Exhibit 4.2
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JUNIOR SUBORDINATED INDENTURE
Between
FIRST EMPIRE STATE CORPORATION
and
BANKERS TRUST COMPANY
(as Trustee)
dated as of
June 6, 1997
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TABLE OF CONTENTS
Page
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ARTICLE I. DEFINITIONS AND OTHER PROVISIONS OF
GENERAL APPLICATION................................. 2
SECTION 1.1. Definitions......................................... 2
SECTION 1.2. Compliance Certificate and Opinions................. 14
SECTION 1.3. Forms of Documents Delivered to
Trustee............................................. 14
SECTION 1.4. Acts of Holders..................................... 15
SECTION 1.5. Notices, Etc. to Trustee and Company................ 18
SECTION 1.6. Notice to Holders; Waiver........................... 18
SECTION 1.7. Conflict with Trust Indenture Act................... 19
SECTION 1.8. Effect of Headings and Table of
Contents............................................ 19
SECTION 1.9. Successors and Assigns.............................. 19
SECTION 1.10. Separability Clause................................. 20
SECTION 1.11. Benefits of Indenture............................... 20
SECTION 1.12. Governing Law....................................... 20
SECTION 1.13. Non-Business Days................................... 20
ARTICLE II SECURITY FORMS...................................... 20
SECTION 2.1. Forms Generally..................................... 20
SECTION 2.2. Form of Face of Security............................ 22
SECTION 2.3. Form of Reverse of Security......................... 27
SECTION 2.4. Additional Provisions Required in
Global Security..................................... 31
SECTION 2.5. Form of Trustee's Certificate of
Authentication...................................... 32
ARTICLE III THE SECURITIES...................................... 32
SECTION 3.1. Title and Terms..................................... 32
SECTION 3.2. Denominations....................................... 36
SECTION 3.3. Execution, Authentication, Delivery
and Dating.......................................... 36
SECTION 3.4. Temporary Securities................................ 38
SECTION 3.5. Global Securities................................... 39
SECTION 3.6. Registration, Transfer and Exchange
Generally; Certain Transfers and
Exchanges; Securities Act Legends................... 40
SECTION 3.7. Mutilated, Lost and Stolen Securities............... 42
SECTION 3.8. Payment of Interest and Additional
Interest; Interest Rights Preserved................. 43
SECTION 3.9. Persons Deemed Owners............................... 45
SECTION 3.10. Cancellation........................................ 46
SECTION 3.11. Computation of Interest............................. 46
SECTION 3.12. Deferrals of Interest Payment Dates................. 46
SECTION 3.13. Right of Set-Off.................................... 48
SECTION 3.14. Agreed Tax Treatment................................ 48
SECTION 3.15. Shortening or Extension of Stated
Maturity............................................ 49
SECTION 3.16. CUSIP Numbers....................................... 49
ARTICLE IV SATISFACTION AND DISCHARGE.......................... 49
SECTION 4.1. Satisfaction and Discharge of Indenture............. 49
SECTION 4.2. Application of Trust Money.......................... 51
ARTICLE V REMEDIES............................................ 51
SECTION 5.1. Events of Default................................... 51
SECTION 5.2. Acceleration of Maturity; Rescission
and Annulment....................................... 52
SECTION 5.3. Collection of Indebtedness and Suits
for Enforcement by Trustee.......................... 54
SECTION 5.4. Trustee May File Proofs of Claim.................... 55
SECTION 5.5. Trustee May Enforce Claim Without
Possession of Securities............................ 56
SECTION 5.6. Application of Money Collected...................... 56
SECTION 5.7. Limitation on Suits................................. 57
SECTION 5.8. Unconditional Right of Holders to
Receive Principal, Premium and
Interest; Direct Action by Holders
of Capital Securities............................... 57
SECTION 5.9. Restoration of Rights and Remedies.................. 58
SECTION 5.10. Rights and Remedies Cumulative...................... 58
SECTION 5.11. Delay or Omission Not Waiver........................ 59
SECTION 5.12. Control by Holders.................................. 59
SECTION 5.13. Waiver of Past Defaults............................. 59
SECTION 5.14. Undertaking for Costs............................... 60
SECTION 5.15. Waiver of Usury, Stay or Extension Laws............. 61
ARTICLE VI THE TRUSTEE......................................... 61
SECTION 6.1. Certain Duties and Responsibilities................. 61
SECTION 6.2. Notice of Defaults.................................. 62
SECTION 6.3. Certain Rights of Trustee........................... 63
SECTION 6.4. Not Responsible for Recitals or
Issuance of Securities.............................. 64
SECTION 6.5. May Hold Securities................................. 64
SECTION 6.6. Money Held in Trust................................. 64
SECTION 6.7. Compensation and Reimbursement...................... 65
SECTION 6.8. Disqualification; Conflicting
Interests........................................... 66
SECTION 6.9. Corporate Trustee Required;
Eligibility......................................... 66
SECTION 6.10. Resignation and Removal; Appointment
of Successor........................................ 67
SECTION 6.11. Acceptance of Appointment by
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Successor.......................................... 69
SECTION 6.12. Merger, Conversion, Consolidation or
Succession to Business............................. 70
SECTION 6.13. Preferential Collection of Claims
Against Company.................................... 71
SECTION 6.14. Appointment of Authenticating Agent................ 71
ARTICLE VII HOLDER'S LISTS AND REPORTS BY TRUSTEE,
PAYING AGENT AND COMPANY........................... 73
SECTION 7.1. Company to Furnish Trustee Names and
Addresses of Holders............................... 73
SECTION 7.2. Preservation of Information,
Communications to Holders.......................... 73
SECTION 7.3. Reports by Trustee and Paying Agent................ 74
SECTION 7.4. Reports by Company................................. 74
ARTICLE VIII CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE.................................. 75
SECTION 8.1. Company May Consolidate, Etc., Only
on Certain Terms................................... 75
SECTION 8.2. Successor Company Substituted...................... 76
ARTICLE IX SUPPLEMENTAL INDENTURES............................ 77
SECTION 9.1. Supplemental Indentures Without Consent
of Holders......................................... 77
SECTION 9.2. Supplemental Indentures With Consent
of Holders......................................... 78
SECTION 9.3. Execution of Supplemental Indentures............... 80
SECTION 9.4. Effect of Supplemental Indentures.................. 80
SECTION 9.5. Conformity with Trust Indenture Act................ 81
SECTION 9.6. Reference in Securities to
Supplemental Indentures............................ 81
ARTICLE X COVENANTS.......................................... 81
SECTION 10.1. Payment of Principal, Premium and
Interest........................................... 81
SECTION 10.2. Maintenance of Office or Agency.................... 81
SECTION 10.3. Money for Security Payments to be
Held in Trust...................................... 82
SECTION 10.4. Statement as to Compliance......................... 84
SECTION 10.5. Waiver of Certain Covenants........................ 84
SECTION 10.6. Additional Sums.................................... 84
SECTION 10.7. Additional Covenants............................... 85
SECTION 10.8. Original Issue Discount............................ 87
ARTICLE XI REDEMPTION OF SECURITIES........................... 87
SECTION 11.1. Applicability of This Article...................... 87
SECTION 11.2 Election to Redeem; Notice to Trustee.............. 87
SECTION 11.3. Selection of Securities to be Redeemed............. 88
SECTION 11.4. Notice of Redemption............................... 89
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SECTION 11.5. Deposit of Redemption Price......................... 89
SECTION 11.6. Payment of Securities Called for
Redemption.......................................... 90
SECTION 11.7. Right of Redemption of Securities
Initially Issued to an Issuer Trust................. 90
ARTICLE XII SINKING FUNDS....................................... 91
ARTICLE XIII SUBORDINATION OF SECURITIES......................... 91
SECTION 13.1. Securities Subordinate to Senior
Indebtedness........................................ 91
SECTION 13.2. No Payment When Senior Indebtedness
in Default; Payment Over of Proceeds
Upon Dissolution, Etc............................... 91
SECTION 13.3. Payment Permitted If No Default..................... 94
SECTION 13.4. Subrogation to Rights of Holders of
Senior Indebtedness................................. 94
SECTION 13.5. Provisions Solely to Define Relative
Rights.............................................. 95
SECTION 13.6. Trustee to Effectuate Subordination................. 95
SECTION 13.7. No Waiver of Subordination Provisions............... 95
SECTION 13.8. Notice to Trustee................................... 96
SECTION 13.9. Reliance on Judicial Order or
Certificate of Liquidating Agent.................... 97
SECTION 13.10. Trustee Not Fiduciary for Holders of
Senior Indebtedness................................. 97
SECTION 13.11. Rights of Trustee as Holder of Senior
Indebtedness; Preservation of
Trustee's Rights.................................... 98
SECTION 13.12. Article Applicable to Paying Agents................. 98
SECTION 13.13. Certain Conversions or Exchanges
Deemed Payment...................................... 98
ANNEX A FORM OF RESTRICTED SECURITIES
CERTIFICATE
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Certain Sections of this Junior Subordinated Indenture relating
to Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Junior Subordinated
Act Section Indenture Section
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(ss.) 310(a)(1)................................. 6.9
(a)(2).................................. 6.9
(a)(3).................................. Not Applicable
(a)(4).................................. Not Applicable
(a)(5).................................. 6.9
(b)..................................... 6.8, 6.10
(ss.) 311(a).................................... 6.13
(b)..................................... 6.13
(b)(2).................................. 7.3(a)
(ss.) 312(a).................................... 7.1, 7.2(a)
(b)..................................... 7.2(b)
(c)..................................... 7.2(c)
(ss.) 313(a).................................... 7.3(a)
(a)(4).................................. 7.3(a)
(b)..................................... 7.3(b)
(c)..................................... 7.3(a)
(d)..................................... 7.3(c)
(ss.) 314(a).................................... 7.4
(b)..................................... 7.4
(c)(1).................................. 1.2
(c)(2).................................. 1.2
(c)(3).................................. Not Applicable
(e)..................................... 1.2
(ss.) 315(a).................................... 6.1(a)
(b)..................................... 6.2, 7.3
(c)..................................... 6.1(b)
(d)..................................... 6.1(c)
(e)..................................... 5.14
(ss.) 316(a).................................... 5.12
(a)(1)(A)............................... 5.12
(a)(1)(B)............................... 5.13
(a)(2).................................. Not Applicable
(b)..................................... 5.8
(c)..................................... 1.4(f)
(ss.) 317(a)(1)................................. 5.3
(a)(2).................................. 5.4
(b)..................................... 10.3
(ss.) 318(a).................................... 1.7
Note: This reconciliation and tie shall not, for any purpose, be
deemed to be a part of the Indenture.
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JUNIOR SUBORDINATED INDENTURE
THIS JUNIOR SUBORDINATED INDENTURE, dated as of June 6, 1997,
between FIRST EMPIRE STATE CORPORATION, a New York corporation (the
"Company"), having its principal office at One M&T Plaza, Buffalo, New
York 14240, and BANKERS TRUST COMPANY, as Trustee, having its principal
office at Four Albany Street, 4th Floor, New York, New York 10006 (the
"Trustee").
RECITALS OF THE COMPANY
WHEREAS, the Company has duly authorized the execution and
delivery of this Indenture to provide for the issuance from time to
time of its unsecured junior subordinated debt securities in series
(hereinafter called the "Securities") of substantially the tenor
hereinafter provided, including Securities issued to evidence loans
made to the Company from the proceeds from the issuance from time to
time by one or more business trusts (each an "Issuer Trust") of
undivided preferred beneficial interests in the assets of such Issuer
Trusts (the "Capital Securities") and common undivided interests in the
assets of such Issuer Trusts (the "Common Securities" and, collectively
with the Capital Securities, the "Trust Securities"), and to provide
the terms and conditions upon which the Securities are to be
authenticated, issued and delivered; 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, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and
agreed, for the equal and proportionate benefit of all Holders of the
Securities or of any series thereof, and intending to be legally bound
hereby, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.1. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) The terms defined in this Article have the meanings assigned
to them in this Article, and include the plural as well as the
singular;
(2) All other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) The words "include", "includes" and "including" shall be
deemed to be followed by the phrase "without limitation";
(4) All accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles as in effect at the time of computation;
(5) Whenever the context may require, any gender shall be deemed
to include the other;
(6) Unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case
may be, of this Indenture; and
(7) The words "hereby", "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.
"Act" when used with respect to any Holder has the meaning
specified in Section 1.4.
"Additional Interest" means the interest, if any, that shall
accrue on any interest on the Securities of any series the payment of
which has not been made on the applicable Interest Payment Date and
which shall accrue at the rate per annum specified or determined as
specified in such Security.
"Additional Sums" has the meaning specified in Section 10.6.
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"Additional Taxes" means any additional taxes, duties and other
governmental charges to which an Issuer Trust has become subject from
time to time as a result of a Tax Event.
"Administrator" means, in respect of any Issuer Trust, each Person
appointed in accordance with the related Trust Agreement, solely in
such Person's capacity as Administrator of such Issuer Trust and not in
such Person's individual capacity, or any successor Administrator
appointed as therein provided.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of
this definition, "control" when used with respect to any specified
Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agent Member" means any member of, or participant in,
the Depositary.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Security or beneficial interest therein,
the rules and procedures of the Depositary for such Global Security, in
each case to the extent applicable to such transaction and as in effect
from time to time.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 6.14 to act on behalf of the Trustee to
authenticate Securities of one or more series.
"Board of Directors" means the board of directors of the Company
or the Executive Committee of the board of directors of the Company (or
any other committee of the board of directors of the Company performing
similar functions) or, for purposes of this Indenture, a committee
designated by the board of directors of the Company (or such
committee), comprised of two or more members of the board of directors
of the Company or officers of the Company, or both.
"Board Resolution" means a copy of a resolution certified by the
Secretary or any Assistant Secretary of the Company to have been duly
adopted by the Board of Directors, or such committee of the Board of
Directors or officers of the Company to which authority to act on
behalf of the Board of Directors
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has been delegated, and to be in full force and effect on the date of
such certification, and delivered to the Trustee.
"Business Day" means any day other than (i) a Saturday or Sunday,
(ii) a day on which banking institutions in the City of New York or the
City of Buffalo, New York are authorized or required by law or
executive order to remain closed, or (iii) a day on which the Corporate
Trust Office of the Trustee, or, with respect to the Securities of a
series initially issued to an Issuer Trust, the "Corporate Trust
Office" (as defined in the related Trust Agreement) of the Property
Trustee or the Delaware Trustee under the related Trust Agreement, is
closed for business.
"Capital Securities" has the meaning specified in the first
recital of this Indenture.
"Capital Treatment Event" means, in respect of any Issuer Trust,
the reasonable determination by the Company that, as a result of the
occurrence of any amendment to, or change (including any announced
prospective change) in, the laws (or any rules or regulations
thereunder) of the United States or any political subdivision thereof
or therein, or as a result of any official or administrative
pronouncement or action or judicial decision interpreting or applying
such laws or regulations, which amendment or change is effective or
such pronouncement, action or decision is announced on or after the
date of the issuance of the Capital Securities of such Issuer Trust,
there is more than an insubstantial risk that the Company will not be
entitled to treat an amount equal to the Liquidation Amount (as such
term is defined in the related Trust Agreement) of such Capital
Securities as "Tier 1 Capital" (or the then equivalent thereof) for
purposes of the risk-based capital adequacy guidelines of the Board of
Governors of the Federal Reserve System or the New York State Banking
Department, as then in effect and applicable to the Company.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or, if at any
time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties on such date.
"Common Securities" has the meaning specified in the first recital
of this Indenture.
"Common Stock" means the common stock, par value $5.00 per share,
of the Company.
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"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor entity shall have become
such pursuant to the applicable provisions of this Indenture, and
thereafter "Company" shall mean such successor entity.
"Company Request" and "Company Order" mean, respectively, the
written request or order signed in the name of the Company by its
Chairman of the Board of Directors, its Vice Chairman of the Board of
Directors, its President or a Vice President, and by its Cashier or an
Assistant Cashier, its Controller or an Assistant Controller, its
Secretary or an Assistant Secretary, and delivered to the Trustee.
"Corporate Trust Office" means the principal office of the Trustee
at which at any particular time its corporate trust business shall be
administered.
"Creditor" has the meaning specified in Section 6.7.
"Defaulted Interest" has the meaning specified in Section 3.8.
"Delaware Trustee" means, with respect to any Issuer Trust, the
Person identified as the "Delaware Trustee" in the related Trust
Agreement, solely in its capacity as Delaware Trustee of such Issuer
Trust under such Trust Agreement and not in its individual capacity, or
its successor in interest in such capacity, or any successor Delaware
trustee appointed as therein provided.
"Depositary" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more
Global Securities, the Person designated as Depositary by the Company
pursuant to Section 3.1 with respect to such series (or any successor
thereto).
"Discount Security" means any security that provides for an amount
less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section
5.2.
"Dollar" or "$" means the currency of the United States of America
that, as at the time of payment, is legal tender for the payment of
public and private debts.
The term "entity" includes a bank, corporation, association,
company, limited liability company, joint-stock company or business
trust.
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"Event of Default," unless otherwise specified in the supplemental
indenture creating a series of Securities, has the meaning specified in
Article V.
"Exchange Act" means the Securities Exchange Act of 1934 and any
statute successor thereto, in each case as amended from time to time.
"Expiration Date" has the meaning specified in Section 1.4.
"Extension Period" has the meaning specified in Section 3.12.
"Global Security" means a Security in the form prescribed in
Section 2.4 evidencing all or part of a series of Securities, issued to
the Depositary or its nominee for such series, and registered in the
name of such Depositary or its nominee.
"Guarantee" means, with respect to any Issuer Trust, the Guarantee
Agreement executed by the Company for the benefit of the Holders of the
Capital Securities issued by such Issuer Trust as modified, amended or
supplemented from time to time.
"Holder" means a Person in whose name a Security is registered in
the Securities Register.
"Indenture" means this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the applicable
provisions hereof and shall include the terms of each particular series
of Securities established as contemplated by Section 3.1.
"Institutional Accredited Investor" means an institutional
accredited investor within the meaning of Rule 501(a)(1), (2), (3) or
(7) of Regulation D under the Securities Act.
"Interest Payment Date" means, as to each series of Securities,
the Stated Maturity of an installment of interest on such Securities.
"Investment Company Event" means the receipt by an Issuer Trust of
an Opinion of Counsel (as defined in the relevant Trust Agreement)
experienced in such matters to the effect that, as a result of the
occurrence of a change in law or regulation or a written change
(including any announced
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prospective change) in interpretation or application of law or
regulation by any legislative body, court, governmental agency or
regulatory authority, there is more than an insubstantial risk that
such Issuer Trust is or will be considered an "investment company" that
is required to be registered under the Investment Company Act, which
change or prospective change becomes effective or would become
effective, as the case may be, on or after the date of the issuance of
the Capital Securities of such Issuer Trust.
"Investment Company Act" means the Investment Company Act of 1940
and any statute successor thereto, in each case as amended from time to
time.
"Issuer Trust" has the meaning specified in the first recital of
this Indenture.
"Maturity" when used with respect to any Security means the date
on which the principal of such Security becomes due and payable as
therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Notice of Default" means a written notice of the kind specified
in Section 5.1(3).
"Officers' Certificate" means a certificate signed by the Chairman
of the Board and Chief Executive Officer, President or a Vice
President, and by the Treasurer, an Assistant Treasurer, the Secretary
or an Assistant Secretary, of the Depositor, and delivered to the party
provided herein. Any Officers' Certificate delivered with respect to
compliance with a condition or covenant provided for in this Indenture
shall include:
(a) a statement by each officer signing the Officers' Certificate
that such officer has read the covenant or condition and the
definitions relating thereto;
(b) a brief statement of the nature and scope of the examination
or investigation undertaken by such officer in rendering the Officers'
Certificate;
(c) a statement that such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable
such officer to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
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(d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may
be counsel for or an employee of the Company or any Affiliate of the
Company.
"Original Issue Date" means the date of issuance specified as such
in each Security.
