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FIRST BANKS, INC.
AND
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION, AS TRUSTEE
INDENTURE
____% SUBORDINATED DEBENTURES DUE 2030
DATED AS OF ____________, 2000
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TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . .2
Section 1.1. Definitions of Terms . . . . . . . . . . .2
ARTICLE II. ISSUE, DESCRIPTION, TERMS, CONDITIONS, REGISTRATION
AND EXCHANGE OF THE DEBENTURES. . . . . . . . . . . . . . . . . .9
Section 2.1. Designation and Principal Amount . . . . .9
Section 2.2. Maturity . . . . . . . . . . . . . . . . .9
Section 2.3. Form and Payment . . . . . . . . . . . . 10
Section 2.4. [Intentionally Omitted]. . . . . . . . . 10
Section 2.5. Interest . . . . . . . . . . . . . . . . 10
Section 2.6. Execution and Authentication . . . . . . 11
Section 2.7. Registration of Transfer and Exchange. . 12
Section 2.8. Temporary Debentures . . . . . . . . . . 13
Section 2.9. Mutilated, Destroyed, Lost or Stolen
Debentures . . . . . . . . . . . . . . . . . . . . 13
Section 2.10. Cancellation. . . . . . . . . . . . . . 14
Section 2.11. Benefit of Indenture. . . . . . . . . . 14
Section 2.12. Authenticating Agent. . . . . . . . . . 14
ARTICLE III. REDEMPTION OF DEBENTURES. . . . . . . . . . . . . . . . 15
Section 3.1. Redemption . . . . . . . . . . . . . . . 15
Section 3.2. Special Event Redemption . . . . . . . . 15
Section 3.3. Optional Redemption by the Company . . . 15
Section 3.4. Notice of Redemption . . . . . . . . . . 16
Section 3.5. Payment Upon Redemption. . . . . . . . . 17
Section 3.6. No Sinking Fund. . . . . . . . . . . . . 18
ARTICLE IV. EXTENSION OF INTEREST PAYMENT PERIOD . . . . . . . . . . 18
Section 4.1. Extension of Interest Payment Period . . 18
Section 4.2. Notice of Extension. . . . . . . . . . . 18
Section 4.3. Limitation on Transactions . . . . . . . 19
ARTICLE V. PARTICULAR COVENANTS OF THE COMPANY . . . . . . . . . . . 19
Section 5.1. Payment of Principal and Interest. . . . 19
Section 5.2. Maintenance of Agency. . . . . . . . . . 20
Section 5.3. Paying Agents. . . . . . . . . . . . . . 20
Section 5.4. Appointment to Fill Vacancy in Office
of Trustee . . . . . . . . . . . . . . . . . . . . 21
Section 5.5. Compliance with Consolidation Provisions 21
Section 5.6. Limitation on Transactions . . . . . . . 21
Section 5.7. Covenants as to the Trust. . . . . . . . 21
Section 5.8. Covenants as to Purchases. . . . . . . . 22
ARTICLE VI. DEBENTUREHOLDERS' LISTS AND REPORTS BY THE COMPANY
AND THE TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 6.1. Company to Furnish the Trustee Names and
Addresses of the Debentureholders. . . . . . . . . 22
Section 6.2. Preservation of Information
Communications with the Debentureholders . . . . . 23
Section 6.3. Reports by the Company . . . . . . . . . 23
Section 6.4. Reports by the Trustee . . . . . . . . . 23
ARTICLE VII. REMEDIES OF THE TRUSTEE AND DEBENTUREHOLDERS ON EVENT
OF DEFAULT. . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 7.1. Events of Default. . . . . . . . . . . . 24
Section 7.2. Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . . . . . . 25
Section 7.3. Application of Money Collected . . . . . 27
Section 7.4. Limitation on Suits. . . . . . . . . . . 27
Section 7.5. Rights and Remedies Cumulative; Delay or
Omission Not Waiver. . . . . . . . . . . . . . . . 28
Section 7.6. Control by Debentureholders. . . . . . . 28
Section 7.7. Undertaking to Pay Costs . . . . . . . . 29
Section 7.8. Direct Action; Right of Set-Off. . . . . 29
ARTICLE VII. FORM OF DEBENTURE AND ORIGINAL ISSUE. . . . . . . . . . 29
Section 8.1. Form of Debenture. . . . . . . . . . . . 29
Section 8.2. Original Issue of the Debentures . . . . 29
ARTICLE IX. CONCERNING THE TRUSTEE . . . . . . . . . . . . . . . . . 30
Section 9.1. Certain Duties and Responsibilities
of the Trustee . . . . . . . . . . . . . . . . . . 30
Section 9.2. Notice of Defaults . . . . . . . . . . . 31
Section 9.3. Certain Rights of Trustee. . . . . . . . 31
Section 9.4. Trustee Not Responsible for Recitals,
etc. . . . . . . . . . . . . . . . . . . . . . . . 32
Section 9.5. May Hold the Debentures. . . . . . . . . 33
Section 9.6. Money Held in Trust. . . . . . . . . . . 33
Section 9.7. Compensation and Reimbursement . . . . . 33
Section 9.8. Reliance on Officers' Certificate. . . . 33
Section 9.9. Disqualification; Conflicting Interests. 34
Section 9.10. Corporate Trustee Required; Eligibility 34
Section 9.11. Resignation and Removal; Appointment of
Successor. . . . . . . . . . . . . . . . . . . . . 34
Section 9.12. Acceptance of Appointment by Successor. 35
Section 9.13. Merger, Conversion, Consolidation or
Succession to Business . . . . . . . . . . . . . . 36
Section 9.14. Preferential Collection of Claims
Against the Company. . . . . . . . . . . . . . . . 36
ii
ARTICLE X. CONCERNING THE DEBENTUREHOLDERS . . . . . . . . . . . . . 36
Section 10.1. Evidence of Action by Holders . . . . . 36
Section 10.2. Proof of Execution by Debentureholders. 37
Section 10.3. Who May be Deemed Owners. . . . . . . . 37
Section 10.4. Certain Debentures Owned by Company
Disregarded. . . . . . . . . . . . . . . . . . . . 37
Section 10.5. Actions Binding on Future
Debentureholders. . . . . . . . . . . . . . . . . 38
ARTICLE XI. SUPPLEMENTAL INDENTURES. . . . . . . . . . . . . . . . . 38
Section 11.1. Supplemental Indentures Without the
Consent of Debentureholders. . . . . . . . . . . . 38
Section 11.2. Supplemental Indentures With Consent of
Debentureholders. . . . . . . . . . . . . . . . . 39
Section 11.3. Effect of Supplemental Indentures . . . 39
Section 11.4. The Debentures Affected by Supplemental
Indentures . . . . . . . . . . . . . . . . . . . . 40
Section 11.5. Execution of Supplemental Indentures. . 40
ARTICLE XII. SUCCESSOR CORPORATION . . . . . . . . . . . . . . . . . 40
Section 12.1. Company May Consolidate, etc. . . . . . 40
Section 12.2. Successor Corporation Substituted . . . 41
Section 12.3. Evidence of Consolidation, etc.
to Trustee . . . . . . . . . . . . . . . . . . . . 41
ARTICLE XIII. SATISFACTION AND DISCHARGE . . . . . . . . . . . . . . 42
Section 13.1. Satisfaction and Discharge of Indenture 42
Section 13.2. Discharge of Obligations. . . . . . . . 42
Section 13.3. Deposited Money to be Held in Trust . . 42
Section 13.4. Payment of Money Held by Paying Agents. 43
Section 13.5. Repayment to the Company. . . . . . . . 43
ARTICLE XIV. IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND
DIRECTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 14.1. No Recourse . . . . . . . . . . . . . . 43
iii
ARTICLE XV. MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . . . 44
Section 15.1. Effect on Successors and Assigns. . . . 44
Section 15.2. Actions by Successor. . . . . . . . . . 44
Section 15.3. Surrender of Company Powers . . . . . . 44
Section 15.4. Notices . . . . . . . . . . . . . . . . 44
Section 15.5. Governing Law . . . . . . . . . . . . . 44
Section 15.6. Treatment of Debentures as Debt . . . . 44
Section 15.7. Compliance Certificates and Opinions. . 44
Section 15.8. Payments on Business Days . . . . . . . 45
Section 15.9. Conflict with Trust Indenture Act . . . 45
Section 15.10. Counterparts . . . . . . . . . . . . . 45
Section 15.11. Separability . . . . . . . . . . . . . 45
Section 15.12. Assignment . . . . . . . . . . . . . . 45
Section 15.13. Acknowledgment of Rights . . . . . . . 46
ARTICLE XVI. SUBORDINATION OF THE DEBENTURES . . . . . . . . . . . . 46
Section 16.1. Agreement to Subordinate. . . . . . . . 46
Section 16.2. Default on Senior Debt, Subordinated
Debt or Additional Senior Obligations . . . . . . 46
Section 16.3. Liquidation; Dissolution; Bankruptcy. . 47
Section 16.4. Subrogation . . . . . . . . . . . . . . 48
Section 16.5. Trustee to Effectuate Subordination . . 49
Section 16.6. Notice by the Company . . . . . . . . . 49
Section 16.7. Rights of the Trustee; Holders of the
Senior Indebtedness. . . . . . . . . . . . . . . . 50
Section 16.8. Subordination May Not be Impaired . . . 50
iv
CROSS-REFERENCE TABLE
Section of
Trust Indenture Act Section of
of 1939, as amended Indenture
- ------------------- ----------
310(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.10
310(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 9.9, 9.11
310(c) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.14
311(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.14
311(c) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . 6.1, 6.2(a)
312(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2(c)
312(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2(c)
313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.4(a)
313(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.4(b)
313(c) . . . . . . . . . . . . . . . . . . . . . . . . 6.4(a), 6.4(b)
313(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.4(c)
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3(a)
314(b) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
314(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.7
314(d) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
314(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.7
314(f) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
315(a) . . . . . . . . . . . . . . . . . . . . . . . . . 9.1(a), 9.3
315(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.2
315(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.1(a)
315(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.1(b)
315(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.7
316(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.1, 7.6
316(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4(b)
316(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.1(b)
317(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2
317(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.9
Note: This Cross-Reference Table does not constitute part of this
Indenture and shall not affect the interpretation of any of its terms or
provisions.
v
INDENTURE
INDENTURE, dated as of ____________, 2000, between FIRST BANKS,
INC., a Missouri corporation (the "Company") and STATE STREET BANK AND
TRUST COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION, a national banking
association duly organized and existing under the laws of the United
States of America, as trustee (the "Trustee");
RECITALS
WHEREAS, for its lawful corporate purposes, the Company has duly
authorized the execution and delivery of this Indenture to provide for
the issuance of securities to be known as its ____% Subordinated
Debentures due 2030 (hereinafter referred to as the "Debentures"), the
form and substance of such Debentures and the terms, provisions and
conditions thereof to be set forth as provided in this Indenture;
WHEREAS, First Preferred Capital Trust II, a Delaware statutory
business trust (the "Trust"), has offered to the public $50,000,000
aggregate liquidation amount of its Preferred Securities (as defined
herein) ($57,500,000 if the Underwriters exercise their Option (as
defined herein)) and proposes to invest the proceeds from such offering,
together with the proceeds of the issuance and sale by the Trust to the
Company of $_____________ aggregate liquidation amount of its Common
Securities (as defined herein) ($___________ if the Underwriters
exercise their option), in $____________ aggregate principal amount of
the Debentures ($____________ if the Underwriters exercise their
Option); and
WHEREAS, the Company has requested that the Trustee execute and
deliver this Indenture; and
WHEREAS, all requirements necessary to make this Indenture a valid
instrument in accordance with its terms, and to make the Debentures,
when executed by the Company and authenticated and delivered by the
Trustee, the valid obligations of the Company, have been performed, and
the execution and delivery of this Indenture have been duly authorized
in all respects; and
WHEREAS, to provide the terms and conditions upon which the
Debentures are to be authenticated, issued and delivered, the Company
has duly authorized the execution of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid
agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, in consideration of the premises and the purchase
of the Debentures by the Trust, it is mutually covenanted and
agreed as follows for the equal and ratable benefit of the holders of
the Debentures:
ARTICLE I
DEFINITIONS
SECTION 1.1. DEFINITIONS OF TERMS. The terms defined in this
Section 1.1 (except as in this Indenture otherwise expressly provided or
unless the context otherwise requires) for all purposes of this
Indenture and of any indenture supplemental hereto shall have the
respective meanings specified in this Section 1.1 and shall include the
plural as well as the singular. All other terms used in this Indenture
that are defined in the Trust Indenture Act, or that are by reference in
the Trust Indenture Act defined in the Securities Act (except as herein
otherwise expressly provided or unless the context otherwise requires),
shall have the meanings assigned to such terms in the Trust Indenture
Act and in the Securities Act as in force at the date of the execution
of this instrument. All accounting terms used herein and not expressly
defined shall have the meanings assigned to such terms in accordance
with Generally Accepted Accounting Principles.
"Accelerated Maturity Date" means if the Company elects to
accelerate the Maturity Date in accordance with Section 2.2(b), the date
selected by the Company which is prior to the Scheduled Maturity Date,
but is after _________ , 2005.
"Additional Payments" shall have the meaning set forth in Section
2.5(c).
"Additional Senior Obligations" means all indebtedness of the
Company whether incurred on or prior to the date of this Indenture or
thereafter incurred, for claims in respect of derivative products such
as interest and foreign exchange rate contracts, commodity contracts and
similar arrangements; provided, however, that Additional Senior
Obligations does not include claims in respect of Senior Debt or
Subordinated Debt or obligations which, by their terms, are expressly
stated to be not superior in right of payment to the Debentures or to
rank pari passu in right of payment with the Debentures, including the
Company's 9.25% Subordinated Debentures due 2027 issued to First
Preferred Capital Trust I. For purposes of this definition, "claim"
shall have the meaning assigned thereto in Section 101(4) of the United
States Bankruptcy Code of 1978, as amended.
"Administrative Trustees" shall have the meaning set forth in the
Trust Agreement.
"Affiliate" means, with respect to a specified Person, (a) any
Person directly or indirectly owning, controlling or holding with power
to vote 10% or more of the outstanding voting securities or other
ownership interests of the specified Person; (b) any Person 10% or more
of whose outstanding voting securities or other ownership interests are
directly or indirectly owned, controlled or held with power to vote by
the specified Person; (c) any Person directly or indirectly controlling,
controlled by, or under common control with the specified Person; (d) a
partnership in which the specified Person is a general partner; (e) any
officer or director of the specified Person; and (f) if the specified
Person is an individual, any entity of which the specified Person is an
officer, director or general partner.
"Authenticating Agent" means an authenticating agent with respect
to the Debentures appointed by the Trustee pursuant to Section 2.12.
2
"Bankruptcy Law" means Title 11, U.S. Code, or any similar federal
or state law for the relief of debtors.
"Board of Directors" means the Board of Directors of the Company
or any duly authorized committee of such Board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on
the date of such certification.
"Business Day" means, with respect to the Debentures, any day
other than a Saturday or a Sunday or a day on which federal or state
banking institutions in the Borough of Manhattan, the City of New York,
are authorized or required by law, executive order or regulation to
close, or a day on which the Corporate Trust Office of the Trustee or
the Property Trustee is closed for business.
"Capital Treatment Event" means the receipt by the Company and the
Trust of an Opinion of Counsel, rendered by a law firm having a
recognized banking law practice within a reasonable period of time
after the applicable occurrence, 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 thereof or therein, or as a result of any official
or administrative pronouncement, action or judicial decision interpreting or
applying such laws or regulations, which amendment or change is effective
or which pronouncement, action or judicial decision is announced on or
after the date of issuance of the Preferred Securities under the Trust
Agreement, there is more than an insubstantial risk of impairment of the
Company's ability to treat the Preferred Securities (or any substantial
portion thereof) as Tier 1 capital (or the then equivalent thereof) for
purposes of the capital adequacy guidelines of the Federal Reserve, as
then in effect and applicable to the Company.
"Certificate" means a certificate signed by the principal
executive officer, the principal financial officer, the principal
accounting officer, the treasurer or any vice president of the Company.
The Certificate need not comply with the provisions of Section 15.7.
"Change in 1940 Act Law" shall have the meaning set forth in the
definition of "Investment Company Event."
"Commission" means the Securities and Exchange Commission, 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 at such time.
"Common Securities" means undivided beneficial interests in the
assets of the Trust which rank pari passu with the Preferred Securities;
provided, however, that upon the occurrence and during the continuance of
an Event of Default, the rights of holders of Common Securities to payment
in respect of (i)
3
distributions, and (ii) payments upon liquidation, redemption and
otherwise, are subordinated to the rights of holders of Preferred
Securities.
"Company" means First Banks, Inc., a corporation duly organized
and existing under the laws of the State of Missouri, and, subject to
the provisions of Article XII, shall also include its successors and
assigns.
"Compounded Interest" shall have the meaning set forth in Section
4.1.
"Corporate Trust Office" means the office of the Trustee at which,
at any particular time, its corporate trust business shall be
principally administered, which office at the date hereof is located
at 225 Asylum Street, Goodwin Square, Hartford, Connecticut 06103,
Attention: Corporate Trust Department.
"Coupon Rate" shall have the meaning set forth in Section 2.5(a).
"Custodian" means any receiver, trustee, assignee, liquidator, or
similar official under any Bankruptcy Law.
"Debentures" shall have the meaning set forth in the Recitals
hereto.
"Debentureholder," "holder of Debentures," "registered holder," or
other similar term, means the Person or Persons in whose name or names a
particular Debenture shall be registered on the books of the Company or
the Trustee kept for that purpose in accordance with the terms of this
Indenture.
"Debenture Register" shall have the meaning set forth in Section 2.7(b).
"Debenture Registrar" shall have the meaning set forth in Section 2.7(b).
"Debt" means with respect to any Person, whether recourse is to
all or a portion of the assets of such Person and whether or not
contingent, (i) every obligation of such Person for money borrowed; (ii)
every obligation of such Person evidenced by bonds, debentures, notes or
other similar instruments, including obligations incurred in connection
with the acquisition of property, assets or businesses; (iii) every
reimbursement obligation of such Person with respect to letters of
credit, bankers' acceptances or similar facilities issued for the
account of such Person; (iv) every obligation of such Person issued or
assumed as the deferred purchase price of property or services (but
excluding trade accounts payable or accrued liabilities arising in the
ordinary course of business); (v) every capital lease obligation of such
Person; and (vi) and every obligation of the type referred to in clauses
(i) through (v) of another Person and all dividends of another Person
the payment of which, in either case, such Person has guaranteed or is
responsible or liable, directly or indirectly, as obligor or otherwise.
"Default" means any event, act or condition that with notice or
lapse of time, or both, would constitute an Event of Default.
4
"Deferred Payment" shall have the meaning set forth in Section 4.1.
"Direct Action" shall have the meaning set forth in Section 7.8.
