EXHIBIT 4.1
EXECUTION COPY
--------------------------------------------------------------------------------
INTEGON CORPORATION
TO
FIRST UNION NATIONAL BANK OF NORTH CAROLINA
TRUSTEE
-------------------------------------
JUNIOR SUBORDINATED INDENTURE
DATED AS OF FEBRUARY 10, 1997
-------------------------------------
--------------------------------------------------------------------------------
EXHIBIT 4.1
INTEGON CORPORATION
Reconciliation and tie between the Trust Indenture Act of 1939 (including
cross-references to provisions of Sections 310 to and including 317 which,
pursuant to Section 318(c) of the Trust Indenture Act of 1939, as amended by the
Trust Reform Act of 1990, are a part of and govern the Indenture whether or not
physically contained therein) and the Junior Subordinated Indenture, dated as of
December 30, 1996.
TRUST INDENTURE ACT SECTION INDENTURE SECTION
-------------------------------- --------------------
(S) 310 (a) (1), (2) and (5). 6.9
(a) (3).............. Not Applicable
(a) (4).............. Not Applicable
(b).................. 6.8
..................... 6.10
(c).................. Not Applicable
(S) 311 (a).................. 6.13(a)
(b).................. 6.13(b)
(b) (2).............. 7.3(a) (2)
..................... 7.3(a) (2)
(S) 312 (a).................. 7.1
..................... 7.2(a)
(b).................. 7.2(b)
(c).................. 7.2(c)
(S) 313 (a).................. 7.3(a)
(b).................. 7.3(b)
(c).................. 7.3(a), 7.3(b)
(d).................. 7.3(c)
(S) 314 (a) (1), (2) and (3). 7.4
(a) (4).............. 10.5
(b).................. Not Applicable
(c) (1).............. 1.2
(c) (2).............. 1.2
(c) (3).............. Not Applicable
(d).................. Not Applicable
(e).................. 1.2
(f).................. Not Applicable
TRUST INDENTURE ACT SECTION INDENTURE SECTION
-------------------------------- --------------------
(S) 315 (a).................. 6.1(a)
(b).................. 6.2
..................... 7.3(a) (6)
(c).................. 6.1(b)
(d).................. 6.1(c)
(d) (1).............. 6.1(a) (1)
(d) (2).............. 6.1(c) (2)
(d) (3).............. 6.1(c) (3)
(e).................. 5.14
(S) 316 (a).................. 1.1
(a) (1) (A).......... 5.12
(a) (1) (B).......... 5.13
(a) (2).............. Not Applicable
(b).................. 5.8
(c).................. 1.4(f)
(S) 317 (a) (1).............. 5.3
(a) (2).............. 5.4
(b).................. 10.3
(S) 318 (a).................. 1.7
--------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Junior Subordinated Indenture.
