Section 9.3 Certain Rights of Trustee.
Except as expressly set forth in Section 9.1(b):
(a) The Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond, security or other
paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(b) Any request, direction, order or demand of the
Company mentioned herein shall be sufficiently evidenced by
a Board Resolution or an instrument signed in the name of
the Company by its President or any Vice President and by
the Secretary or an Assistant Secretary or the Treasurer or
an Assistant Treasurer thereof (unless other evidence in
respect thereof is specifically prescribed herein);
(c) The Trustee shall not be deemed to have knowledge
of a default or an Event of Default, other than an Event of
Default specified in Section 7.1(a)(i) or (ii), unless and
until it receives written notification of such Event of
Default from the Company or by holders of at least 25% of
the aggregate principal amount of the Debentures at the time
Outstanding;
(d) The Trustee may consult with counsel and the
written advice of such counsel or any Opinion of Counsel
shall be full and complete authorization and protection in
respect of any action taken or suffered or omitted hereunder
in good faith and in reliance thereon;
(e) The Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Indenture at the request, order or direction of any of the
Debentureholders, pursuant to the provisions of this
Indenture, unless such Debentureholders shall have offered
to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities that may be incurred therein
or thereby; nothing contained herein shall, however, relieve
the Trustee of the obligation, upon the occurrence of an
Event of Default of which a Responsible Officer of the
Trustee has actual knowledge (that is continuing and has not
been cured or waived) to exercise with respect to the
Debentures such of the rights and powers vested in it by
this Indenture, and to use the same degree of care and skill
in its exercise, as a prudent person would exercise or use
under the circumstances in the conduct of his or her own
affairs;
(f) The Trustee shall not be liable for any action
taken or omitted to be taken by it in good faith and
believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Indenture;
(g) The Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval, bond,
security, or other papers or documents, unless requested in
writing so to do by the holders of not less than a majority
in principal amount of the Outstanding Debentures,
determined as provided in Article X; provided, however, that
if the payment within a reasonable time to the Trustee of
the costs, expenses or liabilities likely to be incurred by
it in the making of such investigation is, in the opinion of
the Trustee, not reasonably assured to the Trustee by the
security afforded to it by the terms of this Indenture, the
Trustee may require reasonable indemnity against such costs,
expenses or liabilities as a condition to so proceeding. The
reasonable expense of every such examination shall be paid
by the Company or, if paid by the Trustee, shall be repaid
by the Company upon demand; and
(h) The Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either
directly or by or through agents or attorneys and the
Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed
with due care by it hereunder.
Section 9.4 Trustee Not Responsible for Recitals, etc.
(a) The Recitals contained herein and in the
Debentures shall be taken as the statements of the Company,
and the Trustee assumes no responsibility for the
correctness of the same.
(b) The Trustee makes no representations as to the
validity or sufficiency of this Indenture or of the
Debentures.
(c) The Trustee shall not be accountable for the use
or application by the Company of any of the Debentures or of
the proceeds of such Debentures, or for the use or
application of any money paid over by the Trustee in
accordance with any provision of this Indenture, or for the
use or application of any money received by any Paying Agent
other than the Trustee.
Section 9.5 May Hold Debentures.
The Trustee or any Paying Agent or Debenture Registrar, in
its individual or any other capacity, may become the owner or
pledgee of Debentures with the same rights it would have if it
were not Trustee, Paying Agent or Debenture Registrar.
Section 9.6 Moneys Held in Trust.
Subject to the provisions of Section 13.5, all money
received by the Trustee shall, until used or applied as herein
provided, be held in trust for the purposes for which they were
received, but 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 such as it may agree with the Company to pay thereon.
Section 9.7 Compensation and Reimbursement.
(a) The Company covenants and agrees to pay to the
Trustee, and the Trustee shall be entitled to, such
reasonable compensation (which shall not be limited by any
provision of law in regard to the compensation of a trustee
of an express trust), as the Company and the Trustee may
from time to time agree in writing, for all services
rendered by it in the execution of the trusts hereby created
and in the exercise and performance of any of the powers and
duties hereunder of the Trustee, and, except as otherwise
expressly provided herein, the Company shall pay or
reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the
Trustee in accordance with any of the provisions of this
Indenture (including the reasonable compensation and the
expenses and disbursements of its counsel and of all Persons
not regularly in its employ) except any such expense,
disbursement or advance as may arise from its negligence or
bad faith. The Company also covenants to indemnify the
Trustee (and its officers, agents, directors and employees)
for, and to hold it harmless against, any loss, liability,
claim, action, suit, cost or expense incurred without
negligence or bad faith on the part of the Trustee and
arising out of or in connection with the acceptance or
administration of this Indenture, including the reasonable
costs and expenses of defending itself against any claim of
liability in the premises.
(b) The obligations of the Company under this Section
9.7 to compensate and indemnify the Trustee and to pay or
reimburse the Trustee for expenses, disbursements and
advances shall constitute additional indebtedness hereunder.
Such additional indebtedness shall be secured by a lien
prior to that of the Debentures upon all property and funds
held or collected by the Trustee as such, except funds held
in trust for the benefit of the holders of particular
Debentures.
Section 9.8 Reliance on Officers' Certificate.
Except as expressly set forth in Section 9.1(b), 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 suffering or omitting to
take 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,
suffered or omitted to be taken by it under the provisions of
this Indenture upon the faith thereof.
Section 9.9 Disqualification; Conflicting Interests.
If the Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Trustee and the Company shall in all respects
comply with the provisions of Section 310(b) of the Trust
Indenture Act, if the Trust Indenture Act is then applicable to
this Indenture.
Section 9.10 Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee with respect to the
Debentures issued hereunder which shall at all times be a
corporation or national banking association organized and doing
business under the laws of the United States of America or any
State or Territory thereof or of the District of Columbia, or a
corporation or other Person permitted to act as trustee by the
Commission, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least
$50,000,000, and subject to supervision or examination by
federal, state, territorial, or District of Columbia authority.
If such Person publishes reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this
Section 9.10, 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. The
Company may not, nor may any Person directly or indirectly
controlling, controlled by, or under common control with the
Company, serve as Trustee. In case at any time the Trustee shall
cease to be eligible in accordance with the provisions of this
Section 9.10, the Trustee shall resign immediately in the manner
and with the effect specified in Section 9.11.
Section 9.11 Resignation and Removal; Appointment of
Successor.
(a) The Trustee or any successor hereafter appointed,
may at any time resign by giving written notice thereof to
the Company and by transmitting notice of resignation by
mail, first class postage prepaid, to the Debentureholders,
as their names and addresses appear upon the Debenture
Register. Upon receiving such notice of resignation, the
Company shall promptly appoint a successor trustee with
respect to this Indenture and Debentures by written
instrument, in duplicate, executed by order of the Board of
Directors, one copy of which instrument shall be delivered
to the resigning Trustee and one copy to the successor
trustee. If no successor trustee shall have been so
appointed and have accepted appointment within 30 days after
the mailing of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for
the appointment of a successor trustee with respect to this
Indenture and Debentures, or any Debentureholder who has
been a bona fide holder of a Debenture or Debentures for at
least six months may, subject to the provisions of Sections
9.9 and 9.10, on behalf of himself and all others similarly
situated, petition any such court for the appointment of a
successor trustee. Such court may thereupon after such
notice, if any, as it may deem proper and prescribe, appoint
a successor trustee.
(b) In case at any time any one of the following shall
occur:
(i) the Trustee shall fail to comply with
the provisions of Section 9.9 after written
request therefor by the Company or by any
Debentureholder who has been a bona fide holder of
a Debenture or Debentures for at least six months;
or
(ii) the Trustee shall cease to be eligible
in accordance with the provisions of Section 9.10
and shall fail to resign after written request
therefor by the Company or by any such
Debentureholder; or
(iii) the Trustee shall become incapable
of acting, or shall be adjudged a bankrupt or
insolvent, or commence a voluntary bankruptcy
proceeding, or a receiver of the Trustee; or
(iv) of its property shall be appointed or
consented to, or any public officer shall take
charge or control of the Trustee or of its
property or affairs for the purpose of
rehabilitation, conservation or liquidation;
then, in any such case, the Company may remove the Trustee with
respect to this Indenture and all Debentures and appoint a
successor trustee by written instrument, in duplicate, executed
by order of the Board of Directors, one copy of which instrument
shall be delivered to the Trustee so removed and one copy to the
successor trustee, or, subject to the provisions of Section 9.10,
unless the Trustee's duty to resign is stayed as provided herein,
any Debentureholder who has been a bona fide holder of a
Debenture or Debentures for at least six months may, on behalf of
that holder and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee and the
appointment of a successor trustee. Such court may thereupon
after such notice, if any, as it may deem proper and prescribe,
remove the Trustee and appoint a successor trustee.
(c) The holders of a majority in aggregate principal
amount of the Debentures at the time Outstanding may at any
time remove the Trustee by so notifying the Trustee and the
Company and may appoint a successor Trustee with the consent
of the Company.