"Outstanding" means, when used in reference to any Securities, as
of the date of determination, all Securities theretofore authenticated
and delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities for whose payment money in the necessary amount
has been theretofore deposited with the Trustee or any Paying Agent in
trust for the Holders of such Securities; and
(iii) Securities in substitution for or in lieu of which other
Securities have been authenticated and delivered or that have been paid
pursuant to Section 3.6, unless proof satisfactory to the Trustee is
presented that any such Securities are held by Holders in whose hands
such Securities are valid, binding and legal obligations of the
Company;
provided, however, that in determining whether the Holders of the
requisite principal amount of Outstanding Securities have given any
request, demand, authorization, direction, notice, consent or waiver
hereunder, Securities owned by the Company or any other obligor upon
the Securities or any Affiliate of the Company or such other obligor
(other than, for the avoidance of doubt, the Issuer Trust to which
Securities of the applicable series were initially issued) shall be
disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or
waiver, only Securities that the Trustee knows to be so owned shall be
so disregarded. Securities so owned that have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect
to such Securities and that the pledgee is not the Company or any other
obligor upon the Securities or any Affiliate of the Company or such
other obligor (other than, for the avoidance of doubt, such Issuer
Trust). Upon the written request of the
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Trustee, the Company shall furnish to the Trustee promptly an Officers'
Certificate listing and identifying all Securities, if any, known by
the Company to be owned or held by or for the account of the Company,
or any other obligor on the Securities or any Affiliate of the Company
or such obligor (other than, for the avoidance of doubt, such Issuer
Trust), and, subject to the provisions of Section 6.1, the Trustee
shall be entitled to accept such Officers' Certificate as conclusive
evidence of the facts therein set forth and of the fact that all
Securities not listed therein are Outstanding for the purpose of any
such determination.
"Outstanding Capital Securities" means the $150,000,000 aggregate
liquidation amount of 8.234% Capital Securities issued by First Empire
Capital Trust I.
"Paying Agent" means the Trustee or any Person authorized by the
Company to pay the principal of (or premium, if any) or interest on, or
other amounts in respect of any Securities on behalf of the Company.
"Person" means any individual, corporation, partnership, joint
venture, trust, unincorporated organization or government or any agency
or political subdivision thereof.
"Place of Payment" means, with respect to the Securities of any
series, the place or places where the principal of (and premium, if
any) and interest on the Securities of such series are payable pursuant
to Section 3.1.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security. For the purposes of this
definition, any security authenticated and delivered under Section 3.7
in lieu of a mutilated, destroyed, lost or stolen Security shall be
deemed to evidence the same debt as the mutilated, destroyed, lost or
stolen Security.
"Principal Subsidiary Bank" means (i) any banking subsidiary of
the Company the consolidated assets of which constitute 20% or more of
the consolidated assets of the Company and its consolidated
subsidiaries, (ii) any other banking subsidiary designated as a
Principal Subsidiary Bank pursuant to a Board Resolution and set forth
in an Officers' Certificate delivered to the Trustee, and (iii) any
banking subsidiary of the Company that owns, directly or indirectly,
any voting securities, or options, warrants or rights to subscribe for
or purchase voting securities, of any Principal Subsidiary Bank under
clause (i) or (ii), and in the case of
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clause (i), (ii) or (iii) their respective successors (whether by
consolidation, merger, conversion, transfer of substantially all their
assets and business or otherwise) so long as any such successor is a
banking subsidiary (in the case of clause (i) or (ii)) or a subsidiary
(in the case of clause (iii)) of the Company.
"Proceeding" has the meaning specified in Section 13.2.
"Property Trustee" means, with respect to any Issuer Trust, the
Person identified as the "Property Trustee" in the related Trust
Agreement, solely in its capacity as Property Trustee of such Issuer
Trust under such Trust Agreement and not in its individual capacity, or
its successor in interest in such capacity, or any successor property
trustee appointed as therein provided.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to
this Indenture or the terms of such Security.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to
this Indenture.
"Regular Record Date" for the interest payable on any Interest
Payment Date with respect to the Securities of a series means, unless
otherwise provided pursuant to Section 3.1 with respect to Securities
of such series, the date that is the May 15 or November 15 next
preceding such Interest Payment Date (whether or not a Business Day).
"Responsible Officer", when used with respect to the Property
Trustee means any officer assigned to the Corporate Trust Office,
including any managing director, vice president, assistant vice
president, assistant treasurer, assistant secretary or any other
officer of the Trustee customarily performing functions similar to
those performed by any of the above designated officers and having
direct responsibility for the administration of this Indenture, and
also, with respect to a particular matter, any other officer to whom
such matter is referred because of such officer's knowledge of and
familiarity with the particular subject.
"Restricted Security" means each Security required pursuant to
Section 3.6(c) to bear a Restricted Securities Legend.
"Restricted Securities Certificate" means a certificate
substantially in the form set forth in Annex A.
- 10 -
"Restricted Securities Legend" means a legend substantially in the
form of the legend required in the form of Security set forth in
Section 2.2 to be placed upon a Restricted Security.
"Rights Plan" means any plan of the Company providing for the
issuance by the Company to all holders of its Common Stock, par value
$5.00 per share, of rights entitling the holders thereof to subscribe
for or purchase shares of any class or series of capital stock of the
Company which rights (i) are deemed to be transferred with such shares
of such Common Stock, (ii) are not exercisable, and (iii) are also
issued in respect of future issuances of such Common Stock, in each
case until the occurrence of a specified event or events.
"Securities" or "Security" means any debt securities or debt
security, as the case may be, authenticated and delivered under this
Indenture.
"Securities Act" means the Securities Act of 1933, as modified,
amended or supplemented from time to time.
"Securities Register" and "Securities Registrar" have the
respective meanings specified in Section 3.6.
"Senior Indebtedness" means, whether recourse is to all or a
portion of the assets of the Company and whether or not contingent, (i)
every obligation of the Company for money borrowed, (ii) every
obligation of the Company evidenced by bonds, debentures, notes or
other similar instruments, including obligations incurred in connection
with the acquisition of property, assets or businesses, (iii) every
reimbursement obligation of the Company with respect to letters of
credit, bankers' acceptances or similar facilities issued for the
account of the Company, (iv) every obligation of the Company issued or
assumed as the deferred purchase price of property or services (but
excluding trade accounts payable or accrued liabilities arising in the
ordinary course of business), (v) every capital lease obligation of the
Company, (vi) every obligation of the Company for claims (as defined in
Section 101(4) of the United States Bankruptcy Code of 1978, as
amended) in respect of derivative products such as interest and foreign
exchange rate contracts, commodity contracts and similar arrangements,
and (vii) every obligation of the type referred to in clauses (i)
through (vi) of another person and all dividends of another person the
payment of which, in either case, the Company has guaranteed or is
responsible or liable, directly or indirectly, as obligor or otherwise;
provided that "Senior Indebtedness" shall not
- 11 -
include (i) any obligations which, by their terms, are expressly stated
to rank pari passu in right of payment with, or to not be superior in
right of payment to, the Junior Subordinated Debentures, (ii) any
Senior Indebtedness of the Company which when incurred and without
respect to any election under Section 1111(b) of the United States
Bankruptcy Code of 1978, as amended, was without recourse to the
Company, (iii) any indebtedness of the Company to any of its
subsidiaries, (iv) indebtedness to any employee of the Company, or (v)
any indebtedness in respect of debt securities issued to any trust, or
a trustee of such trust, partnership or other entity affiliated with
the Company that is a financing entity of the Company in connection
with the issuance of such financing entity of securities that are
similar to the Capital Securities including the Outstanding Capital
Securities.
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 3.8.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date
specified pursuant to the terms of such Security as the fixed date on
which the principal of such Security or such installment of principal
or interest is due and payable, as such date may, in the case of such
principal, be shortened or extended as provided pursuant to the terms
of such Security and this Indenture.
"Subsidiary" means an entity more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company
or by one or more other Subsidiaries, or by the Company and one or more
other Subsidiaries. For purposes of this definition, "voting stock"
means stock that ordinarily has voting power for the election of
directors, whether at all times or only so long as no senior class of
stock has such voting power by reason of any contingency.
"Successor Security" of any particular Security means every
Security issued after, and evidencing all or a portion of the same debt
as that evidenced by, such particular Security; and, for the purposes
of this definition, any Security authenticated and delivered under
Section 3.7 in exchange for or in lieu of a mutilated, destroyed, lost
or stolen Security shall be deemed to evidence the same debt as the
mutilated, destroyed, lost or stolen Security.
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"Tax Event" means the receipt by an Issuer Trust of an Opinion of
Counsel (as defined in the relevant Trust Agreement) experienced in
such matters 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 or administrative pronouncement or action or judicial
decision interpreting or applying such laws or regulations, which
amendment or change is effective or which pronouncement or decision is
announced on or after the date of issuance of the Capital Securities of
such Issuer Trust, there is more than an insubstantial risk that (i)
such Issuer Trust is, or will be within 90 days of the delivery of such
Opinion of Counsel, subject to United States Federal income tax with
respect to income received or accrued on the corresponding series of
Securities issued by the Company to such Issuer Trust, (ii) interest
payable by the Company on such corresponding series of Securities is
not, or within 90 days of the delivery of such Opinion of Counsel will
not be, deductible by the Company, in whole or in part, for United
States Federal income tax purposes, or (iii) such Issuer Trust is, or
will be within 90 days of the delivery of such Opinion of Counsel,
subject to more than a de minimis amount of other taxes, duties or
other governmental charges.
"Trust Agreement" means, with respect to any Issuer Trust, the
trust agreement or other governing instrument of such Issuer Trust.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture, solely in its capacity as such and not in
its individual capacity, until a successor Trustee shall have become
such pursuant to the applicable provisions of this Indenture, and
thereafter "Trustee" shall mean or include each Person who is then a
Trustee hereunder and, if at any time there is more than one such
Person, "Trustee" as used with respect to the Securities of any series
shall mean the Trustee with respect to Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
modified, amended or supplemented from time to time, except as provided
in Section 9.5.
"Trust Securities" has the meaning specified in the first recital
of this Indenture.
"Vice President," when used with respect to the Company, means any
duly appointed vice president, whether or not
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designated by a number or a word or words added before or
after the title "vice president."
SECTION 1.2. Compliance Certificate and Opinions.
Upon any application or request by the Company to the Trustee to
take any action under any provision of this Indenture, the Company
shall furnish to the Trustee an Officers' Certificate stating that all
conditions precedent (including covenants compliance with which
constitutes a condition precedent), if any, provided for in this
Indenture relating to the proposed action have been complied with and
an Opinion of Counsel stating that, in the opinion of such counsel, all
such conditions precedent (including covenants compliance with which
constitutes a condition precedent), if any, have been complied with,
except that in the case of any such application or request as to which
the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than the
certificates provided pursuant to Section 10.4) shall include:
(1) a statement by each individual signing such certificate or
opinion that such individual has read such covenant or condition and
the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions of
such individual contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such individual, he or she
has made such examination or investigation as is necessary to enable
him or her 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, in the opinion of such individual,
such condition or covenant has been complied with.
SECTION 1.3. Forms of Documents Delivered to Trustee.
In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary
that all such matters be certified
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by, or covered by the opinion of, only one such Person, or that they be
so certified or covered by only one document, but one such Person may
certify or give an opinion with respect to some matters and one or more
other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows,
or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to matters upon which his or
her certificate or opinion is based are erroneous. Any such certificate
or Opinion of Counsel may be based, insofar as it relates to factual
matters, upon a certificate or opinion of, or representations by, an
officer or officers of the Company stating that the information with
respect to such factual matters is in the possession of the Company,
unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect
to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions,
or other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
SECTION 1.4. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given
to or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in
person or by an agent duly appointed in writing; and, except as herein
otherwise expressly provided, such action shall become effective when
such instrument or instruments is or are delivered to the Trustee, and,
where it is hereby expressly required, to the Company. Such instrument
or instruments (and the action embodied therein and evidenced thereby)
are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to Section
6.1) conclusive in favor of the Trustee and the Company, if made in the
manner provided in this Section.
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(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of
such execution or by the certificate of any notary public or other
officer authorized by law to take acknowledgments of deeds, certifying
that the individual signing such instrument or writing acknowledged to
him or her the execution thereof. Where such execution is by a Person
acting in other than his or her individual capacity, such certificate
or affidavit shall also constitute sufficient proof of his or her
authority.
(c) The fact and date of the execution by any Person of any such
instrument or writing, or the authority of the Person executing the
same, may also be provided in any other manner that the Trustee deems
sufficient and in accordance with such reasonable rules as the Trustee
may determine.
(d) The ownership of Securities shall be proved by the Securities
Register.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Security shall
bind every future Holder of the same Security and the Holder of every
Security issued upon the transfer thereof or in exchange therefor or in
lieu thereof in respect of anything done or suffered to be done by the
Trustee or the Company in reliance thereon, whether or not notation of
such action is made upon such Security.
(f) The Company may set any day as a record date for the purpose
of determining the Holders of Outstanding Securities of any series
entitled to give, make or take any request, demand, authorization,
direction, notice, consent, waiver or other action provided or
permitted by this Indenture to be given, made or taken by Holders of
Securities of such series, provided that the Company may not set a
record date for, and the provisions of this paragraph shall not apply
with respect to, the giving or making of any notice, declaration,
request or direction referred to in the next succeeding paragraph. If
any record date is set pursuant to this paragraph, the Holders of
Outstanding Securities of the relevant series on such record date, and
no other Holders, shall be entitled to take the relevant action,
whether or not such Holders remain Holders after such record date,
provided that no such action shall be effective hereunder unless taken
on or prior to the applicable Expiration Date (as defined below) by
Holders of the requisite principal amount of Outstanding Securities of
such series on such record date. Nothing in this paragraph shall be
construed to prevent the Company from setting a new record date for any
action for which a record date has
- 16 -
previously been set pursuant to this paragraph (whereupon the record
date previously set shall automatically and with no action by any
Person be cancelled and of no effect), and nothing in this paragraph
shall be construed to render ineffective any action taken by Holders of
the requisite principal amount of Outstanding Securities of the
relevant series on the date such action is taken. Promptly after any
record date is set pursuant to this paragraph, the Company, at its own
expense, shall cause notice of such record date, the proposed action by
Holders and the applicable Expiration Date to be given to the Trustee
in writing and to each Holder of Securities of the relevant series in
the manner set forth in Section 1.6.
The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series
entitled to join in the giving or making of (i) any Notice of Default,
(ii) any declaration of acceleration referred to in Section 5.2, (iii)
any request to institute proceedings referred to in Section 5.7(2), or
(iv) any direction referred to in Section 5.12, in each case with
respect to Securities of such series. If any record date is set
pursuant to this paragraph, the Holders of Outstanding Securities of
such series on such record date, and no other Holders, shall be
entitled to join in such notice, declaration, request or direction,
whether or not such Holders remain Holders after such record date,
provided that no such action shall be effective hereunder unless taken
on or prior to the applicable Expiration Date by Holders of the
requisite principal amount of Outstanding Securities of such series on
such record date. Nothing in this paragraph shall be construed to
prevent the Trustee from setting a new record date for any action for
which a record date has previously been set pursuant to this paragraph
(whereupon the record date previously set shall automatically and with
no action by any Person be cancelled and of no effect) and nothing in
this paragraph shall be construed to render ineffective any action
taken by Holders of the requisite principal amount of Outstanding
Securities of the relevant series on the date such action is taken.
Promptly after any record date is set pursuant to this paragraph, the
Trustee, at the Company's expense, shall cause notice of such record
date, the proposed action by Holders and the applicable Expiration Date
to be given to the Company in writing and to each Holder of Securities
of the relevant series in the manner set forth in Section 1.6.
With respect to any record date set pursuant to this Section, the
party hereto that sets such record date may designate any day as the
"Expiration Date" and from time to
- 17 -
time may change the Expiration Date to any earlier or later day,
provided that no such change shall be effective unless notice of the
proposed new Expiration Date is given to the other party hereto in
writing, and to each Holder of Securities of the relevant series in the
manner set forth in Section 1.6 on or prior to the existing Expiration
Date. If an Expiration Date is not designated with respect to any
record date set pursuant to this Section, the party hereto that set
such record date shall be deemed to have initially designated the 180th
day after such record date as the Expiration Date with respect thereto,
subject to its right to change the Expiration Date as provided in this
paragraph. Notwithstanding the foregoing, no Expiration Date shall be
later than the 180th day after the applicable record date.
(g) Without limiting the foregoing, a Holder entitled hereunder to
take any action hereunder with regard to any particular Security may do
so with regard to all or any part of the principal amount of such
Security or by one or more duly appointed agents each of which may do
so pursuant to such appointment with regard to all or any part of such
principal amount.
SECTION 1.5. Notices, Etc. to Trustee and Company.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder, any holder of Capital Securities or
the Company shall be sufficient for every purpose hereunder if made,
given, furnished or filed in writing to or with the Trustee at its
Corporate Trust Office, or
(2) the Company by the Trustee, any Holder or any holder of
Capital Securities shall be sufficient for every purpose (except as
otherwise provided in Section 5.1) hereunder if in writing and mailed,
first class, postage prepaid, to the Company addressed to it at the
address of its principal office specified in the first paragraph of
this instrument or at any other address previously furnished in writing
to the Trustee by the Company.
SECTION 1.6. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event,
such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed,
- 18 -
first class postage prepaid, to each Holder affected by such event, at
the address of such Holder as it appears in the Securities Register,
not later than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice. If, by reason of the
suspension of or irregularities in regular mail services or for any
other reason, it shall be impossible or impracticable to mail notice of
any event to Holders when said notice is required to be given pursuant
to any provision of this Indenture or of the relevant Securities, then
any manner of giving such notice as shall be satisfactory to the
Trustee shall be deemed to be a sufficient giving of such notice. In
any case where notice to Holders is given by mail, neither the failure
to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with
respect to other Holders. Where this Indenture provides for notice in
any manner, such notice may be waived in writing by the Person entitled
to receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of notice by
Holders shall be filed with the Trustee, but such filing shall not be a
condition precedent to the validity of any action taken in reliance
upon such waiver.
SECTION 1.7. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such Act to
be a part of and govern this Indenture, the provision of the Trust
Indenture Act shall control. If any provision of this Indenture
modifies or excludes any provision of the Trust Indenture Act that may
be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case
may be.
SECTION 1.8. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
SECTION 1.9. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
- 19 -
SECTION 1.10. Separability Clause.
If any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 1.11. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or
implied, shall give to any Person, other than the parties hereto and
their successors and assigns, the holders of Senior Indebtedness, the
Holders of the Securities and, to the extent expressly provided in
Sections 5.2, 5.8, 5.9, 5.11, 5.13, 9.1 and 9.2, the holders of Capital
Securities, any benefit or any legal or equitable right, remedy or
claim under this Indenture.
SECTION 1.12. Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
SECTION 1.13. Non-Business Days.
If any Interest Payment Date, Redemption Date or Stated Maturity
of any Security shall not be a Business Day, then (notwithstanding any
other provision of this Indenture or the Securities) payment of
interest or principal (and premium, if any) or other amounts in respect
of such Security need not be made on such date, but may be made on the
next succeeding Business Day (and no interest shall accrue in respect
of the amounts whose payment is so delayed for the period from and
after such Interest Payment Date, Redemption Date or Stated Maturity,
as the case may be, until such next succeeding Business Day) except
that, if such Business Day is in the next succeeding calendar year,
such payment shall be made on the immediately preceding Business Day
(in each case with the same force and effect as if made on the Interest
Payment Date or Redemption Date or at the Stated Maturity).
ARTICLE II
SECURITY FORMS
SECTION 2.1. Forms Generally.
The Securities of each series and the Trustee's
certificate of authentication shall be in substantially the
- 20 -
forms set forth in this Article, or in such other form or forms as
shall be established by or pursuant to a Board Resolution or in one or
more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture and may have such letters,
numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with
applicable tax laws or the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such
securities, as evidenced by their execution of the Securities. If the
form of Securities of any series is established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of
the Company and delivered to the Trustee at or prior to the delivery of
the Company Order contemplated by Section 3.3 with respect to the
authentication and delivery of such Securities.
The Trustee's certificates of authentication shall be
substantially in the form set forth in this Article.
The definitive Securities shall be printed, lithographed or
engraved or produced by any combination of these methods, if required
by any securities exchange on which the Securities may be listed, on a
steel engraved border or steel engraved borders or may be produced in
any other manner permitted by the rules of any securities exchange on
which the Securities may be listed, all as determined by the officers
executing such Securities, as evidenced by their execution of such
Securities.
