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EXHIBIT 4.1
2
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[FORM OF INDENTURE]
FIRST BANKS, INC.
AND
STATE STREET BANK AND TRUST COMPANY,
AS TRUSTEE
INDENTURE
---------------% SUBORDINATED DEBENTURES DUE 2027
DATED AS OF JANUARY -----, 1997.
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TABLE OF CONTENTS
Page
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ARTICLE I. DEFINITIONS. . . . . . . . . . . . . . . . 1
Section 1.1. Definitions of Terms.. . . . . . . . . . . 1
ARTICLE II. ISSUE, DESCRIPTION, TERMS, CONDITIONS,
REGISTRATION AND EXCHANGE OF THE
DEBENTURES . . . . . . . . . . . . . . . . 8
Section 2.1. Designation and Principal Amount.. . . . . 8
Section 2.2. Maturity.. . . . . . . . . . . . . . . . . 8
Section 2.3. Form and Payment . . . . . . . . . . . . . 9
Section 2.4. [Intentionally Omitted]
Section 2.5. Interest . . . . . . . . . . . . . . . . . 11
Section 2.6. Execution and Authentications. . . . . . . 12
Section 2.7. Registration of Transfer and Exchange. . . 12
Section 2.8. Temporary Debentures . . . . . . . . . . . 13
Section 2.9. Mutilated, Destroyed, Lost or Stolen
Debentures . . . . . . . . . . . . . . . . 14
Section 2.10. Cancellation . . . . . . . . . . . . . . . 14
Section 2.11. Benefit of Indenture . . . . . . . . . . . 14
Section 2.12. Authentication Agent . . . . . . . . . . . 15
ARTICLE III. REDEMPTION OF DEBENTURES . . . . . . . . . 15
Section 3.1. Redemption . . . . . . . . . . . . . . . . 15
Section 3.2. Special Event Redemption . . . . . . . . . 15
Section 3.3. Optional Redemption by Company . . . . . . 16
Section 3.4. Notice of Redemption . . . . . . . . . . . 16
Section 3.5. Payment Upon Redemption. . . . . . . . . . 17
Section 3.6. No Sinking Fund. . . . . . . . . . . . . . 18
ARTICLE IV. EXTENSION OF INTEREST PAYMENT PERIOD . . . 18
Section 4.1. Extension of Interest Payment Period . . . 18
Section 4.2. Notice of Extension. . . . . . . . . . . . 18
Section 4.3. Limitation on Transactions . . . . . . . . 19
ARTICLE V. PARTICULAR COVENANTS OF THE COMPANY. . . . 19
Section 5.1. Payment of Principal and Interest. . . . . 19
Section 5.2. Maintenance of Agency. . . . . . . . . . . 19
Section 5.3. Paying Agents. . . . . . . . . . . . . . . 20
Section 5.4. Appointment to Fill Vacancy in Office
of Trustee . . . . . . . . . . . . . . . . 21
Section 5.5. Compliance with Consolidation
Provisions . . . . . . . . . . . . . . . . 21
Section 5.6. Limitation on Transactions . . . . . . . . 21
Section 5.7. Covenants as to the Trust. . . . . . . . . 21
Section 5.8. Covenants as to Purchases. . . . . . . . . 22
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ARTICLE VI. DEBENTUREHOLDERS' LISTS AND REPORTS BY
THE COMPANY AND THE TRUSTEE. . . . . . . . 22
Section 6.1. Company to Furnish Trustee Names and
Addresses of Debentureholders. . . . . . . 22
Section 6.2. Preservation of Information
Communications with Debentureholders . . . 22
Section 6.3. Reports by the Company . . . . . . . . . . 22
Section 6.4. Reports by the Trustee . . . . . . . . . . 23
ARTICLE VII. REMEDIES OF THE TRUSTEE AND
DEBENTUREHOLDERS ON EVENT OF DEFAULT . . . 23
Section 7.1. Events of Default. . . . . . . . . . . . . 23
Section 7.2. Collection of Indebtedness and Suits
for Enforcement by Trustee . . . . . . . . 25
Section 7.3. Application of Moneys Collected. . . . . . 26
Section 7.4. Limitation on Suits. . . . . . . . . . . . 26
Section 7.5. Rights and Remedies Cumulative; Delay
or Omission not Waiver . . . . . . . . . . 27
Section 7.6. Control by Debentureholders. . . . . . . . 27
Section 7.7. Undertaking to Pay Costs . . . . . . . . . 28
ARTICLE VIII. FORM OF DEBENTURE AND ORIGINAL ISSUE . . . 28
Section 8.1. Form of Debenture. . . . . . . . . . . . . 28
Section 8.2. Original Issue of Debentures . . . . . . . 28
ARTICLE IX. CONCERNING THE TRUSTEE . . . . . . . . . . 29
Section 9.1. Certain Duties and Responsibilities
Trustee. . . . . . . . . . . . . . . . . . 29
Section 9.2. Notice of Defaults . . . . . . . . . . . . 30
Section 9.3. Certain Rights of Trustee. . . . . . . . . 30
Section 9.4. Trustee Not Responsible for Recitals,
etc. . . . . . . . . . . . . . . . . . . . 31
Section 9.5. May Hold Debentures. . . . . . . . . . . . 31
Section 9.6. Moneys Held in Trust . . . . . . . . . . . 31
Section 9.7. Compensation and Reimbursement . . . . . . 32
Section 9.8. Reliance on Officers' Certificate. . . . . 32
Section 9.9. Disqualification: Conflicting
Interests. . . . . . . . . . . . . . . . . 32
Section 9.10. Corporate Trustee Required;
Eligibility. . . . . . . . . . . . . . . . 33
Section 9.11. Resignation and Removal; Appointment
of Successor . . . . . . . . . . . . . . . 33
Section 9.12. Acceptance of Appointment by Successor . . 34
Section 9.13. Merger, Conversion, Consolidation or
Succession to Business . . . . . . . . . . 35
Section 9.14. Preferential Collection of Claims
Against the Company. . . . . . . . . . . . 35
ARTICLE X. CONCERNING THE DEBENTUREHOLDERS. . . . . . 35
Section 10.1. Evidence of Action by Holders. . . . . . . 35
Section 10.2. Proof of Execution by Debentureholders . . 36
Section 10.3. Who May be Deemed Owners . . . . . . . . . 36
Section 10.4. Certain Debentures Owned by Company
Disregarded. . . . . . . . . . . . . . . . 36
Section 10.5. Actions Binding on Future
Debentureholders . . . . . . . . . . . . . 36
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ARTICLE XI. SUPPLEMENTAL INDENTURES. . . . . . . . . . 37
Section 11.1. Supplemental Indentures Without the
Consent of Debentureholders. . . . . . . . 37
Section 11.2. Supplemental Indentures with Consent
of Debentureholders. . . . . . . . . . . . 38
Section 11.3. Effect of Supplemental Indentures. . . . . 38
Section 11.4. Debentures Affected by Supplemental
Indentures . . . . . . . . . . . . . . . . 38