"Dissolution Event" means that as a result of the occurrence and
continuation of a Special Event, the Trust is to be dissolved in
accordance with the Trust Agreement and the Debentures held by the
Property Trustee are to be distributed to the holders of the Trust
Securities issued by the Trust pro rata in accordance with the Trust
Agreement.
"Distribution" shall have the meaning set forth in the Trust
Agreement.
"Event of Default" shall have the meaning set forth in Section
7.1.
"Exchange Act," means the Securities Exchange Act of 1934, as
amended, as in effect at the date of execution of this instrument.
"Extension Period" shall have the meaning set forth in Section
4.1.
"Federal Reserve" means the Board of Governors of the Federal
Reserve System.
"Generally Accepted Accounting Principles" means such accounting
principles as are generally accepted at the time of any computation
required hereunder.
"Governmental Obligations" means securities that are (i) direct
obligations of the United States of America for the payment of which its
full faith and credit is pledged; or (ii) obligations of a Person
controlled or supervised by and acting as an agency or instrumentality
of the United States of America, the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of
America that, in either case, are not callable or redeemable at the
option of the issuer thereof, and shall also include a depositary
receipt issued by a bank (as defined in Section 3(a)(2) of the
Securities Act) as custodian with respect to any such Governmental
Obligation or a specific payment of principal of or interest on any such
Governmental Obligation held by such custodian for the account of the
holder of such depositary receipt; provided, however, that (except as
required by law) such custodian is not authorized to make any deduction
from the amount payable to the holder of such depositary receipt from
any amount received by the custodian in respect of the Governmental
Obligation or the specific payment of principal of or interest on the
Governmental Obligation evidenced by such depositary receipt.
"Herein," "hereof," and "hereunder," and other words of similar
import, refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Indenture" means this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into in accordance with the terms
hereof.
"Interest Payment Date" shall have the meaning set forth in
Section 2.5(a).
"Investment Company Act," means the Investment Company Act of
1940, as amended, as in effect at the date of execution of this
instrument.
5
"Investment Company Event" means the receipt by the Company and
the Trust of an Opinion of Counsel, rendered by a law firm having a
recognized tax and securities law practice within a reasonable period
of time after the applicable occurrence, to the effect that, as a
result of the occurrence of a change in law or regulation or a change in
interpretation or application of law or regulation by any legislative
body, court, governmental agency or regulatory authority (a "Change in
1940 Act Law"), the Trust is or shall be considered an "investment
company" that is required to be registered under the Investment Company
Act, which Change in 1940 Act Law becomes effective on or after the date
of original issuance of the Preferred Securities under the Trust
Agreement.
"Maturity Date" means the date on which the Debentures mature and
on which the principal shall be due and payable together with all
accrued and unpaid interest thereon including Compounded Interest and
Additional Payments, if any.
"Ministerial Action" shall have the meaning set forth in Section
3.2.
"Officers' Certificate" means a certificate signed by the
President or a Vice President and by the Treasurer or an Assistant
Treasurer or the Controller or an Assistant Controller or the Secretary
or an Assistant Secretary of the Company that is delivered to the
Trustee in accordance with the terms hereof. Each such certificate shall
include the statements provided for in Section 15.7, if and to the
extent required by the provisions thereof.
"Opinion of Counsel" means an opinion in writing of independent,
outside legal counsel that is delivered to the Trustee in accordance
with the terms hereof. Each such opinion shall include the statements
provided for in Section 15.7, if and to the extent required by the
provisions thereof.
"Outstanding," when used with respect to the Debentures, means,
subject to the provisions of Section 10.4, as of the date of
determination, all of the Debentures theretofore authenticated
and delivered by the Trustee under this Indenture, except (a)
Debentures theretofore canceled by the Trustee or any Paying Agent, or
delivered to the Trustee or any Paying Agent for cancellation; (b)
Debentures or portions thereof for the payment or redemption of which
money or Governmental Obligations in the necessary amount have been
deposited in trust with the Trustee or any Paying Agent (other than the
Company) or shall have been set aside and segregated in trust by the
Company (if the Company shall act as its own Paying Agent); provided,
however, that if such Debentures or portions of such Debentures are to
be redeemed prior to the maturity thereof, notice of such redemption
shall have been given as in Article III provided, or provision
satisfactory to the Trustee shall have been made for giving such notice;
and (c) Debentures which have been paid or in lieu of which other
Debentures have been authenticated and delivered pursuant to Section 2.7;
provided, however, that in determining whether the holders of the
requisite percentage of Debentures have given any request, notice,
consent or waiver hereunder, Debentures held by the Company or any
Affiliate of the Company shall not be included; provided, further, that
the Trustee shall be protected in relying upon any request, notice,
consent or waiver unless a Responsible Officer of the Trustee shall have
actual knowledge that the holder of such Debenture is the Company or an
Affiliate thereof. The Debentures so owned
6
which 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 Debentures, and the pledgee is not a
Person directly or indirectly controlling or controlled by or under
direct or indirect common control with the Company or any such other
obligor.
"Paying Agent" means any paying agent or co-paying agent appointed
pursuant to Section 5.3.
"Person" means any individual, corporation, partnership, joint
venture, trust, limited liability company, joint-stock company,
unincorporated organization or government or any agency or political
subdivision thereof.
"Predecessor Debenture" means every previous Debenture evidencing
all or a portion of the same debt as that evidenced by such particular
Debenture; and, for the purposes of this definition, any Debenture
authenticated and delivered under Section 2.9 in lieu of a lost,
destroyed or stolen Debenture shall be deemed to evidence the same debt
as the lost, destroyed or stolen Debenture.
"Preferred Securities" means the ____ % Cumulative Trust Preferred
Securities representing undivided beneficial interests in the assets of
the Trust which rank pari passu with Common Securities issued by the
Trust; provided, however, that upon the occurrence and during the
continuance of an Event of Default, the rights of holders of Common
Securities to payment in respect of distributions and payments upon
liquidation, redemption and otherwise are subordinated to the rights
of holders of Preferred Securities.
"Preferred Securities Guarantee" means any guarantee that the
Company may enter into with the Trustee or other Persons that operates
directly or indirectly for the benefit of holders of Preferred
Securities.
"Property Trustee" has the meaning set forth in the Trust
Agreement.
"Redemption Price" shall have the meaning set forth in
Section 3.2.
"Responsible Officer" when used with respect to the Trustee means
the Chairman of the Board of Directors, the President, any Vice
President, the Secretary, the Treasurer, any trust officer, any
corporate trust officer or any other officer or assistant officer of the
Trustee customarily performing functions similar to those performed by
the Persons who at the time shall be such officers, respectively, or to
whom any corporate trust matter is referred because of his or her
knowledge of and familiarity with the particular subject.
"Scheduled Maturity Date" means __________, 2030.
"Securities Act," means the Securities Act of 1933, as amended, as
in effect at the date of execution of this instrument.
"Senior Debt" means the principal of (and premium, if any) and
interest, if any (including interest accruing on or after the filing of
any petition in bankruptcy or for reorganization relating
7
to the Company whether or not such claim for post-petition interest is
allowed in such proceeding), on Debt, whether incurred on or prior to
the date of this Indenture or thereafter incurred, unless, in the
instrument creating or evidencing the same or pursuant to which the same
is outstanding, it is provided that such obligations are not superior in
right of payment to the Debentures or to other Debt which is pari passu
with (including without limitation the Company's 9.25% Subordinated
Debentures due 2027 issued to First Preferred Capital Trust I), or
subordinated to, the Debentures; provided, however, that Senior Debt
shall not be deemed to include any (i) Debt of the Company which when
incurred and without respect to any election under section 1111(b) of
the United States Bankruptcy Code of 1978, as amended, was without
recourse to the Company; (ii) Debt of the Company to any of its
subsidiaries; (iii) Debt owed to any employee of the Company; (iv) Debt
which by its terms is subordinated to trade accounts payable or accrued
liabilities arising in the ordinary course of business to the extent
that payments made to the holders of such Debt by the holders of the
Debentures as a result of the subordination provisions of this Indenture
would be greater than they otherwise would have been as a result of any
obligation of such holders to pay amounts over to the obligees on such
trade accounts payable or accrued liabilities arising in the ordinary
course of business as a result of subordination provisions to which such
Debt is subject; or (v) Debt which constitutes Subordinated Debt.
"Senior Indebtedness" shall have the meaning set forth in Section
16.1.
"Special Event" means a Tax Event, a Capital Treatment Event or an
Investment Company Event.
"Subordinated Debt" means the principal of (and premium, if any) and
interest, if any (including interest accruing on or after the filing of
any petition in bankruptcy or for reorganization relating to the Company
whether or not such claim for post-petition interest is allowed in such
proceeding), on Debt (other than the Debentures), whether incurred on or
prior to the date of this Indenture or thereafter incurred, which is by
its terms expressly provided to be junior and subordinate to Senior Debt
of the Company; provided, however, that Subordinated Debt will not be
deemed to include (i) any Debt of the Company which when incurred and
without respect to any election under section 1111(b) of the United
States Bankruptcy Code of 1978, as amended, was without recourse to the
Company, (ii) any Debt of the Company owed to any of its subsidiaries,
(iii) any Debt owed to any employee of the Company, (iv) any Debt which
by its terms is subordinated to trade accounts payable or accrued
liabilities arising in the ordinary course of business to the extent
that payments made to the holders of such Debt by the holders of the
Subordinated Debentures as a result of the subordination provisions of
the Indenture would be greater than they otherwise would have been as a
result of any obligation of such holders to pay amounts over to the
obligees on such trade accounts payable or accrued liabilities arising
in the ordinary course of business as a result of subordination
provisions to which such Debt is subject, (v) Debt which constitutes
Senior Debt, (vi) any Debt of the Company under debt securities (and
guarantees in respect of these debt securities) initially issued to any
trust, or a trustee of a trust, partnership or other entity affiliated
with the Company that is, directly or indirectly, a financing vehicle of
the Company in connection with the issuance by that entity of preferred
securities or other securities which are intended to qualify for Tier 1
capital treatment, or (vii) any Debt of its Subsidiaries (including any
Debt of First Banks America, Inc. under debt securities and guarantees
in respect of such securities initially issued to any trust, or a
trustee of a trust, partnership or other entity affiliated with First
Banks America, Inc. that is, directly or indirectly, a financing vehicle
of First Banks America, Inc. in connection with the issuance by that
entity of preferred securities or other securities which are intended to
qualify for Tier 1 capital treatment) unless, by its terms, such Debt is
subordinated to the Debentures.
"Subsidiary" means, with respect to any Person, (i) any
corporation at least a majority of whose outstanding Voting Stock shall
at the time be owned, directly or indirectly, by such Person or by one
or more of its Subsidiaries or by such Person and one or more of its
Subsidiaries; (ii) any general partnership, limited liability company,
joint venture, trust or similar entity, at least a majority of whose
outstanding partnership or similar interests shall at the time be owned
by such Person, or by one or more of its Subsidiaries, or by such Person
and one or more of its Subsidiaries; and (iii) any limited partnership
of which such Person or any of its Subsidiaries is a general partner.
"Tax Event" means the receipt by the Company and the Trust of an
Opinion of Counsel, rendered by a law firm having a recognized tax and
securities law practice within a reasonable period of time after the
applicable occurrence, to the effect that, as a result of any amendment
to, or change (including any announced prospective change) in, the laws
(or any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein, or as a result
of any official administrative pronouncement or judicial decision
interpreting or applying such laws or regulations, which amendment or
change is effective or which pronouncement or decision is announced on
or after the date of issuance of the Preferred Securities
8
under the Trust Agreement, there is more than an insubstantial risk that
(i) the Trust is, or shall be within 90 days after the date of such
Opinion of Counsel, subject to United States federal income tax with
respect to income received or accrued on the Debentures; (ii) interest
payable by the Company on the Debentures is not, or within 90 days after
the date of such Opinion of Counsel, shall not be, deductible by the
Company, in whole or in part, for United States federal income tax
purposes; or (iii) the Trust is, or shall be within 90 days after the
date of such Opinion of Counsel, subject to more than a de minimis
amount of other taxes, duties, assessments or other governmental
charges.
"Trust" means First Preferred Capital Trust II, a Delaware
statutory business trust.
"Trust Agreement" means the Amended and Restated Trust Agreement,
dated ________, 2000, of the Trust.
"Trustee" means State Street Bank and Trust Company of Connecticut,
National Association and, subject to the provisions of Article IX,
shall also include its successors and assigns, and, if at any time
there is more than one Person acting in such capacity hereunder,
"Trustee" shall mean each such Person.
"Trust Indenture Act," means the Trust Indenture Act of 1939, as
amended, subject to the provisions of Sections 11.1, 11.2, and 12.1, as
in effect at the date of execution of this instrument.
"Trust Securities" means the Common Securities and Preferred
Securities, collectively.
"Voting Stock," as applied to stock of any Person, means shares,
interests, participations or other equivalents in the equity interest
(however designated) in such Person having ordinary voting power for the
election of a majority of the directors (or the equivalent) of such
Person, other than shares, interests, participations or other
equivalents having such power only by reason of the occurrence of a
contingency.
ARTICLE II
ISSUE, DESCRIPTION, TERMS, CONDITIONS,
REGISTRATION AND EXCHANGE OF THE DEBENTURES
SECTION 2.1. DESIGNATION AND PRINCIPAL AMOUNT. There is
hereby authorized Debentures designated the "____% Subordinated
Debentures due 2030," limited in aggregate principal amount up to
$_____________, which amount shall be as set forth in any written order
of the Company for the authentication and delivery of Debentures
pursuant to Section 2.6.
SECTION 2.2. MATURITY.
(a) The Maturity Date shall be either:
(i) the Scheduled Maturity Date; or
9
(ii) if the Company elects to accelerate the Maturity Date
to be a date prior to the Scheduled Maturity Date in accordance with
Section 2.2(c), the Accelerated Maturity Date.
(b) The Company may at any time before the day which is 90 days
before the Scheduled Maturity Date and after June 30, 2005 elect to
shorten the Maturity Date only once to the Accelerated Maturity Date,
provided that the Company has received the prior approval of the Federal
Reserve if then required under applicable capital guidelines, policies
or regulations of the Federal Reserve.
(c) If the Company elects to accelerate the Maturity Date in
accordance with Section 2.2(b), the Company shall give notice to the
Trustee and the Trust (unless the Trust is not the holder of the
Debentures, in which case the Trustee will give notice to the holders of
the Debentures) of the acceleration of the Maturity Date and the
Accelerated Maturity Date at least 30 days and no more than 180 days
before the Accelerated Maturity Date; provided, however, that nothing
provided in this Section 2.2 shall limit the Company's rights, as
provided in Article III hereof, to redeem all or a portion of the
Debentures at such time or times on or after June 30, 2005, as the
Company may so determine, or at any time upon the occurrence of a
Special Event.
SECTION 2.3. FORM AND PAYMENT. The Debentures shall be
issued in fully registered certificated form without interest coupons.
Principal and interest on the Debentures issued in certificated form
shall be payable, the transfer of such Debentures shall be registrable
and such Debentures shall be exchangeable for Debentures bearing
identical terms and provisions at the office or agency of the Trustee;
provided, however, that payment of interest may be made at the option of
the Company by check mailed to the holder at such address as shall
appear in the Debenture Register or by wire transfer to an account
maintained by the holder as specified in the Debenture Register,
provided that the holder provides proper transfer instructions by the
regular record date. Notwithstanding the foregoing, so long as the
holder of any Debentures is the Property Trustee, the payment of
principal of and interest (including Compounded Interest and Additional
Payments, if any) on such Debentures held by the Property Trustee shall
be made at such place and to such account as may be designated by the
Property Trustee.
SECTION 2.4. [INTENTIONALLY OMITTED].
SECTION 2.5. INTEREST.
(a) Each Debenture shall bear interest at a rate of ____% per
annum (the "Coupon Rate") from the original date of issuance until the
principal thereof becomes due and payable, and on any overdue principal
and (to the extent that payment of such interest is enforceable under
applicable law) on any overdue installment of interest at the Coupon
Rate, compounded quarterly, payable (subject to the provisions of
Article IV) quarterly in arrears on March 31, June 30, September 30, and
December 31 of each year (each, an "Interest Payment Date"), commencing
on December 31, 2000, to the Person in whose name such Debenture or any
Predecessor Debenture is registered, at the close of business on the
regular record date for such interest installment, which shall be the
fifteenth day of the last month of the calendar quarter.
10
(b) The amount of interest payable for any period shall be
computed on the basis of a 360-day year of twelve 30-day months. The
amount of interest payable for any period shorter than a full quarterly
period for which interest is computed shall be computed on the basis of
the number of days elapsed in a 360-day year of twelve 30-day months. In
the event that any date on which interest is payable on the Debentures
is not a Business Day, then payment of interest payable on such date
shall be made on the next succeeding day which is a Business Day (and
without any interest or other payment in respect of any such delay)
with the same force and effect as if made on the date such payment was
originally payable.
(c) If, at any time while the Property Trustee is the holder of
any Debentures, the Trust or the Property Trustee is required to pay any
taxes, duties, assessments or governmental charges of whatever nature
(other than withholding taxes) imposed by the United States, or any
other taxing authority, then, in any case, the Company shall pay as
additional payments ("Additional Payments") on the Debentures held by
the Property Trustee, such additional amounts as shall be required so
that the net amounts received and retained by the Trust and the Property
Trustee after paying such taxes, duties, assessments or other
governmental charges shall be equal to the amounts the Trust and the
Property Trustee would have received had no such taxes, duties,
assessments or other government charges been imposed.
SECTION 2.6. EXECUTION AND AUTHENTICATION.
(a) The Debentures shall be signed on behalf of the Company by its
Chairman, Chief Executive Officer, President or one of its Vice Presidents,
under its corporate seal attested by its Secretary or one of its
Assistant Secretaries. Signatures may be in the form of a manual or
facsimile signature. The Company may use the facsimile signature of any
Person who shall have been a Chairman, Chief Executive Officer, President
or Vice President thereof, or of any Person who shall have been a Secretary
or Assistant Secretary thereof, notwithstanding the fact that at the time
the Debentures shall be authenticated and delivered or disposed of such
Person shall have ceased to be the Chairman, Chief Executive Officer,
President or a Vice President, or the Secretary or an Assistant Secretary,
of the Company (and any such signature shall be binding on the Company).
The seal of the Company may be in the form of a facsimile of such seal and
may be impressed, affixed, imprinted or otherwise reproduced on the
Debentures. The Debentures may contain such notations, legends or
endorsements required by law, stock exchange rule or usage. Each
Debenture shall be dated the date of its authentication by the Trustee.
(b) A Debenture shall not be valid until manually authenticated
by an authorized signatory of the Trustee, or by an Authenticating
Agent. Such signature shall be conclusive evidence that the Debenture so
authenticated has been duly authenticated and delivered hereunder and
that the holder is entitled to the benefits of this Indenture.
(c) At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Debentures executed
by the Company to the Trustee for authentication,
11
together with a written order of the Company for the authentication and
delivery of such Debentures signed by its Chairman, Chief Executive Officer,
President or any Vice President and its Treasurer or any Assistant
Treasurer, and the Trustee in accordance with such written order shall
authenticate and deliver such Debentures.