Securities distributed to holders of Global Capital Securities (as
defined in the applicable Trust Agreement) upon the dissolution of an
Issuer Trust shall be distributed in the form of one or more Global
Securities registered in the name of a Depositary or its nominee, and
deposited with the Securities Registrar, as custodian for such
Depositary, or with such Depositary, for credit by the Depositary to
the respective accounts of the beneficial owners of the Securities
represented thereby (or such other accounts as they may direct).
Securities distributed to holders of Capital Securities other than
Global Capital Securities upon the dissolution of an Issuer Trust shall
not be issued in the form of a Global Security or any other form
intended to facilitate book-entry trading in beneficial interests in
such Securities.
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SECTION 2.2. Form of Face of Security.
FIRST EMPIRE STATE CORPORATION
[Title of Security]
[If the Security is a Restricted Security, insert -- THE
SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND MAY NOT
BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A) BY ANY
INITIAL INVESTOR THAT IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE
MEANING OF RULE 144A UNDER THE SECURITIES ACT, (I) TO A PERSON WHO THE
TRANSFEROR REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A, (II) IN AN OFFSHORE TRANSACTION COMPLYING WITH THE PROVISIONS OF
RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, OR (III)
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT
PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), OR (B) BY AN INITIAL
INVESTOR THAT IS A QUALIFIED INSTITUTIONAL BUYER OR BY ANY SUBSEQUENT
INVESTOR, AS SET FORTH IN (A) ABOVE AND, IN ADDITION, TO AN
INSTITUTIONAL ACCREDITED INVESTOR IN A TRANSACTION EXEMPT FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, AND, IN EACH CASE IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF THE STATES AND OTHER
JURISDICTIONS OF THE UNITED STATES. THE HOLDER OF THIS SECURITY AGREES
THAT IT WILL COMPLY WITH THE FOREGOING RESTRICTIONS. SECURITIES OWNED
BY AN INITIAL INVESTOR THAT IS NOT A QUALIFIED INSTITUTIONAL BUYER MAY
NOT BE HELD IN GLOBAL FORM AND MAY NOT BE TRANSFERRED WITHOUT
CERTIFICATION THAT THE TRANSFER COMPLIES WITH THE FOREGOING
RESTRICTIONS, AS PROVIDED IN THE INDENTURE REFERRED TO BELOW. NO
REPRESENTATION CAN BE MADE AS TO THE AVAILABILITY OF THE EXEMPTION
PROVIDED BY RULE 144 FOR RESALES OF THE CAPITAL SECURITIES.]
No. $
FIRST EMPIRE STATE CORPORATION, a New York corporation
(hereinafter called the "Company", which term includes any successor
Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to _________________________________
______________________, or registered assigns, the principal sum of
________ Dollars on ________, [if the Security is a Global Security,
then insert, if applicable--, or such other principal amount
represented hereby as may be set forth in the records of the Securities
Registrar hereinafter referred to in accordance with the Indenture,]
[; provided that the Company may (i) shorten the Stated Maturity of the
principal of this Security to a date not earlier than ________, and
- 22 -
(ii) extend the Stated Maturity of the principal of this Security at
any time on one or more occasions, subject to certain conditions
specified in Section 3.15 of the Indenture, but in no event to a date
later than _________]. The Company further promises to pay interest on
said principal from ______________________ , or from the most recent
Interest Payment Date to which interest has been paid or duly provided
for, [monthly] [quarterly] [semi-annually] [if applicable, insert--
(subject to deferral as set forth herein)] in arrears on [insert
applicable Interest Payment Dates] of each year, commencing ___________
at the rate of ___% per annum, [if applicable insert--together with
Additional Sums, if any, as provided in Section 10.6 of the Indenture,]
until the principal hereof is paid or duly provided for or made
available for payment [if applicable, insert--; provided that any
overdue principal, premium or Additional Sums and any overdue
installment of interest shall bear Additional Interest at the rate of %
per annum (to the extent that the payment of such interest shall be
legally enforceable), compounded [monthly] [quarterly] [semi-annually],
from the dates such amounts are due until they are paid or made
available for payment, and such interest shall be payable on demand].
The amount of interest payable for any period less than a full interest
period shall be computed on the basis of a 360-day year of twelve
30-day months and the actual days elapsed in a partial month in such
period. The amount of interest payable for any full interest period
shall be computed by dividing the applicable rate per annum by
[twelve/four/two]. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in the
Indenture, be paid to the Person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of business on
the Regular Record Date for such interest installment [if applicable,
insert--, which shall be the [______________ or ____________] (whether
or not a Business Day), as the case may be, next preceding such
Interest Payment Date]. Any such interest not so punctually paid or
duly provided for shall forthwith cease to be payable to the Holder on
such Regular Record Date and may either be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the
payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Securities of this series not less
than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Securities of this series may be
listed, and upon such notice as may be required by such exchange, all
as more fully provided in said Indenture.
- 23 -
[If applicable, insert--So long as no Event of Default has
occurred and is continuing, the Company shall have the right, at any
time during the term of this Security, from time to time to defer the
payment of interest on this Security for up to __________ consecutive
[monthly] [quarterly] [semi-annual] interest payment periods with
respect to each deferral period (each an "Extension Period") [if
applicable, insert--, during which Extension Periods the Company shall
have the right to make partial payments of interest on any Interest
Payment Date, and] at the end of which the Company shall pay all
interest then accrued and unpaid including Additional Interest, as
provided below; provided, however, that no Extension Period shall
extend beyond the Stated Maturity of the principal of this Security [If
Stated Maturity can be shortened or extended, insert--, as then in
effect,] and no such Extension Period may end on a date other than an
Interest Payment Date; and provided, further, however, that during any
such Extension Period, the Company shall not (i) declare or pay any
dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of the Company's capital
stock, or (ii) make any payment of principal of or interest or premium,
if any, on or repay, repurchase or redeem any debt securities of the
Company that rank pari passu in all respects with or junior in interest
to this Security, including the Company's obligations associated with
the Outstanding Capital Securities (other than (a) repurchases,
redemptions or other acquisitions of shares of capital stock of the
Company in connection with any employment contract, benefit plan or
other similar arrangement with or for the benefit of any one or more
employees, officers, directors or consultants, in connection with a
dividend reinvestment or stockholder stock purchase plan or in
connection with the issuance of capital stock of the Company (or
securities convertible into or exercisable for such capital stock) as
consideration in an acquisition transaction entered into prior to the
applicable Extension Period, (b) as a result of an exchange or
conversion of any class or series of the Company's capital stock (or
any capital stock of a Subsidiary of the Company) for any class or
series of the Company's capital stock or of any class or series of the
Company's indebtedness for any class or series of the Company's capital
stock, (c) the purchase of fractional interests in shares of the
Company's capital stock pursuant to the conversion or exchange
provisions of such capital stock or the security being converted or
exchanged, (d) any declaration of a dividend in connection with any
Rights Plan, or the issuance of rights, stock or other property under
any Rights Plan, or the redemption or repurchase of rights pursuant
thereto, or (e) any dividend in the form of stock, warrants, options or
other rights where the dividend stock or the stock
- 24 -
issuable upon exercise of such warrants, options or other rights is the
same stock as that on which the dividend is being paid or ranks pari
passu with or junior to such stock). Prior to the termination of any
such Extension Period, the Company may further defer the payment of
interest, provided that no Extension Period shall exceed ____________
consecutive [monthly] [quarterly] [semi-annual] interest payment
periods, extend beyond the Stated Maturity of the principal of this
Security or end on a date other than an Interest Payment Date. Upon the
termination of any such Extension Period and upon the payment of all
accrued and unpaid interest and any Additional Interest then due on any
Interest Payment Date, the Company may elect to begin a new Extension
Period, subject to the above conditions. No interest shall be due and
payable during an Extension Period, except at the end thereof, but each
installment of interest that would otherwise have been due and payable
during such Extension Period shall bear Additional Interest (to the
extent that the payment of such interest shall be legally enforceable)
at the rate of ___% per annum, compounded [monthly] [quarterly]
[semi-annually] and calculated as set forth in the first paragraph of
this Security, from the date on which such amounts would otherwise have
been due and payable until paid or made available for payment. The
Company shall give the Holder of this Security and the Trustee notice
of its election to begin any Extension Period at least one Business Day
prior to the next succeeding Interest Payment Date on which interest on
this Security would be payable but for such deferral [if applicable,
insert--or so long as such securities are held by [insert name of
applicable Issuer Trust], at least one Business Day prior to the
earlier of (i) the next succeeding date on which Distributions on the
Capital Securities of such Issuer Trust would be payable but for such
deferral, and (ii) the date on which the Property Trustee of such
Issuer Trust is required to give notice to holders of such Capital
Securities of the record date or the date such Distributions are
payable, but in any event not less than one Business Day prior to such
record date.]
Payment of the principal of (and premium, if any) and interest on
this Security will be made at the office or agency of the Company
maintained for that purpose in the United States, in such coin or
currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts [if applicable,
insert--; provided, however that at the option of the Company payment
of interest may be made (i) by check mailed to the address of the
Person entitled thereto as such address shall appear in the Securities
Register, or (ii) if to a Holder of $1,000,000 or more in aggregate
principal amount of this Security, by wire transfer in immediately
available funds upon written request
- 25 -
to the Trustee not later than 15 calendar days prior to the date on
which the interest is payable].
The indebtedness evidenced by this Security is, to the extent
provided in the Indenture, subordinate and subject in right of payments
to the prior payment in full of all Senior Indebtedness, and this
Security is issued subject to the provisions of the Indenture with
respect thereto. Each Holder of this Security, by accepting the same,
(a) agrees to and shall be bound by such provisions, (b) authorizes and
directs the Trustee on his or her behalf to take such actions as may be
necessary or appropriate to 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,
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.
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions
shall for all purposes have the same effect as if set forth at this
place.
Unless the certificate of authentication hereon has been executed
by the Trustee referred to on the reverse hereof by manual signature,
this Security shall not be entitled to any benefit under the Indenture
or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed under its corporate seal.
FIRST EMPIRE STATE CORPORATION
By:
---------------------------
Name:
Title:
Attest:
--------------------------------
Secretary or Assistant Secretary
- 26 -
SECTION 2.3. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of
the Company (herein called the "Securities"), issued and to be issued
in one or more series under the Junior Subordinated Indenture, dated as
of June 6, 1997 (herein called the "Indenture"), between the Company
and Bankers Trust Company, as Trustee (herein called the "Trustee",
which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is
hereby made for a statement of the respective rights, limitations of
rights, duties and immunities thereunder of the Company, the Trustee,
the holders of Senior Indebtedness and the Holders of the Securities,
and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series
designated on the face hereof [if applicable, insert--, limited in
aggregate principal amount to $ ____________].
All terms used in this Security that are defined in the Indenture
[if applicable, insert-- or in [insert name of trust agreement], dated
as of _________ (as modified, amended or supplemented from time to time
the "Trust Agreement"), relating to [insert name of Issuer Trust] [the
("Issuer Trust") among the Company, as Depositor, the Trustees named
therein and the Holders from time to time of the Trust Securities
issued pursuant thereto] shall have the meanings assigned to them in
the Indenture [if applicable, insert--or the Trust Agreement, as the
case may be].
[If applicable, insert--The Company has the right to redeem this
Security (i) on or after _________, in whole at any time or in part
from time to time, or (ii) in whole (but not in part), at any time
within 90 days following the occurrence and during the continuation of
a Tax Event, Investment Company Event, or Capital Treatment Event, in
each case at a Redemption Price described below, and subject to
possible regulatory approval.
[If applicable, insert--In the case of a redemption on or after
__________, the Redemption Price shall equal the following prices,
expressed in percentages of the principal amount hereof, together with
accrued interest to but excluding the date fixed for redemption, if
redeemed during the 12-month period beginning __________:
Redemption
Year Price
---- ----------
- 27 -
and 100% on or after __________.
In the case of a redemption on or after __________ following a Tax
Event, Investment Company Event or Capital Treatment Event, the
Redemption Price shall equal the Redemption Price then applicable to a
redemption under the
preceding paragraph.
In the case of a redemption prior to __________ following a Tax
Event, Investment Company Event or Capital Treatment Event in respect
of the Issuer Trust, the Redemption Price shall equal the Make-Whole
Amount for a corresponding $__________ principal amount hereof,
together with accrued interest to but excluding the date fixed for
redemption, which Make-Whole Amount will be equal to the greater of (i)
100% of the principal amount hereof, and (ii) as determined by a
Quotation Agent (as defined in the Trust Agreement), the sum of the
present value of 100% of the principal amount that would be payable
with respect hereto on __________, together with the present values of
scheduled payments of interest from the date fixed for redemption to
__________, in each case discounted to the date fixed for redemption on
a [monthly] [quarterly] [semi-annual] basis (assuming a 360-day year
consisting of 30-day months) at the Adjusted Treasury Rate (as defined
in the Trust Agreement).]
[If the Security is subject to redemption of any kind, insert--In
the event of redemption of this Security in part only, a new Security
or Securities of this series for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.]
[If applicable, insert--The Indenture contains provisions for
defeasance at any time [of the entire indebtedness of this Security]
[or] [certain restrictive covenants and Events of Default with respect
to this Security] [, in each case] upon compliance by the Company with
certain conditions set forth in the Indenture.]
The Indenture permits, with certain exceptions as therein
provided, the Company and the Trustee at any time to enter into a
supplemental indenture or indentures for the purpose of modifying in
any manner the rights and obligations of the Company and of the Holders
of the Securities, with the consent of the Holders of not less than a
majority in principal amount of the Outstanding Securities of each
series to be affected by such supplemental indenture. The Indenture
also contains
- 28 -
provisions permitting Holders of specified percentages in principal
amount of the Securities of each series at the time Outstanding, on
behalf of the Holders of all Securities of such series, to waive
compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any
such consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future Holders of
this Security and of any Security issued upon the registration of
transfer hereof or in exchange herefor or in lieu hereof, whether or
not notation of such consent or waiver is made upon this Security.
[If the Security is not a Discount Security, insert--As provided
in and subject to the provisions of the Indenture, if an Event of
Default with respect to the Securities of this series at the time
Outstanding occurs and is continuing, then and in every such case the
Trustee or the Holders of not less than 25% in aggregate principal
amount of the Outstanding Securities of this series may declare the
principal amount of all the Securities of this series to be due and
payable immediately, by a notice in writing to the Company (and to the
Trustee if given by Holders) [if applicable, insert--, provided that,
if upon an Event of Default, the Trustee or such Holders fail to
declare the principal of all the outstanding Securities of this series
to be immediately due and payable, the Holders of at least 25% in
aggregate Liquidation Amount of the Capital Securities then outstanding
shall have the right to make such declaration by a notice in writing to
the Company and the Trustee]; and upon any such declaration the
principal amount of and the accrued interest (including any Additional
Interest) on all the Securities of this series shall become immediately
due and payable, provided that the payment of principal and interest
(including any Additional Interest) on such Securities shall remain
subordinated to the extent provided in Article XIII of the Indenture.]
[If the Security is a Discount Security, insert--As provided in
and subject to the provisions of the Indenture, if an Event of Default
with respect to the Securities of this series at the time Outstanding
occurs and is continuing, then and in every such case the Trustee or
the Holders of not less than 25% in aggregate principal amount of the
Outstanding Securities of this series may declare an amount of
principal of the Securities of this series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee
if given by Holders) [if applicable, insert--, provided that, if upon
an Event of Default, the Trustee or such Holders fail to declare such
principal amount of the
- 29 -
Outstanding Securities of this series to be immediately due and
payable, the holders of at least 25% in aggregate Liquidation Amount of
the Capital Securities then outstanding shall have the right to make
such declaration by a notice in writing to the Company and the Trustee.
The principal amount payable upon such acceleration shall be equal
to--insert formula for determining the amount]. Upon any such
declaration, such amount of the principal of and the accrued interest
(including any Additional Interest) on all the Securities of this
series shall become immediately due and payable, provided that the
payment of such principal and interest (including any Additional
Interest) on all the Securities of this series shall remain
subordinated to the extent provided in Article XIII of the Indenture.
Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal, premium and interest (in
each case to the extent that the payment of such interest shall be
legally enforceable), all of the Company's obligations in respect of
the payment of the principal of and premium and interest, if any, on
this Security shall terminate.]
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of
the Company, which is absolute and unconditional, to pay the principal
of (and premium, if any) and interest (including Additional Interest)
on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the
Securities Register, upon surrender of this Security for registration
of transfer at the office or agency of the Company maintained under
Section 10.2 of the Indenture for such purpose, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to
the Company and the Securities Registrar duly executed by, the Holder
hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Securities of this series, of like tenor, of
authorized denominations and for the same aggregate principal amount,
will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $_________ and any integral
multiple of $_________ in excess thereof. As provided in the Indenture
and subject to certain limitations therein set forth, Securities of
this series are exchangeable for a like aggregate principal amount of
Securities of this
- 30 -
series and of like tenor of a different authorized denomination, as
requested by the Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in
connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name this Security is registered
as the owner hereof for all purposes, whether or not this Security be
overdue, and neither the Company, the Trustee nor any such agent shall
be affected by notice to the contrary.
The Company and, by its acceptance of this Security or a
beneficial interest therein, the Holder of, and any Person that
acquires a beneficial interest in, this Security agrees that for United
States Federal, state and local tax purposes it is intended that this
Security constitute indebtedness.
THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
THIS SECURITY IS A DIRECT AND UNSECURED OBLIGATION OF THE COMPANY,
DOES NOT EVIDENCE DEPOSITS AND IS NOT INSURED BY THE FEDERAL DEPOSIT
INSURANCE CORPORATION OR ANY OTHER INSURER OR GOVERNMENT AGENCY. THIS
SECURITY WILL BE SUBORDINATE TO THE CLAIMS OF DEPOSITORS AND GENERAL
CREDITORS OF THE COMPANY AND WILL BE INELIGIBLE AS COLLATERAL TO SECURE
A LOAN FROM THE COMPANY.
SECTION 2.4. Additional Provisions Required in Global Security.
Unless otherwise specified as contemplated by Section 3.1, any
Global Security issued hereunder shall, in addition to the provisions
contained in Sections 2.2 and 2.3, bear a legend in substantially the
following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF
THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN
THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY. THIS
SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE
NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE
ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
- 31 -
INDENTURE AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF
THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN
THE INDENTURE.
SECTION 2.5. Form of Trustee's Certificate of Authentication.
The Trustee's certificates of authentication shall be in
substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Dated: _______________ BANKERS TRUST COMPANY,
as Trustee
By:
---------------------------
Authorized Officer
ARTICLE III
THE SECURITIES
SECTION 3.1. Title and Terms.