TABLE OF CONTENTS
-----------------
Page
----
ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION.......................................... 1
Section 1.1. Definitions.......................................... 1
Section 1.2. Compliance Certificate and Opinions.................. 15
Section 1.3. Forms of Documents Delivered to Trustee.............. 16
Section 1.4. Acts of Holders...................................... 16
Section 1.5. Notices, Etc. to Trustee and Company................. 19
Section 1.6. Notice to Holders; Waiver............................ 19
Section 1.7. Conflict with Trust Indenture Act.................... 19
Section 1.8. Effect of Headings and Table of Contents............. 20
Section 1.9. Successors and Assigns............................... 20
Section 1.10. Separability Clause.................................. 20
Section 1.11. Benefits of Indenture................................ 20
Section 1.12. Governing Law........................................ 20
Section 1.13. Non-Business Days.................................... 20
ARTICLE II SECURITY FORMS....................................... 21
Section 2.1. Forms Generally...................................... 21
Section 2.2A Form of Face of Initial Security..................... 21
Section 2.2B Form of Face of Exchange Security and Registered
Security............................................. 25
Section 2.3. Form of Reverse of Security.......................... 28
Section 2.4. Additional Provisions Required in Global Security.... 32
Section 2.5. Form of Trustee's Certificate of Authentication...... 32
ARTICLE III THE SECURITIES....................................... 33
Section 3.1. Title and Terms...................................... 33
Section 3.2. Denominations........................................ 35
Section 3.3. Execution, Authentication, Delivery and Dating....... 35
Section 3.4. Temporary Securities................................. 38
Section 3.5. Registration, Transfer and Exchange.................. 38
Section 3.6. Mutilated, Destroyed, Lost and Stolen Securities..... 43
Section 3.7. Payment of Interest; Interest Rights Preserved....... 44
Section 3.8. Persons Deemed Owners................................ 46
Section 3.9. Cancellation......................................... 46
Section 3.10. Computation of Interest.............................. 46
Section 3.11. Deferrals of Interest Payment Dates.................. 46
Section 3.12. Right of Set-Off..................................... 48
Section 3.13. Agreed Tax Treatment................................. 48
Section 3.14. Shortening of Stated Maturity........................ 48
Section 3.15. CUSIP Numbers........................................ 48
-i-
Page
----
ARTICLE IV SATISFACTION AND DISCHARGE........................... 49
Section 4.1. Satisfaction and Discharge of Indenture.............. 49
Section 4.2. Application of Trust Money........................... 50
ARTICLE V REMEDIES............................................. 50
Section 5.1. Events of Default.................................... 50
Section 5.2. Acceleration of Maturity; Rescission and Annulment... 51
Section 5.3. Collection of Indebtedness and Suits for Enforcement
by Trustee........................................... 52
Section 5.4. Trustee May File Proofs of Claim..................... 53
Section 5.5. Trustee May Enforce Claims Without Possession of
Securities........................................... 54
Section 5.6. Application of Money Collected....................... 54
Section 5.7. Limitation on Suits.................................. 55
Section 5.8. Unconditional Right of Holders to Receive Principal,
Premium and Interest; Direct Action by Holders of
Preferred Securities................................. 55
Section 5.9. Restoration of Rights and Remedies................... 56
Section 5.10. Rights and Remedies Cumulative....................... 56
Section 5.11. Delay or Omission Not Waiver......................... 56
Section 5.12. Control by Holders................................... 57
Section 5.13. Waiver of Past Defaults.............................. 57
Section 5.14. Undertaking for Costs................................ 58
Section 5.15. Waiver of Usury, Stay or Extension Laws.............. 58
ARTICLE VI THE TRUSTEE.......................................... 59
Section 6.1. Certain Duties and Responsibilities.................. 59
Section 6.2. Notice of Defaults................................... 60
Section 6.3. Certain Rights of Trustee............................ 60
Section 6.4. Not Responsible for Recitals or Issuance of
Securities........................................... 61
Section 6.5. May Hold Securities.................................. 61
Section 6.6. Money Held in Trust.................................. 62
Section 6.7. Compensation and Reimbursement....................... 62
Section 6.8. Disqualification; Conflicting Interests.............. 63
Section 6.9. Corporate Trustee Required; Eligibility.............. 63
Section 6.10. Resignation and Removal; Appointment of Successor.... 63
Section 6.11. Acceptance of Appointment by Successor............... 65
Section 6.12. Merger, Conversion, Consolidation or Succession to
Business............................................. 66