Section 11.5. Execution of Supplemental Indentures . . . 38
ARTICLE XII. SUCCESSOR CORPORATION. . . . . . . . . . . 39
Section 12.1. Company May Consolidate, etc . . . . . . . 39
Section 12.2. Successor Corporation Substituted. . . . . 39
Section 12.3. Evidence of Consolidation, etc. to
Trustee. . . . . . . . . . . . . . . . . . 40
ARTICLE XIII. SATISFACTION AND DISCHARGE . . . . . . . . 40
Section 13.1. Satisfaction and Discharge of
Indenture. . . . . . . . . . . . . . . . . 40
Section 13.2. Discharge of Obligations . . . . . . . . . 41
Section 13.3. Deposited Moneys to be Held in Trust . . . 41
Section 13.4. Payment of Monies Held by Paying
Agents . . . . . . . . . . . . . . . . . . 41
Section 13.5. Repayment to Company . . . . . . . . . . . 41
ARTICLE XIV. IMMUNITY OF INCORPORATORS,
STOCKHOLDERS, OFFICERS AND DIRECTORS . . . 42
Section 14.1. No Recourse. . . . . . . . . . . . . . . . 42
ARTICLE XV. MISCELLANEOUS PROVISIONS . . . . . . . . . 42
Section 15.1. Effect on Successors and Assigns . . . . . 42
Section 15.2. Actions by Successor . . . . . . . . . . . 42
Section 15.3. Surrender of Company Powers. . . . . . . . 42
Section 15.4. Notices. . . . . . . . . . . . . . . . . . 43
Section 15.5. Governing Law. . . . . . . . . . . . . . . 43
Section 15.6. Treatment of Debentures as Debt. . . . . . 43
Section 15.7. Compliance Certificates and Opinions . . . 43
Section 15.8. Payments on Business Days. . . . . . . . . 43
Section 15.9. Conflict with Trust Indenture Act. . . . . 44
Section 15.10. Counterparts . . . . . . . . . . . . . . . 44
Section 15.11. Separability . . . . . . . . . . . . . . . 44
Section 15.12. Assignment . . . . . . . . . . . . . . . . 44
Section 15.13. Acknowledgment of Rights . . . . . . . . . 44
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ARTICLE XVI. SUBORDINATION OF DEBENTURES. . . . . . . . 44
Section 16.1. Agreement to Subordinate . . . . . . . . . 45
Section 16.2. Default on Senior Debt, Subordinated
Debt or Additional Senior Obligations. . . 45
Section 16.3. Liquidation; Dissolution; Bankruptcy . . . 45
Section 16.4. Subrogation. . . . . . . . . . . . . . . . 46
Section 16.5. Trustee to Effectuate Subordination. . . . 47
Section 16.6. Notice by the Company. . . . . . . . . . . 47
Section 16.7. Rights of the Trustee; Holders of
Senior Indebtedness. . . . . . . . . . . . 48
Section 16.8. Subordination may not be Impaired. . . . . 48
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CROSS-REFERENCE TABLE
Section of
Trust Indenture Act Section of
of 1939, as amended Indenture
- ------------------- ---------
310(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.10
310(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9.9
. . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.11
310(c) . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.14
311(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.14
311(c) . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6.1
. . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2(a)
312(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2(c)
312(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2(c)
313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.4(a)
313(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.4(b)
313(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.4(a)
. . . . . . . . . . . . . . . . . . . . . . . . . . . 6.4(b)
313(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.4(c)
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3(a)
314(b) . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
314(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.7
314(d) . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
314(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.7
314(f) . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
315(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.1(a)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . .9.3
315(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9.2
315(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.1(a)
315(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.1(b)
315(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.7
316(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1.1
. . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.6
316(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4(b)
316(c) . . . . . . . . . . . . . . . . . . . . . . . . . . .10.1(b)
317(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.2
317(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5.3
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.9
<FN>
Note: This Cross-Reference Table does not constitute part of this
Indenture and shall not affect the interpretation of any of its terms
or provisions.
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INDENTURE
INDENTURE, dated as of January ---, 1997, between FIRST BANKS,
INC., a Missouri corporation (the "Company") and STATE STREET BANK AND
TRUST COMPANY, a banking corporation duly organized and existing under
the laws of the State of Massachusetts, as trustee (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 its --------%
Subordinated Debentures due 2027 (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, First Preferred Capital Trust, a Delaware statutory
business trust (the "Trust"), has offered to the public
$---- million aggregate liquidation amount of its 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 $---- million aggregate
liquidation amount of its Common Securities (as defined herein), in
$---- million aggregate principal amount of the Debentures; and
WHEREAS, the Company has requested that the Trustee execute
and deliver this Indenture; and
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 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:
ARTICLE I.