The aggregate principal amount of Securities that may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to
Section 3.3, set forth or determined in the manner provided, in an
Officers' Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities as a series:
(a) the title of the securities of such series, which shall
distinguish the Securities of the series from all other Securities;
(b) the limit, if any, upon the aggregate principal amount of the
Securities of such series that may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
- 32 -
Securities of the series pursuant to Section 3.4, 3.5, 3.6, 9.6 or 11.6
and except for any Securities that, pursuant to Section 3.3, are deemed
never to have been authenticated and delivered hereunder); provided,
however, that the authorized aggregate principal amount of such series
may be increased above such amount by a Board Resolution to such
effect;
(c) the Person to whom any interest on a Security of the series
shall be payable, if other than the Person in whose name that security
(or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest;
(d) the Stated Maturity or Maturities on which the principal of
the Securities of such series is payable or the method of determination
thereof, and any dates on which or circumstances under which, the
Company shall have the right to extend or shorten such Stated Maturity
or Maturities;
(e) the rate or rates, if any, at which the Securities of such
series shall bear interest, if any, the rate or rates and extent to
which Additional Interest, if any, shall be payable with respect to any
Securities of such series, the date or dates from which any such
interest or Additional Interest shall accrue, the Interest Payment
Dates on which such interest shall be payable, the right, pursuant to
Section 3.12 or as otherwise set forth therein, of the Company to defer
or extend an Interest Payment Date, and the Regular Record Date for the
interest payable on any Interest Payment Date or the method by which
any of the foregoing shall be determined;
(f) the place or places where the principal of (and premium, if
any) and interest or Additional Interest on the Securities of such
series shall be payable, the place or places where the Securities of
such series may be presented for registration of transfer or exchange,
any restrictions that may be applicable to any such transfer or
exchange in addition to or in lieu of those set forth herein and the
place or places where notices and demands to or upon the Company in
respect of the Securities of such series may be made;
(g) the period or periods within or the date or dates on which, if
any, the price or prices at which and the terms and conditions upon
which the Securities of such series may be redeemed, in whole or in
part, at the option of the Company, and if other than by a Board of
Resolution, the manner in which any election by the Company to redeem
such Securities shall be evidenced;
- 33 -
(h) the obligation or the right, if any, of the Company to redeem,
repay or purchase the Securities of such series pursuant to any sinking
fund, amortization or analogous provisions, or at the option of a
Holder thereof, and the period or periods within which, the price or
prices at which, the currency or currencies (including currency unit or
units) in which and the other terms and conditions upon which
Securities of the series shall be redeemed, repaid or purchased, in
whole or in part, pursuant to such obligation;
(i) the denominations in which any Securities of such series shall
be issuable;
(j) if other than Dollars, the currency or currencies (including
any currency unit or units) in which the principal of (and premium, if
any) and interest and Additional Interest, if any, on the Securities of
the series shall be payable, or in which the Securities of the series
shall be denominated and the manner of determining the equivalent
thereof in Dollars for purposes of the definition of Outstanding;
(k) the additions, modifications or deletions, if any, in the
Events of Default or covenants of the Company set forth herein with
respect to the Securities of such series;
(l) if, other than the principal amount thereof, the portion of
the principal amount of Securities of such series that shall be payable
upon declaration of acceleration of the Maturity thereof;
(m) if the principal amount payable at the Stated Maturity of any
Securities of the series will not be determinable as of any one or more
dates prior to the Stated Maturity, the amount which shall be deemed to
be the principal amount of such Securities as of any such date for any
purpose thereunder or hereunder, including the principal amount thereof
which shall be due and payable upon any Maturity other than the Stated
Maturity or which shall be deemed to be Outstanding as of any date
prior to the Stated Maturity (or, in any such case, the manner in which
such amount deemed to be the principal amount shall be determined);
(n) if applicable, that the Securities of the series, in whole or
in any specified part, shall be defeasible and, if other than by a
Board Resolution, the manner in which any election by the Company to
defease such Securities shall be evidenced;
(o) the additions or changes, if any, to this Indenture with
respect to the Securities of such series as shall be
- 34 -
necessary to permit or facilitate the issuance of the Securities of
such series in bearer form, registrable or not registrable as to
principal, and with or without interest coupons;
(p) any index or indices used to determine the amount of payments
of principal of and premium, if any, on the Securities of such series
or the manner in which such amounts will be determined;
(q) if applicable, that any Securities of the series shall be
issuable in whole or in part in the form of one or more Global
Securities and, in such case, the respective Depositaries for such
Global Securities, the form of any legend or legends that shall be
borne by any such Global Security in addition to or in lieu of that set
forth in Section 2.4 and any circumstances in addition to or in lieu of
those set forth in Section 3.5 in which any such Global Security may be
exchanged in whole or in part for Securities registered, and any
transfer of such Global Security in whole or in part may be registered,
in the name or names of Persons other than the Depositary for such
Global Security or a nominee thereof;
(r) the appointment of any Paying Agent or agents for the
Securities of such series;
(s) the terms of any right to convert or exchange Securities of
such series into any other securities or property of the Company, and
the additions or changes, if any, to this Indenture with respect to the
Securities of such series to permit or facilitate such conversion or
exchange;
(t) if such Securities are to be issued to an Issuer Trust, the
form or forms of the Trust Agreement and Guarantee relating thereto;
(u) if, other than as set forth herein, the relative degree, if
any, to which the Securities or the series shall be senior to or be
subordinated to other series of Securities in right of payment, whether
such other series of Securities are Outstanding or not;
(v) any addition to or change in the Events of Default which
applies to any Securities of the series and any change in the right of
the Trustee or the requisite Holders of such Securities to declare the
principal amount thereof due and payable pursuant to Section 5.2;
- 35 -
(w) any addition to or change in the covenants set forth in
Article X which applies to Securities of the series; and
(x) any other terms of the Securities of such series (which terms
shall not be inconsistent with the provisions of this Indenture, except
as permitted by Section 9.1(6)).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided
herein or in or pursuant to such Board Resolution and set forth, or
determined in the manner provided, in such Officers' Certificate or in
any indenture supplemental hereto.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of
the Company and delivered to the Trustee at or prior to the delivery of
the Officers' Certificate setting forth the terms of the series.
The securities shall be subordinated in right of payment to Senior
Indebtedness as provided in Article XIII.
SECTION 3.2. Denominations.
The Securities of each series shall be in registered form without
coupons and shall be issuable in denominations specified as
contemplated by Section 3.1(i).
SECTION 3.3. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its Vice Chairman of the Board, its President or
one of its Vice Presidents, under its corporate seal reproduced or
impressed thereon and attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Securities
may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company
shall bind the Company, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the authentication and
delivery of such Securities or did not hold such offices at the date of
such Securities. At any time and from time to time after the execution
and delivery of this Indenture, the Company may deliver Securities of
any series executed by the Company to the Trustee for
- 36 -
authentication, together with a Company Order for the authentication
and delivery of such Securities, and the Trustee in accordance with the
Company Order shall authenticate and deliver such Securities. If the
form or terms of the Securities of the series have been established by
or pursuant to one or more Board Resolutions as permitted by Sections
2.1 and 3.1, in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive, and (subject to
Section 6.1) shall be fully protected in relying upon, an Opinion of
Counsel stating,
(1) if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by Section 2.1, that
such form has been established in conformity with the provisions
of this Indenture;
(2) if the terms of such Securities have been established by
or pursuant to Board Resolution as permitted by Section 3.1, that
such terms have been established in conformity with the provisions
of this Indenture; and
(3) that such Securities, when authenticated and delivered by
the Trustee and issued by the Company in the manner and subject to
any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the Company
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
If such form or terms have been so established, the Trustee shall not
be required to authenticate such Securities if the issue of such
Securities pursuant to this Indenture will affect the Trustee's own
rights, duties or immunities under the Securities and this Indenture or
otherwise in a manner that is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.1 and the preceding
paragraph, if all Securities of a series are not to be originally
issued at one time, it shall not be necessary to deliver the Officers'
Certificate otherwise required pursuant to Section 3.1 or the Company
Order and Opinion of Counsel otherwise required pursuant to such
preceding paragraph at or prior to the authentication of each Security
of such series if such documents are delivered at or prior to the
authentication
- 37 -
upon original issuance of the first Security of such series to be
issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose, unless there appears on such
Security a certificate of authentication substantially in the form
provided for herein executed by the Trustee by the manual signature of
one of its authorized officers, and such certificate upon any Security
shall be conclusive evidence, and the only evidence, that such security
has been duly authenticated and delivered hereunder. Notwithstanding
the foregoing, if any Security shall have been authenticated and
delivered hereunder but never issued and sold by the Company, and the
Company shall deliver such Security to the Trustee for cancellation as
provided in Section 3.10, for all purposes of this Indenture such
Security shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this
Indenture.
SECTION 3.4. Temporary Securities.
Pending the preparation of definitive Securities of any series,
the Company may execute, and upon receipt of a Company Order the
Trustee shall authenticate and deliver, temporary Securities that are
printed, lithographed, typewritten, mimeographed or otherwise produced,
in any denomination, substantially of the tenor of the definitive
Securities of such series in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will
cause definitive Securities of such series to be prepared without
unreasonable delay. After the preparation of definitive Securities, the
temporary Securities shall be exchangeable for definitive Securities
upon surrender of the temporary Securities at the office or agency of
the Company designated for that purpose without charge to the Holder.
Upon surrender for cancellation of any one or more temporary
Securities, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor one or more definitive
securities of the same series, of any authorized denominations having
the same Original Issue Date and Stated Maturity and having the same
terms as such temporary Securities. Until so exchanged, the temporary
Securities of
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any series shall in all respects be entitled to the same benefits under
this Indenture as definitive Securities of such series.
SECTION 3.5. Global Securities.
(a) Each Global Security issued under this Indenture shall be
registered in the name of the Depositary designated by the Company for
such Global Security or a nominee thereof and delivered to such
Depositary or a nominee thereof or custodian therefor, and each such
Global Security shall constitute a single Security for all purposes of
this Indenture.
(b) Notwithstanding any other provision in this Indenture, no
Global Security may be exchanged in whole or in part for Securities
registered, and no transfer of a Global Security in whole or in part
may be registered, in the name of any Person other than the Depositary
for such Global Security or a nominee thereof unless (i) such
Depositary advises the Trustee in writing that such Depositary is no
longer willing or able to properly discharge its responsibilities as
Depositary with respect to such Global Security, and the Company is
unable to locate a qualified successor, (ii) the Company executes and
delivers to the Trustee a Company Order stating that the Company elects
to terminate the book-entry system through the Depositary, or (iii)
there shall have occurred and be continuing an Event of Default.
(c) If any Global Security is to be exchanged for other Securities
or cancelled in whole, it shall be surrendered by or on behalf of the
Depositary or its nominee to the Securities Registrar for exchange or
cancellation as provided in this Article III. If any Global Security is
to be exchanged for other Securities or cancelled in part, or if
another Security is to be exchanged in whole or in part for a
beneficial interest in any Global Security, then either (i) such Global
Security shall be so surrendered for exchange or cancellation as
provided in this Article III or (ii) the principal amount thereof shall
be reduced, subject to Section 3.6(b)(v), or increased by an amount
equal to the portion thereof to be so exchanged or cancelled, or equal
to the principal amount of such other Security to be so exchanged for a
beneficial interest therein, as the case may be, by means of an
appropriate adjustment made on the records of the Securities Registrar,
whereupon the Trustee, in accordance with the Applicable Procedures,
shall instruct the Depositary or its authorized representative to make
a corresponding adjustment to its records. Upon any such surrender or
adjustment of a Global Security by the Depositary, accompanied
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by registration instructions, the Trustee shall, subject to Section
3.6(b) and as otherwise provided in this Article III, authenticate and
deliver any Securities issuable in exchange for such Global Security
(or any portion thereof) in accordance with the instructions of the
Depositary. The Trustee shall not be liable for any delay in delivery
of such instructions and may conclusively rely on, and shall be fully
protected in relying on, such instructions.
(d) Every Security authenticated and delivered upon registration
of transfer of, or in exchange for or in lieu of, a Global Security or
any portion thereof, whether pursuant to this Article III, Section 9.6
or 11.6 or otherwise, shall be authenticated and delivered in the form
of, and shall be, a Global Security, unless such Security is registered
in the name of a Person other than the Depositary for such Global
Security or a nominee thereof.
(e) The Depositary or its nominee, as the registered owner of a
Global Security, shall be the Holder of such Global Security for all
purposes under this Indenture and the Securities, and owners of
beneficial interests in a Global Security shall hold such interests
pursuant to the Applicable Procedures. Accordingly, any such owner's
beneficial interest in a Global Security shall be shown only on, and
the transfer of such interest shall be effected only through, records
maintained by the Depositary or its nominee or agent. Neither the
Trustee nor the Securities Registrar shall have any liability in
respect of any transfers effected by the Depositary.
(f) The rights of owners of beneficial interests in a Global
Security shall be exercised only through the Depositary and shall be
limited to those established by law and agreements between such owners
and the Depositary and/or its Agent Members.
SECTION 3.6. Registration, Transfer and Exchange
Generally; Certain Transfers and
Exchanges; Securities Act Legends.
(a) The Company shall cause to be kept at the Corporate Trust
Office of the Trustee a register in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the
registration of Securities and transfers of Securities. Such register
is herein sometimes referred to as the "Securities Register." The
Trustee is hereby appointed "Securities Registrar" for the purpose of
registering Securities and transfers of Securities as herein provided.
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Upon surrender for registration of transfer of any Security at the
offices or agencies of the Company designated for that purpose, the
Company shall execute, and the Trustee shall authenticate and deliver,
in the name of the designated transferee or transferees, one or more
new Securities of the same series of any authorized denominations of
like tenor and aggregate principal amount.
At the option of the Holder, Securities may be exchanged for other
Securities of the same series of any authorized denominations, of like
tenor and aggregate principal amount, upon surrender of the Securities
to be exchanged at such office or agency. Whenever any securities are
so surrendered for exchange, the Company shall execute, and the Trustee
shall authenticate and deliver, the Securities that the Holder making
the exchange is entitled to receive.
All Securities issued upon any transfer or exchange of Securities
shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such transfer or exchange.
Every Security presented or surrendered for transfer or exchange
shall (if so required by the Company or the Trustee) be duly endorsed,
or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Securities Registrar, duly executed
by the Holder thereof or such Holder's attorney duly authorized in
writing.
No service charge shall be made to a Holder for any transfer or
exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be
imposed in connection with any transfer or exchange of Securities.
Neither the Company nor the Trustee shall be required, pursuant to
the provisions of this Section, (i) to issue, register the transfer of
or exchange any Security of any series during a period beginning at the
opening of business 15 days before the day of selection for redemption
of Securities of that series pursuant to Article XI and ending at the
close of business on the day of mailing of the notice of redemption, or
(ii) to register the transfer of or exchange any Security so selected
for redemption in whole or in part, except, in the case of any such
Security to be redeemed in part, any portion thereof not to be
redeemed.
(b) Certain Transfers and Exchanges. Notwithstanding
any other provision of this Indenture, transfers and exchanges
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of Securities and beneficial interests in a Global Security shall be
made only in accordance with this Section 3.6(b).
(i) Non-Global Security to Non-Global Security. A Security
that is not a Global Security may be transferred, in whole or in
part, to a Person who takes delivery in the form of another
Security that is not a Global Security as provided in Section
3.6(a), provided that if the Security to be transferred in whole
or in part is a Restricted Security, the Securities Registrar
shall have received a Restricted Securities Certificate duly
executed by the transferor Holder or such Holder's attorney duly
authorized in writing.
(ii) Exchanges Between Global Security and Non-
Global Security. A beneficial interest in a Global
Security may be exchanged for a Security that is not a
Global Security as provided in Section 3.5.
(iii) Certain Initial Transfers of Non-Global Securities. In
the case of Securities initially issued other than in global form,
an initial transfer or exchange of such Securities that does not
involve any change in beneficial ownership may be made to an
Institutional Accredited Investor or Investors as if such transfer
or exchange were not an initial transfer or exchange; provided
that written certification shall be provided by the transferee and
transferor of such Securities to the Securities Registrar that
such transfer or exchange does not involve a change in beneficial
ownership.
SECTION 3.7. Mutilated, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee together
with such security or indemnity as may be required by the Company or
the Trustee to save each of them harmless, the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor a
new Security of the same series, of like tenor and aggregate principal
amount, bearing the same legends, and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Company and to the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security, and (ii) such security or indemnity as may be required by
them to save each of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security has been acquired by a
bona fide purchaser, the Company shall execute and upon its request the
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Trustee shall authenticate and deliver, in lieu of any such destroyed,
lost or stolen Security, a new Security of the same series, of like
tenor and aggregate principal amount and bearing the same legends as
such destroyed, lost or stolen Security, and bearing a number not
contemporaneously outstanding.
If any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section 3.7, the
Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and
any other expenses (including the fees and expenses of the Trustee)
connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Security shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture
equally and proportionately with any and all other Securities of such
series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen
Securities.
SECTION 3.8. Payment of Interest and Additional
Interest; Interest Rights Preserved.
Interest and Additional Interest on any Security of any series
that is payable, and is punctually paid or duly provided for, on any
Interest Payment Date, shall be paid to the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest in
respect of Securities of such series, except that, unless otherwise
provided in the Securities of such series, interest payable on the
Stated Maturity of the principal of a Security shall be paid to the
Person to whom principal is paid. The initial payment of interest on
any Security of any series that is issued between a Regular Record Date
and the related Interest Payment Date shall be payable as provided in
such Security or
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in the Board Resolution pursuant to Section 3.1 with respect to the
related series of Securities.
Any interest on any Security that is due and payable, but is not
timely paid or duly provided for, on any Interest Payment Date for
Securities of such series (herein called "Defaulted Interest"), shall
forthwith cease to be payable to the registered Holder on the relevant
Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such
series in respect of which interest is in default (or their
respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner.
The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Security and the
date of the proposed payment, and at the same time the Company
shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this clause
provided. Thereupon, the Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest, which shall be not
more than 15 days and not less than 10 days prior to the date of
the proposed payment and not less than 10 days after the receipt
by the Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company of such Special Record Date and,
in the name and at the expense of the Company, shall cause notice
of the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be mailed, first class, postage prepaid,
to each Holder of a Security of such series at the address of such
Holder as it appears in the Securities Register not less than 10
days prior to such Special Record Date. The Trustee may, in its
discretion, in the name and at the expense of the Company, cause a
similar notice to be published at least once in a newspaper,
customarily published in the English language on each Business Day
and of general circulation in the Borough of Manhattan, The City
of New York, but such publication shall not be a condition
precedent to the establishment of such Special
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Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been mailed
as aforesaid, such Defaulted Interest shall be paid to the Persons
in whose names the Securities of such series (or their respective
Predecessor Securities) are registered on such Special Record Date
and shall no longer be payable pursuant to the following clause
(2).
(2) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Securities of the series in
respect of which interest is in default may be listed and, upon
such notice as may be required by such exchange (or by the Trustee
if the Securities are not listed), if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this
clause 2, such payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon transfer of or in exchange for
or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue interest, that were
carried by such other Security.
SECTION 3.9. Persons Deemed Owners.
The Company, the Trustee and any agent of the Company or the
Trustee shall treat the Person in whose name any Security is registered
as the owner of such Security for the purpose of receiving payment of
principal of and (subject to Section 3.8) any interest on such Security
and for all other purposes whatsoever, whether or not such Security be
overdue, and neither the Company, the Trustee nor any agent of the
Company or the Trustee shall be affected by notice to the contrary.
No holder of any beneficial interest in any Global Security held
on its behalf by a Depositary shall have any rights under this
Indenture with respect to such Global Security, and such Depositary may
be treated by the Company, the Trustee and any agent of the Company or
the Trustee as the owner of such Global Security for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall prevent
the Company, the Trustee or any agent of the Company or the Trustee
from giving effect to any written certification, proxy or other
authorization furnished by a Depositary or impair, as between a
Depositary and such holders of beneficial interests, the operation of
customary practices governing the exercise of
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the rights of the Depositary (or its nominee) as Holder of any
Security.
SECTION 3.10. Cancellation.
All Securities surrendered for payment, redemption, transfer or
exchange shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee, and any such Securities and Securities
surrendered directly to the Trustee for any such purpose shall be
promptly canceled by it. The Company may at any time deliver to the
Trustee for cancellation any Securities previously authenticated and
delivered hereunder that the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly canceled
by the Trustee. No Securities shall be authenticated in lieu of or in
exchange for any Securities canceled as provided in this Section,
except as expressly permitted by this Indenture. All canceled
Securities shall be destroyed by the Trustee and the Trustee shall
deliver to the Company a certificate of such destruction.
SECTION 3.11. Computation of Interest.
Except as otherwise specified as contemplated by Section 3.1 for
Securities of any series, interest on the Securities of each series for
any period shall be computed on the basis of a 360-day year of twelve
30-day months and the actual number of days elapsed in any partial
month in such period, and interest on the Securities of each series for
a full period shall be computed by dividing the rate per annum by the
number of interest periods that together constitute a full twelve
months.
SECTION 3.12. Deferrals of Interest Payment Dates.