Section 6.13. Preferential Collection of Claims Against Company.... 66
Section 6.14. Appointment of Authenticating Agent.................. 66
Section 6.15. Officers' Certificates as Evidence................... 68
ARTICLE VII HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY.... 69
Section 7.1. Company to Furnish Trustee Names and Addresses of
Holders.............................................. 69
Section 7.2. Preservation of Information, Communications to
Holders.............................................. 69
Section 7.3. Reports by Trustee................................... 69
Section 7.4. Reports by Company................................... 70
-ii-
Page
----
ARTICLE VIII CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR
LEASE................................................ 70
Section 8.1. Company May Consolidate, Etc., Only on Certain Terms. 70
Section 8.2. Successor Corporation Substituted.................... 71
ARTICLE IX SUPPLEMENTAL INDENTURES.............................. 72
Section 9.1. Supplemental Indentures without Consent of Holders... 72
Section 9.2. Supplemental Indentures with Consent of Holders...... 73
Section 9.3. Execution of Supplemental Indentures................. 74
Section 9.4. Effect of Supplemental Indentures.................... 75
Section 9.5. Conformity with Trust Indenture Act.................. 75
Section 9.6. Reference in Securities to Supplemental Indentures... 75
ARTICLE X COVENANTS............................................ 75
Section 10.1. Payment of Principal, Premium and Interest........... 75
Section 10.2. Maintenance of Office or Agency...................... 75
Section 10.3. Money for Security Payments to be Held in Trust...... 76
Section 10.4. Statement as to Compliance........................... 77
Section 10.5. Waiver of Certain Covenants.......................... 78
Section 10.6. Additional Sums...................................... 78
Section 10.7. Additional Covenants................................. 78
Section 10.8. Limitation on Indebtedness........................... 79
Section 10.10. Change of Control.................................... 80
ARTICLE XI RESERVE ACCOUNT...................................... 83
Section 11.1. Establishment of the Reserve Account................. 83
Section 11.2. Investment of Funds in the Reserve Account........... 83
ARTICLE XII REDEMPTION OF SECURITIES............................. 84
Section 12.1. Applicability of This Article........................ 84
Section 12.2. Election to Redeem; Notice to Trustee................ 84
Section 12.3. Selection of Securities to be Redeemed............... 84
Section 12.4. Notice of Redemption................................. 85
Section 12.5. Deposit of Redemption Price.......................... 85
Section 12.6. Payment of Securities Called for Redemption.......... 86
Section 12.7. Right of Redemption of Securities.................... 86
ARTICLE XIII SUBORDINATION OF SECURITIES.......................... 87
Section 13.1. Securities Subordinate to Senior Indebtedness........ 87
Section 13.2. No Payment When Senior Indebtedness in Default;
Payment Over of Proceeds Upon Dissolution, Etc....... 87
Section 13.3. Payment Permitted If No Default...................... 89
Section 13.4. Subrogation to Rights of Holders of Senior
Indebtedness......................................... 89
Section 13.5. Provisions Solely to Define Relative
Rights............................................... 89
Section 13.6. Trustee to Effectuate Subordination.................. 90
Section 13.7. No Waiver of Subordination Provisions............... 90
Section 13.8. Notice to Trustee................................... 90
Section 13.9. Reliance on Judicial Order or Certificate of
Liquidating Agent................................... 91
Section 13.10. Trustee Not Fiduciary for Holders of Senior
Indebtedness........................................ 91
Section 13.11. Rights of Trustee as Holder of
Senior Indebtedness; Preservation of Trustee's Rights. 92
Section 13.12. Article Applicable to Paying Agents................. 92
Annex A - Form of Trust Agreement
Annex B - Form of Amended and Restated Trust Agreement
Annex C - Form of Initial Guarantee Agreement
-iii-
EXHIBIT 4.1
JUNIOR SUBORDINATED INDENTURE (hereinafter called the "Indenture"), dated
as of February 10, 1997, between INTEGON CORPORATION, a Delaware corporation
(hereinafter called the "Company") having its principal office at 000 Xxxx Xxxxx
Xxxxxx, Xxxxxxx-Xxxxx, Xxxxx Xxxxxxxx 00000, and FIRST UNION NATIONAL BANK OF
NORTH CAROLINA, a national banking association organized and existing under the
laws of the United States of America, as Trustee (hereinafter called the
"Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured junior
subordinated debt securities in one or more series (hereinafter called the
"Securities") of substantially the tenor hereinafter provided, including,
without limitation, Securities issued to evidence loans made to the Company of
the proceeds from the issuance from time to time by one or more business trusts
(each a "Trust," and, collectively, the "Trusts") of preferred interests in such
Trusts and common interests in such Trusts, and to provide the terms and
conditions upon which the Securities are to be authenticated, issued and
delivered.