(d) Any resignation or removal of the Trustee and
appointment of a successor trustee with respect to this
Indenture and Debentures pursuant to any of the provisions
of this Section 9.11 shall become effective upon acceptance
of appointment by the successor trustee as provided in
Section 9.12.
(e) Any successor trustee appointed pursuant to this
Section 9.11 may be appointed with respect to this Indenture
and Debentures, and at any time there shall be only one
Trustee with respect to this Indenture and Debentures.
Section 9.12 Acceptance of Appointment by Successor.
(a) In the case of the appointment hereunder of a
successor trustee with respect to the Debentures, every
successor trustee so appointed shall execute, acknowledge
and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become
effective and such successor trustee, without any further
act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Company or the successor trustee,
such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such
successor trustee all the rights, powers, and trusts of the
retiring Trustee and shall duly assign, transfer and deliver
to such successor trustee all property and money held by
such retiring Trustee hereunder.
(b) Upon request of any successor trustee, the Company
shall execute any and all instruments for more full and
certain vesting in and confirming to such successor trustee
all such rights, powers and trusts referred to in paragraph
(a) of this Section 9.12.
(c) 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 IX.
(d) Upon acceptance of appointment by a successor
trustee as provided in this Section 9.12, the Company shall
transmit notice of the succession of such trustee hereunder
by mail, first class postage prepaid, to the
Debentureholders, as their names and addresses appear upon
the Debenture Register. If the Company fails to transmit
such notice within ten days after acceptance of appointment
by the successor trustee, the successor trustee shall cause
such notice to be transmitted at the expense of the Company.
Section 9.13 Merger, Conversion, Consolidation or
Succession to Business.
Any Person into which the Trustee may be merged or converted
or with which it may be consolidated, or any Person resulting
from any merger, conversion or consolidation to which the Trustee
shall be a party, or any Person succeeding to the corporate trust
business of the Trustee, shall be the successor of the Trustee
hereunder, provided that such Person shall be qualified under the
provisions of Section 9.9 and eligible under the provisions of
Section 9.10, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding. In case any Debentures
shall have been authenticated, but not delivered, by the Trustee
then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such
authentication and deliver the Debentures so authenticated with
the same effect as if such successor Trustee had itself
authenticated such Debentures.
Section 9.14 Preferential Collection of Claims Against the
Company.
The Trustee shall comply with Section 311(a) of the Trust
Indenture Act, if applicable, excluding any creditor relationship
described in Section 311(b) of the Trust Indenture Act. A Trustee
who has resigned or been removed shall be subject to Section
311(a) of the Trust Indenture Act to the extent applicable and
included therein.
ARTICLE X
CONCERNING THE DEBENTUREHOLDERS
Section 10.1 Evidence of Action by Holders.
(a) Whenever in this Indenture it is provided that the
holders of a majority or specified percentage in aggregate
principal amount of the Debentures may take any action
(including the making of any demand or request, the giving
of any notice, consent or waiver or the taking of any other
action), the fact that at the time of taking any such action
the holders of such majority or specified percentage have
joined therein may be evidenced by any instrument or any
number of instruments of similar tenor executed by such
holders of Debentures in Person or by agent or proxy
appointed in writing.
(b) If the Company shall solicit from the
Debentureholders any request, demand, authorization,
direction, notice, consent, waiver or other action, the
Company may, at its option, as evidenced by an Officers'
Certificate, fix in advance a record date for the
determination of Debentureholders entitled to give such
request, demand, authorization, direction, notice, consent,
waiver or other action, but the Company shall have no
obligation to do so. If such a record date is fixed, such
request, demand, authorization, direction, notice, consent,
waiver or other action may be given before or after the
record date, but only the Debentureholders of record at the
close of business on the record date shall be deemed to be
Debentureholders for the purposes of determining whether
Debentureholders of the requisite proportion of Outstanding
Debentures have authorized or agreed or consented to such
request, demand, authorization, direction, notice, consent,
waiver or other action, and for that purpose the Outstanding
Debentures shall be computed as of the record date;
provided, however, that no such authorization, agreement or
consent by such Debentureholders on the record date shall be
deemed effective unless it shall become effective pursuant
to the provisions of this Indenture not later than six
months after the record date.
Section 10.2 Proof of Execution by Debentureholders.
Subject to the provisions of Section 9.1(b), proof of the
execution of any instrument by a Debentureholder (such proof
shall not require notarization) or his agent or proxy and proof
of the holding by any Person of any of the Debentures shall be
sufficient if made in the following manner:
(a) The fact and date of the execution by any such
Person of any instrument may be proved in any reasonable
manner acceptable to the Trustee or the Company.
(b) The ownership of Debentures shall be proved by the
Debenture Register of such Debentures or by a certificate of
the Debenture Registrar thereof.
(c) The Trustee or the Company may require such
additional proof of any matter referred to in this Section
10.2 as it shall deem necessary.
Section 10.3 Who May be Deemed Owners.
Prior to the due presentment for registration of transfer of
any Debenture, the Company, the Trustee, any Paying Agent, any
Authenticating Agent and any Debenture Registrar may deem and
treat the Person in whose name such Debenture shall be registered
upon the books of the Company as the absolute owner of such
Debenture (whether or not such Debenture shall be overdue and
notwithstanding any notice of ownership or writing thereon made
by anyone other than the Debenture Registrar) for the purpose of
receiving payment of or on account of the principal of and
interest on such Debenture (subject to Section 2.3) and for all
other purposes; and neither the Company nor the Trustee nor any
Paying Agent nor any Authenticating Agent nor any Debenture
Registrar shall be affected by any notice to the contrary.
Section 10.4 Certain Debentures Owned by Company
Disregarded.
In determining whether the holders of the requisite
aggregate principal amount of Debentures have concurred in any
direction, consent or waiver under this Indenture, the Debentures
that are owned by the Company or any other obligor on the
Debentures or by any Person directly or indirectly controlling or
controlled by or under common control with the Company or any
other obligor on the Debentures shall be disregarded and deemed
not to be Outstanding for the purpose of any such determination,
except that (i) for the purpose of determining whether the
Trustee shall be protected in relying on any such direction,
consent or waiver, only Debentures that the Trustee actually
knows are so owned shall be so disregarded; and (ii) for the
purposes of this Section 10.4, the Trust shall be deemed to not
be controlled by the Company. The Debentures so owned that have
been pledged in good faith may be regarded as Outstanding for the
purposes of this Section 10.4, if the pledgee shall establish to
the satisfaction of the Trustee the pledgee's right so to act
with respect to such Debentures and that the pledgee is not a
Person directly or indirectly controlling or controlled by or
under direct or indirect common control with the Company or any
such other obligor. In case of a dispute as to such right, any
decision by the Trustee taken upon the advice of counsel shall be
full protection to the Trustee.
Section 10.5 Actions Binding on Future Debentureholders.
At any time prior to (but not after) the evidencing to the
Trustee, as provided in Section 10.1, of the taking of any action
by the holders of the majority or percentage in aggregate
principal amount of the Debentures specified in this Indenture in
connection with such action, any holder of a Debenture that is
shown by the evidence to be included in the Debentures the
holders of which have consented to such action may, by filing
written notice with the Trustee, and upon proof of holding as
provided in Section 10.2, revoke such action so far as concerns
such Debenture. Except as aforesaid, any such action taken by the
holder of any Debenture shall be conclusive and binding upon such
holder and upon all future holders and owners of such Debenture,
and of any Debenture issued in exchange therefor, on registration
of transfer thereof or in place thereof, irrespective of whether
or not any notation in regard thereto is made upon such
Debenture. Any action taken by the holders of the majority or
percentage in aggregate principal amount of the Debentures
specified in this Indenture in connection with such action shall
be conclusively binding upon the Company, the Trustee and the
holders of all the Debentures.
ARTICLE XI
SUPPLEMENTAL INDENTURES
Section 11.1 Supplemental Indentures Without the Consent
of Debentureholders .
In addition to any supplemental indenture otherwise authorized by
this Indenture, the Company and the Trustee may from time to time
and at any time enter into an indenture or indentures
supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act as then in effect, if applicable), without
the consent of the Debentureholders, for one or more of the
following purposes:
(a) to cure any ambiguity, defect, or inconsistency
herein, or in the Debentures;
(b) to comply with Article X;
(c) to provide for uncertificated Debentures in
addition to or in place of certificated Debentures;
(d) to add to the covenants of the Company for the
benefit of the holders of all or any of the Debentures or to
surrender any right or power herein conferred upon them to
add to, delete from, or revise the conditions, limitations,
and restrictions on the authorized amount, terms, or
purposes of issue, authentication, and delivery of
Debentures, as herein set forth;
(e) to make any change that does not adversely affect
the rights of any Debentureholder in any material respect;
(f) to provide for the issuance of and establish the
form and terms and conditions of the Debentures, to
establish the form of any certifications required to be
furnished pursuant to the terms of this Indenture or of the
Debentures, or to qualify or maintain the qualification of
this Indenture under the Trust Indenture Act, if applicable;
or
(g) to evidence a consolidation or merger involving
the Company as permitted under Section 12.1.