If specified as contemplated by Section 2.1 or Section 3.1 with
respect to the Securities of a particular series, so long as no Event
of Default has occurred and is continuing, the Company shall have the
right, at any time during the term of such series, from time to time to
defer the payment of interest on such Securities for such period or
periods (each an "Extension Period") not to exceed the number of
consecutive quarterly, semi-annual or other periods that equal five
years with respect to each Extension Period, during which Extension
Periods the Company shall, if so specified as contemplated by Section
3.1, have the right to make partial payments of interest on any
Interest Payment Date. No Extension Period shall end on a date other
than an Interest Payment Date. At the end of any such Extension Period,
the Company shall pay all interest then accrued and unpaid on the
Securities
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(together with Additional Interest thereon, if any, at the rate
specified for the Securities of such series to the extent permitted by
applicable law); provided, however, that no Extension Period shall
extend beyond the Stated Maturity of the principal of the Securities of
such series; and provided further, however, that, during any such
Extension Period, the Company shall not (i) declare or pay any
dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of the Company's capital
stock, or (ii) make any payment of principal of or interest or premium,
if any, on or repay, repurchase or redeem any debt securities of the
Company that rank pari passu in all respects with or junior in interest
to the Securities of such series, including the Company's obligations
associated with the Outstanding Capital Securities (other than (a)
repurchases, redemptions or other acquisitions of shares of capital
stock of the Company in connection with any employment contract,
benefit plan or other similar arrangement with or for the benefit of
any one or more employees, officers, directors or consultants, in
connection with a dividend reinvestment or stockholder stock purchase
plan or in connection with the issuance of capital stock of the Company
(or securities convertible into or exercisable for such capital stock)
as consideration in an acquisition transaction entered into prior to
the applicable Extension Period, (b) as a result of an exchange or
conversion of any class or series of the Company's capital stock (or
any capital stock of a Subsidiary of the Company) for any class or
series of the Company's capital stock or of any class or series of the
Company's indebtedness for any class or series of the Company's capital
stock, (c) the purchase of fractional interests in shares of the
Company's capital stock pursuant to the conversion or exchange
provisions of such capital stock or the security being converted or
exchanged, (d) any declaration of a dividend in connection with any
Rights Plan, or the issuance of rights, stock or other property under
any Rights Plan, or the redemption or repurchase of rights pursuant
thereto, or (e) any dividend in the form of stock, warrants, options or
other rights where the dividend stock or the stock issuable upon
exercise of such warrants, options or other rights is the same stock as
that on which the dividend is being paid or ranks pari passu with or
junior to such stock). Prior to that termination of any such Extension
Period, the Company may further defer the payment of interest, provided
that no Event of Default has occurred and is continuing and provided
further, that no Extension Period shall exceed the period or periods
specified in such Securities, extend beyond the Stated Maturity of the
principal of such Securities or end on a date other than an Interest
Payment Date. Upon the termination of any such Extension Period and
upon the payment
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of all accrued and unpaid interest and any Additional Interest then due
on any Interest Payment Date, the Company may elect to begin a new
Extension Period, subject to the above conditions. No interest or
Additional Interest shall be due and payable during an Extension
Period, except at the end thereof, but each installment of interest
that would otherwise have been due and payable during such Extension
Period shall bear Additional Interest as and to the extent as may be
specified as contemplated by Section 3.1. The Company shall give the
Holders of the Securities of such series and the Trustee notice of its
election to begin any such Extension Period at least one Business Day
prior to the next succeeding Interest Payment Date on which interest on
Securities of such series would be payable but for such deferral or,
with respect to any Securities of a series issued to an Issuer Trust,
so long as any such Securities are held by such Issuer Trust, at least
one Business Day prior to the earlier of (i) the next succeeding date
on which Distributions on the Capital Securities of such Issuer Trust
would be payable but for such deferral, and (ii) the date on which the
Property Trustee of such Issuer Trust is required to give notice to
holders of such Capital Securities of the record date or the date such
Distributions are payable, but in any event not less than one Business
Day prior to such record date.
The Trustee shall promptly give notice of the Company's election
to begin any such Extension Period to the Holders of the Outstanding
Securities of such series.
SECTION 3.13. Right of Set-Off.
With respect to the Securities of a series initially issued to an
Issuer Trust, notwithstanding anything to the contrary herein, the
Company shall have the right to set off any payment it is otherwise
required to make in respect of any such Security to the extent the
Company has theretofore made, or is concurrently on the date of such
payment making, a payment under the Guarantee relating to such Security
or to a holder of Capital Securities pursuant to an action undertaken
under Section 5.8 of this Indenture.
SECTION 3.14. Agreed Tax Treatment.
Each Security issued hereunder shall provide that the Company and,
by its acceptance of a Security or a beneficial interest therein, the
Holder of, and any Person that acquires a beneficial interest in, such
Security agree that for United States Federal, state and local tax
purposes it is intended that such Security constitutes indebtedness.
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SECTION 3.15. Shortening or Extension of Stated
Maturity.
If specified as contemplated by Section 2.1 or Section 3.1 with
respect to the Securities of a particular series, the Company shall
have the right to (i) shorten the Stated Maturity of the principal of
the Securities of such series at any time to any date and (ii) extend
the Stated Maturity of the principal of the Securities of such series
at any time at its election for one or more periods, provided that, if
the Company elects to exercise its right to extend the Stated Maturity
of the principal of the Securities of such series pursuant to clause
(ii) above, at the time such election is made and at the time of
extension, such conditions as may be specified in such Securities shall
have been satisfied.
SECTION 3.16. CUSIP Numbers.
The Company, in issuing the Securities, may use "CUSIP" numbers
(if then generally in use), and, if so, the Trustee shall use "CUSIP"
numbers in notice of redemption and other similar or related materials
as a convenience to Holders; provided that any such notice or other
materials may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as
contained in any notice of redemption or other materials and that
reliance may be placed only on the other identification numbers printed
on the Securities, and any such redemption shall not be affected by any
defect in or omission of such numbers.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1. Satisfaction and Discharge of Indenture.
This Indenture shall, upon Company Request, cease to be of further
effect (except as to any surviving rights of registration of transfer
or exchange of Securities herein expressly provided for and as
otherwise provided in this Section 4.1) and the Trustee, on demand of
and at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and
delivered (other than (i) Securities that have been
destroyed, lost or stolen and that have been replaced or paid
as provided in Section 3.7 and
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(ii) Securities for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged
from such trust, as provided in Section 10.3) have been
delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore
delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their
Stated Maturity within one year of the date of
deposit, or
(iii) are to be called for redemption within one
year under arrangements satisfactory to the Trustee for
the giving of notice of redemption by the Trustee in the
name, and at the expense, of the Company,
and the Company, in the case of subclause (B)(i), (ii) or (iii)
above, has deposited or caused to be deposited with the Trustee as
trust funds in trust for such purpose an amount in the currency or
currencies in which the Securities of such series are payable
sufficient to pay and discharge the entire indebtedness on such
Securities not theretofore delivered to the Trustee for
cancellation, for the principal (and premium, if any) and interest
(including any Additional Interest) to the date of such deposit
(in the case of Securities that have become due and payable) or to
the Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all
other sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that all
conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been complied
with.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Company to the Trustee under Section 6.7,
the obligations of the Trustee to any Authenticating Agent under
Section 6.14 and, if money shall have been deposited with the
Trustee pursuant to subclause (B) of clause (1) of this Section,
the
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obligations of the Trustee under Section 4.2 and the last
paragraph of Section 10.3 shall survive.
SECTION 4.2 Application of Trust Money.
Subject to the provisions of the last paragraph of Section 10.3,
all money deposited with the Trustee pursuant to Section 4.1 shall be
held in trust and applied by the Trustee, in accordance with the
provisions of the Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as
its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal (and premium, if any) and interest
and Additional Interest for the payment of which such money or
obligations have been deposited with or received by the Trustee.
ARTICLE V
REMEDIES
SECTION 5.1. Events of Default.
"Event of Default", wherever used herein with respect to the
Securities of any series, means any one of the following events
(whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any Security
of that series, including any Additional Interest in respect
thereof, when it becomes due and payable, and continuance of such
default for a period of 30 days (subject to the deferral of any
due date in the case of an Extension Period); or
(2) default in the payment of the principal of (or
premium, if any, on) any Security of that series at its
Maturity; or
(3) failure on the part of the Company duly to observe or
perform any other of the covenants or agreements on the part of
the Company in the Securities of that series or in this Indenture
for a period of 90 days after the date on which written notice of
such failure, requiring the Company to remedy the same, shall have
been given to the Company by the Trustee by registered or
certified mail or to the Company and the
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Trustee by the Holders of at least 25% in aggregate
principal amount of the Outstanding Securities of that
series; or
(4) the occurrence of the appointment of a receiver or other
similar official in any liquidation, insolvency or similar
proceeding with respect to the Company or all or substantially all
of its property; or a court or other governmental agency shall
enter a decree or order and such decree or order shall remain
unstayed and undischarged for a period of 60 days; or
(5) any other Event of Default provided with respect to
Securities of that series.
SECTION 5.2. Acceleration of Maturity; Rescission and
Annulment.
If an Event of Default (other than an Event of Default specified
in Section 5.1(4)) with respect to Securities of any series at the time
Outstanding occurs and is continuing, then, and in every such case, the
Trustee or the Holders of not less than 25% in aggregate principal
amount of the Outstanding Securities of that series may declare the
principal amount (or, if the Securities of that series are Discount
Securities, such portion of the principal amount as may be specified in
the terms of that series) of all the Securities of that series to be
due and payable immediately, by a notice in writing to the Company (and
to the Trustee if given by Holders), provided that, in the case of the
Securities of a series issued to an Issuer Trust, if, upon an Event of
Default, the Trustee or the Holders of not less than 25% in principal
amount of the Outstanding Securities of such series fail to declare the
principal of all the Outstanding Securities of such series to be
immediately due and payable, the holders of at least 25% in aggregate
Liquidation Amount (as defined in the related Trust Agreement) of the
related series of Capital Securities issued by such Issuer Trust then
outstanding shall have the right to make such declaration by a notice
in writing to the Company and the Trustee; and upon any such
declaration such principal amount (or specified portion thereof) of and
the accrued interest (including any Additional Interest) on all the
Securities of such series shall become immediately due and payable. If
an Event of Default specified in Section 5.1(4) with respect to
Securities of any series at the time Outstanding occurs, the principal
amount of all the Securities of such series (or, if the Securities of
such series are Discount Securities, such portion of the principal
amount of such Securities as may be specified by the terms of that
series) shall automatically, and without any declaration or
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other action on the part of the Trustee or any Holder, become
immediately due and payable. Payment of principal and interest
(including any Additional Interest) on such Securities shall remain
subordinated to the extent provided in Article XIII notwithstanding
that such amount shall become immediately due and payable as herein
provided.
At any time after such a declaration of acceleration with respect
to Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a majority in
aggregate principal amount of the Outstanding Securities of that
series, by written notice to the Company and the Trustee, may rescind
and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the
Trustee a sum sufficient to pay:
(A) all overdue installments of interests on
all Securities of such series;
(B) any accrued Additional Interest on all
Securities of such series;
(C) the principal of (and premium, if any, on) any
Securities of such series that have become due otherwise than
by such declaration of acceleration and interest and
Additional Interest thereon at the rate borne by the
Securities; and
(D) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that
series, other than the non-payment of the principal of Securities
of that series that has become due solely by such acceleration,
have been cured or waived as provided in Section 5.13.
In the case of Securities of a series initially issued to an
Issuer Trust, if the Holders of such Securities fail to annul such
declaration and waive such default, the holders of a majority in
aggregate Liquidation Amount (as defined in the related Trust
Agreement) of the related series of Capital Securities issued by such
Issuer Trust then outstanding shall also have the right to rescind and
annul such declaration and its consequences by written notice to the
Company and the
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Trustee, subject to the satisfaction of the conditions set forth in
clauses (1) and (2) above of this section 5.2.
No such rescission shall affect any subsequent default or impair
any right consequent thereon.
SECTION 5.3 Collection of Indebtedness and Suits for
Enforcement by Trustee.
The Company covenants that if:
(1) default is made in the payment of any installment of
interest (including any Additional Interest) on any Security of
any series when such interest becomes due and payable and such
default continues for a period of 30 days, or
(2) default is made in the payment of the principal
of (and premium, if any, on) any Security at the Maturity
thereof,
the Company will, upon demand of the Trustee, pay to the Trustee,
for the benefit of the Holders of such Securities, the whole
amount then due and payable on such Securities for principal (and
premium, if any) and interest (including any Additional Interest),
and, in addition thereto, all amounts owing the Trustee under
Section 6.7.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express
trust, may institute a judicial proceeding for the collection of the
sums so due and unpaid, and may prosecute such proceeding to judgment
or final decree, and may enforce the same against the Company or any
other obligor upon such Securities and collect the monies adjudged or
decreed to be payable in the manner provided by law out of the property
of the Company or any other obligor upon the Securities, wherever
situated.
If an Event of Default with respect to Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of
Securities of such series by such appropriate judicial proceedings as
the Trustee shall deem most effectual to protect and enforce any such
rights, whether for the specific enforcement of any covenant or
agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
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SECTION 5.4. Trustee May File Proofs of Claim.
In case of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
or administrative proceeding relative to the Company or any other
obligor upon the Securities or the property of the Company or of such
other obligor or their creditors,
(a) the Trustee (irrespective of whether the principal of the
Securities of any series shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether
the Trustee shall have made any demand on the Company for the payment
of overdue principal (and premium, if any) or interest (including any
Additional Interest)) shall be entitled and empowered, by intervention
in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest (including any
Additional Interest) owing and unpaid in respect to the Securities
and to file such other papers or documents as may be necessary or
advisable and to take any and all actions as are authorized under
the Trust Indenture Act in order to have the claims of the Holders
and any predecessor to the Trustee under Section 6.7 allowed in
any such judicial or administrative proceedings; and
(ii) in particular, the Trustee shall be authorized to
collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same in
accordance with Section 5.6; and
(b) any custodian, receiver, assignee, trustee, liquidator,
sequestrator, conservator (or other similar official) in any such
judicial or administrative proceeding is hereby authorized by each
Holder to make such payments to the Trustee for distribution in
accordance with Section 5.6, and in the event that the Trustee shall
consent to the making of such payments directly to the Holders, to pay
to the Trustee any amount due to it and any predecessor Trustee under
Section 6.7.
Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to accept or adopt on behalf of any Holder any
plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder in
any such
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proceeding; provided, however, that the Trustee may, on behalf of the
Holders, vote for the election of a trustee in bankruptcy or similar
official and be a member of a creditors' or other similar committee.
SECTION 5.5. Trustee May Enforce Claim Without
Possession of Securities.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express
trust, and any recovery of judgment shall, subject to Article XIII and
after provision for the payment of all the amounts owing the Trustee
and any predecessor Trustee under Section 6.7, its agents and counsel,
be for the ratable benefit of the Holders of the Securities in respect
of which such judgment has been recovered.
SECTION 5.6 Application of Money Collected.
Any money or property collected or to be applied by the Trustee
with respect to a series of Securities pursuant to this Article shall
be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money or property on
account of principal (or premium, if any) or interest (including any
Additional Interest), upon presentation of the Securities and the
notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and
any predecessor Trustee under Section 6.7;
SECOND: Subject to Article XIII, to the payment of the amounts
then due and unpaid upon Securities of such series for principal (and
premium, if any) and interest (including any Additional 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 series of Securities
for principal (and premium, if any) and interest (including any
Additional Interest), respectively; and
THIRD: The balance, if any, to the Person or Persons
entitled thereto.
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SECTION 5.7 Limitation on Suits.
Subject to Section 5.8, no Holder of any Securities of any series
shall have any right to institute any proceeding, judicial or
otherwise, with respect to this Indenture or for the appointment of a
receiver, assignee, trustee, liquidator, sequestrator (or other similar
official) or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the
Securities of that series;
(2) the Holders of not less than 25% in aggregate principal
amount of the Outstanding Securities of that series shall have
made written request to the Trustee to institute proceedings in
respect of such Event of Default in its own name as Trustee
hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities
to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders
of a majority in aggregate principal amount of the Outstanding
Securities of that series;
it being understood and intended that no one or more of such
Holders shall have any right in any manner whatever by virtue of,
or by availing itself of, any provision of this Indenture to
affect, disturb or prejudice the rights of any other Holders of
Securities, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right
under this Indenture, except in the manner herein provided and for
the equal and ratable benefit of all such Holders.
SECTION 5.8. Unconditional Right of Holders to Receive
Principal, Premium and Interest; Direct
Action by Holders of Capital Securities.
Notwithstanding any other provision in this Indenture,
the Holder of any Security of any series shall have the right,
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which is absolute and unconditional, to receive payment of the
principal of (and premium, if any) and (subject to Sections 3.8 and
3.12) interest (including any Additional Interest) on such Security on
the respective Stated Maturities expressed in such Security (or in the
case of redemption, on the Redemption Date) and to institute suit for
the enforcement of any such payment, and such right shall not be
impaired without the consent of such Holder. In the case of Securities
of a series issued to an Issuer Trust, any registered holder of the
series of Capital Securities issued by such Issuer Trust shall have the
right, upon the occurrence of an Event of Default described in Section
5.1(1) or 5.1(2), to institute a suit directly against the Company for
enforcement of payment to such holder of principal of (premium, if any)
and (subject to Sections 3.8 and 3.12) interest (including any
Additional Interest) on the Securities having a principal amount equal
to the aggregate Liquidation Amount (as defined in the related Trust
Agreement) of such Capital Securities held by such holder.
SECTION 5.9. Restoration of Rights and Remedies.
If the Trustee, any Holder or any holder of Capital Securities
issued by any Issuer Trust has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined
adversely to the Trustee, such Holder or such holder of Capital
Securities, then, and in every such case, the Company, the Trustee,
such Holders and such holder of Capital Securities shall, subject to
any determination in such proceeding, be restored severally and
respectively to their former positions hereunder, and thereafter all
rights and remedies of the Trustee, such Holder and such holder of
Capital Securities shall continue as though no such proceeding had been
instituted.
SECTION 5.10. Rights and Remedies Cumulative.
Except as otherwise provided in the last paragraph of Section 3.7,
no right or remedy herein conferred upon or reserved to the Trustee or
the Holders is intended to be exclusive of any other right or remedy,
and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
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SECTION 5.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee, any Holder of any Security
with respect to the Securities of the related series or any holder of
any Capital Security to exercise any right or remedy accruing upon any
Event of Default with respect to the Securities of the related series
shall impair any such right or remedy or constitute a waiver of any
such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the
Trustee or to the Holders and the right and remedy given to the holders
of Capital Securities by Section 5.8 may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee, the
Holders or the holders of Capital Securities, as the case may be.
SECTION 5.12. Control by Holders.
The Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities of any series shall have the right
to direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee or exercising any trust or power
conferred on the Trustee, with respect to the Securities of such
series, provided that:
(1) such direction shall not be in conflict with
any rule of law or with this Indenture,
(2) the Trustee may take any other action deemed
proper by the Trustee that is not inconsistent with such
direction, and
(3) subject to the provisions of Section 6.1, the Trustee
shall have the right to decline to follow such direction if a
Responsible Officer or Officers of the Trustee shall, in good
faith, determine that the proceeding so directed would be unjustly
prejudicial to the Holders not joining in any such direction or
would involve the Trustee in personal liability.
SECTION 5.13. Waiver of Past Defaults.
The Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities of any series affected thereby
and, in the case of any Securities of a series initially issued to an
Issuer Trust, the holders of a majority in aggregate Liquidation Amount
(as defined in the related Trust Agreement) of the Capital Securities
issued by
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such Issuer Trust may waive any past default hereunder and its
consequences with respect to such series except a default:
(1) in the payment of the principal of (or premium, if any)
or interest (including any Additional Interest) on any Security of
such series (unless such default has been cured and the Company
has paid to or deposited with the Trustee a sum sufficient to pay
all matured installments of interest (including Additional
Interest) and all principal of (and premium, if any, on) all
Securities of that series due otherwise than by acceleration), or
(2) in respect of a covenant or provision hereof that under
Article IX cannot be modified or amended without the consent of
each Holder of any Outstanding Security of such series affected.
Any such waiver shall be deemed to be on behalf of the Holders of
all the Securities of such series, or in the case of waiver by holders
of Capital Securities issued by such Issuer Trust, by all holders of
Capital Securities issued by such Issuer Trust.
Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured,
for every purpose of this Indenture, but no such waiver shall extend to
any subsequent or other default or impair any right consequent thereon.
SECTION 5.14. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
Security by his acceptance thereof shall be deemed to have agreed, that
any court may, in its discretion, require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken or omitted by it as Trustee,
the filing by any party litigant in such suit of an undertaking to pay
the costs of such suit, and that such court may, in its discretion,
assess reasonable costs, including reasonable attorneys' fees, against
any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant, but
the provisions of this Section shall not apply to any suit instituted
by the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than 10% in aggregate principal
amount of the Outstanding Securities of any series, or to any suit
instituted by any Holder for the enforcement of the payment of the
principal of (or premium, if any) or interest (including
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any Additional Interest) on any Security on or after the respective
Stated Maturities expressed in such Security.