(d) In authenticating such Debentures and accepting the
additional responsibilities under this Indenture in relation to such
Debentures, the Trustee shall be entitled to receive, and (subject to
Section 9.1) shall be fully protected in relying upon, an Opinion of
Counsel stating that the form and terms thereof have been established in
conformity with the provisions of this Indenture.
(e) The Trustee shall not be required to authenticate such
Debentures if the issue of such Debentures pursuant to this Indenture
shall affect the Trustee's own rights, duties or immunities under the
Debentures and this Indenture or otherwise in a manner that is not
reasonably acceptable to the Trustee.
SECTION 2.7. REGISTRATION OF TRANSFER AND EXCHANGE.
(a) Debentures may be exchanged upon presentation thereof at the
office or agency of the Company designated for such purpose or at the
office of the Debenture Registrar, for other Debentures and for a like
aggregate principal amount, upon payment of a sum sufficient to cover
any tax or other governmental charge in relation thereto, all as
provided in this Section 2.7. In respect of any Debentures so
surrendered for exchange, the Company shall execute, the Trustee shall
authenticate and such office or agency shall deliver in exchange
therefor the Debenture or Debentures that the Debentureholder making the
exchange shall be entitled to receive, bearing numbers not
contemporaneously outstanding.
(b) The Company shall keep, or cause to be kept, at its office
or agency designated for such purpose or at the office of the Debenture
Registrar, or such other location designated by the Company a register
or registers (herein referred to as the "Debenture Register") in which,
the Company shall register the Debentures and the transfers of
Debentures as in this Article II provided and which at all reasonable
times shall be open for inspection by the Trustee. The registrar for the
purpose of registering Debentures and transfer of Debentures as herein
provided shall initially be the Trustee and thereafter as may be
appointed by the Company as authorized by Board Resolution (the
"Debenture Registrar"). Upon surrender for transfer of any Debenture at
the office or agency of the Company designated for such purpose, the
Company shall execute, the Trustee shall authenticate and such office or
agency shall deliver in the name of the transferee or transferees a new
Debenture or Debentures for a like aggregate principal amount. All
Debentures presented or surrendered for exchange or registration of
transfer, as provided in this Section 2.7, shall be accompanied (if so
required by the Company or the Debenture Registrar) by a written
instrument or instruments of transfer, in form satisfactory to the
Company or the Debenture Registrar, duly executed by the registered
holder or by such holder's duly authorized attorney in writing.
(c) No service charge shall be made for any exchange or
registration of transfer of Debentures, or issue of new Debentures in
case of partial redemption, but the Company may require
12
payment of a sum sufficient to cover any tax or other governmental
charge in relation thereto, other than exchanges pursuant to Section
2.8, Section 3.5(b) and Section 11.4 not involving any transfer.
(d) The Company shall not be required (i) to issue, exchange or
register the transfer of any Debentures during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of
redemption of less than all the Outstanding Debentures and ending at the
close of business on the day of such mailing; nor (ii) to register the
transfer of or exchange any Debentures or portions thereof called for
redemption.
(e) Debentures may only be transferred, in whole or in part, in
accordance with the terms and conditions set forth in this Indenture.
Any transfer or purported transfer of any Debenture not made in
accordance with this Indenture shall be null and void.
SECTION 2.8. TEMPORARY DEBENTURES. Pending the preparation
of definitive Debentures, the Company may execute, and the Trustee shall
authenticate and deliver, temporary Debentures (printed, lithographed,
or typewritten). Such temporary Debentures shall be substantially in the
form of the definitive Debentures in lieu of which they are issued, but
with such omissions, insertions and variations as may be appropriate for
temporary Debentures, all as may be determined by the Company. Every
temporary Debenture shall be executed by the Company and be
authenticated by the Trustee upon the same conditions and in
substantially the same manner, and with like effect, as the definitive
Debentures. Without unnecessary delay the Company shall execute and
shall furnish definitive Debentures and thereupon any or all temporary
Debentures may be surrendered in exchange therefor (without charge to
the holders), at the office or agency of the Company designated for the
purpose and the Trustee shall authenticate and such office or agency
shall deliver in exchange for such temporary Debentures an equal
aggregate principal amount of definitive Debentures, unless the Company
advises the Trustee to the effect that definitive Debentures need not be
authenticated and furnished until further notice from the Company. Until so
exchanged, the temporary Debentures shall be entitled to the same
benefits under this Indenture as definitive Debentures authenticated and
delivered hereunder.
SECTION 2.9. MUTILATED, DESTROYED, LOST OR STOLEN DEBENTURES.
(a) In case any temporary or definitive Debenture shall become
mutilated or be destroyed, lost or stolen, the Company (subject to the
next succeeding sentence) shall execute, and upon the Company's request
the Trustee (subject as aforesaid) shall authenticate and deliver, a new
Debenture bearing a number not contemporaneously outstanding, in
exchange and substitution for the mutilated Debenture, or in lieu of and
in substitution for the Debenture so destroyed, lost or stolen. In every
case the applicant for a substituted Debenture shall furnish to the
Company and the Trustee such security or indemnity as may be required by
them to save each of them harmless, and, in every case of destruction,
loss or theft, the applicant shall also furnish to the Company and the
Trustee evidence to their satisfaction of the destruction, loss or theft
of the applicant's Debenture and of the ownership thereof. The Trustee
shall authenticate any such substituted Debenture and deliver the same
upon the written request or authorization of the Chairman, Chief Executive
Officer, President or any Vice President and the Treasurer or any Assistant
Treasurer of the Company. Upon the issuance of any substituted Debenture,
the Company may require the payment of a sum sufficient to cover any tax
13
or other governmental charge that may be imposed in relation thereto and
any other expenses (including the fees and expenses of the Trustee)
connected therewith. In case any Debenture that has matured or is about
to mature shall become mutilated or be destroyed, lost or stolen, the
Company may, instead of issuing a substitute Debenture, pay or authorize
the payment of the same (without surrender thereof except in the case of
a mutilated Debenture) if the applicant for such payment shall furnish
to the Company and the Trustee such security or indemnity as they may
require to save them harmless, and, in case of destruction, loss or
theft, evidence to the satisfaction of the Company and the Trustee of
the destruction, loss or theft of such Debenture and of the ownership
thereof.
(b) Every replacement Debenture issued pursuant to the
provisions of this Section 2.9 shall constitute an additional
contractual obligation of the Company whether or not the mutilated,
destroyed, lost or stolen Debenture shall be found at any time, or be
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Debentures
duly issued hereunder. All Debentures shall be held and owned upon the
express condition that the foregoing provisions are exclusive with
respect to the replacement or payment of mutilated, destroyed, lost or
stolen Debentures, and shall preclude (to the extent lawful) any and all
other rights or remedies, notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement or
payment of negotiable instruments or other securities without their
surrender.
SECTION 2.10. CANCELLATION. All Debentures surrendered for
the purpose of payment, redemption, exchange or registration of transfer
shall, if surrendered to the Company or any Paying Agent, be delivered
to the Trustee for cancellation, or, if surrendered to the Trustee,
shall be canceled by it, and no Debentures shall be issued in lieu
thereof except as expressly required or permitted by any of the
provisions of this Indenture. On request of the Company at the time of
such surrender, the Trustee shall deliver to the Company canceled
Debentures held by the Trustee. In the absence of such request the
Trustee may dispose of canceled Debentures in accordance with its
standard procedures and deliver a certificate of disposition to the
Company. If the Company shall otherwise acquire any of the Debentures,
however, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Debentures unless
and until the same are delivered to the Trustee for cancellation.
SECTION 2.11. BENEFIT OF INDENTURE. Nothing in this Indenture
or in the Debentures, express or implied, shall give or be construed to
give to any Person, other than the parties hereto and the holders of the
Debentures (and, with respect to the provisions of Article XVI, the
holders of the Senior Indebtedness) any legal or equitable right, remedy
or claim under or in respect of this Indenture, or under any covenant,
condition or provision herein contained; all such covenants, conditions
and provisions being for the sole benefit of the parties hereto and of
the holders of the Debentures (and, with respect to the provisions of
Article XVI, the holders of the Senior Indebtedness).
14
SECTION 2.12. AUTHENTICATING AGENT.
(a) So long as any of the Debentures remain Outstanding there
may be an Authenticating Agent for any or all such Debentures, which
Authenticating Agent the Trustee shall have the right to appoint. Said
Authenticating Agent shall be authorized to act on behalf of the Trustee
to authenticate Debentures issued upon exchange, transfer or partial
redemption thereof, and Debentures so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. All references in
this Indenture to the authentication of Debentures by the Trustee shall
be deemed to include authentication by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and shall be a
corporation that has a combined capital and surplus, as most recently
reported or determined by it, sufficient under the laws of any
jurisdiction under which it is organized or in which it is doing
business to conduct a trust business, and that is otherwise authorized
under such laws to conduct such business and is subject to supervision
or examination by federal or state authorities. If at any time any
Authenticating Agent shall cease to be eligible in accordance with these
provisions, it shall resign immediately.
(b) Any Authenticating Agent may at any time resign by giving
written notice of resignation to the Trustee and to the Company. The
Trustee may at any time (and upon request by the Company shall)
terminate the agency of any Authenticating Agent by giving written
notice of termination to such Authenticating Agent and to the Company.
Upon resignation, termination or cessation of eligibility of any
Authenticating Agent, the Trustee may appoint an eligible successor
Authenticating Agent acceptable to the Company. Any successor
Authenticating Agent, upon acceptance of its appointment hereunder,
shall become vested with all the rights, powers and duties of its
predecessor hereunder as if originally named as an Authenticating Agent
pursuant hereto.
ARTICLE III
REDEMPTION OF DEBENTURES
SECTION 3.1. REDEMPTION. Subject to the Company having
received prior approval of the Federal Reserve, if then required under
the applicable capital guidelines, policies or regulations of the
Federal Reserve, the Company may redeem the Debentures issued hereunder
on and after the dates set forth in and in accordance with the terms of
this Article III.
SECTION 3.2. SPECIAL EVENT REDEMPTION. Subject to the
Company having received the prior approval of the Federal Reserve, if
then required under the applicable capital guidelines, policies or
regulations of the Federal Reserve, if a Special Event has occurred and
is continuing, then, notwithstanding Section 3.3(a) but subject to
Section 3.3(b), the Company shall have the right upon not less than 30
days' nor more than 60 days' notice to the holders of the Debentures to
redeem the Debentures, in whole but not in part, for cash within 180
days following the occurrence of such Special Event (the "180-Day
Period") at a redemption price equal to 100% of the principal amount to
be redeemed plus any accrued and unpaid interest thereon to the date of
such redemption (the "Redemption Price"), provided, that if at the time
there is available to the Company the opportunity to eliminate, within
the 180-Day Period, a Tax Event by taking some ministerial action (a
"Ministerial Action"), such as filing a form or making an election, or
pursuing some other similar
15
reasonable measure which has no adverse effect on the Company, the Trust
or the holders of the Trust Securities issued by the Trust, the Company
shall pursue such Ministerial Action in lieu of redemption, and,
provided, further, that the Company shall have no right to redeem the
Debentures pursuant to this Section 3.2 while it is pursuing any
Ministerial Action pursuant to its obligations hereunder, and, provided,
further, that, if it is determined that the taking of a Ministerial
Action would not eliminate the Tax Event within the 180 Day Period, the
Company's right to redeem the Debentures pursuant to this Section 3.2
shall be restored and it shall have no further obligations to pursue the
Ministerial Action. The Redemption Price shall be paid prior to 12:00
noon, New York time, on the date of such redemption or such earlier time
as the Company determines, provided that the Company shall deposit with
the Trustee an amount sufficient to pay the Redemption Price by 10:00
a.m., New York time, on the date such Redemption Price is to be paid.
SECTION 3.3. OPTIONAL REDEMPTION BY THE COMPANY.
(a) Subject to the provisions of Section 3.3(c), except as
otherwise may be specified in this Indenture, the Company shall have the
right to redeem the Debentures, in whole or in part, from time to time,
on or after ____________, 2005, at a Redemption Price equal to 100% of
the principal amount to be redeemed plus any accrued and unpaid interest
thereon to the date of such redemption. Any redemption pursuant to this
Section 3.3(a) shall be made upon not less than 30 days' nor more than
60 days' notice to the holder of the Debentures, at the Redemption
Price. If the Debentures are only partially redeemed pursuant to this
Section 3.3(a), the Debentures shall be redeemed by lot. The Redemption
Price shall be paid prior to 12:00 noon, New York time, on the date of
such redemption or at such earlier time as the Company determines,
provided that the Company shall deposit with the Trustee an amount
sufficient to pay the Redemption Price by 10:00 a.m., New York time,
on the date such Redemption Price is to be paid.
(b) Subject to the provisions of Section 3.3(c), the Company
shall have the right to redeem Debentures at any time and from time to
time in a principal amount equal to the Liquidation Amount (as defined
in the Trust Agreement) of any Preferred Securities purchased and
beneficially owned by the Company, plus an additional principal amount
of Debentures equal to the Liquidation Amount (as defined in the Trust
Agreement) of that number of Common Securities that bears the same
proportion to the total number of Common Securities then outstanding as
the number of Preferred Securities to be redeemed bears to the total
number of Preferred Securities then outstanding. Such Debentures shall
be redeemed pursuant to this Section 3.3(b) only in exchange for and
upon surrender by the Company to the Property Trustee of the Preferred
Securities and a proportionate amount of Common Securities, whereupon
the Property Trustee shall cancel the Preferred Securities and Common
Securities so surrendered and a Like Amount (as defined in the Trust
Agreement) of Debentures shall be extinguished by the Trustee and shall
no longer be deemed Outstanding.
(c) If a partial redemption of the Debentures would result in
the delisting of the Preferred Securities issued by the Trust from The
Nasdaq National Market(SM) or any national securities exchange or other
organization on which the Preferred Securities are then listed or
quoted, the
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Company shall not be permitted to effect such partial redemption and may
only redeem the Debentures in whole.
SECTION 3.4. NOTICE OF REDEMPTION.
(a) Except in the case of a redemption pursuant to Section
3.3(b), in case the Company shall desire to exercise such right to
redeem all or, as the case may be, a portion of the Debentures in
accordance with the right reserved so to do, the Company shall, or shall
cause the Trustee to, upon receipt of 45 days' written notice from the
Company (which notice shall, in the event of a partial redemption,
include a representation to the effect that such partial redemption
shall not result in the delisting of the Preferred Securities as
described in Section 3.3(c) above), give notice of such redemption to
holders of the Debentures to be redeemed by mailing, first class postage
prepaid, a notice of such redemption not less than 30 days and not more
than 60 days before the date fixed for redemption to such holders at
their last addresses as they shall appear upon the Debenture Register
unless a shorter period is specified in the Debentures to be redeemed.
Any notice that is mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the
registered holder receives the notice. In any case, failure duly to give
such notice to the holder of any Debenture designated for redemption in
whole or in part, or any defect in the notice, shall not affect the
validity of the proceedings for the redemption of any other Debentures.
In the case of any redemption of Debentures prior to the expiration of
any restriction on such redemption provided in the terms of such
Debentures or elsewhere in this Indenture, the Company shall furnish the
Trustee with an Officers' Certificate evidencing compliance with any
such restriction. Each such notice of redemption shall specify the date
fixed for redemption and the Redemption Price and shall state that
payment of the Redemption Price shall be made at the Corporate Trust
Office, upon presentation and surrender of such Debentures, that
interest accrued to the date fixed for redemption shall be paid as
specified in said notice and that from and after said date interest
shall cease to accrue. If less than all the Debentures are to be
redeemed, the notice to the holders of the Debentures shall specify the
particular Debentures to be redeemed. If the Debentures are to be
redeemed in part only, the notice shall state the portion of the
principal amount thereof to be redeemed and shall state that on and
after the redemption date, upon surrender of such Debenture, a new
Debenture or Debentures in principal amount equal to the unredeemed
portion thereof shall be issued.
(b) Except in the case of a redemption pursuant to Section
3.3(b), if less than all the Debentures are to be redeemed, the Company
shall give the Trustee at least 45 days' written notice in advance of
the date fixed for redemption as to the aggregate principal amount of
Debentures to be redeemed, and thereupon the Trustee shall select, by
lot, the portion or portions (equal to $25 or any integral multiple
thereof) of the Debentures to be redeemed and shall thereafter promptly
notify the Company in writing of the numbers of the Debentures to be
redeemed, in whole or in part. The Company may, if and whenever it
shall so elect pursuant to the terms hereof, by delivery of instructions
signed on its behalf by its Chairman, Chief Executive Officer, President
or any Vice President, instruct the Trustee or any Paying Agent to call
all or any part of the Debentures for redemption and to give
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notice of redemption in the manner set forth in this Section 3.4, such
notice to be in the name of the Company or its own name as the Trustee
or such Paying Agent may deem advisable. In any case in which notice of
redemption is to be given by the Trustee or any such Paying Agent, the
Company shall deliver or cause to be delivered to, or permit to remain
with, the Trustee or such Paying Agent, as the case may be, such
Debenture Register, transfer books or other records, or suitable copies
or extracts therefrom, sufficient to enable the Trustee or such Paying
Agent to give any notice by mail that may be required under the
provisions of this Section 3.4.
SECTION 3.5. PAYMENT UPON REDEMPTION.
(a) If the giving of notice of redemption shall have been
completed as above provided, the Debentures or portions of Debentures to
be redeemed specified in such notice shall become due and payable on the
date and at the place stated in such notice at the applicable Redemption
Price, and interest on such Debentures or portions of Debentures shall
cease to accrue on and after the date fixed for redemption, unless the
Company shall default in the payment of such Redemption Price with
respect to any such Debenture or portion thereof. On presentation and
surrender of such Debentures on or after the date fixed for redemption
at the place of payment specified in the notice, said Debentures shall
be paid and redeemed at the Redemption Price (but if the date fixed for
redemption is an Interest Payment Date, the interest installment payable
on such date shall be payable to the registered holder at the close of
business on the applicable record date pursuant to Section 2.5).
(b) Upon presentation of any Debenture that is to be redeemed in
part only, the Company shall execute and the Trustee shall authenticate
and the office or agency where the Debenture is presented shall deliver
to the holder thereof, at the expense of the Company, a new Debenture of
authorized denomination in principal amount equal to the unredeemed
portion of the Debenture so presented.
SECTION 3.6. NO SINKING FUND. The Debentures are not entitled to
the benefit of any sinking fund.