The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, and to make any
further appropriate agreements and stipulations that may be
therein contained, but the Trustee shall not be obligated to
enter into any such supplemental indenture that affects the
Trustee's own rights, duties or immunities under this Indenture
or otherwise. Any supplemental indenture authorized by the
provisions of this Section 11.1 may be executed by the Company
and the Trustee without the consent of the holders of any of the
Debentures at the time Outstanding, notwithstanding any of the
provisions of Section 11.2.
Section 11.2 Supplemental Indentures with Consent of
Debentureholders.
With the consent (evidenced as provided in Section 10.1) of
the holders of not less than a majority in aggregate principal
amount of the Debentures at the time Outstanding, the Company,
when authorized by Board Resolutions, and the Trustee may from
time to time and at any time enter into an indenture or
indentures supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act as then in effect, if
applicable) for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of
this Indenture or of any supplemental indenture or of modifying
in any manner not covered by Section 11.1 the rights of the
holders of the Debentures under this Indenture; provided,
however, that no such supplemental indenture shall without the
consent of the holders of each Debenture then Outstanding and
affected thereby, (i) extend the fixed maturity of any
Debentures, reduce the principal amount thereof, or reduce the
rate or extend the time of payment of interest thereon, without
the consent of the holder of each Debenture so affected; or (ii)
reduce the aforesaid percentage of Debentures, the holders of
which are required to consent to any such supplemental indenture;
provided further, that if the Debentures are held by the Trust or
a trustee of the Trust, such supplemental indenture shall not be
effective until the holders of a majority in liquidation
preference of Trust Securities of the Trust shall have consented
to such supplemental indenture; provided further, that if the
consent of the holder of each Outstanding Debenture is required,
such supplemental indenture shall not be effective until each
holder of the Trust Securities of the Trust shall have consented
to such supplemental indenture. It shall not be necessary for the
consent of the Debentureholders affected thereby under this
Section 11.2 to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such
consent shall approve the substance thereof.
Section 11.3 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture pursuant to
the provisions of this Article XI, this Indenture shall be and be
deemed to be modified and amended in accordance therewith and the
respective rights, limitations of rights, obligations, duties and
immunities under this Indenture of the Trustee, the Company and
the holders of Debentures shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of
any such supplemental indenture shall be and be deemed to be part
of the terms and conditions of this Indenture for any and all
purposes.
Section 11.4 Debentures Affected by Supplemental
Indentures.
Debentures affected by a supplemental indenture,
authenticated and delivered after the execution of such
supplemental indenture pursuant to the provisions of this Article
XI, may bear a notation in form approved by the Company, provided
such form meets the requirements of any national securities
exchange or automated quotation service upon which the Debentures
may be listed or quoted, as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new
Debentures so modified as to conform, in the opinion of the Board
of Directors of the Company, to any modification of this
Indenture contained in any such supplemental indenture may be
prepared by the Company, authenticated by the Trustee (upon
written order of the Company) and delivered in exchange for the
Debentures then Outstanding.
Section 11.5 Execution of Supplemental Indentures.
(a) Upon the request of the Company, accompanied by
its Board Resolutions authorizing the execution of any such
supplemental indenture, and upon the filing with the Trustee
of evidence of the consent of Debentureholders required to
consent thereto as aforesaid, the Trustee shall join with
the Company in the execution of such supplemental indenture
unless such supplemental indenture affects the Trustee's own
rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion,
but shall not be obligated to, enter into such supplemental
indenture. The Trustee, subject to the provisions of
Sections 9.1(b), may receive an Opinion of Counsel as
conclusive evidence that any supplemental indenture executed
pursuant to this Article XI is authorized or permitted by,
and conforms to, the terms of this Article XI and that it is
proper for the Trustee under the provisions of this Article
XI to join in the execution thereof.
(b) Promptly after the execution by the Company and
the Trustee of any supplemental indenture pursuant to the
provisions of this Section 11.5, the Trustee shall transmit
by mail, first class postage prepaid, a notice, setting
forth in general terms the substance of such supplemental
indenture, to the Debentureholders as their names and
addresses appear upon the Debenture Register. Any failure of
the Trustee to mail such notice, or any defect therein,
shall not, however, in any way impair or affect the validity
of any such supplemental indenture.
ARTICLE XII
SUCCESSOR CORPORATION
Section 12.1 Company May Consolidate, etc.
Nothing contained in this Indenture or in any of the
Debentures shall prevent any consolidation or merger of the
Company with or into any other Person (whether or not affiliated
with the Company, as the case may be), or successive
consolidations or mergers in which the Company, as the case may
be, or its successor or successors shall be a party or parties,
or shall prevent any sale, conveyance, transfer or other
disposition of the property of the Company, as the case may be,
or its successor or successors as an entirety, or substantially
as an entirety, to any other Person (whether or not affiliated
with the Company, as the case may be, or its successor or
successors) authorized to acquire and operate the same; provided,
however, the Company hereby covenants and agrees that, (i) upon
any such consolidation, merger, sale, conveyance, transfer or
other disposition, the due and punctual payment, in the case of
the Company, of the principal of and interest on all of the
Debentures, according to their tenor and the due and punctual
performance and observance of all the covenants and conditions of
this Indenture to be kept or performed by the Company as the case
may be, shall be expressly assumed, by supplemental indenture
(which shall conform to the provisions of the Trust Indenture
Act, to the extent the Trust Indenture Act is then applicable to
this Indenture or such supplemental indenture) satisfactory in
form to the Trustee in its good faith and executed and delivered
to the Trustee by the entity formed by such consolidation, or
into which the Company, as the case may be, shall have been
merged, or by the entity which shall have acquired such property;
(ii) in case the Company consolidates with or merges into another
Person or conveys or transfers its properties and assets
substantially as an entirety to any Person, the successor Person
is organized under the laws of the United States or any state or
the District of Columbia; and (iii) immediately after giving
effect thereto, no Event of Default, and no event which, after
notice or lapse of time or both, would become an Event of
Default, shall have occurred and be continuing.
Section 12.2 Successor Person Substituted.
(a) In case of any such consolidation, merger, sale,
conveyance, transfer or other disposition and upon the
assumption by the successor Person, by supplemental
indenture, executed and delivered to the Trustee and
satisfactory in form to the Trustee in good faith, of, in
the case of the Company, the due and punctual payment of the
principal of and interest on all of the Debentures
Outstanding and the due and punctual performance of all of
the covenants and conditions of this Indenture to be
performed by the Company, as the case may be, such successor
Person shall succeed to and be substituted for the Company,
with the same effect as if it had been named as the Company
herein, and thereupon the predecessor Person shall be
relieved of all obligations and covenants under this
Indenture and the Debentures.
(b) In case of any such consolidation, merger, sale,
conveyance, transfer or other disposition such changes in
phraseology and form (but not in substance) may be made in
the Debentures thereafter to be issued as may be
appropriate.
(c) Nothing contained in this Indenture or in any of
the Debentures shall prevent the Company from merging into
itself or acquiring by purchase or otherwise all or any part
of the property of any other Person (whether or not
affiliated with the Company).
Section 12.3 Evidence of Consolidation, etc. to Trustee.
The Trustee, subject to the provisions of Section 9.1(b),
may receive an Opinion of Counsel as conclusive evidence that any
such consolidation, merger, sale, conveyance, transfer or other
disposition, and any such assumption, comply with the provisions
of this Article XII.
ARTICLE XIII
SATISFACTION AND DISCHARGE
Section 13.1 Satisfaction and Discharge of Indenture.
If at any time: (a) the Company shall have delivered to the
Trustee for cancellation all Debentures theretofore authenticated
(other than any Debentures that shall have been destroyed, lost
or stolen and that shall have been replaced or paid as provided
in Section 2.9) and the principal and accrued interest of all
Debentures for whose payment money or Governmental Obligations
have theretofore been deposited in trust or segregated and held
in trust by the Company (and thereupon repaid to the Company or
discharged from such trust, as provided in Section 13.5); or (b)
all such Debentures not theretofore delivered to the Trustee for
cancellation shall have become due and payable, or are by their
terms to become due and payable within one year or are to be
called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of
redemption, and the Company shall deposit or cause to be
deposited with the Trustee as trust funds the entire amount in
money or Governmental Obligations sufficient or a combination
thereof, 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 at
maturity or upon redemption all Debentures not theretofore
delivered to the Trustee for cancellation, including principal
and interest due or to become due to such date of maturity or
date fixed for redemption, as the case may be, and if the Company
shall also pay or cause to be paid all other sums payable
hereunder by the Company; then this Indenture shall thereupon
cease to be of further effect except for the provisions of
Sections 2.3, 2.7, 2.9, 5.1, 5.2, 5.3, 9.7 and 9.10, that shall
survive until the date of maturity or redemption date, as the
case may be, and Section 13.5, that shall survive to such date
and thereafter, and the Trustee, on demand of the Company and at
the cost and expense of the Company, shall execute proper
instruments acknowledging satisfaction of and discharging this
Indenture.