SECTION 5.15. Waiver of Usury, Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any usury, stay
or extension law wherever enacted, now or at any time hereafter in
force, which may affect the covenants or the performance of this
Indenture; and the Company (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law, and
covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
ARTICLE VI
THE TRUSTEE
SECTION 6.1. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of
Default,
(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and
no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates
or opinions furnished to the Trustee and conforming to the
requirements of this Indenture, but in the case of any such
certificates or opinions that by any provisions hereof are
specifically required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine whether or
not they conform to the requirements of this Indenture.
(b) In case an Event of Default has occurred and is continuing,
the Trustee shall exercise such of the rights and powers vested in it
by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent person would
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exercise or use under the circumstances in the conduct of his
or her own affairs.
(c) No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct except that
(1) this subsection shall not be construed to limit
the effect of subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be
proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(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 Holders pursuant to Section 5.12
relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this
Indenture with respect to the Securities of a series.
(d) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability
in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if there shall be reasonable grounds
for believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it.
(e) Whether or not therein expressly so provided, every provision
of this Indenture relating to the conduct or affecting the liability of
or affording protection to the Trustee shall be subject to the
provisions of this Section.
SECTION 6.2. 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 of any series, the Trustee shall transmit by mail to all
Holders of Securities of such series, as their names and addresses
appear in the Securities Register, notice of such default, unless such
default shall have been cured or waived; provided, however, that,
except in the case of a default in the payment of the principal of (or
premium, if any) or interest (including any Additional Interest) on any
Security of such series, the
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Trustee shall be protected in withholding such notice if and so long as
the board of directors, the executive committee or a trust committee of
directors and/or Responsible Officers of the Trustee in good faith
determines that the withholding of such notice is in the interests of
the Holders of Securities of such series; and provided further, that,
in the case of any default of the character specified in Section
5.1(3), no such notice to Holders of Securities of such series shall be
given until at least 30 days after the occurrence thereof. For the
purpose of this Section, the term "default" means any event that is, or
after notice or lapse of time or both would become, an Event of Default
with respect to Securities of such series.
SECTION 6.3. Certain Rights of Trustee.
Subject to the provisions of Section 6.1:
(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, direction, consent,
order, bond, debenture, 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 or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence
of bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities that might be
incurred by it in compliance with such request or direction;
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(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, indenture, Security or other paper or document, but the
Trustee in its discretion may make such inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall
determine to make such inquiry or investigation, it shall be entitled
to examine the books, records and premises of the Company, personally
or by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents
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 6.4. Not Responsible for Recitals or Issuance
of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the
statements of the Company, and neither the Trustee nor any
Authenticating Agent assumes any responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency
of this Indenture or of the Securities. Neither the Trustee nor any
Authenticating Agent shall be accountable for the use or application by
the Company of the Securities or the proceeds thereof.
SECTION 6.5. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any
Securities Registrar or any other agent of the Company, in its
individual or any other capacity, may become the owner or pledgee of
Securities and, subject to Sections 6.8 and 6.13, may otherwise deal
with the Company with the same rights it would have if it were not
Trustee, Authenticating Agent, Paying Agent, Securities Registrar or
such other agent.
SECTION 6.6. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The
Trustee shall be under no liability for interest on any money received
by it hereunder except as otherwise agreed with the Company.
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SECTION 6.7. Compensation and Reimbursement.
(a) The Company agrees to pay to the Trustee from time to time
reasonable compensation for all services rendered by it hereunder in
such amounts as the Company and the Trustee shall agree from time to
time (which compensation shall not be limited by any provision of law
in regard to the compensation of a trustee of an express trust).
(b) Since the Trust is being formed solely to facilitate an
investment in the Trust Securities, the Company, as borrower, hereby
covenants to pay all debts and obligations (other than with respect to
the Capital Securities and the Common Securities) and all costs and
expenses of the Issuer Trust (including without limitation all costs
and expenses relating to the organization of the Issuer Trust, the fees
and expenses of the trustees and all costs and expenses relating to the
operation of the Issuer Trust) and to pay any and all taxes, duties,
assessments or governmental charges of whatever nature (other than
withholding taxes) imposed on the Issuer Trust by the United States, or
any taxing authority, so that the net amounts received and retained by
the Issuer Trust and the Property Trustee after paying such expenses
will be equal to the amounts the Issuer Trust and the Property Trustee
would have received had no such costs or expenses been incurred by or
imposed on the Issuer Trust. The foregoing obligations of the Company
are for the benefit of, and shall be enforceable by, any person to whom
any such debts, obligations, costs, expenses and taxes are owed (each,
a "Creditor") whether or not such Creditor has received notice thereof.
Any such Creditor may enforce such obligations of the Company directly
against the Company, and the Company irrevocably waives any right or
remedy to require that any such Creditor take any action against the
Issuer Trust or any other person before proceeding against the Company.
The Company shall execute such additional agreements as may be
necessary or desirable to give full effect to the foregoing.
(c) The Company shall indemnify the Trustee for, and hold it
harmless against, any loss, liability or expense (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel) incurred without negligence or bad faith, arising
out of or in connection with the acceptance or administration of this
trust or the performance of its duties hereunder, including the costs
and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or
duties hereunder. This indemnification shall
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survive the termination of this Indenture or the resignation or removal
of the Trustee.
(d) The Company agrees to reimburse the Trustee upon its request
for all reasonable expenses, disbursements and advances incurred or
made by the Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 5.1(4) occurs, the expenses and
the compensation for the services are intended to constitute expenses
of administration under the Bankruptcy Reform Act of 1978 or any
successor statute.
SECTION 6.8. Disqualification; Conflicting Interests.
The Trustee for the Securities of any series issued hereunder
shall be subject to the provisions of Section 310(b) of the Trust
Indenture Act. Nothing herein shall prevent the Trustee from filing
with the Commission the application referred to in the second to last
paragraph of said Section 310(b).
SECTION 6.9. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be:
(a) an entity organized and doing business under the laws of the
United States of America or of any state or territory thereof or of the
District of Columbia, authorized under such laws to exercise corporate
trust powers and subject to supervision or examination by Federal,
state, territorial or District of Columbia authority, or
(b) an entity or other Person organized and doing business under
the laws of a foreign government that is permitted to act as Trustee
pursuant to a rule, regulation or order of the Commission, authorized
under such laws to exercise corporate trust powers, and subject to
supervision or examination by authority of such foreign government or a
political subdivision thereof substantially equivalent to supervision
or examination applicable to United States institutional trustees;
in either case having a combined capital and surplus of at
least $50,000,000, subject to supervision or examination by
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Federal or state authority. If such entity 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, the combined capital and surplus of such
entity shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. If at any
time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article. Neither the
Company nor any Person directly or indirectly controlling, controlled
by or under common control with the Company shall serve as Trustee for
the Securities of any series issued hereunder.
SECTION 6.10. Resignation and Removal; Appointment of
Successor.
(a) No resignation or removal of the Trustee and no appointment of
a successor Trustee pursuant to this Article shall become effective
until the acceptance of appointment by the successor Trustee under
Section 6.11.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to
the Company. If an instrument of acceptance by a successor Trustee
shall not have been delivered to the Trustee within 30 days after the
giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in
aggregate principal amount of the Outstanding Securities of such
series, delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 6.8 after
written request therefor by the Company or by any Holder who has
been a bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 6.9
and shall fail to resign after written request therefor by the
Company or by any such Holder, or
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(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or
of its property shall be appointed or any public officer shall
take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation;
then, in any such case, (i) the Company, acting pursuant to the
authority of a Board Resolution, may remove the Trustee with respect to
the Securities of all series issued hereunder, or (ii) subject to
Section 5.14, any Holder who has been a bona fide Holder of a Security
for at least six months may, on behalf of such Holder and all others
similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee with respect to the Securities of all series
issued hereunder and the appointment of a successor Trustee or
Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any
cause with respect to the Securities of one or more series, the
Company, by a Board Resolution, shall promptly appoint a successor
Trustee with respect to the Securities of that or those series. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the
Securities of any series shall be appointed by Act of the Holders of a
majority in aggregate principal amount of the Outstanding Securities of
such series delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of
such appointment, become the successor Trustee with respect to the
Securities of such series and supersede the successor Trustee appointed
by the Company. If no successor Trustee with respect to the Securities
of any series shall have been so appointed by the Company or the
Holders and accepted appointment in the manner hereinafter provided,
any Holder who has been a bona fide Holder of a Security of such series
for at least six months may, subject to Section 5.14, on behalf of such
Holder and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee with respect to the Securities
of any series by mailing written notice of such event by first-class
mail, postage prepaid, to the Holders of Securities of such series as
their names and addresses appear in the Securities Register. Each
notice
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shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust
Office.
SECTION 6.11. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee
with respect to all Securities, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company and to
the retiring Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee shall
become effective and such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee; but, on the request of the
Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring
to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee
hereunder.
(b) In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect
to the Securities of one or more series shall execute and deliver an
indenture supplemental hereto wherein each successor Trustee shall
accept such appointment and which (1) shall contain such provisions as
shall be necessary or desirable to transfer and confirm to, and to vest
in, each successor Trustee all the rights, powers, trusts and duties of
the retiring Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities,
shall contain such provisions as shall be deemed necessary or desirable
to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series
as to which the retiring Trustee is not retiring shall continue to be
vested in the retiring Trustee, and (3) shall add to or change any of
the provisions of this Indenture as shall be necessary to provide for
or facilitate the administration of the trusts hereunder by more than
one Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees or co-trustees of
the same trust and that each such Trustee shall be trustee of a trust
or trusts hereunder separate and apart from any trust or trusts
hereunder administered by any other such Trustee; and upon the
execution
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and delivery of such supplemental indenture the resignation or removal
of the retiring Trustee shall become effective to the extent provided
therein and each removal of the retiring Trustee, without any further
act, deed or conveyance, shall become vested with all the rights,
powers, trusts, and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company or any
successor Trustee, such retiring Trustee shall duly assign, transfer
and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that
or those series to which the appointment of such successor Trustee
relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may
be.
(d) No successor Trustee shall accept its appointment unless, at
the time of such acceptance, such successor Trustee shall be qualified
and eligible under this Article.
SECTION 6.12. Merger, Conversion, Consolidation or
Succession to Business.
Any entity into which the Trustee may be merged or converted or
with which it may be consolidated, or any entity resulting from any
merger, conversion or consolidation to which the Trustee shall be a
party, or any entity succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such entity shall be otherwise qualified
and eligible under this Article, without the execution or filing of any
paper or any further act on the part of any of the parties hereto. In
case any Securities shall have been authenticated, but not 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 Securities so authenticated, and in case
any Securities shall not have been authenticated, any successor to the
Trustee may authenticate such Securities either in the name of any
predecessor Trustee or in the name of such successor Trustee, and in
all cases the certificate of authentication shall have the full force
which it is provided anywhere in the Securities or in this Indenture
that the certificate of the Trustee shall have.
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SECTION 6.13. Preferential Collection of Claims Against
Company.
If and when the Trustee shall be or become a creditor of the
Company (or any other obligor upon the Securities), the Trustee shall
be subject to the provisions of the Trust Indenture Act regarding the
collection of claims against the Company (or any such other obligor).
SECTION 6.14. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with
respect to one or more series of Securities, which shall be authorized
to act on behalf of the Trustee to authenticate Securities of such
series issued upon original issue and upon exchange, registration of
transfer or partial redemption thereof or pursuant to Section 3.6, and
Securities so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in
this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference
shall be deemed to include authentication and delivery on behalf of the
Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be an entity organized
and doing business under the laws of the United States of America, or
of any state or territory thereof or of the District of Columbia,
authorized under such laws to act as Authenticating Agent, having a
combined capital and surplus of not less than $50,000,000 and subject
to supervision or examination by Federal or state authority. If such
Authenticating Agent publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section the combined capital
and surplus of such Authenticating Agent shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall
cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent shall resign immediately in the manner and
with the effect specified in this Section.
Any entity into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any entity resulting
from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any entity succeeding to all
or substantially all of the corporate trust business of an
Authenticating Agent shall
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be the successor Authenticating Agent hereunder, provided such entity
shall be otherwise eligible under this Section, without the execution
or filing of any paper or any further act on the part of the Trustee or
the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at
any time terminate the agency of an Authenticating Agent by giving
written notice thereof to such Authenticating Agent and to the Company.
Upon receiving such a notice of resignation or upon such a termination,
or in case at any time such Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, the Trustee
may appoint a successor Authenticating Agent, which shall be acceptable
to the Company and shall give notice of such appointment in the manner
provided in Section 1.6 to all Holders of Securities of the series with
respect to which such Authenticating Agent will serve. Any successor
Authenticating Agent upon acceptance hereunder shall become vested with
all the rights, powers and duties of its predecessor hereunder, with
like effect as if originally named as an Authenticating Agent. No
successor Authenticating Agent shall be appointed unless eligible under
the provision of this Section.
The Company agrees to pay to each Authenticating Agent from time
to time reasonable compensation for its services under this Section,
and the Trustee shall be entitled to be reimbursed for such payment,
subject to the provisions of Section 6.7.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have
endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternative certificate of authentication in the
following form:
This is one of the Securities referred to in the within mentioned
Indenture.
Dated: _________________ BANKERS TRUST COMPANY,
as Trustee
By:
-----------------------------
As Authenticating Agent
Name:
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Title:
By:
-----------------------------
Authorized Officer
Name:
Title:
ARTICLE VII
HOLDER'S LISTS AND REPORTS BY TRUSTEE,
PAYING AGENT AND COMPANY
SECTION 7.1. Company to Furnish Trustee Names and
Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not more than 15 days after January 15 and July
15 in each year, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders as of such dates,
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, excluding from any such list
names and addresses received by the Trustee in its capacity as
Securities Registrar.
SECTION 7.2. Preservation of Information,
Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in
the most recent list furnished to the Trustee as provided in Section
7.1 and the names and addresses of Holders received by the Trustee in
its capacity as Securities Registrar. The Trustee may destroy any list
furnished to it as provided in Section 7.1 upon receipt of a new list
so furnished.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities,
and the corresponding rights and privileges of the Trustee, shall be as
provided in the Trust Indenture Act.
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(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor
the Trustee nor any agent of either of them shall be held accountable
by reason of the disclosure of information as to the names and
addresses of the Holders made pursuant to the Trust Indenture Act.
SECTION 7.3. Reports by Trustee and Paying Agent.
(a) The Trustee shall transmit to Holders such reports concerning
the Trustee and its actions under this Indenture as may be required
pursuant to the Trust Indenture Act, at the times and in the manner
provided pursuant thereto.
(b) Reports so required to be transmitted at stated intervals of
not more than 12 months shall be transmitted no later than January 31
in each calendar year, commencing with the first January 31 after the
first issuance of Securities under this Indenture.
(c) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each securities
exchange upon which any Securities are listed and also with the
Commission. The Company will notify the Trustee when any Securities are
listed on any securities exchange.
(d) The Paying Agent shall comply with all withholding, backup
withholding, tax and information reporting requirements under the
Internal Revenue Code of 1986, as amended, and the Treasury Regulations
issued thereunder with respect to payments on, or with respect to, the
Securities.
SECTION 7.4. Reports by Company.
The Company shall file or cause to be filed with the Trustee and
with the Commission, and transmit to Holders, such information,
documents and other reports, and such summaries thereof, as may be
required pursuant to the Trust Indenture Act at the times and in the
manner provided in the Trust Indenture Act. In the case of information,
documents or reports required to be filed with the Commission pursuant
to Section 13(a) or Section 15(d) of the Exchange Act, the Company
shall file or cause the filing of such information, documents or
reports with the Trustee within 15 days after the same are required to
be filed with the Commission.
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ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1. Company May Consolidate, Etc., Only on
Certain Terms.
The Company shall not consolidate with or merge into any other
Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, and no Person shall
consolidate with or merge into the Company or convey, transfer or lease
its properties and assets substantially as an entirety to the Company,
unless:
(1) If the Company shall consolidate with or merge into
another Person or convey, transfer or lease its properties and
assets substantially as an entirety to any Person, the entity
formed by such consolidation or into which the Company is merged
or the Person that acquires by conveyance or transfer, or that
leases, the properties and assets of the Company substantially as
an entirety shall be an entity organized and existing under the
laws of the United States of America or any state thereof or the
District of Columbia and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in
form satisfactory to the Trustee, the due and punctual payment of
the principal of (and premium, if any), and interest (including
any Additional Interest) on all the Securities of every series and
the performance of every covenant of this Indenture on the part of
the Company to be performed or observed;
(2) immediately after giving effect to such transaction, no
Event of Default, and no event that, after notice or lapse of
time, or both, would constitute an Event of Default, shall have
occurred and be continuing; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and any such
supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such
transaction have been complied with and, in the case of a
transaction subject to this Section 8.1 but not requiring a
supplemental indenture under paragraph (1) of this Section 8.1, an
Officer's Certificate or Opinion of Counsel to the effect that the
surviving, resulting or successor entity is legally bound by the
Indenture and the Securities; and the Trustee, subject to Section
6.1,
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may rely upon such Officers' Certificates and Opinions of Counsel
as conclusive evidence that such transaction complies with this
Section 8.1.
SECTION 8.2. Successor Company Substituted.
Upon any consolidation or merger by the Company with or into any
other Person, or any conveyance, transfer or lease by the Company of
its properties and assets substantially as an entirety to any Person in
accordance with Section 8.1, the successor entity formed by such
consolidation or into which the Company is merged or to which such
conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company
under this Indenture with the same effect as if such successor Person
had been named as the Company herein; and in the event of any such
conveyance, transfer or lease the Company shall be discharged from all
obligations and covenants under the Indenture and the Securities.
Such successor Person may cause to be executed, and may issue
either in its own name or in the name of the Company, any or all of the
Securities issuable hereunder that theretofore shall not have been
signed by the Company and delivered to the Trustee; and, upon the order
of such successor Person instead of the Company and subject to all the
terms, conditions and limitations in this Indenture prescribed, the
Trustee shall authenticate and shall deliver any Securities that
previously shall have been signed and delivered by the officers of the
Company to the Trustee for authentication pursuant to such provisions
and any Securities that such successor Person thereafter shall cause to
be executed and delivered to the Trustee on its behalf for the purpose
pursuant to such provisions. All the Securities so issued shall in all
respects have the same legal rank and benefit under this Indenture as
the Securities theretofore or thereafter issued in accordance with the
terms of this Indenture.
In case of any such consolidation, merger, sale, conveyance or
lease, such changes in phraseology and form may be made in the
Securities thereafter to be issued as may be appropriate.
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ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1. Supplemental Indentures Without Consent of
Holders.
Without the consent of any Holders, the Company, when authorized
by a Board Resolution, and the Trustee, at any time and from time to
time, may amend or waive any provision of this Indenture or may enter
into one or more indentures supplemental hereto, in form satisfactory
to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company, and the assumption by any such successor of the covenants
of the Company herein and in the Securities contained; or
(2) to convey, transfer, assign, mortgage or pledge any
property to or with the Trustee or to surrender any right or power
herein conferred upon the Company; or
(3) to establish the form or terms of Securities of
any series as permitted by Sections 2.1 or 3.1; or
(4) to facilitate the issuance of Securities of any
series in certificated or other definitive form; or
(5) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (and if such
covenants are to be for the benefit of less than all series of
Securities, stating that such covenants are expressly being
included solely for the benefit of the series specified) or to
surrender any right or power herein conferred upon the Company; or
(6) to add any additional Events of Default for the benefit
of the Holders of all or any series of Securities (and if such
additional Events of Defaults are to be for the benefit of less
than all series of Securities, stating that such additional Events
of Default are expressly being included solely for the benefit of
the series specified); or
(7) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall (a)
become effective only when there is no Security Outstanding of any
series created prior to the execution of such supplemental
indenture that is
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entitled to the benefit of such provision or (b) not
apply to any Outstanding Securities; or
(8) to cure any ambiguity, to correct or supplement any
provision herein that may be defective or inconsistent with any
other provision herein, or to make any other provisions with
respect to matters or questions arising under this Indenture,
provided that such action pursuant to this clause (8) shall not
adversely affect the interest of the Holders of Securities of any
series in any material respect or, in the case of the Securities
of a series issued to an Issuer Trust and for so long as any of
the corresponding series of Capital Securities issued by such
Issuer Trust shall remain outstanding, the holders of such Capital
Securities; or
(9) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of
one or more series and to add to or change any of the provisions
of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than
one Trustee, pursuant to the requirements of Section 6.11(b); or
(10) to comply with the requirements of the Commission in
order to effect or maintain the qualification of this Indenture
under the Trust Indenture Act.