DEFINITIONS
SECTION 1.1. DEFINITIONS OF TERMS.
The terms defined in this Section 1.1 (except as in this
Indenture otherwise expressly provided or unless the context
otherwise requires) for all purposes of this Indenture and of any
indenture supplemental hereto shall have the respective meanings
specified in this Section 1.1 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 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
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execution of this instrument. 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 Section 2.2(c), the
date selected by the Company which is prior to the Scheduled
Maturity Date, but is after March 31, 2002.
"Additional Interest" shall have the meaning set forth in
Section 2.5.
"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.
"Administrative Trustees" shall have the meaning set forth in
the Trust Agreement.
"Affiliate" means, with respect to a specified Person, (a) 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; (b) any Person
10% or more of whose outstanding voting securities or other
ownership interests are directly or indirectly owned, controlled or
held with power to vote by the specified Person; (c) any Person
directly or indirectly controlling, controlled by, or under common
control with the specified Person; (d) a partnership in which the
specified Person is a general partner; (e) any officer or director
of the specified Person; and (f) if the specified Person is an
individual, any entity of which the specified Person is an officer,
director or general partner.
"Authenticating Agent" 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.
"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 the Borough of Manhattan, The City of
New York, 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.
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"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 beneficial interests in
the assets of the Trust which rank pari passu with the 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 (i) distributions, and (ii) payments upon
liquidation, redemption and otherwise are subordinated to the
rights of holders of Preferred Securities.
"Company" means First Banks, Inc., a corporation duly
organized and existing under the laws of the State of Missouri,
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 at
which, at any particular time, its corporate trust business shall
be principally administered, which office at the date hereof is
located at 2 International Place, 5th Floor, Boston, Massachusetts
02110, Attention: Corporate Trust Trustee.
"Coupon Rate" shall have the meaning set forth in Section 2.5.
"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) and every obligation of the
type referred to in clauses (i) through (v) of another Person
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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, as
amended, as in effect at the date of execution of this instrument.
"Extended Interest Payment Period" shall have the meaning set
forth in Section 4.1.
"Extended Maturity Date" means if the Company elects to extend
the Maturity Date in accordance with Section 2.2(b), the date
selected by the Company which is after the Scheduled Maturity Date
but before March 31, 2046.
"Federal Reserve" means the Board of Governors of the Federal
Reserve System.
"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 depositary 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
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of or interest on any such Governmental Obligation held by such custodian for
the account of the holder of such depositary 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," when used with respect to any
installment of interest on the Debentures, means the date specified
in the Debenture or in a Board Resolution or in an indenture
supplemental hereto with respect to the Debentures as the fixed
date on which an installment of interest with respect to the
Debentures is due and payable.
"Investment Company Act," means the Investment Company Act of
1940, as amended, as in effect at the date of execution of this
instrument.
"Investment Company Event" means the receipt by the Trust of
an Opinion of Counsel, rendered by a law firm having a recognized
national tax and 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 Preferred Securities under the Trust Agreement.
"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 3.2.
"Officers' Certificate" means a certificate signed by the
President or a Vice President and by the Treasurer or an Assistant
Treasurer or the Controller or an Assistant Controller 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 legal
counsel, who may be an employee of or 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.
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"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
(a) 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; (b) Debentures
or portions thereof for the payment or redemption of which moneys
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 in Article III
provided, or provision satisfactory to the Trustee shall have been
made for giving such notice; and (c) 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.
"Person" means any individual, corporation, partnership,
joint-venture, joint-stock company, unincorporated organization 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.
"Preferred Securities" means undivided beneficial interests in
the assets of the Trust which 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 Preferred Securities.
"Preferred Securities Guarantee" means any guarantee that the
Company may enter into with the Trustee or other Persons that
operate directly or indirectly for the benefit of holders of
Preferred Securities.
"Property Trustee" has the meaning set forth in the Trust
Agreement.
"Responsible Officer" when used with respect to the Trustee
means the Chairman of the Board of Directors, the President, any
Vice President, the Secretary, the Treasurer, any trust officer,
any corporate trust officer or any other officer or assistant
officer of the Trustee customarily performing functions similar to
those performed by the Persons who at the time shall be such
officers, respectively, or to whom any corporate trust matter is
referred because of his or her knowledge of and familiarity with
the particular subject.
"Scheduled Maturity Date" means March 31, 2027.
"Securities Act," means the Securities Act of 1933, as
amended, as in effect at the date of execution of this instrument.
"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 Debt, whether
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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 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 of the Company to any of its subsidiaries;
(iii) Debt to any employee of the Company; (iv) Debt which by its
terms is subordinated to trade accounts payable or accrued
liabilities arising in the ordinary course of business to the
extent that payments made to the holders of such Debt by the
holders of the Debentures as a result of the subordination
provisions of this Indenture would be greater than they otherwise
would have been as a result of any obligation of such holders to
pay amounts over to the obligees on such trade accounts payable or
accrued liabilities arising in the ordinary course of business as
a result of subordination provisions to which such Debt is subject;
and (v) Debt which constitutes Subordinated Debt.
"Senior Indebtedness" shall have the meaning set forth in
Section 16.2.
"Special Event" means a Tax Event or an Investment Company
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 other Debt of the Company (other than the
Debentures).
"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, joint
venture, trust 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 Trust of an Opinion of
Counsel, rendered by a law firm having a recognized national tax
and securities 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 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. The Trust or the Company shall request and
receive such 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 possible occurrence of any of the events described
in clauses (i) through (iii) above.