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1. EXTENSION OF INTEREST PAYMENT PERIOD. The
Company shall have the right, at any time and from time to time during
the term of the Debentures so long as no Event of Default has occurred
and is continuing, to defer payments of interest by extending the
interest payment period of such Debentures for a period not exceeding 20
consecutive quarters (the "Extension Period"), during which Extension
Period no interest shall be due and payable; provided that no Extension
Period may extend beyond the Maturity Date or end on a date other than
an Interest Payment Date. To the extent permitted by applicable law,
interest, the payment of which has been deferred because of the
extension of the interest payment period pursuant to this Section 4.1,
shall bear interest thereon at the Coupon Rate compounded quarterly for
each quarter of the Extension Period ("Compounded Interest"). At the end
of the Extension Period, the Company shall calculate (and deliver such
calculation to the Trustee) and pay all interest accrued and unpaid on
the
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Debentures, including any Additional Payments and Compounded Interest
(together, "Deferred Payments") that shall be payable to the holders of
the Debentures in whose names the Debentures are registered in the
Debenture Register on the first record date after the end of the
Extension Period. Before the termination of any Extension Period, the
Company may further extend such period so long as no Event of Default
has occurred and is continuing, provided that such period together with
all such further extensions thereof shall not exceed 20 consecutive
quarters, or extend beyond the Maturity Date of the Debentures or end on
a date other than an Interest Payment Date. Upon the termination of any
Extension Period and upon the payment of all Deferred Payments then due,
the Company may commence a new Extension Period, subject to the
foregoing requirements. No interest shall be due and payable during an
Extension Period, except at the end thereof, but the Company may prepay
at any time all or any portion of the interest accrued during an
Extension Period.
SECTION 4.2. NOTICE OF EXTENSION.
(a) If the Property Trustee is the only registered holder of the
Debentures at the time the Company selects an Extension Period, the
Company shall give written notice to the Administrative Trustees, the
Property Trustee and the Trustee of its selection of such Extension
Period two Business Days before the earlier of (i) the next succeeding
date on which Distributions on the Trust Securities issued by the Trust
are payable; or (ii) the date the Trust is required to give notice of
the record date, or the date such Distributions are payable, to The
Nasdaq National Market or other applicable self-regulatory
organization or to holders of the Preferred Securities issued by the
Trust, but in any event at least one Business Day before such record
date.
(b) If the Property Trustee is not the only holder of the
Debentures at the time the Company selects an Extension Period, the
Company shall give the holders of the Debentures and the Trustee written
notice of its selection of such Extension Period at least two Business
Days before the earlier of (i) the next succeeding Interest Payment
Date; or (ii) the date the Company is required to give notice of the
record or payment date of such interest payment to The Nasdaq National
Market or other applicable self-regulatory organization or to holders
of the Debentures, but in any event at least one Business Day before
such record date.
(c) The quarter in which any notice is given pursuant to
paragraphs (a) or (b) of this Section 4.2 shall be counted as one of the
20 quarters permitted in the maximum Extension Period permitted under
Section 4.1.
SECTION 4.3. LIMITATION ON TRANSACTIONS. If (i) the Company
shall exercise its right to defer payment of interest as provided in
Section 4.1; or (ii) there shall have occurred and be continuing any
Event of Default, then (a) neither the Company nor any of its Subsidiaries
shall declare or pay any dividend on, make any distributions with respect
to, or redeem, purchase, acquire or make a liquidation payment with respect
to, any of its capital stock (other than (A) dividends or distributions
in common stock of the Company or such Subsidiary, as the case may be,
or any declaration of a non-cash dividend in connection with the
implementation of a shareholder rights plan, or the issuance of stock
under any such plan in the future, or the redemption or repurchase of
any such rights pursuant thereto, (B) purchases of common stock of the
Company related to the rights under any of the Company's benefit plans
for its directors, officers or employees, (C) as a result of a
reclassification of its capital stock for another class of its capital
stock, or (D) dividends payable by such Subsidiary to the Company or any
of its Subsidiaries; (b) the Company
19
shall not make any payment of interest, principal or premium, if any, or
repay, repurchase or redeem any debt securities issued by the Company
which rank pari passu with (including without limitation the Company's
9.25% Subordinated Debentures due 2027 issued to First Preferred Capital
Trust I) or junior to the Debentures or make any guarantee payments with
respect to any guarantee by the Company of the debt securities of any
subsidiary of the Company if such guarantee ranks pari passu with or
junior to the Debentures; provided, however, that notwithstanding the
foregoing the Company may make payments pursuant to its obligations
under the Preferred Securities Guarantee; and (c) the Company shall not
redeem, purchase or acquire less than all of the Outstanding Debentures
or any of the Preferred Securities. The term "capital stock" as used in
this Indenture shall not include the 8.50% Subordinated Debentures due
2028 issued by First Banks America, Inc. to First America Capital Trust
or the 8.50% Cumulative Trust Preferred Securities issued by First
America Capital Trust.
ARTICLE V
PARTICULAR COVENANTS OF THE COMPANY
SECTION 5.1. PAYMENT OF PRINCIPAL AND INTEREST. The Company
shall duly and punctually pay or cause to be paid the principal of and
interest on the Debentures at the time and place and in the manner
provided herein. Each such payment of the principal of and interest on
the Debentures shall relate only to the Debentures, shall not be
combined with any other payment of the principal of or interest on any
other obligation of the Company, and shall be clearly and unmistakably
identified as pertaining to the Debentures.
SECTION 5.2. MAINTENANCE OF AGENCY. So long as any of the
Debentures remain Outstanding, the Company shall maintain an office or
agency at such other location or locations as may be designated as
provided in this Section 5.2, where (i) Debentures may be presented for
payment; (ii) Debentures may be presented as hereinabove authorized for
registration of transfer and exchange; and (iii) notices and demands to
or upon the Company in respect of the Debentures and this Indenture may
be given or served, such designation to continue with respect to such
office or agency until the Company shall, by written notice signed by
its President or a Vice President and delivered to the Trustee,
designate some other office or agency for such purposes or any of them.
If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, notices and demands may be made or served
at the Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such presentations,
notices and demands. The Company shall give the Trustee prompt written
notice of any such designation or rescission thereof.
SECTION 5.3. PAYING AGENTS.
(a) The Trustee shall initially act as the Paying Agent. If the
Company shall appoint one or more Paying Agents for the Debentures,
other than the Trustee, the Company shall cause each such Paying Agent
to execute and deliver to the Trustee an instrument in which such agent
shall agree with the Trustee, subject to the provisions of this Section
5.3:
(i) that it shall hold all sums held by it as such agent
for the payment of the principal of or interest on the Debentures
(whether such sums have been paid to it by the
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Company or by any other obligor of such Debentures) in trust for
the benefit of the Persons entitled thereto;
(ii) that it shall give the Trustee notice of any failure
by the Company (or by any other obligor of such Debentures) to
make any payment of the principal of or interest on the Debentures
when the same shall be due and payable;
(iii) that it shall, at any time during the continuance of
any failure referred to in the preceding paragraph (a)(ii) above,
upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent; and
(iv) that it shall perform all other duties of Paying Agent
as set forth in this Indenture.
(b) If the Company shall act as its own Paying Agent with
respect to the Debentures, it shall on or before each due date of the
principal of or interest on such Debentures, set aside, segregate and
hold in trust for the benefit of the Persons entitled thereto a sum
sufficient to pay such principal or interest so becoming due on
Debentures until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and shall promptly notify the Trustee of
such action, or any failure (by it or any other obligor on such
Debentures) to take such action. Whenever the Company shall have one or
more Paying Agents for the Debentures, it shall, prior to each due date
of the principal of or interest on any Debentures, deposit with the
Paying Agent a sum sufficient to pay the principal or interest so
becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal or interest, and (unless such Paying
Agent is the Trustee) the Company shall promptly notify the Trustee of
this action or failure so to act.
(c) Notwithstanding anything in this Section 5.3 to the
contrary, (i) the agreement to hold sums in trust as provided in this
Section 5.3 is subject to the provisions of Section 13.3 and 13.4; and
(ii) the Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose,
pay, or direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same terms and conditions as those upon which such sums
were held by the Company or such Paying Agent; and, upon such payment by
any Paying Agent to the Trustee, such Paying Agent shall be released
from all further liability with respect to such money.
SECTION 5.4. APPOINTMENT TO FILL VACANCY IN OFFICE OF
TRUSTEE. The Company, whenever necessary to avoid or fill a vacancy in
the office of Trustee, shall appoint, in the manner provided in Section
9.11, a Trustee, so that there shall at all times be a Trustee
hereunder.
SECTION 5.5. COMPLIANCE WITH CONSOLIDATION PROVISIONS. The
Company shall not, while any of the Debentures remain Outstanding,
consolidate with, or merge into, or merge into itself, or sell or convey
all or substantially all of its property to any other company unless the
provisions of Article XII hereof are complied with.
SECTION 5.6. LIMITATION ON TRANSACTIONS. If Debentures are
issued to the Trust or a trustee of the Trust in connection with the
issuance of Trust Securities by the Trust and (i) there
21
shall have occurred and be continuing any Event of Default; (ii) the
Company shall be in default with respect to its payment of any obligations
under the Preferred Securities Guarantee relating to the Trust; or (iii)
the Company shall have given notice of its election to defer payments of
interest on such Debentures by extending the interest payment period as
provided in this Indenture and such Extension Period, or any extension
thereof, shall be continuing, then (a) neither the Company nor any of its
Subsidiaries shall declare or pay any dividend on, make any distributions
with respect to, or redeem, purchase, acquire or make a liquidation
payment with respect to, any of its capital stock (other than (A) dividends
or distributions in common stock of the Company or such Subsidiary, as the
case may be, or any declaration of a non-cash dividend in connection with
the implementation of a shareholder rights plan, or the issuance of stock
under any such plan in the future, or the redemption or repurchase of any
such rights pursuant thereto, (B) purchases of common stock of the Company
related to the rights under any of the Company's benefit plans for its
directors, officers or employees), (C) as a result of a reclassification
of its capital stock, or (D) dividends payable by such Subsidiary to the
Company or any of its Subsidiaries; (b) the Company shall not make any
payment of principal, interest or premium, if any, or repay, repurchase
or redeem any debt securities issued by the Company which rank pari passu
with (including without limitation the Company's 9.25% Subordinated
Debentures due 2027 issued to First Preferred Capital Trust I) or junior
in interest to the Debentures; provided, however, that the Company may
make payments pursuant to its obligations under the Preferred Securities
Guarantee; and (c) the Company shall not redeem, purchase or acquire less
than all of the Outstanding Debentures or any of the Preferred Securities.
SECTION 5.7. COVENANTS AS TO THE TRUST. For so long as the
Trust Securities of the Trust remain outstanding, the Company shall (i)
maintain 100% direct or indirect ownership of the Common Securities of
the Trust; provided, however, that any permitted successor of the
Company under this Indenture may succeed to the Company's ownership of
the Common Securities; (ii) not voluntarily terminate, wind up or
liquidate the Trust, except upon prior approval of the Federal Reserve
if then so required under applicable capital guidelines, regulations or
policies of the Federal Reserve and use its reasonable efforts to cause
the Trust (a) to remain a business trust (and to avoid involuntary termination,
winding up or liquidation), except in connection with a distribution
of Debentures, the redemption of all of the Trust Securities of the
Trust or certain mergers, consolidations or amalgamations, each as
permitted by the Trust Agreement; and (b) to otherwise continue not to
be treated as an association taxable as a corporation or partnership for
United States federal income tax purposes; (iii) use its reasonable
efforts to cause each holder of Trust Securities to be treated as owning
an individual beneficial interest in the Debentures; and (iv) the
Company, and any successor to the Company, shall use reasonable efforts
to maintain the eligibility of the Preferred Securities for quotation or
listing on any national securities exchange or other organization on
which the Preferred Securities are then quoted or listed (including, if
applicable, The Nasdaq National Market) and shall use reasonable
efforts to keep the Preferred Securities so quoted or listed for so long
as the Preferred Securities remain outstanding. In connection with the
distribution of the Debentures to the holders of the Preferred
Securities issued by the Trust upon a Dissolution Event, the Company
shall use its best efforts to list such Debentures on The Nasdaq
National Market or on such other exchange as the Preferred Securities
are then listed.
SECTION 5.8. COVENANTS AS TO PURCHASES. Except upon the
exercise by the Company of its right to redeem the Debentures pursuant
to Section 3.2 upon the occurrence and continuation of
22
a Special Event or pursuant to Section 3.3(b), the Company shall not
purchase any Debentures, in whole or in part, from the Trust prior to
___________, 2005.
SECTION 5.9. WAIVER OF USURY; STAY OR EXTENSION LAWS. The
Company shall not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any usury, stay or
extension law wherever enacted, now or at any time hereafter in force,
which may affect the covenants or the performances of this Indenture,
and the Company (to the extent it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law and covenants that it
will not hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE VI
DEBENTUREHOLDERS' LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
SECTION 6.1. COMPANY TO FURNISH THE TRUSTEE NAMES AND
ADDRESSES OF DEBENTUREHOLDERS. The Company shall furnish or cause to
be furnished to the Trustee (a) on a quarterly basis on each regular
record date (as described in Section 2.5) a list, in such form as the
Trustee may reasonably require, of the names and addresses of the
holders of the Debentures as of such regular record date, provided that
the Company shall not be obligated to furnish or cause to furnish such
list at any time that the list shall not differ in any respect from the
most recent list furnished to the Trustee by the Company (in the event
the Company fails to provide such list on a quarterly basis, the Trustee
shall be entitled to rely on the most recent list provided by the
Company); and (b) at such other times as the Trustee may request in
writing within 30 days after the receipt by the Company of any such
request, a list of similar form and content as of a date not more than
15 days prior to the time such list is furnished; provided, however,
that, in either case, no such list need be furnished if the Trustee
shall be the Debenture Registrar.
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SECTION 6.2. PRESERVATION OF INFORMATION COMMUNICATIONS WITH
THE DEBENTUREHOLDERS.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, all information as to the names and addresses of
the holders of Debentures contained in the most recent list furnished to
it as provided in Section 6.1 and as to the names and addresses of
holders of Debentures received by the Trustee in its capacity as
Debenture Registrar for the Debentures (if acting in such capacity).
(b) The Trustee may destroy any list furnished to it as provided
in Section 6.1 upon receipt of a new list so furnished.
(c) Debentureholders may communicate as provided in Section
312(b) of the Trust Indenture Act with other Debentureholders with
respect to their rights under this Indenture or under the Debentures.
SECTION 6.3. REPORTS BY THE COMPANY.
(a) The Company covenants and agrees to file with the Trustee,
within 15 days after the Company is required to file the same with the
Commission, copies of the annual reports and of the information,
documents and other reports (or copies of such portions of any of the
foregoing as the Commission may from time to time by rules and
regulations prescribe) that the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Exchange Act;
or, if the Company is not required to file information, documents or
reports pursuant to either of such sections, then to file with the
Trustee and the Commission, in accordance with the rules and regulations
prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports that may
be required pursuant to Section 13 of the Exchange Act in respect of a
security listed and registered on a national securities exchange as may
be prescribed from time to time in such rules and regulations.
(b) The Company covenants and agrees to file with the Trustee
and the Commission, in accordance with the rules and regulations
prescribed from time to time by the Commission, such additional
information, documents and reports with respect to compliance by the
Company with the conditions and covenants provided for in this Indenture
as may be required from time to time by such rules and regulations.
(c) The Company covenants and agrees to transmit by mail, first
class postage prepaid, or reputable overnight delivery service that
provides for evidence of receipt, to the Debentureholders, as their
names and addresses appear upon the Debenture Register, within 30 days
after the filing thereof with the Trustee, such summaries of any
information, documents and reports required to be filed by the Company
pursuant to subsections (a) and (b) of this Section 6.3 as may be
required by rules and regulations prescribed from time to time by the
Commission.
SECTION 6.4. REPORTS BY THE TRUSTEE.
(a) On or before July 15 in each year in which any of the
Debentures are Outstanding, the Trustee shall transmit by mail, first
class postage prepaid, to the Debentureholders, as their
24
names and addresses appear upon the Debenture Register, a brief report
dated as of the preceding May 15, if and to the extent required under
Section 313(a) of the Trust Indenture Act.
(b) The Trustee shall comply with Section 313(b) and 313(c) of
the Trust Indenture Act.
(c) A copy of each such report shall, at the time of such
transmission to Debentureholders, be filed by the Trustee with the
Company, with each stock exchange upon which any Debentures are listed
(if so listed) and also with the Commission. The Company agrees to
notify the Trustee when any Debentures become listed on any stock
exchange.
ARTICLE VII
REMEDIES OF THE TRUSTEE AND DEBENTUREHOLDERS
ON EVENT OF DEFAULT
SECTION 7.1. EVENTS OF DEFAULT.
(a) Whenever used herein with respect to the Debentures, "Event
of Default" means any one or more of the following events that has
occurred:
(i) the Company defaults in the payment of any installment
of interest upon any of the Debentures, as and when the same shall
become due and payable, and continuance of such default for a
period of 30 days; provided, however, that a valid extension of an
interest payment period by the Company in accordance with the
terms of this Indenture shall not constitute a default in the
payment of interest for this purpose;
(ii) the Company defaults in the payment of the principal
on the Debentures as and when the same shall become due and
payable whether at maturity, upon redemption, by declaration or
otherwise;
(iii) the Company fails to observe or perform any other of
its covenants or agreements with respect to the Debentures for a
period of 90 days after the date on which written notice of such
failure, requiring the same to be remedied and stating that such
notice is a "Notice of Default" hereunder, shall have been given
to the Company by the Trustee, by registered or certified mail, or
to the Company and the Trustee by the holders of at least 25% in
principal amount of the Debentures at the time Outstanding;
(iv) the Company pursuant to or within the meaning of any
Bankruptcy Law (A) commences a voluntary case; (B) consents to the
entry of an order for relief against it in an involuntary case;
(C) consents to the appointment of a Custodian of it or for all or
substantially all of its property; or (D) makes a general
assignment for the benefit of its creditors;
(v) a court of competent jurisdiction enters an order
under any Bankruptcy Law that (A) is for relief against the
Company in an involuntary case; (B) appoints a Custodian
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of the Company for all or substantially all of its property; or
(C) orders the liquidation of the Company, and in any of such
events the order or decree remains unstayed and in effect for
60 consecutive days; or
(vi) the Trust shall have voluntarily or involuntarily
dissolved, wound-up its business or otherwise terminated its
existence except in connection with (A) the distribution of
Debentures to holders of Trust Securities in liquidation of their
interests in the Trust; (B) the redemption of all of the
outstanding Trust Securities of the Trust; or (C) certain mergers,
consolidations or amalgamations, each as permitted by the Trust
Agreement.
(b) In each and every such case referred to in paragraphs (i)
through (vi) of Section 7.1(a), unless the principal of all the
Debentures shall have already become due and payable, either the Trustee
or the holders of not less than 25% in aggregate principal amount of the
Debentures then Outstanding hereunder, by notice in writing to the
Company (and to the Trustee if given by such Debentureholders) may
declare the principal of all the Debentures to be due and payable
immediately, and upon any such declaration the same shall become and
shall be immediately due and payable, notwithstanding anything contained
in this Indenture or in the Debentures.