Section 13.2 Discharge of Obligations.
If at any time all Debentures not heretofore delivered to
the Trustee for cancellation or that have not become due and
payable as described in Section 13.1 shall have been paid by the
Company by depositing irrevocably with the Trustee as trust funds
money or an amount of Governmental Obligations sufficient in the
opinion of a nationally recognized certified public accounting
firm to pay at maturity or upon redemption all Debentures not
theretofore delivered to the Trustee for cancellation, including
principal and interest due or to become due to such date of
maturity or date fixed for redemption, as the case may be, and if
the Company shall also pay or cause to be paid all other sums
payable hereunder by the Company, then after the date such moneys
or Governmental Obligations, as the case may be, are deposited
with the Trustee, the obligations of the Company under this
Indenture shall cease to be of further effect except for the
provisions of Sections 2.3, 2.7, 2.9, 5.1, 5.2, 5.3, 9.6, 9.7,
9.10 and 13.5 that shall survive until such Debentures shall
mature and be paid. Thereafter, Sections 9.7 and 13.5 shall
survive.
Deposited Money to be Held in Trust.
All money or Governmental Obligations deposited with the Trustee
pursuant to Sections 13.1 or 13.2 shall be held in trust and
shall be available for payment as due, either directly or through
any Paying Agent (including the Company acting as its own Paying
Agent), to the holders of the Debentures for the payment or
redemption of which such moneys or Governmental Obligations have
been deposited with the Trustee.
Section 13.3 Payment of Money Held by Paying Agents.
In connection with the satisfaction and discharge of this
Indenture, all moneys or Governmental Obligations then held by
any Paying Agent under the provisions of this Indenture shall,
upon demand of the Company, be paid to the Trustee and thereupon
such Paying Agent shall be released from all further liability
with respect to such money or Governmental Obligations.
Section 13.4 Repayment to Company.
Any money or Governmental Obligations deposited with any
Paying Agent or the Trustee, or then held by the Company in
trust, for payment of principal of or interest on the Debentures
that are not applied but remain unclaimed by the holders of such
Debentures for at least two years after the date upon which the
principal of or interest on such Debentures shall have
respectively become due and payable, shall be repaid to the
Company, as the case may be, on May 31 of each year or (if then
held by the Company) shall be discharged from such trust; and
thereupon the Paying Agent and the Trustee shall be released from
all further liability with respect to such moneys or Governmental
Obligations, and the holder of any of the Debentures entitled to
receive such payment shall thereafter, as an unsecured general
creditor, look only to the Company for the payment thereof.
ARTICLE XIV
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS
AND DIRECTORS
Section 14.1 No Recourse.
No recourse under or upon any obligation, covenant or
agreement of this Indenture, or of the Debentures, or for any
claim based thereon or otherwise in respect thereof, shall be had
against any incorporator, stockholder, officer or director, past,
present or future, as such, of the Company or of any predecessor
or successor Person, either directly or through the Company or
any such predecessor or successor Person, whether by virtue of
any constitution, statute or rule of law, or by the enforcement
of any assessment or penalty or otherwise; it being expressly
understood that this Indenture and the obligations issued
hereunder are solely corporate (or other entity, as the case may
be) obligations, and that no such personal liability whatever
shall attach to, or is or shall be incurred by, the
incorporators, stockholders, officers or directors as such, of
the Company or of any predecessor or successor Person, or any of
them, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants
or agreements contained in this Indenture or in any of the
Debentures or implied therefrom; and that any and all such
personal liability of every name and nature, either at common law
or in equity or by constitution or statute, and any and all such
rights and claims against, every such incorporator, stockholder,
officer or director as such, because of the creation of the
indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture
or in any of the Debentures or implied therefrom, are hereby
expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the
issuance of such Debentures.
ARTICLE XV
MISCELLANEOUS PROVISIONS
Section 15.1 Effect on Successors and Assigns.
All the covenants, stipulations, promises and agreements in
this Indenture contained by or on behalf of the Company shall
bind its respective successors and assigns, whether so expressed
or not.
Section 15.2 Actions by Successor.
Any act or proceeding by any provision of this Indenture
authorized or required to be done or performed by any board,
committee or officer of the Company shall and may be done and
performed with like force and effect by the corresponding board,
committee or officer of any Person that shall at the time be the
lawful successor of the Company.
Section 15.3 Surrender of Company Powers.
The Company by instrument in writing executed by appropriate
authority of its Board of Directors and delivered to the Trustee
may surrender any of the powers reserved to the Company, and
thereupon such power so surrendered shall terminate both as to
the Company, as the case may be, and as to any successor Person.
Section 15.4 Notices.
Except as otherwise expressly provided herein any notice or
demand that by any provision of this Indenture is required or
permitted to be given or served by the Trustee or by the holders
of Debentures to or on the Company may be given or served by
being deposited first class postage prepaid in a post-office
letterbox addressed to the Company's Chief Executive Officer. Any
notice, election, request or demand by the Company or any
Debentureholder to or upon the Trustee shall be deemed to have
been sufficiently given or made, for all purposes, if given or
made in writing at the Corporate Trust Office of the Trustee.
Section 15.5 Governing Law.
This Indenture and each Debenture shall be deemed to be a
contract made under the internal laws of the State of New York
and for all purposes shall be construed in accordance with the
laws of said State, without regard to its choice of law
provisions. Any action or proceeding arising out of this
Indenture, as supplemented or amended, in any way shall be
brought and enforced exclusively in the applicable United States
District Court in the State of New York or in the event such
court lacks jurisdiction, in the applicable New York State Court.
Section 15.6 Treatment of Debentures as Debt.
It is intended that the Debentures shall be treated as
indebtedness and not as equity for federal income tax purposes.
The provisions of this Indenture shall be interpreted to further
this intention.
Section 15.7 Compliance Certificates and Opinions.
(a) Upon any application or demand by the Company to
the Trustee to take any action under any of the provisions
of this Indenture, the Company shall furnish to the Trustee
an Officers' Certificate stating that all conditions
precedent provided for in this Indenture relating to the
proposed action have been complied with and an Opinion of
Counsel stating that in the opinion of such counsel all such
conditions precedent have been complied with, except that in
the case of any such application or demand as to which the
furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular
application or demand, no additional certificate or opinion
need be furnished.
(b) Each certificate or opinion of the Company
provided for in this Indenture and delivered to the Trustee
with respect to compliance with a condition or covenant in
this Indenture shall include (i) a statement that the Person
making such certificate or opinion has read such covenant or
condition; (ii) a brief statement as to the nature and scope
of the examination or investigation upon which the
statements or opinions contained in such certificate or
opinion are based; (iii) a statement that, in the opinion of
such Person, he has made such examination or investigation
as, in the opinion of such Person, is necessary to enable
him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and (iv) a
statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with;
provided, however, that each such certificate shall comply
with the provisions of Section 314 of the Trust Indenture
Act, if applicable.
Section 15.8 Payments on Business Days.
In any case where the date of maturity of interest or
principal of any Debenture or the date of redemption of any
Debenture shall not be a Business Day, then payment of interest
or principal may (subject to Section 2.5(c)) be made on the next
succeeding Business Day with the same force and effect as if made
on the nominal date of maturity or redemption, and no interest
shall accrue for the period after such nominal date.
Section 15.9 Application of Trust Indenture Act; Conflict.
(a) Unless and until this Indenture is required to be
qualified under the Trust Indenture Act, (i) the provisions
of this Indenture that expressly relate to the Trust
Indenture Act do not apply and shall not be given effect;
and (ii) notwithstanding any other provision of this
Indenture (including without limitation Sections 7.7,
9.1(b), 9.7(a) and 9.8 hereof), no Trustee shall be liable
for its own simple negligence, but shall only be liable for
its own gross negligence.
(b) If the Indenture is required to be qualified under
the Trust Indenture Act at any time, then if and to the
extent that any provision of this Indenture limits,
qualifies or conflicts with the duties imposed by Sections
310 to 317, inclusive, of the Trust Indenture Act, such
imposed duties shall control.
Section 15.10 Counterparts.
This Indenture may be executed in any number of
counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same
instrument.
Section 15.11 Severability.
In case any one or more of the provisions contained in this
Indenture or in the Debentures shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any
other provisions of this Indenture or of the Debentures, but this
Indenture and the Debentures shall be construed as if such
invalid or illegal or unenforceable provision had never been
contained herein or therein.
Section 15.12 Assignment.
The Company shall have the right at all times to assign any
of its respective rights or obligations under this Indenture to a
direct or indirect wholly owned Subsidiary of the Company,
provided that, in the event of any such assignment, the Company
shall remain liable for all such obligations. Subject to the
foregoing, this Indenture is binding upon and inures to the
benefit of the parties thereto and their respective successors
and assigns. This Indenture may not otherwise be assigned by the
parties hereto.
Section 15.13 Acknowledgment of Rights; Right of Set Off.