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"Trust" means First Preferred Capital Trust, a Delaware
statutory business trust.
"Trust Agreement" means the Amended and Restated Trust
Agreement, dated January --, 1997, of the Trust.
"Trustee" means State Street Bank and Trust Company and, subject
to the provisions of Article IX, shall also include its successors
and assigns, 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,
as amended, subject to the provisions of Sections 11.1, 11.2, and
12.1, as in effect at the date of execution of this instrument.
"Trust Securities" means the Common Securities and 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 "---%
Subordinated Debentures due 2027," limited in aggregate principal
amount to $---------- million, 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 extend the Maturity Date
beyond the Scheduled Maturity Date in accordance
with Section 2.2(b), the Extended Maturity Date;
or
(iii) if the Company elects to accelerate the Maturity
Date to be a date prior to the Scheduled Maturity
Date in accordance with Section 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, elect to extend
the Maturity Date to the Extended Maturity Date, provided
that the Company has received the prior approval of the
Federal Reserve if then required under applicable capital
guidelines or policies of the Federal Reserve and further
provided that the following conditions in this Section 2.2(b)
are satisfied both at
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the date the Company gives notice in accordance with
Section 2.2(d) of its election to extend the Maturity
Date and at the Scheduled Maturity Date:
(i) the Company is not in bankruptcy, otherwise
insolvent or in liquidation;
(ii) the Company is not in default in the payment of
interest or principal on the Debentures;
(iii) the Trust is not in arrears on payments of
Distributions on the Trust Securities issued by
it and no deferred Distributions are accumulated;
and
(iv) the Company has a rating on its Senior Debt of
investment grade.
(c) the Company may at any time before the day which is 90
days before the Scheduled Maturity Date and after
March 31, 2002, 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 or policies of
the Federal Reserve.
(d) if the Company elects to extend the Maturity Date in
accordance with Section 2.2(b), the Company shall give
notice to the registered holders of the Debentures, the
Property Trustee and the Trust of the extension of the
Maturity Date and the Extended Maturity Date at least 90
days and no more than 180 days before the Scheduled
Maturity Date.
(e) if the Company elects to accelerate the Maturity Date in
accordance with Section 2.2(c), the Company shall give
notice to the registered holders of the Debentures, the
Property Trustee and the Trust of the extension of the
Maturity Date and the Accelerated Maturity Date at least
90 days and no more than 180 days before the Accelerated
Maturity Date.
SECTION 2.3. FORM AND PAYMENT.
The Debentures shall be issued in fully registered certificated
form without interest coupons. 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
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 the 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 Omitted]
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SECTION 2.5. INTEREST.
(a) Each Debenture shall bear interest at the rate of ---%
per annum (the "Coupon 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 Coupon Rate, compounded quarterly, payable (subject
to the provisions of Article IV) quarterly in arrears on March 31,
June 30, September 30, and December 31 of each year (each, an
"Interest Payment Date," commencing on March 31, 1997), 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 fifteenth day of the last month
of the calendar quarter.
(b) The amount of interest payable for any period shall be
computed on the basis of a 360-day year of twelve 30-day months.
Except as provided in the following sentence, the amount of
interest payable for any period shorter than a full quarterly
period for which interest is computed, shall be computed on the
basis of the actual number of days elapsed in such a 30-day 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 (and without any interest or other payment in respect
of any such delay), 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.
(c) If, at any time while the Property Trustee is the holder
of any Debentures, the Trust or the Property Trustee is required to
pay any taxes, duties, assessments or governmental charges of
whatever nature (other than withholding taxes) imposed by the
United States, or any other taxing authority, then, in any case,
the Company shall pay as additional interest ("Additional
Interest") on the Debentures held by 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
paying such taxes, duties, assessments or other governmental
charges shall be equal to the amounts the Trust and the Property
Trustee would have received had no such taxes, duties, assessments
or other government charges been imposed.
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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 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. The seal of the Company 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.
(b) 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.
(c) 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.
(d) 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) 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.
(e) 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) Debentures may be exchanged upon presentation thereof at
the office or agency of the Company designated for such purpose in
the Borough of Manhattan, The City of New York, for other
Debentures and for a like aggregate principal amount, 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 shall authenticate and such office or
agency shall deliver in exchange therefor the Debenture or
Debentures that the Debentureholder making the exchange shall be
entitled to receive, bearing numbers not contemporaneously
outstanding.
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(b) The Company shall keep, or cause to be kept, at its
office or agency designated for such purpose in the Borough of
Manhattan, The City of New York, 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 in this Article II
provided 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 be appointed as authorized by Board Resolution (the
"Debenture Registrar"). 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 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) 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 second paragraph of Section 3.5 and Section 11.4 not involving
any transfer.
(d) 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 business 15 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.
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 the purpose in the Borough of Manhattan, The
City of New York, and the Trustee shall authenticate 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 executed 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.
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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 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 or stolen. 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 save 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 request
or authorization of any officer 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 save 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.
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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
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 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,
which the Trustee shall have the right to appoint. 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. REDEMPTION.
Subject to the Company having received prior approval of the
Federal Reserve, if then required under the applicable capital
guidelines or policies of the Federal Reserve, the Company may
redeem the Debentures issued hereunder on and after the dates set
forth in and in accordance with the terms of this Article III.
SECTION 3.2. SPECIAL EVENT REDEMPTION.
Subject to the Company having received the prior approval of
the Federal Reserve, if then required under the applicable capital
guidelines or policies of the Federal Reserve, if a Special Event has
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occurred and is continuing, then, notwithstanding Section 3.3(a) but subject
to Section 3.3(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 100% 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 Trust or
the holders of the Trust Securities issued by the Trust, the
Company shall pursue such Ministerial Action in lieu of redemption,
and, provided further, that the Company shall have no right to
redeem the Debentures while the Trust is pursuing any Ministerial
Action pursuant to its obligations under the Trust Agreement. 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 3.3. OPTIONAL REDEMPTION BY COMPANY.