All things necessary to make the Securities, when executed by the Company
and authenticated and delivered hereunder and duly issued by the Company, the
valid obligations of the Company, and to make this Indenture a valid agreement
of the Company, in accordance with their and its terms, have been done.
NOW THEREFORE, THIS INDENTURE WITNESSETH: For and in consideration of the
premises and the purchase of the Securities by the Holders thereof, it is
mutually covenanted and agreed, for the equal and proportionate benefit of all
Holders of the Securities or of any series thereof, as follows:
ARTICLE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) The terms defined in this Article have the meanings assigned to them in
this Article, and include the plural as well as the singular;
(2) All other terms used herein which are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to
them therein;
2
(3) All accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles,
and the term "generally accepted accounting principles" with respect to any
computation required or permitted hereunder shall mean such accounting
principles which are generally accepted at the date or time of such computation;
provided, that when two or more principles are so generally accepted, it shall
mean that set of principles consistent with those in use by the Company; and
(4) The words "herein," "hereof" and "hereunder" and other words of similar
import refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision.
"Act" when used with respect to any Holder has the meaning specified in
Section 1.4.
"Additional Interest" means the interest that shall accrue on any interest
on the Securities of any series the payment of which has not been made on the
applicable Interest Payment Date and which shall accrue at the rate per annum
specified or determined as specified in such Security from the applicable
Interest Payment Date.
"Additional Sums" has the meaning specified in Section 10.6.
"Additional Taxes" means the sum of any additional taxes, duties and other
governmental charges to which a Trust has become subject from time to time as a
result of a Tax Event.
"Administrative Trustee" means, in respect of any Trust, each Person
identified as an "Administrative Trustee" in the related Trust Agreement, solely
in such Person's capacity as Administrative Trustee of such Trust under such
Trust Agreement and not in such Person's individual capacity, or any successor
administrative trustee appointed as therein provided.
"Adverse Tax Consequence" means each of the circumstances referred to in
clauses (i), (ii) and (iii) of the first sentence of the definition of Tax Event
and the circumstances referred to in the second sentence of the definition of
Tax Event.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person; provided, however, no Trust to which
Securities have been issued shall be deemed to be an Affiliate of the Company.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agent Members" has the meaning specified in Section 3.3.
"Allocable Amounts", when used with respect to any Senior Subordinated
Debt, means the amount necessary to pay all principal of (and premium, if any)
and interest, if any, on such Senior
3
Subordinated Debt in full less, if applicable, any portion of such amount which
would have been paid to, and retained by, the holders of such Senior
Subordinated Debt (whether as a result of the receipt of payments by the holders
of such Senior Subordinated Debt from the Company or any other obligor thereon
or from any holders of, or trustee in respect of, other indebtedness that is
subordinate and junior in right of payment to such Senior Subordinated Debt
pursuant to any provision of such indebtedness for the payment over of amounts
received on account of such indebtedness to the holders of such Senior
Subordinated Debt) but for the fact that such Senior Subordinated Debt is
subordinate or junior in right of payment to trade accounts payable or accrued
liabilities arising in the ordinary course of business.
"Asset Disposition" by any Person means any transfer, conveyance, sale,
lease or other disposition by such Person or any of its Subsidiaries (including
a consolidation or merger or other sale of any such Subsidiary with, into or to
another Person in a transaction in which such Subsidiary ceases to be a
Subsidiary, but excluding a disposition by a Subsidiary of such Person to such
Person or a Wholly Owned Subsidiary of such Person or by such Person to a Wholly
Owned Subsidiary of such Person) of (i) shares of Capital Stock (other than
directors' qualifying shares) or other ownership interests of a Subsidiary of
such Person, (ii) substantially all of the assets of such Person or any of its
Subsidiaries representing a division or line of business or (iii) other assets
or rights of such Person or any of its Subsidiaries outside the ordinary course
of business.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 6.14 to act on behalf of the Trustee to authenticate Securities of
one or more series.