(c) At any time after the principal of the Debentures shall have
been so declared due and payable, and before any judgment or decree for
the payment of the money due shall have been obtained or entered as
hereinafter provided, the holders of a majority in aggregate principal
amount of the Debentures then Outstanding hereunder, by written notice
to the Company and the Trustee, may rescind and annul such declaration
and its consequences if: (i) the Company has paid or deposited with the
Trustee a sum sufficient to pay all matured installments of interest
upon all the Debentures and the principal of any and all Debentures that
shall have become due otherwise than by acceleration (with interest upon
such principal, and, to the extent that such payment is enforceable
under applicable law, upon overdue installments of interest, at the rate
per annum expressed in the Debentures to the date of such payment or
deposit) and the amount payable to the Trustee under Section 9.7; and
(ii) any and all Events of Default under this Indenture, other than the
nonpayment of principal on Debentures that shall not have become due by
their terms, shall have been remedied or waived as provided in Section
7.6. No such rescission and annulment shall extend to or shall affect
any subsequent default or impair any right consequent thereon.
(d) In case the Trustee shall have proceeded to enforce any
right with respect to Debentures under this Indenture and such
proceedings shall have been discontinued or abandoned because of such
rescission or annulment or for any other reason or shall have been
determined adversely to the Trustee, then and in every such case the
Company and the Trustee shall be restored respectively to their former
positions and rights hereunder, and all rights, remedies and powers of
the Company and the Trustee shall continue as though no such proceedings
had been taken.
SECTION 7.2. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT
BY TRUSTEE.
(a) The Company covenants that (i) in case it shall default in
the payment of any installment of interest on any of the Debentures, and
such default shall have continued for a period of 30 days; or (ii) in
case it shall default in the payment of the principal of any of the
Debentures when the same shall have become due and payable, whether upon
maturity of the Debentures or
26
upon redemption or upon declaration or otherwise, then, upon demand of
the Trustee, the Company shall pay to the Trustee, for the benefit of
the holders of the Debentures, the whole amount that then shall have
become due and payable on all such Debentures for principal or interest,
or both, as the case may be, with interest upon the overdue principal
and (to the extent that payment of such interest is enforceable under
applicable law and, if the Debentures are held by the Trust or a trustee
of the Trust, without duplication of any other amounts paid by the Trust
or trustee in respect thereof) upon overdue installments of interest at
the rate per annum expressed in the Debentures; and, in addition
thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, and the amount payable to the Trustee under
Section 9.7.
(b) If the Company shall fail to pay such amounts set forth in
Section 7.2(a) forthwith upon such demand, the Trustee, in its own name
and as trustee of an express trust, shall be entitled and empowered to
institute any action or proceedings at law or in equity for the
collection of the sums so due and unpaid, and may prosecute any such
action or proceeding to judgment or final decree, and may enforce any
such judgment or final decree against the Company or other obligor upon
the Debentures and collect the money adjudged or decreed to be payable
in the manner provided by law out of the property of the Company or
other obligor upon the Debentures, wherever situated.
(c) In case of any receivership, insolvency, liquidation,
bankruptcy, reorganization, readjustment, arrangement, composition or
judicial proceedings affecting the Company, the Trust or the creditors
or property of either, the Trustee shall have power to intervene in such
proceedings and take any action therein that may be permitted by the
court and shall (except as may be otherwise provided by law) be entitled
to file such proofs of claim and other papers and documents as may be
necessary or advisable in order to have the claims of the Trustee and of
the holders of the Debentures allowed for the entire amount due and
payable by the Company under this Indenture at the date of institution
of such proceedings and for any additional amount that may become due
and payable by the Company after such date, and to collect and receive
any money or other property payable or deliverable on any such claim,
and to distribute the same after the deduction of the amount payable to
the Trustee under Section 9.7; and any receiver, assignee or trustee in
bankruptcy or reorganization is hereby authorized by each of the holders
of the Debentures to make such payments to the Trustee, and, in the
event that the Trustee shall consent to the making of such payments
directly to such Debentureholders, to pay to the Trustee any amount due
it under Section 9.7.
(d) All rights of action and of asserting claims under this
Indenture, or under any of the terms established with respect to the
Debentures, may be enforced by the Trustee without the possession of any
of such Debentures, or the production thereof at any trial or other
proceeding relative thereto, and any such suit or proceeding instituted
by the Trustee shall be brought in its own name as trustee of an express
trust, and any recovery of judgment shall, after provision for payment
to the Trustee of any amounts due under Section 9.7, be for the ratable
benefit of the holders of the Debentures. In case of an Event of Default
hereunder which is continuing, the Trustee may in its discretion proceed
to protect and enforce the rights vested in it by this Indenture by such
appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any of such rights, either at law or in equity or
in bankruptcy or otherwise, whether for the specific enforcement of any
covenant or
27
agreement contained in this Indenture or in aid of the exercise of any
power granted in this Indenture, or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law.
Nothing contained herein shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any
Debentureholder any plan of reorganization, arrangement, adjustment or
composition affecting the Debentures or the rights of any holder thereof
or to authorize the Trustee to vote in respect of the claim of any
Debentureholder in any such proceeding.
SECTION 7.3. APPLICATION OF MONEY COLLECTED. Any money or
other assets collected by the Trustee pursuant to this Article VII with
respect to the Debentures shall be applied in the following order, at
the date or dates fixed by the Trustee and, in case of the distribution
of such money or other assets on account of principal or interest, upon
presentation of the Debentures, and notation thereon of the payment, if
only partially paid, and upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses of collection
and of all amounts payable to the Trustee under Section 9.7;
SECOND: To the payment of all Senior Indebtedness of the
Company if and to the extent required by Article XVI; and
THIRD: To the payment of the amounts then due and unpaid
upon the Debentures for principal and interest, in respect of which or
for the benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts due and
payable on such Debentures for principal and interest, respectively.
SECTION 7.4. LIMITATION ON SUITS.
(a) Except as set forth in this Indenture, no holder of any
Debenture shall have any right by virtue or by availing of any provision
of this Indenture to institute any suit, action or proceeding in equity
or at law upon or under or with respect to this Indenture or for the
appointment of a receiver or trustee, or for any other remedy hereunder,
unless (i) such holder previously shall have given to the Trustee
written notice of an Event of Default and of the continuance thereof
with respect to the Debentures specifying such Event of Default, as
hereinbefore provided; (ii) the holders of not less than 25% in
aggregate principal amount of the Debentures then Outstanding shall have
made written request upon the Trustee to institute such action, suit or
proceeding in its own name as trustee hereunder; (iii) such holder or
holders shall have offered to the Trustee such reasonable indemnity as
it may require against the costs, expenses and liabilities to be
incurred therein or thereby; and (iv) the Trustee for 60 days after its
receipt of such notice, request and offer of indemnity shall have failed
to institute any such action, suit or proceeding and during such 60 day
period, the holders of a majority in principal amount of the Debentures
do not give the Trustee a direction inconsistent with the request.
(b) Notwithstanding anything contained herein to the contrary or
any other provisions of this Indenture, the right of any holder of the
Debentures to receive payment of the principal of and interest on the
Debentures, as therein provided, on or after the respective due dates
expressed in such Debenture (or in the case of redemption, on the
redemption date), or to institute suit for the enforcement of any such
payment on or after such respective dates or redemption date, shall not
be
28
impaired or affected without the consent of such holder and by accepting
a Debenture hereunder it is expressly understood, intended and
covenanted by the taker and holder of every Debenture with every other
such taker and holder and the Trustee that no one or more holders of the
Debentures shall have any right in any manner whatsoever by virtue or by
availing of any provision of this Indenture to affect, disturb or
prejudice the rights of the holders of any other of such Debentures, or
to obtain or seek to obtain priority over or preference to any other
such holder, or to enforce any right under this Indenture, except in the
manner herein provided and for the equal, ratable and common benefit of
all holders of the Debentures. For the protection and enforcement of the
provisions of this Section 7.4, each and every Debentureholder and the
Trustee shall be entitled to such relief as can be given either at law
or in equity.
SECTION 7.5. RIGHTS AND REMEDIES CUMULATIVE; DELAY OR OMISSION NOT
WAIVER.
(a) Except as otherwise provided in Section 2.9(b), all powers
and remedies given by this Article VII to the Trustee or to the
Debentureholders shall, to the extent permitted by law, be deemed
cumulative and not exclusive of any other powers and remedies available
to the Trustee or the holders of the Debentures, by judicial proceedings
or otherwise, to enforce the performance or observance of the covenants
and agreements contained in this Indenture or otherwise established with
respect to such Debentures.
(b) No delay or omission of the Trustee or of any holder of any
of the Debentures to exercise any right or power accruing upon any Event
of Default occurring and continuing as aforesaid shall impair any such
right or power, or shall be construed to be a waiver of any such default
or an acquiescence therein; and, subject to the provisions of Section
7.4, every power and remedy given by this Article VII or by law to the
Trustee or the Debentureholders may be exercised from time to time, and
as often as shall be deemed expedient, by the Trustee or by the
Debentureholders.
SECTION 7.6. CONTROL BY DEBENTUREHOLDERS. The holders of a
majority in aggregate principal amount of the Debentures at the time
Outstanding, determined in accordance with Section 10.4, shall have the
right to direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or
power conferred on the Trustee; provided, however, that such direction
shall not be in conflict with any rule of law or with this Indenture.
Subject to the provisions of Section 9.1, the Trustee shall have the
right to decline to follow any such direction if the Trustee in good
faith shall, by a Responsible Officer or Officers of the Trustee,
determine that the proceeding so directed would involve the Trustee in
personal liability. The holders of a majority in aggregate principal
amount of the Debentures at the time Outstanding affected thereby,
determined in accordance with Section 10.4, may on behalf of the holders
of all of the Debentures waive any past default in the performance of
any of the covenants contained herein and its consequences, except (i) a
default in the payment of the principal of or interest on any of the
Debentures as and when the same shall become due by the terms of such
Debentures otherwise than by acceleration (unless such default has been
cured and a sum sufficient to pay all matured installments of principal
and interest has been deposited with the Trustee (in accordance with
Section 7.1(c)); (ii) a default in the covenants contained in Section
5.6; or (iii) in respect of a covenant or provision hereof which cannot
be modified or amended without the consent of the
29
holder of each Outstanding Debenture affected; provided, however, that
if the Debentures are held by the Trust or a trustee of the Trust, such
waiver or modification to such waiver shall not be effective until the
holders of a majority in liquidation preference of Trust Securities of
the Trust shall have consented to such waiver or modification to such
waiver; provided, further, that if the consent of the holder of each
Outstanding Debenture is required, such waiver shall not be effective
until each holder of the Trust Securities of the Trust shall have
consented to such waiver. Upon any such waiver, the default covered
thereby shall be deemed to be cured for all purposes of this Indenture
and the Company, the Trustee and the holders of the Debentures shall be
restored to their former positions and rights hereunder, respectively;
but no such waiver shall extend to any subsequent or other default or
impair any right consequent thereon.
SECTION 7.7. UNDERTAKING TO PAY COSTS. All parties to this
Indenture agree, and each holder of any Debentures by such holder's
acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or
remedy under this Indenture, or in any suit against the Trustee for any
action taken or omitted by it as the Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit,
and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such
suit, having due regard to the merits and good faith of the claims or
defenses made by such party litigant; but the provisions of this Section
7.7 shall not apply to any suit instituted by the Trustee, to any suit
instituted by any Debentureholder, or group of the Debentureholders
holding more than 10% in aggregate principal amount of the Outstanding
Debentures, or to any suit instituted by any Debentureholder for the
enforcement of the payment of the principal of or interest on the
Debentures, on or after the respective due dates expressed in such
Debenture or established pursuant to this Indenture.
SECTION 7.8. DIRECT ACTION; RIGHT OF SET-OFF. In the event
that an Event of Default has occurred and is continuing and such event
is attributable to the failure of the Company to pay interest on or
principal of the Debentures on an Interest Payment Date or Maturity
Date, as applicable, then a holder of Preferred Securities may institute
a legal proceeding directly against the Company for enforcement of
payment to such holder of the principal of or interest on such
Debentures having a principal amount equal to the aggregate Liquidation
Amount of the Preferred Securities of such holder (a "Direct Action").
In connection with such Direct Action, the Company will have a right of
set-off under this Indenture to the extent of any payment actually made
by the Company to such holder of the Preferred Securities with respect
to such Direct Action.
ARTICLE VIII
FORM OF DEBENTURE AND ORIGINAL ISSUE
SECTION 8.1. FORM OF DEBENTURE. The Debenture and the Trustee's
Certificate of Authentication to be endorsed thereon are to be
substantially in the forms contained as Exhibit A attached hereto and
incorporated herein by reference.
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SECTION 8.2. ORIGINAL ISSUE OF THE DEBENTURES. Debentures in
the aggregate principal amount of $___________ may, upon execution of
this Indenture, be executed by the Company and delivered to the Trustee
for authentication. If the Underwriters exercise their Option and there
is an Option Closing Date (as such terms are defined in the Underwriting
Agreement dated ____________, 2000, by and among the Company, the Trust
and Stifel, Nicolaus & Company, Incorporated and Dain Rauscher Wessels, for
themselves and as representatives of the Underwriters named therein),
then on such Option Closing Date, Debentures in the additional aggregate
principal amount of $__________ may be executed by the Company and
delivered to the Trustee for authentication. In either such event, the
Trustee shall thereupon authenticate and deliver said Debentures to or
upon the written order of the Company, signed by its Chairman, its Chief
Executive Officer, its President, or any Vice President and its Treasurer
or an Assistant Treasurer, without any further action by the Company.
ARTICLE IX
CONCERNING THE TRUSTEE
SECTION 9.1. CERTAIN DUTIES AND RESPONSIBILITIES OF THE
TRUSTEE.
(a) The Trustee, prior to the occurrence of an Event of Default
and after the curing of all Events of Default that may have occurred,
shall undertake to perform with respect to the Debentures such duties
and only such duties as are specifically set forth in this Indenture,
and no implied covenants shall be read into this Indenture against the
Trustee. In case an Event of Default has occurred and is continuing and
has not been cured or waived, the Trustee shall exercise such of the
rights and powers vested in it by this Indenture, and use the same degree
of care and skill in its exercise, as a prudent Person would exercise or
use under the circumstances in the conduct of his or her own affairs.
(b) No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(i) prior to the occurrence of an Event of Default and
after the curing or waiving of all such Events of Default that may
have occurred:
(A) the duties and obligations of the Trustee shall
with respect to the Debentures be determined solely by the
express provisions of this Indenture, and the Trustee shall
not be liable with respect to the Debentures except for the
performance of such duties and obligations as are
specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture
against the Trustee; and
(B) in the absence of bad faith on the part of the
Trustee, the Trustee may with respect to the Debentures
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but
31
in the case of any such certificates or opinions that by any
provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the
requirements of this Indenture;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer or
Responsible Officers of the Trustee, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent
facts;
(iii) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in
accordance with the direction of the holders of not less than a
majority in principal amount of the Debentures at the time
Outstanding relating to the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee under
this Indenture with respect to the Debentures; and
(iv) none of the provisions contained in this Indenture
shall require the Trustee to expend or risk its own funds or
otherwise incur personal financial liability in the performance of
any of its duties or in the exercise of any of its rights or
powers, if there is reasonable ground for believing that the
repayment of such funds or liability is not reasonably assured to
it under the terms of this Indenture or adequate indemnity against
such risk is not reasonably assured to it.
SECTION 9.2. NOTICE OF DEFAULTS. Within 90 days after actual
knowledge by a Responsible Officer of the Trustee of the occurrence of
any Default hereunder with respect to the Debentures, the Trustee shall
transmit by mail to all holders of the Debentures, as their names and
addresses appear in the Debenture Register, notice of such Default,
unless such Default shall have been cured or waived; provided, however,
that, except in the case of a Default in the payment of the principal or
interest (including any Additional Payments) on any Debenture, the
Trustee shall be protected in withholding such notice if and so long as
the board of directors, the executive committee or a trust committee of
the directors and/or Responsible Officers of the Trustee determines in
good faith that the withholding of such notice is in the interests of
the holders of such Debentures; and provided, further, that in the case
of any Default of the character specified in section 7.1(a)(iii), no
such notice to holders of Debentures need be sent until at least 30 days
after the occurrence thereof.
SECTION 9.3. CERTAIN RIGHTS OF TRUSTEE. Except as otherwise
provided in Section 9.1:
(a) The Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
bond, security or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) Any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by a Board Resolution
or an instrument signed in the name of the Company by the President or
any Vice President and by the Secretary or an Assistant Secretary or the
32
Treasurer or an Assistant Treasurer thereof (unless other evidence in
respect thereof is specifically prescribed herein);
(c) The Trustee shall not be deemed to have knowledge of a
Default or an Event of Default, other than an Event of Default specified
in Section 7.1(a)(i) or (ii), unless and until it receives written
notification of such Event of Default from the Company or by holders of
not less than 25% of the aggregate principal amount of the Debentures at
the time Outstanding;
(d) The Trustee may consult with counsel and the written advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered
or omitted hereunder in good faith and in reliance thereon;
(e) The Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request,
order or direction of any of the Debentureholders, pursuant to the
provisions of this Indenture, unless such Debentureholders shall have
offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities that may be incurred therein or thereby;
nothing contained herein shall, however, relieve the Trustee of the
obligation, upon the occurrence of an Event of Default (that is continuing
and has not been cured or waived) to exercise with respect to the
Debentures such of the rights and powers vested in it by this Indenture,
and to use the same degree of care and skill in its exercise, as a prudent
person would exercise or use under the circumstances in the conduct of
his or her own affairs;
(f) The Trustee shall not be liable for any action taken or
omitted to be taken by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Indenture;
(g) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order,
approval, bond, security, or other papers or documents, unless requested
in writing so to do by the holders of not less than a majority in
principal amount of the Outstanding Debentures (determined as provided
in Section 10.4); provided, however, that if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is,
in the opinion of the Trustee, not reasonably assured to the Trustee
by the security afforded to it by the terms of this Indenture, the
Trustee may require reasonable indemnity against such costs, expenses
or liabilities as a condition to so proceeding, and the reasonable
expense of every such examination shall be paid by the Company or,
if paid by the Trustee, shall be repaid by the Company upon demand; and
(h) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care
by it hereunder.
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SECTION 9.4. TRUSTEE NOT RESPONSIBLE FOR RECITALS, ETC.
(a) The Recitals contained herein and in the Debentures shall be
taken as the statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same.
(b) The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Debentures.
(c) The Trustee shall not be accountable for the use or
application by the Company of any of the Debentures or of the proceeds
of such Debentures, or for the use or application of any money paid over
by the Trustee in accordance with any provision of this Indenture, or
for the use or application of any money received by any Paying Agent
other than the Trustee.
SECTION 9.5. MAY HOLD THE DEBENTURES. The Trustee or any Paying
Agent or Debenture Registrar for the Debentures, in its individual or
any other capacity, may become the owner or pledgee of the Debentures
with the same rights it would have if it were not Trustee, Paying Agent
or Debenture Registrar.