(a) The Company acknowledges that, with respect to any
Debentures held by the Trust or a trustee of the Trust, if
the Property Trustee fails to enforce its rights under this
Indenture as the holder of the Debentures held as the assets
of the Trust, any holder of Trust Preferred Securities may,
to the extent permitted under applicable law, institute
legal proceedings directly against the Company to enforce
such Property Trustee's rights under this Indenture without
first instituting any legal proceedings against such
Property Trustee or any other person or entity.
Notwithstanding the foregoing, if an Event of Default has
occurred and is continuing and such event is attributable to
the failure of the Company to pay interest or principal on
the Debentures on the date such interest or principal is
otherwise payable (or in the case of redemption, on the
redemption date), the Company acknowledges that a holder of
Trust Preferred Securities may directly institute a
proceeding against the Company for enforcement of payment to
such holder of the principal of or interest on the
Debentures having a principal amount equal to the aggregate
liquidation amount of the Trust Preferred Securities of such
holder on or after the respective due date specified in the
Debentures.
(b) Notwithstanding anything to the contrary contained
in this Indenture, the Company shall have the right to
setoff any payment it is otherwise required to make
hereunder in respect of any Trust Securities to the extent
that the Company has previously made, or is concurrently
making, a payment to the holder of any such Trust Securities
under the Trust Preferred Securities Guarantee or in
connection with a proceeding for enforcement of payment of
the principal of or interest on the Debentures directly
brought by holders of any such Trust Securities.
ARTICLE XVI
SUBORDINATION OF DEBENTURES
Section 16.1 Agreement to Subordinate.
The Company covenants and agrees, and each holder of
Debentures issued hereunder by such holder's acceptance thereof
likewise covenants and agrees, that all Debentures shall be
issued subject to the provisions of this Article XVI; and each
holder of a Debenture, whether upon original issue or upon
transfer or assignment thereof, accepts and agrees to be bound by
such provisions. The payment by the Company of the principal of
and interest on all Debentures issued hereunder shall, to the
extent and in the manner hereinafter set forth, be subordinated
and junior in right of payment to the prior payment in full of
all Senior Debt, Subordinated Debt and Additional Senior
Obligations of the Company (collectively, "Senior Indebtedness")
to the extent provided herein, whether outstanding at the date of
this Indenture or thereafter incurred. No provision of this
Article XVI shall prevent the occurrence of any default or Event
of Default hereunder. In no event shall the Debentures be
subordinate to the Company's (i) trade accounts payable, or (ii)
accrued liabilities arising in the ordinary course of business;
however, the Debentures shall in all cases be subordinate to (i)
any debt of the Company to any of its subsidiaries and (ii) any
debt of the Company to any of its employees.
Section 16.2 Default on Senior Debt, Subordinated Debt or
Additional Senior Obligations.
In the event and during the continuation of any default by
the Company in the payment of principal, premium, interest or any
other payment due on any Senior Indebtedness, or in the event
that the maturity of any Senior Indebtedness has been accelerated
because of a default, then, in either case, no payment shall be
made by the Company with respect to the principal (including
redemption payments) of or interest on the Debentures. In the
event that, notwithstanding the foregoing, any payment shall be
received by the Trustee when such payment is prohibited by the
preceding sentence of this Section 16.2, such payment shall be
held in trust for the benefit of, and shall be paid over or
delivered to, the holders of Senior Indebtedness or their
respective representatives, or to the trustee or trustees under
any indenture pursuant to which any of such Senior Indebtedness
may have been issued, as their respective interests may appear,
but only to the extent that the holders of the Senior
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 Senior
Indebtedness and only the amounts specified in such notice to the
Trustee shall be paid to the holders of Senior Indebtedness.
Section 16.3 Liquidation; Dissolution; Bankruptcy.
(a) Upon any payment by the Company or distribution of
assets of the Company of any kind or character, whether in
cash, property or securities, to creditors upon any
dissolution or winding-up or liquidation or reorganization
of the Company, whether voluntary or involuntary or in
bankruptcy, insolvency, receivership or other proceedings,
all amounts due upon all Senior Indebtedness of the Company
shall first be paid in full, or payment thereof provided for
in money in accordance with its terms, before any payment is
made by the Company on account of the principal or interest
on the Debentures; and upon any such dissolution or winding-
up or liquidation or reorganization, any payment by the
Company, or distribution of assets of the Company of any
kind or character, whether in cash, property or securities,
to which the holders of the Debentures or the Trustee would
be entitled to receive from the Company, except for the
provisions of this Article XVI, 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 Debentures or by the
Trustee under this Indenture if and to the extent received
by them or it, directly to the holders of Senior
Indebtedness of the Company (pro rata to such holders on the
basis of the respective amounts of Senior Indebtedness held
by such holders, as calculated by the Company) or their
representative or representatives, or to the trustee or
trustees under any indenture pursuant to which any
instruments evidencing such Senior Indebtedness may have
been issued, as their respective interests may appear, to
the extent necessary to pay such Senior Indebtedness in
full, in money or money's worth, after giving effect to any
concurrent payment or distribution to or for the holders of
such Senior Indebtedness, before any payment or distribution
is made to the holders of Debentures or to the Trustee.
(b) In the event that, notwithstanding the foregoing,
any payment or distribution of assets of the Company of any
kind or character, whether in cash, property or securities,
prohibited by the foregoing, shall be received by the
Trustee before all Senior Indebtedness of the Company is
paid in full, or provision is made for such payment in money
in accordance with its terms, such payment or distribution
shall be held in trust for the benefit of and shall be paid
over or delivered to the holders of such Senior Indebtedness
or their representative or representatives, or to the
trustee or trustees under any indenture pursuant to which
any instruments evidencing such Senior Indebtedness may have
been issued, and their respective interests may appear, as
calculated by the Company, for application to the payment of
all Senior Indebtedness of the Company, as the case may be,
remaining unpaid to the extent necessary to pay such Senior
Indebtedness in full in money in accordance with its terms,
after giving effect to any concurrent payment or
distribution to or for the benefit of the holders of such
Senior Indebtedness.
(c) For purposes of this Article XVI, 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 Person provided
for by a plan of reorganization or readjustment, the payment
of which is subordinated at least to the extent provided in
this Article XVI with respect to the Debentures to the
payment of all Senior Indebtedness of the Company, as the
case may be, that may at the time be outstanding, provided
that (i) such Senior Indebtedness is assumed by the new
Person, if any, resulting from any such reorganization or
readjustment; and (ii) the rights of the holders of such
Senior Indebtedness are not, without the consent of such
holders, altered by such reorganization or readjustment. The
consolidation of the Company with, or the merger of the
Company into, another Person or the liquidation or
dissolution of the Company following the conveyance or
transfer of its property as an entirety, or substantially as
an entirety, to another Person upon the terms and conditions
provided for in Article XII shall not be deemed a
dissolution, winding-up, liquidation or reorganization for
the purposes of this Section 16.3 if such other Person
shall, as a part of such consolidation, merger, conveyance
or transfer, comply with the conditions stated in Article
XII. Nothing in Section 16.2 or in this Section 16.3 shall
apply to claims of, or payments to, the Trustee under or
pursuant to Section 9.7.
Section 16.4 Subrogation.
(a) Subject to the payment in full of all Senior
Indebtedness of the Company, the rights of the holders of
the Debentures shall be subrogated to the rights of the
holders of such Senior Indebtedness to receive payments or
distributions of cash, property or securities of the
Company, as the case may be, applicable to such Senior
Indebtedness until the principal of and interest on the
Debentures shall be paid in full; and, for the purposes of
such subrogation, no payments or distributions to the
holders of such Senior Indebtedness of any cash, property or
securities to which the holders of the Debentures or the
Trustee would be entitled except for the provisions of this
Article XVI, and no payment pursuant to the provisions of
this Article XVI to or for the benefit of the holders of
such Senior Indebtedness by holders of the Debentures or the
Trustee, shall, as between the Company, its creditors (other
than holders of Senior Indebtedness), and the holders of the
Debentures, be deemed to be a payment by the Company to or
on account of such Senior Indebtedness. It is understood
that the provisions of this Article XVI are and are intended
solely for the purposes of defining the relative rights of
the holders of the Debentures, on the one hand, and the
holders of such Senior Indebtedness on the other hand.
(b) Nothing contained in this Article XVI or elsewhere
in this Indenture or in the Debentures is intended to or
shall impair, as between the Company, its creditors (other
than the holders of Senior Indebtedness of the Company), and
the holders of the Debentures, the obligation of the
Company, which is absolute and unconditional, to pay to the
holders of the Debentures the principal of and interest on
the Debentures 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
Debentures and creditors of the Company, as the case may be,
other than the holders of Senior Indebtedness, as the case
may be, nor shall anything herein or therein prevent the
Trustee or the holder of any Debenture from exercising all
remedies otherwise permitted by applicable law upon default
under this Indenture, subject to the rights, if any, under
this Article XVI of the holders of such Senior Indebtedness
in respect of cash, property or securities of the Company,
as the case may be, received upon the exercise of any such
remedy.