(a) Subject to the provisions of Section 3.3(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 or after ---------, 2002, at a Redemption Price
equal to 100% of the principal amount to be redeemed plus any
accrued and unpaid interest thereon to the date of such redemption.
Any redemption pursuant to this Section 3.3(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 3.3, the
Debentures shall be redeemed pro rata or by lot or in such other
manner as the Trustee shall deem appropriate and fair in its
discretion. The Redemption Price shall be paid prior to 12:00 noon,
New York time, on the date of such redemption 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 date such Redemption
Price is to be paid.
(b) If a partial redemption of the Debentures would result in
the delisting of the Preferred Securities issued by the Trust from
The Nasdaq Stock Market's National Market or any national
securities exchange or other organization on which the Preferred
Securities are then listed, the Company shall not be permitted to
effect such partial redemption and may only redeem the Debentures
in whole.
SECTION 3.4. NOTICE OF REDEMPTION.
(a) 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 45 days' written
notice from the Company, 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 60 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
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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 in the
Borough of Manhattan, The City of New York or at the Corporate
Trust Office, 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 shall be issued.
(b) 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, by lot or in such other manner as it shall deem
appropriate and fair in its discretion, the portion or portions
(equal to $25 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 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 3.4, 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 3.4.
SECTION 3.5. 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 pursuant to
Section 3.3).
(b) Upon presentation of any Debenture that is to be redeemed
in part only, the Company shall execute and the Trustee shall
authenticate and the office or agency where the Debenture is
presented shall
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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 3.6. 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.
So long as no Event of Default has occurred and is continuing,
the Company shall have the right, at any time and from time to time
during the term of the Debentures, 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. 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 Coupon Rate
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, 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. 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 one Business
Day 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 The
Nasdaq Stock Market's National Market or other applicable
self-regulatory organization or to holders of the Preferred
Securities issued by the Trust, but in any event at least one
Business Day before such record date.
(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 one Business
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Day 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 The Nasdaq Stock
Market's National Market or other applicable self-regulatory
organization 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 any Event of Default, then (a) the Company shall not
declare or pay any dividend 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 (i) as a result of
a reclassification of its capital stock for another class of its
capital stock; or (ii) the conversion of the Company's Class A
Convertible, Adjustable Rate Preferred Stock to the Company's
common stock, par value $250.00 per share); (b) the Company shall
not 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;
provided, however, that notwithstanding the foregoing the Company
may make payments pursuant to its obligations under the Preferred
Securities Guarantee; and (c) the Company shall not redeem,
purchase or acquire less than all of the outstanding Debentures or
any of the 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 an office or agency in the Borough of
Manhattan, The City of New York, 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 President or a 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 the Borough of Manhattan,
The City of New York, where the Debentures may be presented for
registration or transfer and for exchange in the manner
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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 the Borough of Manhattan, The City of New
York, 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) 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.
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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 9.10, 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 merge into itself,
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 its payment of any obligations under the
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 declare or pay any dividend 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
(i) as a result of a reclassification of its capital stock for
another class of its capital stock; or (ii) the conversion of the
Company's Class A Convertible, Adjustable Rate Preferred Stock to
the Company's common stock, par value $250.00 per share); (b) the
Company shall not 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; provided, however, that the Company may make payments
pursuant to its obligations under the Preferred Securities
Guarantee; and (c) the Company shall not redeem, purchase or
acquire less than all of the outstanding Debentures or any of the
Preferred Securities.
SECTION 5.7. COVENANTS AS TO THE TRUST.
For so long as such 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 or policies of the
Federal Reserve and use its reasonable efforts to cause the Trust
(a) to remain a business trust, 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; and (iii) use its reasonable efforts to cause each holder
of Trust Securities to be treated as owning an individual
beneficial interest in the Debentures. In connection with the
distribution of the Debentures to the holders of the Preferred
Securities issued by the Trust upon a Dissolution Event, the Company
shall use its best efforts to list such Debentures on The Nasdaq Stock
Market's National Market or on such other exchange as the Preferred
Securities are then listed.
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SECTION 5.8. COVENANTS AS TO PURCHASES.
Prior to March 31, 2002, the Company shall not purchase any
Debentures, in whole or in part, from the Trust.
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 monthly 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; 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 registrar for the Debentures (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 as provided in Section
312(b) of the Trust Indenture Act with other Debentureholders with
respect to their rights under this Indenture or under the
Debentures.
SECTION 6.3. REPORTS BY THE COMPANY.
(a) The Company covenants and agrees to file with the
Trustee, within 15 days after the Company is required to file the
same with the Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to
time by rules and regulations prescribe) that the Company may be
required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Exchange Act; or, if the Company is not
required to file information, documents or reports pursuant to
either of such sections, then to file with the Trustee and the
Commission, in accordance with the rules and regulations prescribed
from time to time by the Commission, such of the supplementary and
periodic information, documents and reports that may be required
pursuant to Section 13 of the Exchange Act in respect of a security
listed and registered on a national securities exchange as may be
prescribed from time to time in such rules and regulations.
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(b) The Company covenants and agrees to file with the Trustee
and the Commission, in accordance with the rules and regulations
prescribed from to time by the Commission, such additional
information, documents and reports with respect to compliance by
the Company with the conditions and covenants provided for in this
Indenture as may be required from time to time by such rules and
regulations.