SECTION 9.6. MONEY HELD IN TRUST. Subject to the provisions
of Section 13.5, all money received by the Trustee shall, until used or
applied as herein provided, be held in trust for the purposes for which
they were received, but need not be segregated from other funds except
to the extent required by law. The Trustee shall be under no liability
for interest on any money received by it hereunder except such as it may
agree with the Company to pay thereon.
SECTION 9.7. COMPENSATION AND REIMBURSEMENT.
(a) The Company covenants and agrees to pay to the Trustee, and
the Trustee shall be entitled to, such reasonable compensation (which
shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust), as the Company and the
Trustee may from time to time agree in writing, for all services
rendered by it in the execution of the trusts hereby created and in the
exercise and performance of any of the powers and duties hereunder of
the Trustee, and, except as otherwise expressly provided herein, the
Company shall pay or reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any of the provisions of this Indenture
(including the reasonable compensation and the expenses and
disbursements of its counsel and of all Persons not regularly in its
employ) except any such expense, disbursement or advance as may arise
from its negligence or bad faith. The Company also covenants to
indemnify the Trustee (and its officers, agents, directors and
employees) for, and to hold it harmless against, any loss, liability or
expense incurred without negligence or bad faith on the part of the
Trustee and arising out of or in connection with the acceptance or
administration of this trust, including the costs and expenses of
defending itself against any claim of liability in the premises.
(b) The obligations of the Company under this Section 9.7 to
compensate and indemnify the Trustee and to pay or reimburse the Trustee
for expenses, disbursements and advances shall constitute additional
indebtedness hereunder. Such additional indebtedness shall be secured by
a lien prior to that of the Debentures upon all property and funds held
or collected by the Trustee as such, except funds held in trust for the
benefit of the holders of particular Debentures.
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SECTION 9.8. RELIANCE ON OFFICERS' CERTIFICATE. Except as
otherwise provided in Section 9.1, whenever in the administration of the
provisions of this Indenture the Trustee shall deem it necessary or
desirable that a matter be proved or established prior to taking or
suffering or omitting to take any action hereunder, such matter (unless
other evidence in respect thereof be herein specifically prescribed)
may, in the absence of negligence or bad faith on the part of the
Trustee, be deemed to be conclusively proved and established by an
Officers' Certificate delivered to the Trustee and such certificate, in
the absence of negligence or bad faith on the part of the Trustee, shall
be full warrant to the Trustee for any action taken, suffered or omitted
to be taken by it under the provisions of this Indenture upon the faith
thereof.
SECTION 9.9. DISQUALIFICATION; CONFLICTING INTERESTS. If the
Trustee has or shall acquire any "conflicting interest" within the
meaning of Section 310(b) of the Trust Indenture Act, the Trustee and
the Company shall in all respects comply with the provisions of Section
310(b) of the Trust Indenture Act.
SECTION 9.10. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY. There
shall at all times be a Trustee with respect to the Debentures issued
hereunder which shall at all times be a corporation organized and doing
business under the laws of the United States or any state or territory
thereof or of the District of Columbia, or a corporation or other Person
permitted to act as trustee by the Commission, authorized under such
laws to exercise corporate trust powers, having (or the obligations of
which are guaranteed by an entity having) a combined capital and
surplus of at least $50,000,000, and subject to supervision or
examination by federal, state, territorial, or District of Columbia
authority. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this
Section 9.10, the combined capital and surplus of such corporation shall
be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published. The Company may not, nor
may any Person directly or indirectly controlling, controlled by, or
under common control with the Company, serve as Trustee. In case at any
time the Trustee shall cease to be eligible in accordance with the
provisions of this Section 9.10, the Trustee shall resign immediately in
the manner and with the effect specified in Section 9.11.
SECTION 9.11. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) The Trustee or any successor hereafter appointed, may at any
time resign by giving written notice thereof to the Company and by
transmitting notice of resignation by mail, first class postage prepaid,
to the Debentureholders, as their names and addresses appear upon the
Debenture Register. Upon receiving such notice of resignation, the
Company shall promptly appoint a successor trustee with respect to
Debentures by written instrument, in duplicate, executed by order of the
Board of Directors, one copy of which instrument shall be delivered to
the resigning Trustee and one copy to the successor trustee. If no
successor trustee shall have been so appointed and have accepted
appointment within 30 days after the mailing of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee with respect to
Debentures, or any Debentureholder who has been a bona fide holder of a
Debenture or Debentures for at least six months may, subject to the
provisions of Section 9.10, on behalf of himself or herself and all
others similarly situated, petition any such court for the appointment
of
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a successor trustee. Such court may thereupon after such notice, if any,
as it may deem proper and prescribe, appoint a successor trustee.
(b) In case at any time any one of the following shall occur:
(i) the Trustee shall fail to comply with the provisions
of Section 9.9 after written request therefor by the Company or by
any Debentureholder who has been a bona fide holder of a Debenture
or Debentures for at least six months; or
(ii) the Trustee shall cease to be eligible in accordance
with the provisions of Section 9.10 and shall fail to resign after
written request therefor by the Company or by any such
Debentureholder; or
(iii) the Trustee shall become incapable of acting, or shall
be adjudged a bankrupt or insolvent, or commence a voluntary
bankruptcy proceeding, or a receiver of the Trustee or of its
property shall be appointed or consented to, or any public officer
shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation;
then, in any such case, the Company may remove the Trustee with respect
to all Debentures and appoint a successor trustee by written instrument,
in duplicate, executed by order of the Board of Directors, one copy of
which instrument shall be delivered to the Trustee so removed and one
copy to the successor trustee, or, subject to the provisions of Sections
9.9 and 9.10, unless the Trustee's duty to resign is stayed as provided
herein, any Debentureholder who has been a bona fide holder of a
Debenture or Debentures for at least six months may, on behalf of that
holder and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee and the
appointment of a successor trustee. Such court may thereupon after such
notice, if any, as it may deem proper and prescribe, remove the Trustee
and appoint a successor trustee.
(c) The holders of a majority in principal amount of the
Debentures at the time Outstanding may at any time remove the Trustee by
so notifying the Trustee and the Company and may appoint a successor
Trustee with the consent of the Company.
(d) Any resignation or removal of the Trustee and appointment of
a successor trustee with respect to the Debentures pursuant to any of
the provisions of this Section 9.11 shall become effective upon
acceptance of appointment by the successor trustee as provided in
Section 9.12.
SECTION 9.12. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor trustee
with respect to the Debentures, every successor trustee so appointed
shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon
the resignation or removal of the retiring Trustee shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on the request of the Company or
the successor trustee, such
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retiring Trustee shall, upon payment of its charges, execute and deliver
an instrument transferring to such successor trustee all the rights,
powers, and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor trustee all property and money
held by such retiring Trustee hereunder.
(b) Upon request of any successor trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in
and confirming to such successor trustee all such rights, powers and
trusts referred to in paragraph (a) of this Section 9.12.
(c) No successor trustee shall accept its appointment unless at
the time of such acceptance such successor trustee shall be qualified
and eligible under this Article IX.
(d) Upon acceptance of appointment by a successor trustee as
provided in this Section 9.12, the Company shall transmit notice of the
succession of such trustee hereunder by mail, first class postage
prepaid, to the Debentureholders, as their names and addresses appear
upon the Debenture Register. If the Company fails to transmit such
notice within ten days after acceptance of appointment by the successor
trustee, the successor trustee shall cause such notice to be transmitted
at the expense of the Company.
SECTION 9.13. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION
TO BUSINESS. Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any corporation succeeding to the corporate
trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided, that such corporation shall be qualified under the
provisions of Section 9.9 and eligible under the provisions of Section
9.10, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding. In case any Debentures shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by
merger, conversion or consolidation to such authenticating Trustee may
adopt such authentication and deliver the Debentures so authenticated
with the same effect as if such successor Trustee had itself
authenticated such Debentures.
SECTION 9.14. PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE
COMPANY. The Trustee shall comply with Section 311(a) of the Trust
Indenture Act, excluding any creditor relationship described in Section
311(b) of the Trust Indenture Act. A Trustee who has resigned or been
removed shall be subject to Section 311(a) of the Trust Indenture Act to
the extent included therein.
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ARTICLE X
CONCERNING THE DEBENTUREHOLDERS
SECTION 10.1. EVIDENCE OF ACTION BY HOLDERS.
(a) Whenever in this Indenture it is provided that the holders
of a majority or specified percentage in principal amount of the
Debentures may take any action (including the making of any demand or
request, the giving of any notice, consent or waiver or the taking of
any other action), the fact that at the time of taking any such action
the holders of such majority or specified percentage have joined therein
may be evidenced by any instrument or any number of instruments of
similar tenor executed by such holders of Debentures in Person or by
agent or proxy appointed in writing.
(b) If the Company shall solicit from the Debentureholders any
request, demand, authorization, direction, notice, consent, waiver or
other action, the Company may, at its option, as evidenced by an
Officers' Certificate, fix in advance a record date for the
determination of Debentureholders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other action, but
the Company shall have no obligation to do so. If such a record date is
fixed, such request, demand, authorization, direction, notice, consent,
waiver or other action may be given before or after the record date, but
only the Debentureholders of record at the close of business on the
record date shall be deemed to be Debentureholders for the purposes of
determining whether Debentureholders of the requisite proportion of
Outstanding Debentures have authorized or agreed or consented to such
request, demand, authorization, direction, notice, consent, waiver or
other action, and for that purpose the Outstanding Debentures shall be
computed as of the record date; provided, however, that no such
authorization, agreement or consent by such Debentureholders on the
record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than six (6)
months after the record date.
SECTION 10.2. PROOF OF EXECUTION BY DEBENTUREHOLDERS. Subject
to the provisions of Section 9.1, proof of the execution of any
instrument by a Debentureholder (such proof shall not require
notarization) or such Debentureholder's agent or proxy and proof of the
holding by any Person of any of the Debentures shall be sufficient if
made in the following manner:
(a) The fact and date of the execution by any such Person of any
instrument may be proved in any reasonable manner acceptable to the
Trustee.
(b) The ownership of Debentures shall be proved by the Debenture
Register of such Debentures or by a certificate of the Debenture
Registrar thereof.
(c) The Trustee may require such additional proof of any matter
referred to in this Section 10.2 as it shall deem necessary.
SECTION 10.3. WHO MAY BE DEEMED OWNERS. Prior to the due
presentment for registration of transfer of any Debenture, the Company,
the Trustee, any Paying Agent, any Authenticating Agent and any
Debenture Registrar may deem and treat the Person in whose name such
Debenture shall be registered upon the books of the Company as the
absolute owner of such Debenture (whether or not such Debenture shall be
overdue and notwithstanding any notice of ownership or writing thereon
made by anyone other than the Debenture Registrar) for the purpose of
receiving payment of or on account of the principal of and interest on
such Debenture (subject to Section 2.3)
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and for all other purposes; and neither the Company nor the Trustee nor
any Paying Agent nor any Authenticating Agent nor any Debenture
Registrar shall be affected by any notice to the contrary.
SECTION 10.4. CERTAIN DEBENTURES OWNED BY COMPANY DISREGARDED.
In determining whether the holders of the requisite principal amount of
the Debentures have concurred in any direction, consent or waiver under
this Indenture, the Debentures that are owned by the Company or any
other obligor on the Debentures or by any Person directly or indirectly
controlling or controlled by or under common control with the Company or
any other obligor on the Debentures shall be disregarded and deemed not
to be Outstanding for the purpose of any such determination, except that
(i) for the purpose of determining whether the Trustee shall be
protected in relying on any such direction, consent or waiver, only
Debentures that the Trustee actually knows are so owned shall be so
disregarded; and (ii) for purposes of this Section 10.4, the Trust shall
be deemed not to be controlled by the Company. The Debentures so owned
that have been pledged in good faith may be regarded as Outstanding for
the purposes of this Section 10.4, if the pledgee shall establish to the
satisfaction of the Trustee the pledgee's right so to act with respect
to such Debentures and that the pledgee is not a Person directly or
indirectly controlling or controlled by or under direct or indirect
common control with the Company or any such other obligor. In case of a
dispute as to such right, any decision by the Trustee taken upon the
advice of counsel shall be full protection to the Trustee.
SECTION 10.5. ACTIONS BINDING ON FUTURE DEBENTUREHOLDERS. At
any time prior to (but not after) the evidencing to the Trustee, as
provided in Section 10.1, of the taking of any action by the holders of
the majority or percentage in principal amount of the Debentures
specified in this Indenture in connection with such action, any holder
of a Debenture that is shown by the evidence to be included in the
Debentures the holders of which have consented to such action may, by
filing written notice with the Trustee, and upon proof of holding as
provided in Section 10.2, revoke such action so far as concerns such
Debenture. Except as aforesaid any such action taken by the holder of
any Debenture shall be conclusive and binding upon such holder and upon
all future holders and owners of such Debenture, and of any Debenture
issued in exchange therefor, on registration of transfer thereof or in
place thereof, irrespective of whether or not any notation in regard
thereto is made upon such Debenture. Any action taken by the holders of
the majority or percentage in principal amount of the Debentures
specified in this Indenture in connection with such action shall be
conclusively binding upon the Company, the Trustee and the holders of
all the Debentures.
ARTICLE XI
SUPPLEMENTAL INDENTURES
SECTION 11.1. SUPPLEMENTAL INDENTURES WITHOUT THE CONSENT OF
DEBENTUREHOLDERS. In addition to any supplemental indenture otherwise
authorized by this Indenture, the Company and the Trustee may from time
to time and at any time enter into an indenture or indentures
supplemental hereto (which shall conform to the provisions of the Trust
Indenture Act as then in effect), without the consent of the
Debentureholders, for one or more of the following purposes:
39
(a) to cure any ambiguity, defect, or inconsistency herein, or
in the Debentures;
(b) to provide for uncertificated Debentures in addition to or
in place of certificated Debentures;
(c) to add to the covenants of the Company for the benefit of
the holders of all or any of the Debentures or to surrender any right or
power herein conferred upon the Company;
(d) to make any change that does not adversely affect the rights
of any Debentureholder in any material respect;
(e) to qualify or maintain the qualification of this Indenture
under the Trust Indenture Act;
(f) to evidence a consolidation or merger involving the Company
as permitted under Section 12.1;
(g) to add to, delete from, or revise the conditions,
limitations, and restrictions on the authorized amount, terms, or
purposes of issue, authentication, and delivery of Debentures, only as
herein set forth; or
(h) to provide for the issuance of and establish the form and
terms and conditions of the Debentures, to establish the form of any
certifications required to be furnished pursuant to the terms of this
Indenture or of the Debentures, or to add to the rights of the holders
of the Debentures.
The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, and to make any further
appropriate agreements and stipulations that may be therein contained,
but the Trustee shall not be obligated to enter into any such
supplemental indenture that affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise. Any supplemental indenture
authorized by the provisions of this Section 11.1 may be executed by the
Company and the Trustee without the consent of the holders of any of the
Debentures at the time Outstanding, notwithstanding any of the
provisions of Section 11.2.
SECTION 11.2. SUPPLEMENTAL INDENTURES WITH CONSENT OF
DEBENTUREHOLDERS. With the consent (evidenced as provided in Section
10.1) of the holders of not less than a majority in principal amount of
the Debentures at the time Outstanding, the Company, when authorized by
Board Resolutions, and the Trustee may from time to time and at any time
enter into an indenture or indentures supplemental hereto (which shall
conform to the provisions of the Trust Indenture Act as then in effect)
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of any
supplemental indenture or of modifying in any manner not covered by
Section 11.1 the rights of the holders of the Debentures under this
Indenture; provided, however, that no such supplemental indenture shall
without the consent of the holders of each Debenture then Outstanding
and affected thereby, (i) extend the fixed maturity of any Debentures,
reduce the principal amount thereof, or reduce the rate or extend the
time of payment of interest thereon; or (ii) reduce the aforesaid
percentage of Debentures, the holders of
40
which are required to consent to any such supplemental indenture;
provided, further, that if the Debentures are held by the Trust or a
trustee of the Trust, such supplemental indenture shall not be effective
until the holders of a majority in liquidation preference of Trust
Securities of the Trust shall have consented to such supplemental
indenture; provided, further, that if the consent of the holder of each
Outstanding Debenture is required, such supplemental indenture shall not
be effective until each holder of the Trust Securities of the Trust
shall have consented to such supplemental indenture. It shall not be
necessary for the consent of the Debentureholders affected thereby under
this Section 11.2 to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such consent shall
approve the substance thereof.
SECTION 11.3. EFFECT OF SUPPLEMENTAL INDENTURES. Upon the
execution of any supplemental indenture pursuant to the provisions of
this Article XI, this Indenture shall be and be deemed to be modified
and amended in accordance therewith and the respective rights,
limitations of rights, obligations, duties and immunities under this
Indenture of the Trustee, the Company and the holders of Debentures
shall thereafter be determined, exercised and enforced hereunder subject
in all respects to such modifications and amendments, and all the terms
and conditions of any such supplemental indenture shall be and be deemed
to be part of the terms and conditions of this Indenture for any and all
purposes.
SECTION 11.4. THE DEBENTURES AFFECTED BY SUPPLEMENTAL INDENTURES.
The Debentures affected by a supplemental indenture, authenticated and
delivered after the execution of such supplemental indenture pursuant to
the provisions of this Article XI, may bear a notation in form approved
by the Company, provided, such form meets the requirements of any
exchange or automated quotation system upon which the Debentures may
be listed or quoted, as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Debentures so modified
as to conform, in the opinion of the Board of Directors of the Company,
to any modification of this Indenture contained in any such supplemental
indenture may be prepared by the Company, authenticated by the Trustee
and delivered in exchange for the Debentures then Outstanding.
SECTION 11.5. EXECUTION OF SUPPLEMENTAL INDENTURES.
(a) Upon the request of the Company, accompanied by its Board
Resolutions authorizing the execution of any such supplemental
indenture, and upon the filing with the Trustee of evidence of the
consent of the Debentureholders required to consent thereto as
aforesaid, the Trustee shall join with the Company in the execution of
such supplemental indenture unless such supplemental indenture affects
the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion but shall not
be obligated to enter into such supplemental indenture. The Trustee,
subject to the provisions of Sections 9.1, may receive an Opinion of
Counsel as conclusive evidence that any supplemental indenture executed
pursuant to this Article XI is authorized or permitted by, and conforms
to, the terms of this Article XI and that it is proper for the Trustee
under the provisions of this Article XI to join in the execution
thereof.
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(b) Promptly after the execution by the Company and the Trustee
of any supplemental indenture pursuant to the provisions of this Section
11.5, the Trustee shall transmit by mail, first class postage prepaid, a
notice, setting forth in general terms the substance of such
supplemental indenture, to the Debentureholders as their names and
addresses appear upon the Debenture Register. Any failure of the Trustee
to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture.