(c) Upon any payment or distribution of assets of the
Company referred to in this Article XVI, the Trustee,
subject to the provisions of Section 9.1(b), and the holders
of the Debentures shall be entitled to conclusively rely
upon any order or decree made by any court of competent
jurisdiction in which such dissolution, winding-up,
liquidation or reorganization proceedings are pending, or a
certificate of the receiver, trustee in bankruptcy,
liquidation trustee, agent or other Person making such
payment or distribution, delivered to the Trustee or to the
holders of the Debentures, for the purposes of ascertaining
the Persons entitled to participate in such distribution,
the holders of Senior Indebtedness and other indebtedness of
the Company, as the case may be, the amount thereof or
payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this
Article XVI.
Section 16.5 Trustee to Effectuate Subordination.
Each holder of Debentures by such holder's acceptance
thereof authorizes and directs the Trustee on such holder's
behalf to take such action as the Company advises the Trustee in
writing is necessary or appropriate to effectuate the
subordination provided in this Article XVI and appoints the
Trustee such holder's attorney-in-fact for any and all such
purposes.
Section 16.6 Notice by the Company.
(a) 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
money to or by the Trustee in respect of the Debentures
pursuant to the provisions of this Article XVI.
Notwithstanding the provisions of this Article XVI or any
other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts that
would prohibit the making of any payment of money to or by
the Trustee in respect of the Debentures pursuant to the
provisions of this Article XVI, unless and until a
Responsible Officer of the Trustee shall have received
written notice thereof from the Company or a holder or
holders of Senior Indebtedness or from any trustee
therefore; and before the receipt of any such written
notice, the Trustee, subject to the provisions of Section
9.1(b), 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 16.6 at least two Business Days prior to the date
upon which by the terms hereof any money may become payable
for any purpose (including, without limitation, the payment
of the principal of or interest on any Debenture), then,
anything herein contained to the contrary notwithstanding,
the Trustee shall have full power and authority to receive
such money and to apply the same to the purposes for which
they were received, and shall not be affected by any notice
to the contrary that may be received by it within two
Business Days prior to such date.
(b) The Trustee, subject to the provisions of Section
9.1(b), shall be entitled to conclusively rely on the
delivery to it of a written notice by a Person representing
himself to be a holder of Senior Indebtedness (or a trustee
on behalf of such holder) to establish that such notice has
been given by a holder of such Senior Indebtedness or a
trustee on behalf of any such holder or holders. In the
event that the Trustee determines in good faith that further
evidence is required with respect to the right of any Person
as a holder of such Senior Indebtedness to participate in
any payment or distribution pursuant to this Article XVI,
the Trustee may request such Person to furnish evidence to
the reasonable satisfaction of the Trustee as to the amount
of such Senior Indebtedness held by such Person, the extent
to which such Person is entitled to participate in such
payment or distribution and any other facts pertinent to the
rights of such Person under this Article XVI, 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 16.7 Rights of the Trustee; Holders of Senior
Indebtedness.
(a) The Trustee in its individual capacity shall be
entitled to all the rights set forth in this Article XVI in
respect of any Senior Indebtedness at any time held by it,
to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall deprive
the Trustee of any of its rights as such holder. The
Trustee's right to compensation and reimbursement of
expenses as set forth in Section 9.7 shall not be subject to
the subordination provisions of the Article XVI.
(b) With respect to the holders of Senior
Indebtedness, the Trustee undertakes to perform or to
observe only such of its covenants and obligations as are
specifically set forth in this Article XVI, and no implied
covenants or obligations with respect to the holders of such
Senior Indebtedness shall be read into this Indenture
against the Trustee. The Trustee shall not be deemed to owe
any fiduciary duty to the holders of such Senior
Indebtedness and, subject to the provisions of Section
9.1(b), the Trustee shall not be liable to any holder of
such Senior Indebtedness if it shall in good faith pay over
or deliver to holders of Debentures, the Company or any
other Person money or assets to which any holder of such
Senior Indebtedness shall be entitled by virtue of this
Article XVI or otherwise.
Section 16.8 Subordination may not be Impaired.
(a) No right of any present or future holder of any
Senior Indebtedness of the Company to enforce subordination
as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the
part of the Company 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.
(b) Without in any way limiting the generality of the
foregoing paragraph, the holders of Senior Indebtedness of
the Company may, at any time and from time to time, without
the consent of or notice to the Trustee or the holders of
the Debentures, without incurring responsibility to the
holders of the Debentures and without impairing or releasing
the subordination provided in this Article XVI or the
obligations hereunder of the holders of the Debentures to
the holders of such Senior Indebtedness, do any one or more
of the following: (i) change the manner, place or terms of
payment or extend the time of payment of, or renew or alter,
such Senior Indebtedness, or otherwise amend or supplement
in any manner such Senior Indebtedness or any instrument
evidencing the same or any agreement under which such Senior
Indebtedness is outstanding; (ii) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or
otherwise securing such Senior Indebtedness; (iii) release
any Person liable in any manner for the collection of such
Senior Indebtedness; and (iv) exercise or refrain from
exercising any rights against the Company and any other
Person.
[Signature Page Follows]
IN WITNESS WHEREOF, this Indenture is dated as set forth
below and effective as of the day and year first above written.
Heartland Financial USA, Inc.
By: /s/ John K. Schmidt
______________________________
Name: John K. Schmidt
______________________________
Title:Executive Vice President & CFO
______________________________
Date: June 27, 2002
_______________________________
Wells Fargo Bank, National
Association, AS TRUSTEE
By: /s/ Ann Roberts
_______________________________
Name: Ann Roberts
_______________________________
Title:Vice President
_______________________________
Date:
_______________________________
[Signature Page to Indenture]
EXHIBIT A
FLOATING RATE JUNIOR SUBORDINATED
DEFERRABLE INTEREST DEBENTURE
OF Name__Bank_Holding_Company_BHC
THIS DEBENTURE HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), ANY STATE
SECURITIES LAWS OR ANY OTHER APPLICABLE SECURITIES LAWS. NEITHER
THIS DEBENTURE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS THE TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH
REGISTRATION. PRIOR TO (X) THE DATE WHICH IS TWO YEARS (OR SUCH
SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144(k) UNDER THE
SECURITIES ACT) AFTER THE LATER OF (i) THE ORIGINAL ISSUE DATE
HEREOF OR (ii) THE LAST DATE ON WHICH THE COMPANY OR ANY
AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS DEBENTURE (OR ANY
PREDECESSOR OF THIS DEBENTURE) AND (Y) SUCH LATER DATE, IF ANY,
AS MAY BE REQUIRED BY APPLICABLE LAWS (THE "RESALE RESTRICTION
TERMINATION DATE"), THE HOLDER OF THIS DEBENTURE BY ITS
ACCEPTANCE HEREOF AGREES FOR THE BENEFIT OF THE COMPANY TO OFFER,
SELL OR OTHERWISE TRANSFER THIS DEBENTURE ONLY (A) TO THE COMPANY
OR AN AFFILIATE OF THE COMPANY, (B) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT, (C) FOR SO LONG AS THIS DEBENTURE IS ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A ("RULE 144A") PROMULGATED UNDER THE
SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF
SUBPARAGRAPH (A)(1), (2), (3) OR (7) OF RULE 501 UNDER THE
SECURITIES ACT THAT IS ACQUIRING THIS DEBENTURE FOR ITS OWN
ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL "ACCREDITED
INVESTOR," FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR
OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION
OF THE SECURITIES ACT, OR (E) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO
ANY SUCH OFFER, SALE, TRANSFER OR OTHER DISPOSITION (i) PURSUANT
TO CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY BY THE HOLDER OF AN
OPINION OF COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION
SATISFACTORY TO THE COMPANY 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
AND (ii) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A
CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE
OF THIS DEBENTURE IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO
THE TRUSTEE AND THE DEBENTURE REGISTRAR IN CONNECTION WITH ANY
TRANSFER OF THIS DEBENTURE PRIOR TO THE RESALE RESTRICTION
TERMINATION DATE. THE HOLDER MUST CHECK THE APPROPRIATE BOX SET
FORTH ON THE CERTIFICATE OF TRANSFER RELATING TO THE MANNER OF
SUCH TRANSFER AND SUBMIT THE CERTIFICATE OF TRANSFER TO THE
TRUSTEE AND THE DEBENTURE REGISTRAR. THIS LEGEND WILL BE REMOVED
UPON REQUEST OF THE HOLDER AFTER THE EARLIER OF (i) THE TRANSFER
OF THE DEBENTURE EVIDENCED HEREBY PURSUANT TO CLAUSE (B) ABOVE OR
(ii) THE RESALE RESTRICTION TERMINATION DATE. THE HOLDER WILL,
AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER
OF THIS DEBENTURE OF THE RESALE RESTRICTIONS REFERRED TO HEREIN.