"Board of Directors" means either the board of directors of the Company or
any committee of that board duly authorized to act hereunder.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors, or such committee of the Board of Directors or officers of the
Company to which authority to act on behalf of the Board of Directors has been
delegated, and to be in full force and effect on the date of such certification,
and delivered to the Trustee.
"Business Day" means any day other than (i) a Saturday or Sunday, (ii) a
day on which banking institutions in The City of New York are authorized or
required by law or executive order to remain closed or (iii) a day on which the
Corporate Trust Office of the Trustee, or, with respect to the Securities of a
series initially issued to the Trust, the principal office of the Property
Trustee under the related Trust Agreement, is closed for business.
"Capital Lease Obligation" of any Person means the obligation to pay rent
or other payment amounts under a lease of (or other Debt arrangements conveying
the right to use) real or personal property of such Person which is required to
be classified and accounted for as a capital lease or a liability on the face of
a balance sheet of such Person in accordance with generally accepted accounting
principles. The stated maturity of such obligation shall be the date of the last
payment
4
of rent or any other amount due under such lease prior to the first date upon
which such lease may be terminated by the lessee without payment of a penalty.
"Capital Stock" of any Person means any and all shares, interests,
participations or other equivalents (however designated) of corporate stock of
such Person.
"Change of Control" means the occurrence of one or more of the following
events (whether or not approved by the Board of Directors): (a) an event or
series of events by which any Person or group of Persons within the meaning of
Section 13(d) of the Exchange Act shall, as a result of a tender or exchange
offer, open market purchases, privately negotiated purchases, merger,
consolidation, issuances of securities by the Company or otherwise, be or
become, directly or indirectly, the beneficial owner (within the meaning of Rule
13d-3 and Rule 13d-5 under the Exchange Act, whether or not applicable, except
that a Person shall be deemed to have "beneficial ownership" of all securities
that such Person has the right to acquire, whether such right is exercisable
immediately or only after the passage of time) of 50% or more of the combined
voting power of the then outstanding voting stock of the Company, (b) the first
day on which a majority of the members of the Board of Directors are not
Continuing Directors, (c) the stockholders of the Company shall approve any plan
or proposal for the liquidation or dissolution of the Company or (d) the direct
or indirect sale, assignment, lease, exchange, disposition or other transfer, in
one transaction or a series of related transactions, of all or substantially all
of the property or assets of the Company to any Person.
"Change of Control Notice" has the meaning specified in Section 10.10.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, or if at any time after the execution of this Indenture 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", as applied to any Trust, means an undivided beneficial
interest in the assets of a Trust having the rights provided therefor in the
related Trust Agreement, including the right to receive Distributions and a
Liquidation Distribution (each, as defined in the related Trust Agreement) as
provided therein.
"Common Stock" means the common stock, par value $.01 per share, of the
Company.
"Company" means the Person named as the "Company" in the first paragraph of
this Indenture until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person.
"Company Request" and "Company Order" mean, respectively, the written
request or order signed in the name of the Company by the Chairman of the Board
of Directors, the Vice Chairman of the Board of Directors, the President or a
Vice President of the Company, and by the Treasurer,
5
an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company,
and delivered to the Trustee.
"Consolidated Cash Flow Available for Fixed Charges" of any Person means
for any period the Consolidated Net Income for such period increased by the sum
of (i) Consolidated Interest Expense of such Person for such period, plus (ii)
Consolidated Income Tax Expense of such Person for such period, plus (iii) the
consolidated depreciation and amortization expense included in the income
statement of such Person for such period, plus (iv) other non-cash charges of
such Person for such period deducted from consolidated revenues in determining
Consolidated Net Income for such period, minus (v) non-cash items of such Person
for such period increasing consolidated revenues in determining Consolidated Net
Income for such period.