ARTICLE XII
SUCCESSOR CORPORATION
SECTION 12.1. COMPANY MAY CONSOLIDATE, ETC. Nothing contained
in this Indenture or in any of the Debentures shall prevent any
consolidation or merger of the Company with or into any other
corporation or corporations (whether or not affiliated with the Company,
as the case may be), or successive consolidations or mergers in which
the Company, as the case may be, or its successor or successors shall be
a party or parties, or shall prevent any sale, conveyance, transfer or
other disposition of the property of the Company, as the case may be, or
its successor or successors as an entirety, or substantially as an
entirety, to any other corporation (whether or not affiliated with the
Company, as the case may be, or its successor or successors) authorized
to acquire and operate the same; provided, however, that the Company
hereby covenants and agrees that (i) in case the Company consolidates
with or merges into another Person or conveys or transfers its properties
and assets substantially as an entirety to any Person, the successor
Person is organized under the laws of the United States or any state or
the District of Columbia; and (ii) immediately after giving effect
thereto, no Default or Event of Default shall have occurred and be
continuing.
SECTION 12.2. SUCCESSOR CORPORATION SUBSTITUTED.
(a) In case of any such consolidation, merger, sale, conveyance,
transfer or other disposition in accordance with Section 12.1 of this
Indenture, the successor Person formed by such consolidation or into
which the Company is merged or to which such sale, conveyance, transfer
or other disposition 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.
42
(b) In case of any such consolidation, merger, sale, conveyance,
transfer or other disposition such changes in phraseology and form (but
not in substance) may be made in the Debentures thereafter to be issued
as may be appropriate.
(c) Nothing contained in this Indenture or in any of the
Debentures shall prevent the Company from merging into itself or
acquiring by purchase or otherwise, all or any part of, the property of
any other Person (whether or not affiliated with the Company).
SECTION 12.3. EVIDENCE OF CONSOLIDATION, ETC. TO TRUSTEE. The
Trustee, subject to the provisions of Section 9.1, may receive an
Opinion of Counsel as conclusive evidence that any such consolidation,
merger, sale, conveyance, transfer or other disposition, and any such
assumption, comply with the provisions of this Article XII.
ARTICLE XIII
SATISFACTION AND DISCHARGE
SECTION 13.1. SATISFACTION AND DISCHARGE OF INDENTURE. If at
any time: (a) the Company shall have delivered to the Trustee for
cancellation all Debentures theretofore authenticated (other than any
Debentures that shall have been destroyed, lost or stolen and that shall
have been replaced or paid as provided in Section 2.9) and all
Debentures for whose payment money or Governmental Obligations have
theretofore been deposited in trust or segregated and held in trust by
the Company (and thereupon repaid to the Company or discharged from such
trust, as provided in Section 13.5); or (b) all such Debentures not
theretofore delivered to the Trustee for cancellation shall have become
due and payable, or are by their terms to become due and payable within
one year or are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption, and the Company shall deposit or cause to be deposited with
the Trustee as trust funds the entire amount in money or Governmental
Obligations sufficient, or a combination thereof sufficient, in the
opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to
the Trustee, to pay at maturity or upon redemption all Debentures not
theretofore delivered to the Trustee for cancellation, including
principal and interest due or to become due to such date of maturity or
date fixed for redemption, as the case may be, and if the Company shall
also pay or cause to be paid all other sums payable hereunder by the
Company; then this Indenture shall thereupon cease to be of further
effect except for the provisions of Sections 2.3, 2.7, 2.9, 5.1, 5.2,
5.3, 9.6 and 9.10, that shall survive until the date of maturity or
redemption date, as the case may be, and Sections 9.7 and 13.5, that
shall survive to such date and thereafter, and the Trustee, on demand of
the Company and at the cost and expense of the Company, shall execute
proper instruments acknowledging satisfaction of and discharging this
Indenture.
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SECTION 13.2. DISCHARGE OF OBLIGATIONS. If at any time all
Debentures not heretofore delivered to the Trustee for cancellation or
that have not become due and payable as described in Section 13.1 shall
have been paid by the Company by depositing irrevocably with the Trustee
as trust funds money or an amount of Governmental Obligations sufficient
in the opinion of a nationally recognized certified public accounting
firm to pay at maturity or upon redemption all Debentures not
theretofore delivered to the Trustee for cancellation, including
principal and interest due or to become due to such date of maturity or
date fixed for redemption, as the case may be, and if the Company shall
also pay or cause to be paid all other sums payable hereunder by the
Company, then after the date such money or Governmental Obligations, as
the case may be, are deposited with the Trustee, the obligations of the
Company under this Indenture shall cease to be of further effect except
for the provisions of Sections 2.3, 2.7, 2.9, 5.1, 5.2, 5.3, 9.6, 9.7,
9.10 and 13.5 hereof that shall survive until such Debentures shall
mature and be paid. Thereafter, Sections 9.7 and 13.5 shall survive.
SECTION 13.3. DEPOSITED MONEY TO BE HELD IN TRUST. All money
or Governmental Obligations deposited with the Trustee pursuant to
Sections 13.1 or 13.2 shall be held in trust and shall be available for
payment as due, either directly or through any Paying Agent (including
the Company acting as its own Paying Agent), to the holders of the
Debentures for the payment or redemption of which such money or
Governmental Obligations have been deposited with the Trustee.
SECTION 13.4. PAYMENT OF MONEY HELD BY PAYING AGENTS. In
connection with the satisfaction and discharge of this Indenture, all
money or Governmental Obligations then held by any Paying Agent under
the provisions of this Indenture shall, upon demand of the Company, be
paid to the Trustee and thereupon such Paying Agent shall be released
from all further liability with respect to such money or Governmental
Obligations.
SECTION 13.5. REPAYMENT TO THE COMPANY. Any money or
Governmental Obligations deposited with any Paying Agent or the Trustee,
or then held by the Company in trust, for payment of principal of or
interest on the Debentures that are not applied but remain unclaimed by
the holders of such Debentures for at least two years after the date
upon which the principal of or interest on such Debentures shall have
respectively become due and payable, shall be repaid to the Company on
May 31 of each year or (if then held by the Company) shall be discharged
from such trust; and thereupon the Paying Agent and the Trustee shall be
released from all further liability with respect to such money or
Governmental Obligations, and the holder of any of the Debentures
entitled to receive such payment shall thereafter, as an unsecured
general creditor, look only to the Company for the payment thereof.
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ARTICLE XIV
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 14.1. NO RECOURSE. No recourse under or upon any
obligation, covenant or agreement of this Indenture, or of the
Debentures, or for any claim based thereon or otherwise in respect
thereof, shall be had against any incorporator, stockholder, officer or
director, past, present or future, as such, of the Company or of any
predecessor or successor corporation, either directly or through the
Company or any such predecessor or successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being
expressly understood that this Indenture and the obligations issued
hereunder are solely corporate obligations, and that no such personal
liability whatever, shall attach to, or is or shall be incurred by, the
incorporators, stockholders, officers or directors as such, of the
Company or of any predecessor or successor corporation, or any of them,
because of the creation of the indebtedness hereby authorized, or under
or by reason of the obligations, covenants or agreements contained in
this Indenture or in any of the Debentures or implied therefrom; and
that any and all such personal liability of every name and nature,
either at common law or in equity or by constitution or statute, and any
and all such rights and claims against, every such incorporator,
stockholder, officer or director as such, because of the creation of the
indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in
any of the Debentures or implied therefrom, are hereby expressly waived
and released as a condition of, and as a consideration for, the
execution of this Indenture and the issuance of such Debentures.
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ARTICLE XV
MISCELLANEOUS PROVISIONS
SECTION 15.1. EFFECT ON SUCCESSORS AND ASSIGNS. All the
covenants, stipulations, promises and agreements in this Indenture
contained by or on behalf of the Company shall bind its respective
successors and assigns, whether so expressed or not.
SECTION 15.2. ACTIONS BY SUCCESSOR. Any act or proceeding by
any provision of this Indenture authorized or required to be done or
performed by any board, committee or officer of the Company shall and
may be done and performed with like force and effect by the
corresponding board, committee or officer of any corporation that shall
at the time be the lawful sole successor of the Company.
SECTION 15.3. SURRENDER OF COMPANY POWERS. The Company by
instrument in writing executed by appropriate authority of its Board of
Directors and delivered to the Trustee may surrender any of the powers
reserved to the Company, and thereupon such power so surrendered shall
terminate both as to the Company, as the case may be, and as to any
successor corporation.
SECTION 15.4. NOTICES. Except as otherwise expressly
provided herein any notice or demand that by any provision of this
Indenture is required or permitted to be given or served by the Trustee
or by the holders of Debentures to or on the Company may be given or
served by being deposited first class postage prepaid in a post-office
letterbox addressed (until another address is filed in writing by the
Company with the Trustee), as follows: First Banks, Inc., 135 North
Meramec, Clayton, Missouri 63105 Attention: Chief Financial Officer.
Any notice, election, request or demand by the Company or any
Debentureholder to or upon the Trustee shall be deemed to have been
sufficiently given or made, for all purposes, if given or made in
writing at the Corporate Trust Office of the Trustee.
SECTION 15.5. GOVERNING LAW. This Indenture and each
Debenture shall be deemed to be a contract made under the internal laws
of the State of Missouri and for all purposes shall be construed in
accordance with the laws of said State.
SECTION 15.6. TREATMENT OF DEBENTURES AS DEBT. It is intended
that the Debentures shall be treated as indebtedness and not as equity
for federal income tax purposes. The provisions of this Indenture shall
be interpreted to further this intention. The Company (with respect to
its separate books and records), the Trustee, and, by acceptance of a
Debenture, each holder of a Debenture, agree to treat the Debentures as
indebtedness of the Company and not as equity for all tax (including
without limitation federal income tax) and financial accounting
purposes.
SECTION 15.7. COMPLIANCE CERTIFICATES AND OPINIONS.
(a) Upon any application or demand by the Company to the Trustee
to take any action under any of the provisions of this Indenture, the
Company shall furnish to the Trustee an Officers' Certificate stating
that all conditions precedent provided for in this Indenture relating to
the
46
proposed action have been complied with and an Opinion of Counsel
stating that in the opinion of such counsel all such conditions
precedent have been complied with, except that in the case of any such
application or demand as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to
such particular application or demand, no additional certificate or
opinion need be furnished.
(b) Each certificate or opinion of the Company provided for in
this Indenture and delivered to the Trustee with respect to compliance
with a condition or covenant in this Indenture shall include (i) a
statement that the Person making such certificate or opinion has read
such covenant or condition; (ii) a brief statement as to the nature and
scope of the examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based; (iii) a
statement that, in the opinion of such Person, he or she has made such
examination or investigation as, in the opinion of such Person, 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
(iv) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been complied with.
SECTION 15.8. PAYMENTS ON BUSINESS DAYS. In any case where
the date of maturity of interest or principal of any Debenture or the
date of redemption of any Debenture shall not be a Business Day, then
payment of interest or principal may be made on the next succeeding
Business Day with the same force and effect as if made on the nominal
date of maturity or redemption, and no interest shall accrue for the
period after such nominal date.
SECTION 15.9. CONFLICT WITH TRUST INDENTURE ACT. If and to
the extent that any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by Sections 310 to 317, inclusive, of
the Trust Indenture Act, such imposed duties shall control.
SECTION 15.10. COUNTERPARTS. This Indenture may be executed in
any number of counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same instrument.
SECTION 15.11. SEPARABILITY. In case any one or more of the
provisions contained in this Indenture or in the Debentures shall for
any reason be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not
affect any other provisions of this Indenture or of the Debentures, but
this Indenture and the Debentures shall be construed as if such invalid
or illegal or unenforceable provision had never been contained herein or
therein.
SECTION 15.12. ASSIGNMENT. The Company shall have the right at
all times to assign any of its respective rights or obligations under
this Indenture to a direct or indirect wholly owned Subsidiary of the
Company, provided, that in the event of any such assignment, the Company
shall remain liable for all such obligations. Subject to the foregoing,
this Indenture is binding upon and inures to the benefit of the parties
thereto and their respective successors and assigns. This Indenture may
not otherwise be assigned by the parties thereto.
47
SECTION 15.13. ACKNOWLEDGMENT OF RIGHTS. The Company
acknowledges that, with respect to any Debentures held by the Trust or a
trustee of the Trust, if the Property Trustee fails to enforce its
rights under this Indenture as the holder of the Debentures held as the
assets of the Trust, any holder of Preferred Securities may institute
legal proceedings directly against the Company to enforce such Property
Trustee's rights under this Indenture without first instituting any
legal proceedings against such Property Trustee or any other person or
entity. Notwithstanding the foregoing, if an Event of Default has
occurred and is continuing and such event is attributable to the failure
of the Company to pay principal or interest on the Debentures on the
date such principal or interest is otherwise payable (or in the case of
redemption, on the redemption date), the Company acknowledges that a
holder of Preferred Securities may directly institute a proceeding for
enforcement of payment to such holder of the principal of or interest on
the Debentures having a principal amount equal to the aggregate
liquidation amount of the Preferred Securities of such holder on or
after the respective due date specified in the Debentures.
ARTICLE XVI
SUBORDINATION OF THE DEBENTURES
SECTION 16.1. AGREEMENT TO SUBORDINATE. The Company covenants
and agrees, and each holder of the Debentures issued hereunder by such
holder's acceptance thereof likewise covenants and agrees, that all the
Debentures shall be issued subject to the provisions of this Article
XVI; and each holder of a Debenture, whether upon original issue or upon
transfer or assignment thereof, accepts and agrees to be bound by such
provisions. The payment by the Company of the principal of and interest
on all the Debentures issued hereunder shall, to the extent and in the
manner hereinafter set forth, be subordinated and junior in right of
payment to the prior payment in full of all Senior Debt, Subordinated
Debt and Additional Senior Obligations of the Company (collectively,
"Senior Indebtedness") to the extent provided herein, whether
outstanding at the date of this Indenture or thereafter incurred. No
provision of this Article XVI shall prevent the occurrence of any
Default or Event of Default hereunder.
SECTION 16.2. DEFAULT ON SENIOR DEBT, SUBORDINATED DEBT OR
ADDITIONAL SENIOR OBLIGATIONS. In the event and during the continuation
of any default by the Company in the payment of principal, premium,
interest or any other payment due on any Senior Indebtedness, or in the
event that the maturity of any Senior Indebtedness has been accelerated
because of a default, then, in either case, no payment shall be made by
the Company with respect to the principal (including redemption
payments) of or interest on the Debentures. In the event that,
notwithstanding the foregoing, any payment shall be received by the
Trustee when such payment is prohibited by the preceding sentence of
this Section 16.2, such payment shall be held in trust for the benefit
of, and shall be paid over or delivered to, the holders of Senior
Indebtedness or their respective representatives, or to the trustee or
trustees under any indenture pursuant to which any of such Senior
Indebtedness may have been issued, as their respective interests may
appear, but only to the extent that the holders of the Senior
Indebtedness (or their representative or representatives or a trustee)
notify the Trustee in writing within 90 days of such payment of the
amounts then due and
48
owing on the Senior Indebtedness and only the amounts specified in such
notice to the Trustee shall be paid to the holders of the Senior
Indebtedness.
SECTION 16.3. LIQUIDATION; DISSOLUTION; BANKRUPTCY.
(a) Upon any payment by the Company or distribution of assets of
the Company of any kind or character, whether in cash, property or
securities, to creditors upon any dissolution or winding-up or
liquidation or reorganization of the Company, whether voluntary or
involuntary or in bankruptcy, insolvency, receivership or other
proceedings, all amounts due upon all Senior Indebtedness shall first be
paid in full, or payment thereof provided for in money in accordance
with its terms, before any payment is made by the Company on account of
the principal or interest on the Debentures; and upon any such
dissolution or winding-up or liquidation or reorganization, any payment
by the Company, or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, to which the holders
of the Debentures or the Trustee would be entitled to receive from the
Company, except for the provisions of this Article XVI, shall be paid by
the Company or by any receiver, trustee in bankruptcy, liquidating
trustee, agent or other Person making such payment or distribution, or
by the holders of the Debentures or by the Trustee under this Indenture
if received by them or it, directly to the holders of Senior
Indebtedness (pro rata to such holders on the basis of the respective
amounts of Senior Indebtedness held by such holders, as calculated by
the Company) or their representative or representatives, or to the
trustee or trustees under any indenture pursuant to which any
instruments evidencing such Senior Indebtedness may have been issued, as
their respective interests may appear, to the extent necessary to pay
such Senior Indebtedness in full, in money or money's worth, after
giving effect to any concurrent payment or distribution to or for the
holders of such Senior Indebtedness, before any payment or distribution
is made to the holders of the Debentures or to the Trustee.
(b) In the event that, notwithstanding the foregoing, any
payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, prohibited by the
foregoing, shall be received by the Trustee before all Senior
Indebtedness is paid in full, or provision is made for such payment in
money in accordance with its terms, such payment or distribution shall
be held in trust for the benefit of and shall be paid over or delivered
to the holders of such Senior Indebtedness or their representative or
representatives, or to the trustee or trustees under any indenture
pursuant to which any instruments evidencing such Senior Indebtedness
may have been issued, as their respective interests may appear, as
calculated by the Company, for application to the payment of all Senior
Indebtedness, as the case may be, remaining unpaid to the extent
necessary to pay such Senior Indebtedness in full in money in accordance
with its terms, after giving effect to any concurrent payment or
distribution to or for the benefit of the holders of such Senior
Indebtedness.
(c) For purposes of this Article XVI, the words "cash, property
or securities" shall not be deemed to include shares of stock of the
Company as reorganized or readjusted, or securities of the Company or
any other corporation provided for by a plan of reorganization or
readjustment, the payment of which is subordinated at least to the
extent provided in this Article XVI with respect to the Debentures to
the payment of all Senior Indebtedness, as the case may be, that may at
the time
49
be outstanding, provided, that (i) such Senior Indebtedness is assumed
by the new corporation, if any, resulting from any such reorganization
or readjustment; and (ii) the rights of the holders of such Senior
Indebtedness are not, without the consent of such holders, altered by
such reorganization or readjustment. The consolidation of the Company
with, or the merger of the Company into, another corporation or the
liquidation or dissolution of the Company following the conveyance or
transfer of its property as an entirety, or substantially as an
entirety, to another corporation upon the terms and conditions provided
for in Article XII shall not be deemed a dissolution, winding-up,
liquidation or reorganization for the purposes of this Section 16.3 if
such other corporation shall, as a part of such consolidation, merger,
conveyance or transfer, comply with the conditions stated in Article
XII. Nothing in Section 16.2 or in this Section 16.3 shall apply to
claims of, or payments to, the Trustee under or pursuant to Section 9.7.
SECTION 16.4. SUBROGATION.
(a) Subject to the payment in full of all Senior Indebtedness,
the rights of the holders of the Debentures shall be subrogated to the
rights of the holders of such Senior Indebtedness to receive payments or
distributions of cash, property or securities of the Company, as the
case may be, applicable to such Senior Indebtedness until the principal
of and interest on the Debentures shall be paid in full; and, for the
purposes of such subrogation, no payments or distributions to the
holders of such Senior Indebtedness of any cash, property or securities
to which the holders of the Debentures or the Trustee would be entitled
except for the provisions of this Article XVI, and no payment over
pursuant to the provisions of this Article XVI to or for the benefit of
the holders of such Senior Indebtedness by holders of the Debentures or
the Trustee, shall, as between the Company, its creditors other than
holders of Senior Indebtedness of the Company, and the holders of the
Debentures, be deemed to be a payment by the Company to or on account of
such Senior Indebtedness. It is understood that the provisions of this
Article XVI are and are intended solely for the purposes of defining the
relative rights of the holders of the Debentures, on the one hand, and
the holders of such Senior Indebtedness on the other hand.