(c) The Company covenants and agrees to transmit by mail,
first class postage prepaid, or reputable over-night delivery
service that provides for evidence of receipt, to the
Debentureholders, as their names and addresses appear upon the
Debenture Register, within 30 days after the filing thereof with
the Trustee, such summaries of any information, documents and
reports required to be filed by the Company pursuant to
subsections (a) and (b) of this Section 6.3 as may be required by
rules and regulations prescribed from time to time by the
Commission.
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.
(b) The Trustee shall comply with Section 313(b) and 313(c)
of the Trust Indenture Act.
(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 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.
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; provided, however, that a valid extension of the
maturity of such Debentures in accordance with the terms of
this Indenture shall not constitute a default in the payment
of principal;
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(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 (i) commences a voluntary case; (ii) consents
to the entry of an order for relief against it in an
involuntary case; (iii) consents to the appointment of a
Custodian of it or for all or substantially all of its
property; or (iv) makes a general assignment for the benefit
of its creditors;
(v) a court of competent jurisdiction enters an order
under any Bankruptcy Law that (i) is for relief against the
Company in an involuntary case; (ii) appoints a Custodian of
the Company for all or substantially all of its property; or
(iii) 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 (i) the distribution of
Debentures to holders of Trust Securities in liquidation of
their interests in the Trust; (ii) the redemption of all of
the outstanding Trust Securities of the Trust; or
(iii) certain mergers, consolidations or amalgamations, each
as permitted by the Trust Agreement.
(b) In each and every such case, 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 moneys 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 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 9.6; 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
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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 (1) 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 (2) 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 been 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 (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 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 the moneys 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 moneys 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
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. In case of an Event of Default hereunder, the
Trustee may in its discretion proceed to protect and enforce the
rights vested in it by this Indenture by such appropriate judicial
proceedings as the Trustee shall deem most effectual to
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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 MONEYS COLLECTED.
Any moneys 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 moneys 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 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) 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
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
indemnity, shall have failed to institute any such action, suit or
proceeding; and (v) 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
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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 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 provided in Section 2.9, 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 on 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
Section 10.4, 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, 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 Section 10.4, 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 5.6; 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 of the Trust shall have consented to such
waiver or modification to such waiver; provided further, that if
the consent of the holder of each Outstanding
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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 7.8 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, or 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.
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 attached hereto and incorporated herein by
reference.
SECTION 8.2. ORIGINAL ISSUE OF DEBENTURES.
Debentures in the aggregate principal amount of
$------------------- may, upon execution of this Indenture, be
executed by the Company and delivered to the Trustee for
authentication, and the Trustee shall thereupon authenticate and
deliver said Debentures to or upon the written order of the
Company, signed by its Chairman, its Vice Chairman, its President,
or any Vice President and its Treasurer or an Assistant Treasurer,
without any further action by the Company.
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ARTICLE IX.
CONCERNING THE TRUSTEE
SECTION 9.1. CERTAIN DUTIES AND RESPONSIBILITIES 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, and no implied covenants shall be read into this
Indenture against the Trustee. 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 man would exercise or use under the
circumstances in the conduct of his own affairs.
(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:
(1) 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:
(i) 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
(ii) 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;
(2) 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;
(3) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in
accordance with the direction of the holders of 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
(4) 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.
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SECTION 9.2. NOTICE OF DEFAULTS.
Within 90 days after actual knowledge by a Responsible Officer
of the Trustee of the occurrence of any default hereunder with
respect to the Securities, 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 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 otherwise provided in Section 9.1:
(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
the 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 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 (that 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 their exercise, as a prudent man
would exercise or use under the circumstances in the conduct of his
own affairs;
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(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 Section 10.4); 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
moneys paid over by the Trustee in accordance with any provision of
this Indenture, or for the use or application of any moneys
received by any paying agent other than the Trustee.
SECTION 9.5. MAY HOLD DEBENTURES.
The Trustee or any paying agent or registrar for the
Debentures, 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 moneys 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 moneys received by it hereunder except such as it
may agree with the Company to pay thereon.
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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 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 trust, including the 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 otherwise provided in Section 9.1, 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.
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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 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 corporation publishes
reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority,
then for the purposes of this Section 9.10, the combined capital
and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of
condition so published. The Company may not, nor may any Person
directly or indirectly controlling, controlled by, or under common
control with the Company, serve as Trustee. In case at any time
the Trustee shall cease to be eligible in accordance with the
provisions of this Section 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 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 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 Section 9.9, 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 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 all Debentures
and appoint a successor trustee by written instrument, in
duplicate, executed by order
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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 9.9, 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 the 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 the Debentures, and at any
time there shall be only one Trustee with respect to the
Debentures.
SECTION 9.12. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In 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 fully and certainly
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.
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SECTION 9.13. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION
TO BUSINESS.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any corporation succeeding to the
corporate trust business of the Trustee, shall be the successor of
the Trustee hereunder, provided that such corporation 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, excluding any creditor relationship described in
Section 311(b) of the Trust Indenture Act. A Trustee who has
resigned or been removed shall be subject to Section 311(a) of the
Trust Indenture Act to the extent included therein.
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.
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SECTION 10.2. PROOF OF EXECUTION BY DEBENTUREHOLDERS.
Subject to the provisions of Section 9.1, 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.
(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 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 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. 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
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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), without the consent of the
Debentureholders, for one or more of the following purposes:
(a) to cure any ambiguity, defect, or inconsistency herein,
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 the Company;
(e) 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;
(f) to make any change that does not adversely affect the
rights of any Debentureholder in any material respect;
(g) 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 add to the rights of
the holders of the Debentures; or
(h) qualify or maintain the qualification of this Indenture
under the Trust Indenture Act.
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.