"Consolidated Cash Flow Ratio" of any Person means for any period the ratio
of (i) Consolidated Cash Flow Available For Fixed Charges of such Person for
such period to (ii) the sum of (A) Consolidated Interest Expense of such Person
for such period plus (B) the annual interest expense (including the amortization
of debt discount) with respect to any Debt proposed to be Incurred by such
Person or its Subsidiaries plus (C) the annual interest expense (including the
amortization of debt discount) with respect to any other Debt Incurred by such
Person or its Subsidiaries since the end of such period to the extent not
included in Clause (ii)(A) minus (D) Consolidated Interest Expense of such
Person to the extent included in Clause (ii)(A) with respect to any Debt that
will no longer be outstanding as a result of the Incurrence of the Debt proposed
to be Incurred; provided, however, that in making such computation, the
-------- -------
Consolidated Interest Expense of such Person attributable to interest on any
Debt bearing a floating interest rate shall be computed on a pro forma basis as
if the rate in effect on the date of computation had been the applicable rate
for the entire period; provided further that, in the event such Person or its
-------- -------
Subsidiaries has made Asset Dispositions or acquisitions of assets not in the
ordinary course of business (including acquisitions of other Persons by merger,
consolidation or purchase of Capital Stock) during or after such period, such
computation shall be made on a pro forma basis as if the Asset Dispositions or
acquisitions had taken place on the first day of such period.
"Consolidated Income Tax Expense" of any Person means for any period the
consolidated provision for income taxes of such Person for such period
calculated on a consolidated basis in accordance with generally accepted
accounting principles.
"Consolidated Interest Expense" for any Person means for any period the
consolidated interest expense included in a consolidated income statement
(without deduction of interest income) of such Person for such period calculated
on a consolidated basis in accordance with generally accepted accounting
principles, including without limitation or duplication (or, to the extent not
so included, with the addition of), (i) the amortization of Debt discounts; (ii)
any payments or fees with respect to letters of credit, bankers acceptances or
similar facilities; (iii) fees with respect to interest rate swap or similar
agreements or foreign currency hedge, exchange or similar agreements; (iv)
Preferred Stock dividends declared and payable in cash; and (v) the portion of
any rental obligation allocable to interest expense.
6
"Consolidated Net Income" of any Person means for any period the
consolidated net income (or loss) of such Person for such period determined on a
consolidated basis in accordance with generally accepted accounting principles;
provided that there shall be excluded therefrom (a) the net income (or loss) of
--------
any Person acquired by such Person or a Subsidiary of such Person in a pooling-
of-interests transaction for any period prior to the date of such transaction,
(b) the net income (or loss) of any Person that is not a Subsidiary of such
Person except to the extent of the amount of dividends or other distributions
actually paid to such Person by such other Person during such period, (c) the
cumulative effect of changes in accounting principles and (d) all extraordinary
gains and extraordinary losses.
"Continuing Director" means, as to any series of Securities, any member of
the Board of Directors who was a member of such Board of Directors on the
Original Issue Date of such series of Securities, and, as of any determination
date thereafter, shall include any member of the Board of Directors who was
nominated for election or appointed to such Board of Directors with the
affirmative vote of a majority of the Continuing Directors who were members of
such Board of Directors at the time of such nomination or appointment.
"Corporate Trust Office" means the principal office of the Trustee at which
at any particular time its corporate trust business shall be administered, which
at the date hereof is 000 Xxxxx Xxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxxxx, Xxxxx
Xxxxxxxx 00000-0000.
"corporation" includes a corporation, association, company, joint-stock
company or business trust.
"Credit Facility" means the Amended and Restated Credit Agreement, dated
July 25, 1996, entered into between the Company and Chase Manhattan Bank N.A.,
as the same may be amended from time to time.