(b) Nothing contained in this Article XVI or elsewhere in this
Indenture or in the Debentures is intended to or shall impair, as
between the Company, its creditors (other than the holders of Senior
Indebtedness), and the holders of the Debentures, the obligation of the
Company, which is absolute and unconditional, to pay to the holders of
the Debentures the principal of and interest on the Debentures as and
when the same shall become due and payable in accordance with their
terms, or is intended to or shall affect the relative rights of the
holders of the Debentures and creditors of the Company, as the case may
be, other than the holders of Senior Indebtedness, as the case may be,
nor shall anything herein or therein prevent the Trustee or the holder
of any Debenture from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the rights,
if any, under this Article XVI of the holders of such Senior
Indebtedness in respect of cash, property or securities of the Company,
as the case may be, received upon the exercise of any such remedy.
(c) Upon any payment or distribution of assets of the Company
referred to in this Article XVI, the Trustee, subject to the provisions
of Article IX, and the holders of the Debentures shall be
50
entitled to conclusively rely upon any order or decree made by any court
of competent jurisdiction in which such dissolution, winding-up,
liquidation or reorganization proceedings are pending, or a certificate
of the receiver, trustee in bankruptcy, liquidation trustee, agent or
other Person making such payment or distribution, delivered to the
Trustee or to the holders of the Debentures, for the purposes of
ascertaining the Persons entitled to participate in such distribution,
the holders of Senior Indebtedness and other indebtedness of the
Company, as the case may be, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article XVI.
SECTION 16.5. TRUSTEE TO EFFECTUATE SUBORDINATION. Each
holder of Debentures by such holder's acceptance thereof authorizes and
directs the Trustee on such holder's behalf to take such action as may
be necessary or appropriate to effectuate the subordination provided in
this Article XVI and appoints the Trustee such holder's attorney-in-fact
for any and all such purposes.
SECTION 16.6. NOTICE BY THE COMPANY.
(a) The Company shall give prompt written notice to a
Responsible Officer of the Trustee of any fact known to the Company that
would prohibit the making of any payment of money to or by the Trustee
in respect of the Debentures pursuant to the provisions of this Article
XVI. Notwithstanding the provisions of this Article XVI or any other
provision of this Indenture, the Trustee shall not be charged with
knowledge of the existence of any facts that would prohibit the making
of any payment of money to or by the Trustee in respect of the
Debentures pursuant to the provisions of this Article XVI, unless and
until a Responsible Officer of the Trustee shall have received written
notice thereof from the Company or a holder or holders of Senior
Indebtedness or from any trustee therefor; and before the receipt of any
such written notice, the Trustee, subject to the provisions of Section
9.1, shall be entitled in all respects to assume that no such facts
exist; provided, however, that if the Trustee shall not have received
the notice provided for in this Section 16.6 at least two Business Days
prior to the date upon which by the terms hereof any money may become
payable for any purpose (including, without limitation, the payment of
the principal of or interest on any Debenture), then, anything herein
contained to the contrary notwithstanding, the Trustee shall have full
power and authority to receive such money and to apply the same to the
purposes for which they were received, and shall not be affected by any
notice to the contrary that may be received by it within two Business
Days prior to such date.
(b) The Trustee, subject to the provisions of Section 9.1, shall
be entitled to conclusively rely on the delivery to it of a written
notice by a Person representing himself or herself to be a holder of
Senior Indebtedness (or a trustee on behalf of such holder) to establish
that such notice has been given by a holder of such Senior Indebtedness
or a trustee on behalf of any such holder or holders. In the event that
the Trustee determines in good faith that further evidence is required
with respect to the right of any Person as a holder of such Senior
Indebtedness to participate in any payment or distribution pursuant to
this Article XVI, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount
of such Senior Indebtedness held by such Person, the extent to which
such Person is entitled to participate in such payment or distribution
and any other facts pertinent to the rights of such Person under this
Article XVI, and,
51
if such evidence is not furnished, the Trustee may defer any payment to
such Person pending judicial determination as to the right of such
Person to receive such payment.
SECTION 16.7. RIGHTS OF THE TRUSTEE; HOLDERS OF THE SENIOR
INDEBTEDNESS.
(a) The Trustee in its individual capacity shall be entitled to
all the rights set forth in this Article XVI in respect of any Senior
Indebtedness at any time held by it, to the same extent as any other
holder of Senior Indebtedness, and nothing in this Indenture shall
deprive the Trustee of any of its rights as such holder. The Trustee's
right to compensation and reimbursement of expenses as set forth in
Section 9.7 shall not be subject to the subordination provisions of the
Article XVI.
(b) With respect to the holders of the Senior Indebtedness, the
Trustee undertakes to perform or to observe only such of its covenants
and obligations as are specifically set forth in this Article XVI, and
no implied covenants or obligations with respect to the holders of such
Senior Indebtedness shall be read into this Indenture against the
Trustee. The Trustee shall not be deemed to owe any fiduciary duty to
the holders of such Senior Indebtedness and, subject to the provisions
of Section 9.1, the Trustee shall not be liable to any holder of such
Senior Indebtedness if it shall pay over or deliver to holders of
Debentures, the Company or any other Person money or assets to which any
holder of such Senior Indebtedness shall be entitled by virtue of this
Article XVI or otherwise.
SECTION 16.8. SUBORDINATION MAY NOT BE IMPAIRED.
(a) No right of any present or future holder of any Senior
Indebtedness to enforce subordination as herein provided shall at any
time in any way be prejudiced or impaired by any act or failure to act
on the part of the Company or by any act or failure to act, in good
faith, by any such holder, or by any noncompliance by the Company with
the terms, provisions and covenants of this Indenture, regardless of any
knowledge thereof that any such holder may have or otherwise be charged
with.
(b) Without in any way limiting the generality of Section
16.8(a), 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 Debentures, without incurring responsibility to the
holders of the Debentures and without impairing or releasing the
subordination provided in this Article XVI or the obligations hereunder
of the holders of the Debentures to the holders of such Senior
Indebtedness, do any one or more of the following: (i) change the
manner, place or terms of payment or extend the time of payment of, or
renew or alter, such Senior Indebtedness, or otherwise amend or
supplement in any manner such Senior Indebtedness or any instrument
evidencing the same or any agreement under which such Senior
Indebtedness is outstanding; (ii) sell, exchange, release or otherwise
deal with any property pledged, mortgaged or otherwise securing such
Senior Indebtedness; (iii) release any Person liable in any manner for
the collection of such Senior Indebtedness; and (iv) exercise or refrain
from exercising any rights against the Company and any other Person.
52
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, all as of the day and year first above written.
FIRST BANKS, INC.
By:
----------------------------------
Name:
--------------------------
Title:
-------------------------
STATE STREET BANK AND TRUST COMPANY
OF CONNECTICUT, NATIONAL ASSOCIATION,
as Trustee
By:
----------------------------------
Name:
--------------------------
Title:
-------------------------
53
STATE OF MISSOURI )
) ss
COUNTY OF ST. LOUIS )
On this __ day of _____________, 2000, before me appeared
_____________, to me personally known, who, being by me duly sworn, did
say that he is the _________________ of First Banks, Inc., and that the
seal affixed to said instrument is the corporate seal of said
corporation, and that said instrument was signed and sealed in behalf of
said corporation by authority of its board of directors and said
_______________ acknowledged said instrument to be the free act and deed
of said corporation.
In testimony whereof I have hereunto set my hand and affixed my
official seal at my office in said county and state the day and year
last above written.
Notary Public__________________________
My term expires:_______________________
[seal]
COMMONWEALTH OF MASSACHUSETTS )
) ss
COUNTY OF SUFFOLK )
On this ___ day of __________, 2000, before me appeared
___________________, to me personally known, who, being by me duly
sworn, did say that he is the _____________________ of State Street Bank
and Trust Company of Connecticut, National Association, and that the seal
affixed to said instrument is the corporate seal of said corporation,
and that said instrument was signed and sealed in behalf of said
corporation by authority of its board of directors and said
_____________________________ acknowledged said instrument to be the
free act and deed of said corporation.
In testimony whereof I have hereunto set my hand and affixed my
official seal at my office in said county and commonwealth the day and
year last above written.
Notary Public___________________________
My term expires:________________________
[seal]
54
[seal] EXHIBIT A
(Form of Face of Debenture)
FIRST BANKS, INC.
% SUBORDINATED DEBENTURE
DUE , 2030
No.___ $_____________
CUSIP No.
First Banks, Inc., a Missouri corporation (the "Company,"
which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
or registered assigns, the principal sum of
($ ) on , 2030 (the "Stated Maturity"), and to pay interest
on said principal sum from , 2000, or from the most recent
interest payment date (each such date, an "Interest Payment Date") to
which interest has been paid or duly provided for, quarterly (subject to
deferral as set forth herein) in arrears on the last day of March, June,
September and December of each year commencing December 31, 2000, at the
rate of % per annum until the principal hereof shall have become
due and payable, and on any overdue principal and (without duplication
and to the extent that payment of such interest is enforceable under
applicable law) on any overdue installment of interest at the same rate per
annum compounded quarterly. The amount of interest payable on any Interest
Payment Date shall be computed on the basis of a 360-day year of twelve
30-day months. The amount of interest for any partial period shall be
computed on the basis of the number of days elapsed in a 360-day year of
twelve 30-day months. In the event that any date on which interest is
payable on this Debenture is not a Business Day, then payment of
interest payable on such date shall be made on the next succeeding day
that is a Business Day (and without any interest or other payment in respect
of any such delay), with the same force and effect as if made on such date.
The interest installment so payable, and punctually paid or duly provided for,
on any Interest Payment Date shall, as provided in the Indenture, be paid to
the person in whose name this Debenture (or one or more Predecessor Debentures,
as defined in said Indenture) is registered at the close of business on the
regular record date for such interest installment, which shall be the
fifteenth day of the last month of the calendar quarter, otherwise
provided in the Indenture. The principal of and the interest on this
Debenture shall be payable at the office or agency of the Trustee
maintained for that purpose in any coin or currency of the United States
of America that at the time of payment is legal tender for payment of
public and private debts; provided, however, that payment of interest
may be made at the option of the Company by check mailed to the
registered holder at such address as shall appear in the Debenture
Register. Notwithstanding the foregoing, so long as the holder of this
Debenture is the Property
Trustee, the payment of the principal of and interest on this Debenture
shall be made at such place and to such account as may be designated by
the Trustee.
The Stated Maturity may be shortened at any time by the Company to
any date not earlier than , 2005, subject to the Company
having received prior approval of the Federal Reserve if then required
under applicable capital guidelines, policies or regulations of the Federal
Reserve.
The indebtedness evidenced by this Debenture is, to the
extent provided in the Indenture, subordinate and junior in right of
payment to the prior payment in full of all Senior Indebtedness, and this
Debenture is issued subject to the provisions of the Indenture with respect
thereto. Each holder of this Debenture, by accepting the same, (a) agrees to
and shall be bound by such provisions; (b) authorizes and directs the
Trustee on his or her behalf to take such action as may be necessary or
appropriate to acknowledge or effectuate the subordination so provided;
and (c) appoints the Trustee his or her attorney-in-fact for any and all
such purposes. Each holder hereof, by his or her acceptance hereof, hereby
waives all notice of the acceptance of the subordination provisions
contained herein and in the Indenture by each holder of Senior
Indebtedness, whether now outstanding or hereafter incurred, and waives
reliance by each such holder upon said provisions.
This Debenture shall not be entitled to any benefit under
the Indenture hereinafter referred to, be valid or become obligatory for
any purpose until the Certificate of Authentication hereon shall have
been signed by or on behalf of the Trustee.
The provisions of this Debenture are continued on the
reverse side hereof and such continued provisions shall for all purposes
have the same effect as though fully set forth at this place.
2
IN WITNESS WHEREOF, the Company has caused this instrument
to be executed.
Dated: , 2000.
FIRST BANKS, INC.
By:
Name:
Title:
Attest:
By:
Name:
Title:
3
[FORM OF CERTIFICATE OF AUTHENTICATION]
CERTIFICATE OF AUTHENTICATION
This is one of the Debentures described in the within-
mentioned Indenture.
Dated: , 20
------------ --
STATE STREET BANK AND TRUST COMPANY
OF CONNECTICUT, NATIONAL ASSOCIATION,
as Trustee or Authenticating Agent
By By
Authorized Signatory
4
[FORM OF REVERSE OF DEBENTURE]
% SUBORDINATED DEBENTURE DUE 2030
(CONTINUED)
This Debenture is one of the subordinated debentures of the
Company (herein sometimes referred to as the "Debentures"), all issued
or to be issued under and pursuant to an Indenture dated as of
, 2000 (the "Indenture") duly executed and delivered between
the Company and State Street Bank and Trust Company of Connecticut,
National Association, as Trustee (the "Trustee"), to which Indenture
reference is hereby made for a description of the rights, limitations
of rights, obligations, duties and immunities thereunder of the Trustee,
the Company and the holders of the Debentures. The Debentures are limited
in aggregate principal amount as specified in the Indenture.
Because of the occurrence and continuation of a Special Event (as
defined in the Indenture), in certain circumstances, this Debenture may
become due and payable at the principal amount together with any interest
accrued thereon (the "Redemption Price"). The Redemption Price shall be paid
prior to 12:00 noon, Eastern Standard Time, on the date of such redemption
or at such earlier time as the Company determines. The Company shall have
the right as set forth in the Indenture to redeem this Debenture at the
option of the Company, without premium or penalty, in whole or in part at
any time on or after , 2005 (an "Optional Redemption"), or at
any time in certain circumstances upon the occurrence of a Special Event,
at a Redemption Price equal to 100% of the principal amount hereof plus
any accrued but unpaid interest hereon, to the date of such redemption.
Any redemption pursuant to this paragraph shall be made upon not
less than 30 days nor more than 60 days notice, at the Redemption Price.
The Redemption Price shall be paid at the time and in the manner
provided therefor in the Indenture. If the Debentures are only partially
redeemed by the Company pursuant to an Optional Redemption, the
Debentures shall be redeemed pro rata or by lot or by any other method
utilized by the Trustee as described in the Indenture.
In the event of redemption of this Debenture in part only, a
new Debenture or Debentures for the unredeemed portion hereof shall be
issued in the name of the holder hereof upon the cancellation hereof.
In case an Event of Default (as defined in the Indenture)
shall have occurred and be continuing, the principal of all of the
Debentures may be declared, and upon such declaration shall become, due
and payable, in the manner, with the effect and subject to the
conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and
the Trustee, with the consent of the holders of not less than a majority
in aggregate principal amount of the Debentures at the time Outstanding
(as defined in the Indenture) to execute supplemental indentures for
the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of the Indenture or of any
supplemental indenture or of modifying in any manner the rights of the
holders of the Debentures; provided, however, that no such supplemental
indenture shall, except as provided in the Indenture, (i) extend the
fixed maturity of the Debentures or reduce the principal amount thereof,
or reduce the rate or extend the time of payment of interest thereon,
without the consent of the holder of each Debenture so affected thereby;
or (ii) reduce the aforesaid percentage of Debentures, the holders of
which are required to consent to any such supplemental indenture, without
the consent of the holders of each Debenture then Outstanding and affected
thereby. The Indenture also contains provisions permitting the holders of
a majority in aggregate principal amount of the Debentures at the time
Outstanding, on behalf of all of the holders of the Debentures,
5
to waive any past default in the performance of any of the covenants
contained in the Indenture, and its consequences, except (i) a default
in the payment of the principal of or interest on any of the Debentures
(except as otherwise provided in the Indenture) and (ii) default in the
performance of certain covenants as specified in the Indenture. Any
such consent or waiver by the registered holder of this Debenture
(unless revoked as provided in the Indenture) shall be conclusive and
binding upon such holder and upon all future holders and owners of
this Debenture and of any Debenture issued in exchange herefor or in
place hereof (whether by registration of transfer or otherwise),
irrespective of whether or not any notation of such consent or waiver
is made upon this Debenture.
No reference herein to the Indenture and no provision of
this Debenture or of the Indenture shall alter or impair the obligation
of the Company, which is absolute and unconditional, to pay the
principal and interest on this Debenture at the time and place and at
the rate and in the money herein prescribed.
Provided certain conditions are met, the Company shall
have the right at any time during the term of the Debentures and from
time to time to extend the interest payment period of such Debentures
for up to 20 consecutive quarters (each, an "Extension Period"), at the
end of which period the Company shall pay all interest then accrued and
unpaid (together with interest thereon at the rate specified for the
Debentures to the extent that payment of such interest is enforceable
under applicable law). Before the termination of any such Extension
Period, so long as no Event of Default shall have occurred and be
continuing, the Company may further extend such Extension Period,
provided that such Extension Period together with all such further
extensions thereof shall not exceed 20 consecutive quarters, extend
beyond the Stated Maturity or end on a date other than an Interest
Payment Date. At the termination of any such Extension Period and
upon the payment of all accrued and unpaid interest and any additional
amounts then due and subject to the foregoing conditions, the Company
may commence a new Extension Period.
As provided in the Indenture and subject to certain
limitations therein set forth, this Debenture is transferable by the
registered holder hereof on the Debenture Register of the Company,
upon surrender of this Debenture for registration of transfer at the
office or agency of the Trustee accompanied by a written instrument
or instruments of transfer in form satisfactory to the Company or the
Trustee duly executed by the registered holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Debentures of
authorized denominations and for the same aggregate principal amount
shall be issued to the designated transferee or transferees. No service
charge shall be made for any such transfer, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in relation thereto.
Prior to due presentment for registration of transfer of
this Debenture, the Company, the Trustee, any paying agent and the
Debenture Registrar may deem and treat the registered holder hereof as the
absolute owner hereof (whether or not this Debenture shall be overdue and
notwithstanding any notice of ownership or writing hereon made by anyone
other than the Debenture Registrar) for the purpose of receiving payment
of or on account
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of the principal hereof and interest due hereon and for all other
purposes, and neither the Company nor the Trustee nor any paying agent
nor any Debenture Registrar shall be affected by any notice to the
contrary.
No recourse shall be had for the payment of the principal of
or the interest on this Debenture, or for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the Indenture,
against any incorporator, stockholder, officer or director, past,
present or future, as such, of the Company or of any predecessor or
successor corporation, whether by virtue of any constitution, statute or
rule of law, or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance hereof and as
part of the consideration for the issuance hereof, expressly waived and
released.
The Debentures are issuable only in registered form without
coupons in denominations of $25 and any integral multiple thereof.
All terms used in this Debenture that are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
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