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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) 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 exchange upon which the Debentures may be
listed, 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 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 their
Board Resolutions authorizing the execution of any such
supplemental indenture, and upon the filing with the Trustee of
evidence of the
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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, 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 corporation or corporations (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 corporation (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, as then in effect)
satisfactory in form to the Trustee 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 then 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, an 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 CORPORATION SUBSTITUTED.
(a) In case of any such consolidation, merger, sale,
conveyance, transfer or other disposition and upon the assumption
by the successor corporation, by supplemental indenture, executed
and delivered to
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the Trustee and satisfactory in form to the Trustee, 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 corporation 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 corporation 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, 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 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 moneys 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 and 9.10, that
shall survive until the date of maturity or redemption date, as the
case may be, and Sections 9.6 and 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.
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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 moneys or an
amount of Governmental Obligations sufficient 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, 9.10 and 13.5 hereof that shall
survive until such Debentures shall mature and be paid.
Thereafter, Sections 9.6 and 13.5 shall survive.
SECTION 13.3. DEPOSITED MONEYS TO BE HELD IN TRUST.
All monies 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 13.4. PAYMENT OF MONIES 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 moneys or Governmental Obligations.
SECTION 13.5. REPAYMENT TO COMPANY.
Any monies 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.
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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 corporation, either directly or through the Company or
any such 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; it being expressly
understood that this Indenture and the obligations issued hereunder
are solely corporate obligations, and that no such personal
liability whatever shall attach to, or is or shall be incurred by,
the incorporators, stockholders, officers or directors as such, of
the Company or of any predecessor or successor corporation, or any
of them, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or
agreements contained in this Indenture or in any of the 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, of, and any and all such rights and claims
against, every such incorporator, stockholder, officer or director
as such, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or
agreements contained in this Indenture or in any of the 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
their 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 corporation that shall at the time be
the lawful sole 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 corporation.
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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 (until another address is filed in writing by the Company
with the Trustee), as follows: c/o First Banks, Inc., 11901 Olive
Blvd., St. Louis, Missouri 63141, Attention: Allen H. Blake,
Executive Vice President. 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 Missouri and
for all purposes shall be construed in accordance with the laws of
said State.
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 (1) a statement that the Person making such certificate or
opinion has read such covenant or condition; (2) a brief statement
as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or
opinion are based; (3) a statement that, in the opinion of such
Person, he has made such examination or investigation as, 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 (4) a statement as to whether or not,
in the opinion of such Person, such condition or covenant has been
complied with.
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) 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.
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SECTION 15.9. CONFLICT WITH TRUST INDENTURE ACT.
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. SEPARABILITY.
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 thereto.
SECTION 15.13. ACKNOWLEDGMENT OF RIGHTS.
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 Preferred Securities may 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 Preferred Securities may
directly institute a proceeding 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
Preferred Securities of such holder on or after the respective due
date specified in the Debentures.
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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
(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.
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 of the Company, or in the
event that the maturity of any Senior Indebtedness of the Company
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 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
44
52
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 corporation provided for by a plan of
reorganization or readjustment, the payment of which is
subordinated at least to the extent provided in this Article 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 corporation, if any, resulting from any such
reorganization or readjustment; and (ii) the rights of the holders
of such Senior Indebtedness are not, without the consent of such
holders, altered by such reorganization or readjustment. The
consolidation of the Company with, or the merger of the Company
into, another corporation or the liquidation or dissolution of the
Company following the conveyance or transfer of its property as an
entirety, or substantially as an entirety, to another corporation
upon the terms and conditions provided for in Article XII shall not
be deemed a dissolution, winding-up, liquidation or reorganization
for the purposes of this Section 16.3 if such other corporation
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 over
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 of the Company,
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
45
53
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 of the Company, 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 Article IX, 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 may be 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 monies 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 monies 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
therefor; and before the receipt of any such written notice, the
Trustee, subject to the provisions of Section 9.1, 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
46
54
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,
shall be entitled to conclusively rely on the delivery to it of a
written notice by a Person representing himself to be a holder of
Senior Indebtedness of the Company (or a trustee on behalf of such
holder) to establish that such notice has been given by a holder of
such Senior Indebtedness or a trustee on behalf of any such holder
or holders. In the event that the Trustee determines in good faith
that further evidence is required with respect to the right of any
Person as a holder of such Senior Indebtedness to participate in
any payment or distribution pursuant to this Article 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 of the
Company, the Trustee undertakes to perform or to observe only such
of its covenants and obligations as are specifically set forth in
this Article 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, the
Trustee shall not be liable to any holder of such Senior
Indebtedness if it shall 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
47
55
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.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, all as of the day and year
first above written.
FIRST BANKS, INC.
By: -------------------------------
Name: -----------------------------
Title: ----------------------------
Attest:
- ----------------------------
STATE STREET BANK AND TRUST COMPANY, as trustee
By:---------------------------------
Name: -----------------------------
Title: ----------------------------
Attest:
- ----------------------------
48
56
STATE OF MISSOURI )
) ss:
COUNTY OF ST. LOUIS )
On this ------- day of -------------------------------,
199---, before me appeared ------------------------------, to me
personally known, who, being by me duly sworn, did say that he is
the ---------------------------- of FIRST BANKS, INC., and that the
seal affixed to said instrument is the corporate seal of said
corporation, and that said instrument was signed and sealed in
behalf of said corporation by authority of its board of directors
and said ------------------------------, acknowledged said
instrument to be the free act and deed of said corporation.
In testimony whereof I have hereunto set my hand and affixed
my official seal at my office in said county and state the day and
year last above written.
------------------------------------------
Notary Public
[seal] My term expires: -----------------
STATE OF MASSACHUSETTS )
) ss:
CITY OF ------------ )
On this ------- day of -------------------------------,
199---, before me appeared ------------------------------, to me
personally known, who, being by me duly sworn, did say that he is
the ---------------------------- of STATE STREET BANK AND TRUST
COMPANY, and that the seal affixed to said instrument is the corporate
seal of said corporation, and that said instrument was signed and sealed
in behalf of said corporation by authority of its board of directors
and said ------------------------------, acknowledged said
instrument to be the free act and deed of said corporation.