"Debt" means (without duplication), 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,
(vi) the maximum fixed redemption or repurchase price of Redeemable Stock of
such Person at the time of determination, (vii) every obligation to pay rent or
other payment amounts of such Person with respect to any Sale and Leaseback
Transaction to which such Person is a party, and (viii) every obligation of the
type referred to in clauses (i) through (vii) 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,
Guarantor or otherwise.
7
"Defaulted Interest" has the meaning specified in Section 3.7.
"Definitive Security" means a Security that does not contain the legend set
forth in Section 2.4.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del.C. (S)3801, et seq., as it may be amended from time to time.
"Depository" means, with respect to the Securities of any series issuable
or issued in whole or in part in the form of one or more Global Securities, the
Person designated as Depository by the Company pursuant to Section 3.1 with
respect to such series (or any successor thereto).
"Distributions," with respect to the Trust Securities issued by a Trust,
means amounts payable in respect of such Trust Securities as provided in the
related Trust Agreement and referred to therein as "Distributions."
"Dollar" means the currency of the United States of America that, as at the
time of payment, is legal tender for the payment of public and private debts.
"Electing Holders" has the meaning specified in Section 10.10.
"Event of Default" unless otherwise specified in the supplemental indenture
creating a series of Securities has the meaning specified in Section 5.1.
"Exchange Act" means the Securities Exchange Act of 1934 and any statute
successor thereto, in each case as amended from time to time, and the rules and
regulations promulgated thereunder.
"Exchange and Registration Rights Agreement" means an Exchange and
Registration Rights Agreement by and among the Company, a Trust and one or more
initial purchasers, as such agreement may be amended, modified or supplemented
from time to time in accordance with the terms thereof, relating to an exchange
offer and registration rights for Preferred Securities issued by such Trust.
"Exchange Securities" means any unsecured junior subordinated debt
securities or debt security, as the case may be, to be authenticated and
delivered under this Indenture in connection with the offer to exchange Initial
Securities for a new series of unsecured junior subordinated debt securities of
the Company pursuant to an Exchange and Registration Rights Agreement.
"Expiration Date" has the meaning specified in Section 1.4(f).
8
"Extension Period" has the meaning specified in Section 3.11.
"Global Security" means a Security in the form prescribed in Section 2.4
evidencing all or part of a series of Securities, issued to the Depository or
its nominee for such series, and registered in the name of such Depository or
its nominee.
"Guarantee Agreement" means a Guarantee Agreement by and between the
Company and a trustee for the benefit of holders of Trust Securities and any
guarantee agreement that may be issued in exchange therefor as contemplated by
an Exchange and Registration Rights Agreement.
"Guaranty" by any Person means any obligation, contingent or otherwise, of
such Person guaranteeing any Debt of any other Person (the "primary obligor") in
any manner, whether directly or indirectly, and including, without limitation,
any obligation of such Person, (i) to purchase or pay (or advance or supply
funds for the purchase or payment of) such Debt or to purchase (or to advance or
supply funds for the purchase of) any security for the payment of such Debt,
(ii) to purchase property, securities or services for the purpose of assuring
the holder of such Debt of the payment of such Debt, or (iii) to maintain
working capital, equity capital or other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to pay such
Debt (and "Guaranteed," "Guaranteeing" and Guarantor" shall have meanings
correlative to the foregoing); provided, however, that the Guaranty by any
-------- -------
Person shall not include endorsements by such Person for collection or deposit,
in either case, in the ordinary course of business.
"Holder" means a Person in whose name a Security is registered in the
Securities Register.
"Incur" means, with respect to any Debt of other obligation of any Person,
to create, issue, incur (by conversion, exchange or otherwise), assume,
Guarantee or otherwise become liable in respect of such Debt or other obligation
or the recording, as required pursuant to generally accepted accounting
principles or otherwise, of any such Debt or other obligation on the balance
sheet of such Person (and "Incurrence," "Incurred," Incurrable" and "Incurring"
shall have the meanings correlative to the foregoing); provided, however, that a
-------- -------
change in generally accepted accounting principles that results in an obligation
of such Person that exists at such time becoming Debt shall not be deemed an
Incurrence of such Debt.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof and shall
include the terms of each particular series of Securities established as
contemplated by Section 3.1.