PRIOR TO THE RESALE RESTRICTION TERMINATION DATE, THIS
DEBENTURE MAY BE TRANSFERRED OR EXCHANGED ONLY IN A MINIMUM
AGGREGATE PRINCIPAL AMOUNT OF NOT LESS THAN
Minimum_TPS_Transfer_or_Exchange__Amount. ANY ATTEMPTED
TRANSFER OF THIS DEBENTURE IN AN AGGREGATE PRINCIPAL AMOUNT OF
LESS THAN Minimum_TPS_Transfer_or_Exchange__Amount PRIOR TO THE
RESALE RESTRICTION TERMINATION DATE SHALL BE DEEMED TO BE VOID
AND OF NO LEGAL EFFECT WHATSOEVER. AFTER SUCH RESALE RESTRICTION
TERMINATION DATE, ANY ATTEMPTED TRANSFER OF THIS DEBENTURE IN AN
AGGREGATE PRINCIPAL AMOUNT OF LESS THAN
Minimum_TPS_Transfer_or_Exchange__Amoun1 SHALL BE DEEMED TO BE
VOID AND OF NO LEGAL EFFECT WHATSOEVER. ANY SUCH PURPORTED
TRANSFEREE SHALL BE DEEMED NOT TO BE THE HOLDER OF THIS DEBENTURE
FOR ANY PURPOSE, INCLUDING, BUT NOT LIMITED TO, THE RIGHT TO
RECEIVE INTEREST PAYMENTS ON THIS DEBENTURE, AND SUCH PURPORTED
TRANSFEREE SHALL BE DEEMED TO HAVE NO INTEREST WHATSOEVER IN THIS
DEBENTURE.
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO
THE REGISTRAR SUCH CERTIFICATES AND OTHER INFORMATION AS MAY BE
REQUIRED BY THE INDENTURE TO CONFIRM THAT THE TRANSFER COMPLIES
WITH THE FOREGOING RESTRICTIONS.
Name__Bank_Holding_Company_BHC
FLOATING RATE JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURE
DUE Debenture_Due_Date
No. _________ Debenture__Aggregate_Principal_Amount
Name__Bank_Holding_Company_BHC, a
State_of_Formation__BHC corporation (the "Company," which term
includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to
pay to, Name__Property_Trustee or any successor thereto, as
property trustee of Name__Trust or registered assigns, the
principal sum of Debenture__Aggregate_Principal_Amount on
Debenture_Due_Date (the "Stated Maturity"), and to pay interest
on said principal sum from Date_of_Execution_Closing_Date, or
from the most recent interest payment date to which interest has
been paid or duly provided for, quarterly (subject to deferral as
set forth herein) in arrears on March 30, June 30, September 30
and December 30 of each year (each such date, an "Interest
Payment Date") commencing September 30, 2002, at the rate of
Rate_above_LIBOR per annum over the Three-Month LIBOR Rate (the
"Floating Interest Rate"), applied to the aggregate principal
amount of the Debentures Outstanding as of such Interest Payment
Date, until the principal hereof shall have become due and
payable, 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 compounded quarterly. In no event shall
the Floating Interest Rate exceed 12% prior to
Accelerated_Maturity_Date.
The "Three-Month LIBOR Rate" shall mean the rate determined
in accordance with the following provisions:
(i) On the second London business day preceding each
Interest Payment Date (each such date, an "Interest Reset
Date"), Calculation_Agent_May_also_be_Property_A (the
"Calculation Agent"), will determine the Three-Month LIBOR
Rate which shall be the rate for deposits in the London
interbank market in U.S. dollars having a three-month
maturity commencing on the second London business day
immediately following such Interest Reset Date which appears
on the Telerate Page 3750 as of 11:00 a.m., London time, on
such Interest Reset Date. "Telerate Page 3750" means the
display on Page 3750 of the Dow Jones Telerate Service (or
such other page as may replace that page on that service for
the purpose of displaying London interbank offered rates of
major banks for U.S. dollar deposits). If the Three-Month
LIBOR Rate on such Interest Reset Date does not appear on
the Telerate Page 3750, such Three-Month LIBOR Rate will be
determined as described in (ii) below. London business day
means any day on which dealings in deposits in U.S. dollars
are transacted in the London interbank market.
(ii) With respect to an Interest Reset Date for which
the Three-Month LIBOR Rate does not appear on the Telerate
Page 3750 as specified in (i) above, the Calculation Agent
will request the principal London offices for each of four
major banks in the London interbank market, as selected by
the Calculation Agent, to provide the Calculation Agent with
its offered quotation for deposits in U.S. dollars having a
three-month maturity commencing on the second London
business day immediately following such Interest Reset Date
to prime banks in the London interbank market at
approximately 11:00 a.m., London time, on such Interest
Reset Date and in a principal amount that is representative
for a single transaction in such market at such time. If at
least two such quotations are provided, the Three-Month
LIBOR Rate on such Interest Reset Date will be the
arithmetic mean (rounded upwards, if necessary, to the
nearest one hundred-thousandth of a percentage point, with
five or more one-millionths of one percentage point rounded
upwards) of such quotations. If fewer than two quotations
are provided, the Three-Month LIBOR Rate determined on such
Interest Reset Date will be the arithmetic mean (rounded
upwards, if necessary, to the nearest one hundred-thousandth
of a percentage point, with five or more one-millionths of
one percentage point rounded upwards) of the rates quoted at
approximately 11:00 a.m., New York City time, on such
Interest Reset Date for loans in U.S. dollars to leading
European banks, having a three-month maturity commencing on
the second London business day immediately following such
Interest Reset Date and in a principal amount that is
representative for a single transaction in such market at
such time by three major banks in New York City selected by
the Calculation Agent; provided, however, if the banks so
selected by the Calculation Agent are not quoting as
aforesaid, the Three-Month LIBOR Rate with respect to such
Interest Reset Date will be the Three-Month LIBOR Rate in
effect on such Interest Reset Date.
The Floating Interest Rate for each Interest Payment Period
will be set on the 2nd day preceding each Interest Payment Date;
provided, that the initial Floating Interest Rate will be set on
Initial_Rate_Set_Date (each such date, an "Interest Reset
Date"), until the principal of this Debenture is paid or made
available for payment.
The amount of interest payable for any full Interest Payment
Period shall be computed on the basis of a 360-day year of twelve
30-day months. The amount of interest payable for any partial
Interest Payment Period shall be computed on the basis of the
number of days elapsed in a 360-day year of twelve 30-day months.
In the event that any date on which interest is payable on this
Debenture is not a Business Day, then payment of interest payable
on such date shall be made on the next succeeding day that is a
Business Day (and without any increase in the amount of interest
or other payment in respect of any such delay) except that, if
such Business Day is in the next succeeding calendar year,
payment of such interest will be made on the immediately
preceding Business Day and without any reduction in the amount of
interest or any other payment in respect of any such
acceleration, in each case, with the same force and effect as if
made on the date such payment was originally payable. The
interest installment so payable, and punctually paid or duly
provided for, on any Interest Payment Date shall, be paid to the
Person in whose name this Debenture (or one or more Predecessor
Debentures, as defined in said Indenture) is registered as
provided in the Indenture.
The amount of interest for each day that a Debenture is
outstanding (the "Daily Interest Amount") will be calculated by
dividing the Floating Interest Rate in effect for such day by 360
and multiplying the result by the principal amount of such
Debenture.
The Floating Interest Rate will in no event be higher than the
maximum rate permitted by the law of the State of
State_of_Formation__BHC, or, if higher, the law of the United
States of America.
The principal of and the interest on this Debenture shall be
payable at or through the office or agency of the Trustee
maintained for that purpose in any coin or currency of the United
States of America that at the time of payment is legal tender for
payment of public and private debts; provided, however, that
payment of interest may be made at the option of the Company by
check mailed to the registered holder at such address as shall
appear in the Debenture Register. Notwithstanding the foregoing,
so long as the holder of this Debenture is the Property Trustee,
the payment of the principal of and interest on this Debenture
shall be made at such place and to such account as may be
designated by the Property Trustee.
Beginning with the Interest_Reset_Date Interest Reset
Date, the Floating Interest Rate and amount of interest to be
paid on the Debentures for each Interest Payment Period will be
determined by the Calculation Agent. All calculations made by
the Calculation Agent shall, in the absence of manifest error, be
conclusive for all purposes and binding on the Company and the
holders of this Debenture. In the event that any then acting
Calculation Agent shall be unable or unwilling to act, or that
such Calculation Agent shall fail duly to establish the Floating
Interest Rate for any Interest Payment Period, or that the
Company proposes to remove such Calculation Agent, or that the
Calculation Agent proposes to terminate its service as
Calculation Agent, the Company shall appoint another Person,
which is a bank, trust company, investment banking firm or other
financial institution, to act as the Calculation Agent. The
Calculation Agent shall certify the Floating Interest Rate on
each Interest Reset Date and shall provide a copy of such
certification to the Trustee under the Indenture and to the
Property Trustee as soon as practicable following each Interest
Reset Date. The Trustee will provide written notice of the
Floating Interest Rate as certified by the Calculation Agent to
the holder of this Debenture within five Business Days following
each Interest Reset Date.