In testimony whereof I have hereunto set my hand and affixed
my official seal at my office in said county and state the day and
year last above written.
-------------------------------
Notary Public
[seal] My term expires: --------------
49
57
EXHIBIT A
(FORM OF FACE OF DEBENTURE)
No. ----------------------------- $ ------------------------
CUSIP No. ------------------------
FIRST BANKS, INC.
---% SUBORDINATED DEBENTURE
DUE MARCH 31, 2027
First Banks, Inc., a Missouri corporation (the "Company,"
which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to
pay to, -------------- or registered assigns, the principal sum of
- ------------- Dollars ($-----------) on ---------, 2027 (the
"Stated Maturity"), and to pay interest on said principal sum from
- ------------, 1997, or from the most recent interest payment date
(each such date, an "Interest Payment Date") to which interest has
been paid or duly provided for, quarterly (subject to deferral as
set forth herein) in arrears on March 31, June 30, September 30 and
December 31 of each year commencing March 31, 1997, at the rate of ---%
per annum until the principal hereof shall have become due and payable,
and on any overdue principal and (without duplication on any overdue
installment of interest at the same rate per annum compounded quarterly.
The amount of interest payable on any Interest Payment Date shall be
computed on the basis of a 360-day year of twelve 30-day months. 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 interest or other payment in respect of any such delay), 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 such date. The
interest installment so payable, and punctually paid or duly
provided for, on any Interest Payment Date shall, as provided in
the Indenture, be paid to the person in whose name this Debenture
(or one or more Predecessor Debentures, as defined in said
Indenture) is registered at the close of business on the regular
record date for such interest installment, which shall be the close
of business on the business day next preceding such Interest
Payment Date unless otherwise provided in the Indenture. Any such
interest installment not punctually paid or duly provided for shall
forthwith cease to be payable to the registered holders on such
regular record date and may be paid to the Person in whose name
this Debenture (or one or more Predecessor Debentures) is
registered at the close of business on a special record date to be
fixed by the Trustee for the payment of such defaulted interest,
notice whereof shall be given to the registered holders of the
Debentures not less than 10 days prior to such special record date,
or may be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on
which the Debentures may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in the
Indenture. The principal of and the interest on this Debenture
shall be payable
Exhibit A-1
58
at the office or agency of the Trustee maintained for that purpose in any coin
or currency of the United States of America that at the time of payment is
legal tender for payment of public and private debts; provided, however, that
payment of interest may be made at the option of the Company by 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 Trustee.
The Stated Maturity may be shortened at any time by the
Company to any date not earlier than -----------------, 2002,
subject to the Company having received prior approval of the
Federal Reserve if then required under applicable capital
guidelines or policies of the Federal Reserve. Such date may also
be extended at any time at the election of the Company for one or
more periods, but in no event to a date later than
- ------------------------, 2046, subject to certain limitations
described in the Indenture.
The indebtedness evidenced by this Debenture is, to the extent
provided in the Indenture, subordinate and junior in right of
payment to the prior payment in full of all Senior Indebtedness,
and 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 may be necessary or appropriate to
acknowledge or effectuate the subordination so provided; and (c)
appoints the Trustee his or her attorney-in-fact for any and all
such purposes. Each holder hereof, by his or her acceptance
hereof, hereby waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by
each holder of Senior Indebtedness, whether now outstanding or
hereafter incurred, and waives reliance by each such holder upon
said provisions.
This 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.
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 executed.
Dated ----------------------
FIRST BANKS, INC.
By: -------------------------------
Name: -----------------------------
Title: ----------------------------
Attest:
By: -----------------------------
Name: --------------------------
Title: -------------------------
Exhibit A-2
59
[FORM OF CERTIFICATE OF AUTHENTICATION]
CERTIFICATE OF AUTHENTICATION
This is one of the Debentures described in the
within-mentioned Indenture.
Dated:
STATE STREET BANK AND TRUST COMPANY, ---------------------------------------
as Trustee or Authentication Agent
By ----------------------------------- By ----------------------------
Authorized Signatory
Exhibit A-3
60
[FORM OF REVERSE OF DEBENTURE]
--------------% SUBORDINATED 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 dated as of January ---, 1997 (the
"Indenture") duly executed and delivered between the Company and
State Street Bank and Trust Company, 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. 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 to redeem this Debenture at the option
of the Company, without premium or penalty, in whole or in part at
any time on or after --------, 2002 (an "Optional Redemption"), or
at any time in certain circumstances upon the occurrence of a
Special Event, at a Redemption Price equal to 100% of the principal
amount plus any accrued but unpaid interest, 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. 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.
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 (i) extend the
fixed maturity of the Debentures except as provided in the
Indenture, or 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, without the
consent of the holders of each Debenture then outstanding and
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
Exhibit A-4
61
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
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 and place and
at the rate and in the money herein prescribed.
The Company shall have the right at any time during the term
of the Debentures and from time to time to extend 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, 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. 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, 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 of the
Company, upon surrender of this Debenture for registration of
transfer at the office or agency of the Trustee accompanied by a
written instrument or instruments of transfer in form satisfactory
to the Company or the Trustee 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
Debentures Registrar shall be affected by any notice to the
contrary.
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.
Exhibit A-5
62
The Debentures are issuable only in registered form without
coupons in denominations of $25 and any integral multiple thereof.
All terms used in this Debenture that are defined in the
Indenture shall have the meanings assigned to them in the
Indenture.
Exhibit A-6