SECTION 9.2. Supplemental Indentures with Consent of
Holders.
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities of each series
affected by such supplemental indenture, by Act of said Holders
delivered to the Company and the Trustee, the Company, when authorized
by a Board Resolution, and the Trustee may enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders
of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the
Holder of each Outstanding Security of each series affected thereby,
(1) change the Stated Maturity of the principal of,
or any installment of interest (including any Additional
Interest) on, any Security, or reduce the principal
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amount thereof or the rate of interest thereon or any premium
payable upon the redemption thereof, or reduce the amount of
principal of a Discount Security that would be due and payable
upon a declaration of acceleration of the Maturity thereof
pursuant to Section 5.2, or change the place of payment where, or
the coin or currency in which, any Security or interest thereon is
payable, or impair the right to institute suit for the enforcement
of any such payment on or after the Stated Maturity thereof (or,
in the case of redemption, on or after the Redemption Date), or
(2) reduce the percentage in aggregate principal amount of
the Outstanding Securities of any series, the consent of whose
Holders is required for any such supplemental indenture, or the
consent of whose Holders is required for any waiver (of compliance
with certain provisions of this Indenture or certain defaults
hereunder and their consequences) provided for in this Indenture,
or
(3) modify any of the provisions of this Section, Section
5.13 or Section 10.5, except to increase any such percentage or to
provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each
Security affected thereby;
provided, further, that, in the case of the Securities of a series
issued to an Issuer Trust, so long as any of the corresponding
series of Capital Securities issued by such Issuer Trust remains
outstanding, (i) no such amendment shall be made that adversely
affects the holders of such Capital Securities in any material
respect, and no termination of this Indenture shall occur, and no
waiver of any Event of Default or compliance with any covenant
under this Indenture shall be effective, without the prior consent
of the holders of at least a majority of the aggregate Liquidation
Amount (as defined in the related Trust Agreement) of such Capital
Securities then outstanding unless and until the principal of (and
premium, if any, on) the Securities of such series and all accrued
and (subject to Section 3.8) unpaid interest (including any
Additional Interest) thereon have been paid in full, and (ii) no
amendment shall be made to Section 5.8 of this Indenture that
would impair the rights of the holders of Capital Securities
issued by an Issuer Trust provided therein without the prior
consent of the holders of each such Capital Security then
outstanding unless and until the principal of (and premium, if
any, on) the Securities of such series and
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all accrued and (subject to Section 3.8) unpaid interest
(including any Additional Interest) thereon have been paid in
full.
A supplemental indenture that changes or eliminates any covenant
or other provision of this Indenture that has expressly been included
solely for the benefit of one or more particular series of Securities
or any corresponding series of Capital Securities of an Issuer Trust
that holds the Securities of any series, or that modifies the rights of
the Holders of Securities of such series or holders of such Capital
Securities of such corresponding series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series or holders
of Capital Securities of any other such corresponding series.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the
substance thereof.
SECTION 9.3. Execution of Supplemental Indentures.
In executing or accepting the additional trusts created by any
supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be
entitled to receive, and (subject to Section 6.1) shall be fully
protected in relying upon, an Officers' Certificate and an Opinion of
Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture, and that all conditions
precedent herein provided for relating to such action have been
complied with. The Trustee may, but 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.
SECTION 9.4. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and
such supplemental indenture shall form a part of this Indenture for all
purposes; and every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.
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SECTION 9.5. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act as then in
effect.
SECTION 9.6. Reference in Securities to Supplemental
Indentures.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if
required by the Company, bear a notation in form approved by the
Company as to any matter provided for in such supplemental indenture.
If the Company shall so determine, new Securities of any series so
modified as to conform, in the opinion of the Company, to any such
supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series.
ARTICLE X
COVENANTS
SECTION 10.1. Payment of Principal, Premium and
Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and
premium, if any) and interest (including any Additional Interest) on
the Securities of that series in accordance with the terms of such
Securities and this Indenture.
SECTION 10.2. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series
of Securities an office or agency where Securities of that series may
be presented or surrendered for payment, where Securities of that
series may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served. The Company
initially appoints the Trustee, acting through its Corporate Trust
Office, as its agent for said purposes. The Company will give prompt
written notice to the Trustee of any change in the location of any such
office or agency. If at any time the Company shall fail to maintain
such office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands
may be
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made or served at the Corporate Trust Office of the Trustee, and the
Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or
surrendered for any or all of such purposes, and may from time to time
rescind such designations; provided, however, that no such designation
or rescission shall in any manner relieve the Company of its obligation
to maintain an office or agency in each Place of Payment for Securities
of any series for such purposes. The Company will give prompt written
notice to the Trustee of any such designation and any change in the
location of any such office or agency.
SECTION 10.3. Money for Security Payments to be Held in
Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due
date of the principal of (and premium, if any) or interest (including
Additional Interest) on any of the Securities of such series, segregate
and hold in trust for the benefit of the Persons entitled thereto a sum
sufficient to pay the principal (and premium, if any) or interest
(including Additional Interest) so becoming due until such sums shall
be paid to such Persons or otherwise disposed of as herein provided,
and will promptly notify the Trustee of its failure so to act.
Whenever the Company shall have one or more Paying Agents, it
will, prior to 10:00 a.m., New York City time, on each due date of the
principal of (or premium, if any) or interest, including Additional
Interest on any Securities, deposit with a Paying Agent a sum
sufficient to pay the principal (and premium, if any) or interest,
including Additional Interest so becoming due, such sum to be held in
trust for the benefit of the Persons entitled to such principal (and
premium, if any) or interest, including Additional Interest, and
(unless such Paying Agent is the Trustee) the Company will promptly
notify the Trustee of its failure so to act.
The Company will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying
Agent shall agree with the Trustee, subject to the provisions of this
Section, that such Paying Agent will:
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(1) hold all sums held by it for the payment of the principal of
(and premium, if any, or interest (including Additional Interest) on
the Securities of a series in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon such Securities) in the making of any payment of
principal (and premium, if any) or interest (or Additional Interest) in
respect of any Security of any Series;
(3) at any time during the continuance of any default with respect
to a series of Securities, upon the written request of the Trustee,
forthwith pay to the Trustee all sums so held in trust by such Paying
Agent with respect to such series; and
(4) comply with the provisions of the Trust Indenture Act
applicable to it as a Paying Agent.
The Company may, at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose,
pay, or by Company Order direct any Paying Agent to pay, to the Trustee
all sums held in trust by the Company or such Paying Agent, such sums
to be held by the Trustee upon the same terms as those upon which such
sums were held by the Company or such Paying Agent; and, upon such
payment by any Paying Agent to the Trustee, such Paying Agent shall be
released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company in trust for the payment of the principal of (and
premium, if any) or interest (including Additional Interest) on any
Security and remaining unclaimed for two years after such principal
(and premium, if any) or interest (including Additional Interest) has
become due and payable shall (unless otherwise required by mandatory
provision of applicable escheat or abandoned or unclaimed property law)
be paid on Company Request to the Company, or (if then held by the
Company) shall (unless otherwise required by mandatory provision of
applicable escheat or abandoned or unclaimed property law) be
discharged from such trust; and the Holder of such Security shall
thereafter, as an unsecured general creditor, look only to the Company
for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however,
that the Trustee or such Paying Agent, before being
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required to make any such repayment, may at the expense of the Company
cause to be published once, in a newspaper published in the English
language, customarily published on each Business Day and of general
circulation in the Borough of Manhattan, the City of New York, notice
that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be
repaid to the Company.
SECTION 10.4. Statement as to Compliance.
The Company shall deliver to the Trustee, within 120 days after
the end of each fiscal year of the Company ending after the date
hereof, an Officers' Certificate covering the preceding calendar year,
stating whether or not to the best knowledge of the signers thereof the
Company is in default in the performance, observance or fulfillment of
or compliance with any of the terms, provisions, covenants and
conditions of this Indenture, and if the Company shall be in default,
specifying all such defaults and the nature and status thereof of which
they may have knowledge. For the purpose of this Section 10.4,
compliance shall be determined without regard to any grace period or
requirement of notice provided pursuant to the terms of this Indenture.
SECTION 10.5. Waiver of Certain Covenants.
Subject to the rights of holders of Capital Securities specified
in Section 9.2, if any, the Company may omit in any particular instance
to comply with any covenant or condition provided pursuant to Section
3.1, 9.1(3) or 9.1(4) with respect to the Securities of any series, if
before or after the time for such compliance the Holders of at least a
majority in aggregate principal amount of the Outstanding Securities of
such series shall, by Act of such Holders, either waive such compliance
in such instance or generally waive compliance with such covenant or
condition, but no such waiver shall extend to or affect such covenant
or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company in
respect of any such covenant or condition shall remain in full force
and effect.
SECTION 10.6. Additional Sums.
In the case of the Securities of a series initially issued to an
Issuer Trust, so long as no Event of Default has occurred and is
continuing and except as otherwise specified as contemplated by Section
2.1 or Section 3.1, if (i) an
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Issuer Trust is the Holder of all of the Outstanding Securities of such
series, and (ii) a Tax Event described in clause (i) or (iii) of the
definition of the term "Tax Event" in Section 1.1 hereof has occurred
and is continuing in respect of such Issuer Trust, the Company shall
pay to such Issuer Trust (and its permitted successors or assigns under
the related Trust Agreement) for so long as such Issuer Trust (or its
permitted successor or assignee) is the registered holder of the
Outstanding Securities of such series, such additional sums as may be
necessary in order that the amount of Distributions (including any
Additional Amounts (as defined in such Trust Agreement)) then due and
payable by such Issuer Trust on the related Capital Securities and
Common Securities that at any time remain outstanding in accordance
with the terms thereof shall not be reduced as a result of such
Additional Taxes (the "Additional Sums"). Whenever in this Indenture or
the Securities there is a reference in any context to the payment of
principal of or interest on the Securities, such mention shall be
deemed to include mention of the payments of the Additional Sums
provided for in this paragraph to the extent that, in such context,
Additional Sums are, were or would be payable in respect thereof
pursuant to the provisions of this paragraph and express mention of the
payment of Additional Sums (if applicable) in any provisions hereof
shall not be construed as excluding Additional Sums in those provisions
hereof where such express mention is not made; provided, however, that
the deferral of the payment of interest pursuant to Section 3.12 on the
Securities shall not defer the payment of any Additional Sums that may
be due and payable.
SECTION 10.7. Additional Covenants.
The Company covenants and agrees with each Holder of Securities of
each series that it shall not (x) declare or pay any dividends or
distributions on, or redeem, purchase, acquire or make a liquidation
payment with respect to, any shares of the Company's capital stock, or
(y) make any payment of principal of or interest or premium, if any, on
or repay, repurchase or redeem any debt securities of the Company that
rank pari passu in all respects with or junior in interest to the
Securities of such series, including the Company's obligations
associated with the Outstanding Capital Securities (other than (a)
repurchases, redemptions or other acquisitions of shares of capital
stock of the Company in connection with any employment contract,
benefit plan or other similar arrangement with or for the benefit of
any one or more employees, officers, directors or consultants, in
connection with a dividend reinvestment or stockholder stock purchase
plan or in connection with the issuance of capital stock of
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the Company (or securities convertible into or exercisable for such
capital stock) as consideration in an acquisition transaction entered
into prior to the applicable Extension Period or other event referred
to below, (b) as a result of an exchange or conversion of any class or
series of the Company's capital stock (or any capital stock of a
Subsidiary of the Company) for any class or series of the Company's
capital stock or of any class or series of the Company's indebtedness
for any class or series of the Company's capital stock, (c) the
purchase of fractional interests in shares of the Company's capital
stock pursuant to the conversion or exchange provisions of such capital
stock or the security being converted or exchanged, (d) any declaration
of a dividend in connection with any Rights Plan, or the issuance of
rights, stock or other property under any Rights Plan, or the
redemption or repurchase of rights pursuant thereto, or (e) any
dividend in the form of stock, warrants, options or other rights where
the dividend stock or the stock issuable upon exercise of such
warrants, options or other rights is the same stock as that on which
the dividend is being paid or ranks pari passu with or junior to such
stock) if at such time (i) there shall have occurred any event (A) of
which the Company has actual knowledge that with the giving of notice
or the lapse of time, or both, would constitute an Event of Default
with respect to the Securities of such series, and (B) which the
Company shall not have taken reasonable steps to cure, (ii) if the
Securities of such series are held by an Issuer Trust, the Company
shall be in default with respect to its payment of any obligations
under the Guarantee relating to the Capital Securities issued by such
Issuer Trust, or (iii) the Company shall have given notice of its
election to begin an Extension Period with respect to the Securities of
such series as provided herein and shall not have rescinded such
notice, or such Extension Period, or any extension thereof, shall be
continuing.
The Company also covenants with each Holder of Securities of a
series issued to an Issuer Trust (i) to hold, directly or indirectly,
100% of the Common Securities of such Issuer Trust, provided that any
permitted successor of the Company as provided under Section 8.2 may
succeed to the Company's ownership of such Common Securities, (ii) as
holder of such Common Securities, not to voluntarily terminate, windup
or liquidate such Issuer Trust, other than (a) in connection with a
distribution of the Securities of such series to the holders of the
related Capital Securities in liquidation of such Issuer Trust, or (b)
in connection with certain mergers, consolidations or amalgamations
permitted by the related Trust Agreement, and (iii) to use its
reasonable efforts, consistent with the terms and provisions of such
Trust Agreement, to
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cause such Issuer Trust to continue not to be taxable as a corporation
for United States Federal income tax purposes.
SECTION 10.8. Original Issue Discount.
On or before December 15 of each year during which any Securities
are outstanding, the Company shall furnish to each Paying Agent such
information as may be reasonably requested by each Paying Agent in
order that each Paying Agent may prepare the information which it is
required to report for such year on Internal Revenue Service Forms 1096
and 1099 pursuant to Section 6049 of the Internal Revenue Code of 1986,
as amended. Such information shall include the amount of original issue
discount includible in income for each authorized minimum denomination
of principal amount at Stated Maturity of outstanding Securities during
such year.
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.1. Applicability of This Article.
Redemption of Securities of any series as permitted or required by
any form of Security issued pursuant to this Indenture shall be made in
accordance with such form of Security and this Article; provided,
however, that, if any provision of any such form of Security shall
conflict with any provision of this Article, the provision of such form
of Security shall govern.
SECTION 11.2. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by or pursuant to a Board Resolution. In case of any
redemption at the election of the Company, the Company shall, not less
than 30 nor more than 60 days prior to the Redemption Date (unless a
shorter notice shall be satisfactory to the Trustee), notify the
Trustee and, in the case of Securities of a series held by an Issuer
Trust, the Property Trustee under the related Trust Agreement, of such
date and of the principal amount of Securities of the applicable series
to be redeemed and provide the additional information required to be
included in the notice or notices contemplated by Section 11.4;
provided that, in the case of any series of Securities initially issued
to an Issuer Trust, for so long as such Securities are held by such
Issuer Trust, such notice shall be given not less than 45 nor more than
75 days prior to such Redemption Date (unless a shorter notice shall be
satisfactory to the Property Trustee under the
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related Trust Agreement). In the case of any redemption of Securities
prior to the expiration of any restriction on such redemption provided
in the terms of such Securities, the Company shall furnish the Trustee
with an Officers' Certificate and an Opinion of Counsel evidencing
compliance with such restriction.
SECTION 11.3. Selection of Securities to be Redeemed.
If less than all the Securities of any series are to be redeemed,
the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities of such series not previously called for
redemption, by such method as the Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of a
portion of the principal amount of any Security of such series,
provided that the unredeemed portion of the principal amount of any
Security shall be in an authorized denomination (which shall not be
less than the minimum authorized denomination) for such Security.
The Trustee shall promptly notify the Company in writing of the
Securities selected for partial redemption and the principal amount
thereof to be redeemed. For all purposes of this Indenture, unless the
context otherwise requires, all provisions relating to the redemption
of Securities shall relate, in the case of any Security redeemed or to
be redeemed only in part, to the portion of the principal amount of
such Security that has been or is to be redeemed.
SECTION 11.4. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not later than the thirtieth day, and not earlier than
the sixtieth day, prior to the Redemption Date, to each Holder of
Securities to be redeemed, at the address of such Holder as it appears
in the Securities Register.
With respect to Securities of such series to be redeemed, each
notice of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price or, if the Redemption Price cannot be
calculated prior to the time the notice is required to be sent, the
estimate of the Redemption Price provided pursuant to the Indenture
together with a statement that it is an estimate and that the actual
Redemption Price will be
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calculated on the third Business Day prior to the Redemption Date (if
such an estimate of the Redemption Price is given, a subsequent notice
shall be given as set forth above setting forth the Redemption Price
promptly following the calculation thereof);
(c) if less than all Outstanding Securities of such particular
series are to be redeemed, the identification (and, in the case of
partial redemption, the respective principal amounts) of the particular
Securities to be redeemed;
(d) that, on the Redemption Date, the Redemption Price will become
due and payable upon each such Security or portion thereof, and that
interest thereon, if any, shall cease to accrue on and after said date;
(e) the place or places where such Securities are to be
surrendered for payment of the Redemption Price;
(f) such other provisions as may be required in respect of the
terms of a particular series of Securities; and
(g) that the redemption is for a sinking fund, if such is the
case.
Notice of redemption of Securities to be redeemed at the election
of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company
and shall be irrevocable. The notice, if mailed in the manner provided
above, shall be conclusively presumed to have been duly given, whether
or not the Holder receives such notice. In any case, a failure to give
such notice by mail or any defect in the notice to the Holder of any
Security designated for redemption as a whole or in part shall not
affect the validity of the proceedings for the redemption of any other
Security.
SECTION 11.5. Deposit of Redemption Price.
Prior to 10:00 a.m., New York City time, on the Redemption Date
specified in the notice of redemption given as provided in Section
11.4, the Company will deposit with the Trustee or with one or more
Paying Agents (or if the Company is acting as its own Paying Agent, the
Company will segregate and hold in trust as provided in Section 10.3)
an amount of money sufficient to pay the Redemption Price of, and any
accrued interest (including Additional Interest) on, all the Securities
(or portions thereof) that are to be redeemed on that date.
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SECTION 11.6. Payment of Securities Called for
Redemption.
If any notice of redemption has been given as provided in Section
11.4, the Securities or portion of Securities with respect to which
such notice has been given shall become due and payable on the date and
at the place or places stated in such notice at the applicable
Redemption Price, together with accrued interest (including any
Additional Interest) to the Redemption Date. On presentation and
surrender of such Securities at a Place of Payment in said notice
specified, the said Securities or the specified portions thereof shall
be paid and redeemed by the Company at the applicable Redemption Price,
together with accrued interest (including any Additional Interest) to
the Redemption Date; provided, however, that, unless otherwise
specified as contemplated by Section 3.1, installments of interest
(including Additional Interest) whose Stated Maturity is on or prior to
the Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, registered as such at the close
of business on the relevant record dates according to their terms and
the provisions of Section 3.8.
Upon presentation of any Security redeemed in part only, the
Company shall execute and the Trustee shall authenticate and deliver to
the Holder thereof, at the expense of the Company, a new Security or
Securities of the same series, of authorized denominations, in
aggregate principal amount equal to the unredeemed portion of the
Security so presented and having the same Original Issue Date, Stated
Maturity and terms.
If any Security called for redemption shall not be so paid under
surrender thereof for redemption, the principal of and premium, if any,
on such Security shall, until paid, bear interest from the Redemption
Date at the rate prescribed therefor in the Security.
SECTION 11.7. Right of Redemption of Securities
Initially Issued to an Issuer Trust.
In the case of the Securities of a series initially issued to an
Issuer Trust, except as otherwise specified as contemplated by Section
3.1, the Company, at its option, may redeem such Securities (i) on or
after the date specified in such Security, in whole at any time or in
part from time to time, or (ii) upon the occurrence and during the
continuation of a Tax Event, an Investment Company Event or a Capital
Treatment Event, at any time within 90 days following the occurrence
and during the continuation of such Tax Event,
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Investment Company Event or Capital Treatment Event, in whole (but not
in part), in each case at a Redemption Price specified in such
Security, together with accrued interest (including Additional
Interest) to the Redemption Date.