Subject to the Company having received prior approval of the
Federal Reserve if then required under applicable capital
guidelines, policies or regulations of the Federal Reserve, the
Company may redeem this Debenture prior to the Stated Maturity in
the manner and at the times set forth in the Indenture.
The payment by the Company of the principal and interest on
the indebtedness evidenced by this Debenture is, to the extent
and in the manner provided in the Indenture, subordinate and
junior in right of payment to the prior payment in full of all
Senior Indebtedness. This Debenture is issued subject to the
provisions of the Indenture with respect thereto. Each holder of
this Debenture, by accepting the same, (a) agrees to and shall be
bound by such provisions; (b) authorizes and directs the Trustee
on his or her behalf to take such action as the Company advises
the Trustee in writing is necessary or appropriate to acknowledge
or effectuate the subordination so provided; and (c) appoints the
Trustee his or her attorney-in-fact for any and all such
purposes. Each holder hereof, by his or her acceptance hereof,
hereby waives all notice of the acceptance of the subordination
provisions contained herein and in the Indenture by each holder
of Senior Indebtedness, whether now outstanding or hereafter
incurred, and waives reliance by each such holder upon said
provisions.
This Debenture shall not be entitled to any benefit under
the Indenture hereinafter referred to, be valid or become
obligatory for any purpose until the Certificate of
Authentication hereon shall have been signed by or on behalf of
the Trustee.
Capitalized terms used and not defined in this Debenture
shall have the meanings assigned in the Indenture.
The provisions of this Debenture are continued on the
reverse side hereof and such continued provisions shall for all
purposes have the same effect as though fully set forth at this
place.
IN WITNESS WHEREOF, the Company has caused this instrument
to be effective June 27, 2002.
Name__Bank_Holding_Company_BHC
By:________________________________________
Name:______________________________________
Title:_____________________________________
Attest:
By: _________________________
Name: ________________________
Title: Secretary
CERTIFICATE OF AUTHENTICATION
This is one of the Debentures described in the within-
mentioned Indenture.
Name__Property_Trustee,
as Trustee or Authenticating Agent
By:_________________________________
Authorized Signatory
FLOATING RATE JUNIOR SUBORDINATED
DEFERRABLE INTEREST DEBENTURE
(CONTINUED)
This Debenture is one of the subordinated debentures of the
Company (herein sometimes referred to as the "Debentures"),
specified in the Indenture, all issued or to be issued under and
pursuant to an Indenture effective as of
Date_of_Execution_Closing_Date (the "Indenture") duly executed
and delivered between the Company and Indenture_Trustee__Name,
as Trustee (the "Trustee"), to which Indenture reference is
hereby made for a description of the rights, limitations of
rights, obligations, duties and immunities thereunder of the
Trustee, the Company and the holders of the Debentures and of the
terms upon which the Debentures are, and are to be, authenticated
and delivered. The Debentures are limited in aggregate principal
amount as specified in the Indenture.
Because of the occurrence and continuation of a Special
Event, in certain circumstances, this Debenture may become due
and payable at the principal amount together with any interest
accrued thereon (the "Redemption Price"). The Redemption Price
shall be paid prior to 12:00 noon, Eastern Standard Time, time,
on the date of such redemption or at such earlier time as the
Company determines. The Company shall have the right as set
forth in the Indenture to redeem this Debenture at the option of
the Company, without premium or penalty, (i) in whole or in part,
at any time on or after Accelerated_Maturity_Date (an "Optional
Redemption"), or (ii) in whole, but not in part, at any time in
certain circumstances upon the occurrence of a Special Event, at
a Redemption Price equal to 103% of the principal amount plus any
accrued but unpaid interest hereon, to the date of such
redemption. Any redemption pursuant to this paragraph shall be
made upon not less than 30 days' nor more than 60 days' notice,
at the Redemption Price. The Redemption Price shall be paid at
the time and in the name provided therefor in the Indenture. If
the Debentures are only partially redeemed by the Company
pursuant to an Optional Redemption, the Debentures shall be
redeemed pro rata or by lot or by any other method utilized by
the Trustee as described in the Indenture.
In the event of redemption of this Debenture in part only, a
new Debenture or Debentures for the unredeemed portion hereof
shall be issued in the name of the holder hereof upon the
cancellation hereof. In case an Event of Default, as defined in
the Indenture, shall have occurred and be continuing, the
principal of all of the Debentures may be declared, and upon such
declaration shall become, due and payable, in the manner, with
the effect and subject to the conditions provided in the
Indenture.
The Indenture contains provisions permitting the Company and
the Trustee, with the consent of the holders of not less than a
majority in aggregate principal amount of the Debentures at the
time Outstanding, as defined in the Indenture, to execute
supplemental indentures for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions
of the Indenture or of any supplemental indenture or of modifying
in any manner the rights of the holders of the Debentures;
provided, however, that no such supplemental indenture shall,
except as provided in the Indenture (i) extend the fixed maturity
of the Debentures, reduce the principal amount thereof, or reduce
the rate or extend the time of payment of interest thereon,
without the consent of the holder of each Debenture so affected
thereby; or (ii) reduce the aforesaid percentage of Debentures,
the holders of which are required to consent to any such
supplemental indenture, without the consent of the holders of
each Debenture then Outstanding and so affected thereby. The
Indenture also contains provisions permitting the holders of a
majority in aggregate principal amount of the Debentures at the
time outstanding, on behalf of all of the holders of the
Debentures, to waive any past default in the performance of any
of the covenants contained in the Indenture, or established
pursuant to the Indenture, and its consequences, except a default
in the payment of the principal of or interest on any of the
Debentures. Any such consent or waiver by the registered holder
of this Debenture (unless revoked as provided in the Indenture)
shall be conclusive and binding upon such holder and upon all
future holders and owners of this Debenture and of any Debenture
issued in exchange herefor or in place hereof (whether by
registration of transfer or otherwise), irrespective of whether
or not any notation of such consent or waiver is made upon this
Debenture.
No reference herein to the Indenture and no provision of
this Debenture or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional,
to pay the principal and interest on this Debenture at the time
(subject to the Company's right to defer payment of interest
during an Extended Interest Payment Period as described herein)
and place and at the rate and in the money herein prescribed.
As further described in the Indenture, the Company shall
have the right at any time during the term of the Debentures and
from time to time to defer payments of interest by extending the
interest payment period of such Debentures for up to 20
consecutive quarters (each, an "Extended Interest Payment
Period"), at the end of which period the Company shall pay all
interest then accrued and unpaid (together with interest thereon
at the rate specified for the Debentures to the extent that
payment of such interest is enforceable under applicable law).
Before the termination of any such Extended Interest Payment
Period, so long as no Event of Default shall have occurred and be
continuing, the Company may further extend such Extended Interest
Payment Period, provided that such Extended Interest Payment
Period together with all such further extensions thereof shall
not exceed 20 consecutive quarters, extend beyond the Stated
Maturity or end on a date other than an Interest Payment Date.
At the termination of any such Extended Interest Payment Period
and upon the payment of all accrued and unpaid interest and any
additional amounts then due and subject to the foregoing
conditions, the Company may commence a new Extended Interest
Payment Period.
As provided in the Indenture and subject to certain
limitations therein set forth, this Debenture is transferable by
the registered holder hereof on the Debenture Register at the
office or agency of the Company designated for such purpose upon
surrender of this Debenture for registration of transfer
accompanied by a written instrument or instruments of transfer in
form satisfactory to the Company duly executed by the registered
holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Debentures of authorized denominations
and for the same aggregate principal amount shall be issued to
the designated transferee or transferees. No service charge
shall be made for any such transfer, but the Company may require
payment of a sum sufficient to cover any tax or other
governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of
this Debenture, the Company, the Trustee, any Paying Agent and
the Debenture Registrar may deem and treat the registered holder
hereof as the absolute owner hereof (whether or not this
Debenture shall be overdue and notwithstanding any notice of
ownership or writing hereon made by anyone other than the
Debenture Registrar) for the purpose of receiving payment of or
on account of the principal hereof and interest due hereon and
for all other purposes, and neither the Company nor the Trustee
nor any Paying Agent nor any Debenture Registrar shall be
affected by any notice to the contrary (by anyone other than the
Debenture Registrar).
No recourse shall be had for the payment of the principal of
or the interest on this Debenture, or for any claim based hereon,
or otherwise in respect hereof, or based on or in respect of the
Indenture, against any incorporator, stockholder, officer or
director, past, present or future, as such, of the Company or of
any predecessor or successor corporation, whether by virtue of
any constitution, statute or rule of law, or by the enforcement
of any assessment or penalty or otherwise, all such liability
being, by the acceptance hereof and as part of the consideration
for the issuance hereof, expressly waived and released.
Subject to Section 2.3 of the Indenture, the Debentures are
issuable only in registered form without coupons in denominations
of Common_and_Preferred_Stock__Per_Share_Li and any integral
multiple thereof.