If less than all the Securities of any such series are to be
redeemed, the aggregate principal amount of such Securities remaining
Outstanding after giving effect to such redemption shall be sufficient
to satisfy any provisions of the Trust Agreement related to the Issuer
Trust to which such Securities were issued.
ARTICLE XII
SINKING FUNDS
Except as may be provided in any supplemental or amended
indenture, no sinking fund shall be established or maintained for the
retirement of Securities of any series.
ARTICLE XIII
SUBORDINATION OF SECURITIES
SECTION 13.1. Securities Subordinate to Senior
Indebtedness.
The Company covenants and agrees, and each Holder of a Security,
by its acceptance thereof, likewise covenants and agrees, that, to the
extent and in the manner hereinafter set forth in this Article, the
payment of the principal of (and premium, if any) and interest
(including any Additional Interest) on each and all of the Securities
of each and every series are hereby expressly made subordinate and
subject in right of payment to the prior payment in full of all Senior
Indebtedness.
SECTION 13.2. No Payment When Senior Indebtedness in
Default; Payment Over of Proceeds Upon
Dissolution, Etc.
If the Company shall default in the payment of any principal of
(or premium, if any) or interest on any Senior Indebtedness when the
same becomes due and payable, whether at maturity or at a date fixed
for prepayment or by declaration of acceleration or otherwise, then,
upon written notice of such default to the Company by the holders of
Senior Indebtedness or any trustee therefor, unless and until such
default shall have been cured or waived or shall have ceased to exist,
no direct or indirect payment (in cash, property,
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securities, by set-off or otherwise) shall be made or agreed to be made
on account of the principal of (or premium, if any) or interest
(including Additional Interest) on any of the Securities, or in respect
of any redemption, repayment, retirement, purchase or other acquisition
of any of the Securities.
In the event of (i) any insolvency, bankruptcy, receivership,
liquidation, reorganization, readjustment, composition or other similar
proceeding relating to the Company, its creditors or its property, (ii)
any proceeding for the liquidation, dissolution or other winding up of
the Company, voluntary or involuntary, whether or not involving
insolvency or bankruptcy proceedings, (iii) any assignment by the
Company for the benefit of creditors or (iv) any other marshalling of
the assets of the Company (each such event, if any, herein sometimes
referred to as a "Proceeding"), all Senior Indebtedness (including any
interest thereon accruing after the commencement of any such
proceedings) shall first be paid in full before any payment or
distribution, whether in cash, securities or other property, shall be
made to any Holder of any of the Securities on account thereof. Any
payment or distribution, whether in cash, securities or other property
(other than securities of the Company or any other entity provided for
by a plan of reorganization or readjustment, the payment of which is
subordinate, at least to the extent provided in these subordination
provisions with respect to the indebtedness evidenced by the
Securities, to the payment of all Senior Indebtedness at the time
outstanding and to any securities issued in respect thereof under any
such plan of reorganization or readjustment), which would otherwise
(but for these subordination provisions) be payable or deliverable in
respect of the Securities of any series shall be paid or delivered
directly to the holders of Senior Indebtedness in accordance with the
priorities then existing among such holders until all Senior
Indebtedness (including any interest thereon accruing after the
commencement of any Proceeding) shall have been paid in full.
In the event of any Proceeding, after payment in full of all sums
owing with respect to Senior Indebtedness, the Holders of the
Securities, together with the holders of any obligations of the Company
ranking on a parity with the Securities, shall be entitled to be paid
from the remaining assets of the Company the amounts at the time due
and owing on account of unpaid principal of (and premium, if any) and
interest on the Securities and such other obligations before any
payment or other distribution; whether in cash, property or otherwise,
shall be made on account of any capital stock or any obligations of the
Company ranking junior to the
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Securities, and such other obligations. If, notwithstanding the
foregoing, any payment or distribution of any character or any
security, whether in cash, securities or other property (other than
securities of the Company or any other entity provided for by a plan of
reorganization or readjustment the payment of which is subordinate, at
least to the extent provided in these subordination provisions with
respect to the indebtedness evidenced by the Securities, to the payment
of all Senior Indebtedness at the time outstanding and to any
securities issued in respect thereof under any plan of reorganization
or readjustment), shall be received by the Trustee or any Holder in
contravention of any of the terms hereof and before all Senior
Indebtedness shall have been paid in full, such payment or distribution
or security shall be received in trust for the benefit of, and shall be
paid over or delivered and transferred to, the holders of the Senior
Indebtedness at the time outstanding in accordance with the priorities
then existing among such holders for application to the payment of all
Senior Indebtedness remaining unpaid, to the extent necessary to pay
all such Senior Indebtedness in full. In the event of the failure of
the Trustee or any Holder to endorse or assign any such payment,
distribution or security, each holder of Senior Indebtedness is hereby
irrevocably authorized to endorse or assign the same.
The Trustee and the Holders shall take such action (including,
without limitation, the delivery of this Indenture to an agent for the
holders of Senior Indebtedness or consent to the filing of a financing
statement with respect hereto) as may, in the opinion of counsel
designated by the holders of a majority in principal amount of the
Senior Indebtedness at the time outstanding, be necessary or
appropriate to assure the effectiveness of the subordination effected
by these provisions.
The provisions of this Section 13.2 shall not impair any rights,
interests, remedies or powers of any secured creditor of the Company in
respect of any security interest the creation of which is not
prohibited by the provisions of this Indenture.
The securing of any obligations of the Company, otherwise ranking
on a parity with the Securities or ranking junior to the Securities
shall not be deemed to prevent such obligations form constituting,
respectively, obligations ranking on a parity with the Securities or
ranking junior to the Securities.
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SECTION 13.3. Payment Permitted If No Default.
Nothing contained in this Article or elsewhere in this Indenture
or in any of the Securities shall prevent (a) the Company, at any time,
except during the pendency of the conditions described in the first
paragraph of Section 13.2 or of any Proceeding referred to in Section
13.2, from making payments at any time of principal of (and premium, if
any) or interest (including Additional Interest) on the Securities, or
(b) the application by the Trustee of any monies deposited with it
hereunder to the payment of or on account of the principal of (and
premium, if any) or interest (including any Additional Interest) on the
Securities or the retention of such payment by the Holders, if, at the
time of such application by the Trustee, it did not have knowledge that
such payment would have been prohibited by the provisions of this
Article.
SECTION 13.4. Subrogation to Rights of Holders of Senior
Indebtedness.
Subject to the payment in full of all amounts due or to become due
on all Senior Indebtedness, or the provision for such payment in cash
or cash equivalents or otherwise in a manner satisfactory to the
holders of Senior Indebtedness, the Holders of the Securities shall be
subrogated to the extent of the payments or distributions made to the
holders of such Senior Indebtedness pursuant to the provisions of this
Article (equally and ratably with the holders of all indebtedness of
the Company that by its express terms is subordinated to Senior
Indebtedness of the Company to substantially the same extent as the
Securities are subordinated to the Senior Indebtedness and is entitled
to like rights of subrogation by reason of any payments or
distributions made to holders of such Senior Indebtedness) to the
rights of the holders of such Senior Indebtedness to receive payments
and distributions of cash, property and securities applicable to the
Senior Indebtedness until the principal of (and premium if any) and
interest (including Additional Interest) on the Securities shall be
paid in full. For purposes of such subrogation, no payments or
distributions to the holders of the Senior Indebtedness of any cash,
property or securities to which the Holders of the Securities or the
Trustee would be entitled except for the provisions of this Article,
and no payments pursuant to the provisions of this Article to the
holders of Senior Indebtedness by Holders of the Securities or the
Trustee, shall, as among the Company, its creditors other than holders
of Senior Indebtedness, and the Holders of the Securities, be deemed to
be a payment or distribution by the Company to or on account of the
Senior Indebtedness.
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SECTION 13.5. Provisions Solely to Define Relative
Rights.
The provisions of this Article are and are intended solely for the
purpose of defining the relative rights of the Holders of the
Securities on the one hand and the holders of Senior Indebtedness on
the other hand. Nothing contained in this Article or elsewhere in this
Indenture or in the Securities is intended to or shall (a) impair, as
between the Company and the Holders of the Securities, the obligations
of the Company, which are absolute and unconditional, to pay to the
Holders of the Securities the principal of (and premium, if any) and
interest (including any Additional Interest) on the Securities as and
when the same shall become due and payable in accordance with their
terms; or (b) affect the relative rights against the Company of the
Holders of the Securities and creditors of the Company other than their
rights in relation to the holders of Senior Indebtedness; or (c)
prevent the Trustee or the Holder of any Security (or to the extent
expressly provided herein, the holder of any Capital Security) from
exercising all remedies otherwise permitted by applicable law upon
default under this Indenture, including filing and voting claims in any
Proceeding, subject to the rights, if any, under this Article of the
holders of Senior Indebtedness to receive cash, property and securities
otherwise payable or deliverable to the Trustee or such Holder.
SECTION 13.6. Trustee to Effectuate Subordination.
Each Holder of a Security by his or her acceptance thereof
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 provided in this Article and appoints the Trustee his
or her attorney-in-fact for any and all such purposes.
SECTION 13.7. No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior
Indebtedness to enforce subordination as herein provided shall at any
time in any way be prejudiced or impaired by any act or failure to act
on the part of the Company or by any act or failure to act, in good
faith, by any such holder, or by any noncompliance by the Company with
the terms, provisions and covenants of this Indenture, regardless of
any knowledge thereof that any such holder may have or be otherwise
charged with.
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Without in any way limiting the generality of the immediately
preceding paragraph, the holders of Senior Indebtedness may, at any
time and from time to time, without the consent of or notice to the
Trustee or the Holders of the Securities of any series, without
incurring responsibility to such Holders of the Securities and without
impairing or releasing the subordination provided in this Article or
the obligations hereunder of such Holders of the Securities to the
holders of Senior Indebtedness, do any one or more of the following:
(i) change the manner, place or terms of payment or extent the time of
payment of, or renew or alter, Senior Indebtedness, or otherwise amend
or supplement in any manner Senior Indebtedness or any instrument
evidencing the same or any agreement under which Senior Indebtedness is
outstanding; (ii) sell, exchange, release or otherwise deal with any
property pledged, mortgaged or otherwise securing Senior Indebtedness;
(iii) release any Person liable in any manner for the collection of
Senior Indebtedness; and (iv) exercise or refrain from exercising any
rights against the Company and any other Person.
SECTION 13.8. Notice to Trustee.
The Company shall give prompt written notice to a Responsible
Officer of the Trustee of any fact known to the Company that would
prohibit the making of any payment to or by the Trustee in respect of
the Securities. Notwithstanding the provisions of this Article or any
other provision of this Indenture, the Trustee shall not be charged
with knowledge of the existence of any facts that would prohibit the
making of any payment to or by the Trustee in respect of the
Securities, unless and until the Trustee shall have received written
notice thereof from the Company or a holder of Senior Indebtedness or
from any trustee, agent or representative therefor; provided, however,
that if the Trustee shall not have received the notice provided for in
this Section at least two Business Days prior to the date upon which by
the terms hereof any monies may become payable for any purpose
(including, the payment of the principal of (and premium, if any, on)
or interest (including any Additional Interest) on any Security), then,
anything herein contained to the contrary notwithstanding, the Trustee
shall have full power and authority to receive such monies and to apply
the same to the purpose 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.
Subject to the provisions of Section 6.1, the Trustee shall be
entitled to rely on the delivery to it of a written notice by a Person
representing himself or herself to be a
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holder of Senior Indebtedness (or a trustee or attorney-in-fact
therefor) to establish that such notice has been given by a holder of
Senior Indebtedness (or a trustee or attorney-in-fact therefor). In the
event that the Trustee determines in good faith that further evidence
is required with respect to the right of any Person as a holder of
Senior Indebtedness to participate in any payment or distribution
pursuant to this Article, the Trustee may request such Person to
furnish evidence to the reasonable satisfaction of the Trustee as to
the amount of Senior Indebtedness held by such Person, the extent to
which such Person is entitled to participate in such payment or
distribution and any other facts pertinent to the rights of such Person
under this Article, and if such evidence is not furnished, the Trustee
may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.
SECTION 13.9. Reliance on Judicial Order or Certificate
of Liquidating Agent.
Upon any payment or distribution of assets of the Company referred
to in this Article, the Trustee, subject to the provisions of Section
6.1, and the Holders of the Securities shall be entitled to rely upon
any order or decree entered by any court of competent jurisdiction in
which such Proceeding is pending, or a certificate of the trustee in
bankruptcy, receiver, conservator, liquidating trustee, custodian,
assignee for the benefit of creditors, agent or other Person making
such payment or distribution, delivered to the Trustee or to the
Holders of Securities, for the purpose of ascertaining the Persons
entitled to participate in such payment or distribution, the holders of
the Senior Indebtedness and other indebtedness of the Company, the
amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this
Article.
SECTION 13.10. Trustee Not Fiduciary for Holders of
Senior Indebtedness.
The Trustee, in its capacity as trustee under this Indenture,
shall not be deemed to owe any fiduciary duty to the holders of Senior
Indebtedness and shall not be liable to any such holders if it shall in
good faith mistakenly pay over or distribute to Holders of Securities
or to the Company or to any other Person cash, property or securities
to which any holders of Senior Indebtedness shall be entitled by virtue
of this Article or otherwise.
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SECTION 13.11. Rights of Trustee as Holder of Senior
Indebtedness; Preservation of Trustee's
Rights.
The Trustee in its individual capacity shall be entitled to all
the rights set forth in this Article with respect to any Senior
Indebtedness that may at any time be held by it, to the same extent as
any other holder of Senior Indebtedness, and nothing in this Indenture
shall deprive the Trustee of any of its rights as such holder.
SECTION 13.12. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall
have been appointed by the Company and be then acting hereunder, the
term "Trustee" as used in this Article shall in such case (unless the
context otherwise requires) be construed as extending to and including
such Paying Agent within its meaning as fully for all intents and
purposes as if such Paying Agent were named in this Article in addition
to or in place of the Trustee.
SECTION 13.13. Certain Conversions or Exchanges Deemed
Payment.
For purposes of this Article only, (a) the issuance and delivery
of junior securities upon conversion or exchange of Securities of any
series shall not be deemed to constitute a payment or distribution on
account of the principal of (or premium, if any, on) or interest
(including any Additional Interest) on such Securities or on account of
the purchase or other acquisition of such Securities, and (b) the
payment, issuance or delivery of cash, property or securities (other
than junior securities) upon conversion or exchange of a Security of
any series shall be deemed to constitute payment on account of the
principal of such security. For the purposes of this Section, the term
"junior securities" means (i) shares of any stock of any class of the
Company, and (ii) securities of the Company that are subordinated in
right of payment to all Senior Indebtedness that may be outstanding at
the time of issuance or delivery of such securities to substantially
the same extent as, or to a greater extent than, the Securities are so
subordinated as provided in this Article.
* * * *
This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be
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an original, but all such counterparts shall together
constitute but one and the same instrument.
[Remainder of page left intentionally blank; signatures appear
on following page.]
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above
written.
Attest: __________________ FIRST EMPIRE STATE CORPORATION
By: _______________________________
Name:
Title:
Attest: __________________ BANKERS TRUST COMPANY, as
Trustee, and not in its
individual capacity
By: _______________________________
Name:
Title:
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ANNEX A
FORM OF RESTRICTED SECURITIES CERTIFICATE
RESTRICTED SECURITIES CERTIFICATE
(For transfers pursuant to Section 3.6(b) of
the Indenture referred to below)
[ ],
as Securities Registrar
[address]
Re: [Title of Securities] of First Empire State
Corporation (the "Securities")
Reference is made to the Junior Subordinated Indenture, dated as
of June 6, 1997 (the "Indenture"), between First Empire State
Corporation, a New York corporation, and Bankers Trust Company, as
Trustee. Terms used herein and defined in the Indenture or in
Regulation S, Rule 144A or Rule 144 under the U.S. Securities Act of
1933 (the "Securities Act") are used here as so defined.
This certificate relates to $ aggregate principal amount
of Securities, which are evidenced by the following certificate(s)
(the "Specified Securities"):
CUSIP No(s).
CERTIFICATE No(s).
CURRENTLY IN GLOBAL FORM: Yes _____ No ____ (check one)
The person in whose name this certificate is executed below (the
"Undersigned") hereby certifies that either (i) it is the sole
beneficial owner of the Specified Securities or (ii) it is acting on
behalf of all the beneficial owners of the Specified Securities and is
duly authorized by them to do so. Such beneficial owner or owners are
referred to herein collectively as the "Owner". If the Specified
Securities are represented by a Global Security, they are held through
a Depositary or an Agent Member in the name of the Undersigned, as or
on behalf of the Owner. If the Specified Securities are
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not represented by a Global Security, they are registered in
the name of the Undersigned, as or on behalf of the Owner.
The Owner has requested that the Specified Securities be
transferred to a person (the "Transferee") who will take delivery in
the form of a Restricted Security. In connection with such transfer,
the Owner hereby certifies that, unless such transfer is being effected
pursuant to an effective registration statement under the Securities
Act, it is being effected in accordance with Rule 144A, Rule 904 of
Regulation S or Rule 144 under the Securities Act and all applicable
securities laws of the states of the United States and other
jurisdictions. Accordingly, the Owner hereby further certifies that
(1) Rule 144A Transfers. If the transfer is being
effected in accordance with Rule 144A:
(A) the Specified Securities are being transferred to a
person that the Owner and any person acting on its behalf
reasonably believe is a "qualified institutional buyer"
within the meaning of Rule 144A, acquiring for its own
account or for the account of a qualified institutional
buyer; and
(B) the Owner and any person acting on its behalf have
taken reasonable steps to ensure that the Transferee is aware
that the Owner may be relying on Rule 144A in connection with
the transfer; and
(2) Rule 904 Transfers. If the transfer is being
effected in accordance with Rule 904:
(A) the Owner is not a distributor of the Securities, an
affiliate of the Company or any such distributor or a person
acting in behalf of any of the foregoing;
(B) the offer of the Specified Securities was
not made to a person in the United States;
(C) either;
(i) at the time the buy order was originated, the
Transferee was outside the United States or the Owner
and any person acting on its behalf reasonably believed
that the Transferee was outside the United States, or
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(ii) the transaction is being executed in, on or
through the facilities of the Eurobond market, as
regulated by the Association of International Bond
Dealers, or another designated offshore securities
market and neither the Owner nor any person acting on
its behalf know that the transaction has been
prearranged with a buyer in the United States;
(D) no directed selling efforts within the meaning of
Rule 902 of Regulation S have been made in the United States
by or on behalf of the Owner or any affiliate thereof; and
(E) the transaction is not part of a plan or scheme to
evade the registration requirements of the Securities Act.
(3) Rule 144 Transfers. If the transfer is being
effected pursuant to Rule 144:
(A) the transfer is occurring after a holding period of
at least two years (computed in accordance with paragraph (d)
of Rule 144) has elapsed since the date the Specified
Securities were acquired from the Company or from an
affiliate (as such term is defined in Rule 144) of the
Company, whichever is later, and is being effected in
accordance with the applicable amount, manner of sale and
notice requirements of paragraphs (e), (f) and (h) of Rule
144;
(B) the transfer is occurring after a holding period by
the Owner of at least three years has elapsed since the date
the Specified Securities were acquired from the Company or
from an affiliate (as such term is defined in Rule 144) of
the Company, whichever is later, and the Owner is not, and
during the preceding three months has not been, an affiliate
of the Company; or
(C) the Owner is a Qualified Institutional Buyer under
Rule 144A or has acquired the Securities otherwise in
accordance with Sections (1), (2) or (3) hereof and is
transferring the Securities to an institutional accredited
investor in a transaction exempt from the requirements of the
Securities Act.
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This certificate and the statements contained herein are made for
your benefit and the benefit of the Company and the Initial Purchasers
(as defined in the Trust Agreement relating to the Issuer Trust to
which the Securities were initially issued).
(Print the name of the Undersigned, as such term is
defined in the second paragraph of this
certificate.)
Dated: ____________________ By: ______________________________
Name:
Title:
(If the Undersigned is a corporation, partnership
or fiduciary, the title of the person signing on
behalf of the Undersigned must be stated.)
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