"Initial Securities" means any unsecured junior subordinated debt
securities or debt security, as the case may be, authenticated and delivered
under this Indenture, and not registered under the Securities Act.
9
"Interest Payment Date" means as to each series of Securities the Stated
Maturity of an installment of interest on such Securities.
"Investment Grade Status", with respect to the Company, shall occur when
the Senior Notes (and any other unsecured Senior Indebtedness) receive a rating
of "BBB-" or higher from S&P or a rating of "Baa3" or higher from Moody's.
"Junior Subordinated Debt" means any Debt of the Company to its creditors,
whether now outstanding or subsequently incurred, where the instrument creating
or evidencing the Debt or pursuant to which the Debt is outstanding provides
that it is subordinated and junior in right of payment to Senior Indebtedness
pursuant to subordination provisions substantially similar to those set forth in
this Indenture. Junior Subordinated Debt includes the Securities.
"Maturity" when used with respect to any Security means the date on which
the principal of such Security becomes due and payable as therein or herein
provided, whether at the Stated Maturity or by declaration of acceleration, call
for redemption, submission for repurchase or otherwise.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Notice of Default" means a written notice of the kind specified in Section
5.1(3).
"Officers' Certificate" means a certificate signed by the Chairman of the
Board of Directors, a Vice Chairman of the Board of Directors, the Chief
Executive Officer, the President or any Vice President, and by the Treasurer, an
Assistant Treasurer, the Controller, the Secretary or an Assistant Secretary of
the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for, or an employee of, the Company, any Trust or the Trustee, and who shall be
acceptable to the Trustee.
"Original Issue Date" means the date of issuance specified as such in each
Security.
"Outstanding" means, when used in reference to any Securities, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(ii) Securities for whose payment or repurchase price or redemption price
money in the necessary amount has been theretofore deposited with the Trustee or
any Paying Agent in trust for the Holders of such Securities; provided that, if
such Securities are to be redeemed or caused to be repurchased, notice of such
redemption or election to cause a repurchase has been duly given pursuant to
this Indenture, and until such notice shall have been given, such Securities
shall be deemed Outstanding; and
10
(iii) Securities in substitution for or in lieu of which other Securities
have been authenticated and delivered or which have been paid pursuant to
Section 3.6, unless proof satisfactory to the Trustee is presented that any such
Securities are held by Holders in whose hands such Securities are valid, binding
and legal obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or such other obligor shall be disregarded and deemed not to be
Outstanding, except that, (a) in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Securities which the Trustee actually knows to
be so owned shall be so disregarded and (b) the foregoing shall not apply at any
time when all of the outstanding Securities are owned by the Company, any other
obligor upon the Securities or any Affiliate of the Company or such obligor.
Securities so owned 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 Securities and that the pledgee
is not the Company or any other obligor upon the Securities or any Affiliate of
the Company or such other obligor. Upon the written request of the Trustee, the
Company shall furnish to the Trustee promptly an Officers' Certificate listing
and identifying all Securities, if any, known by the Company to be owned or held
by or for the account of the Company or any other obligor on the Securities or
any Affiliate of the Company or such obligor, and, subject to the provisions of
Section 6.1, the Trustee shall be entitled to accept such Officers' Certificate
as conclusive evidence of the facts therein set forth and of the fact that all
Securities not listed therein are Outstanding for the purpose of any such
determination.
"Paying Agent" means the Trustee or any Person authorized by the Company to
pay the principal of (or premium, if any) or interest on, Additional Interest,
if any, the Redemption Price or the Repurchase Price of any Securities on behalf
of the Company.
"Person" means any individual, corporation, association, limited liability
company, partnership, joint venture, trust, estate, unincorporated organization
or government or any agency or political subdivision thereof.
"Place of Payment" means, with respect to the Securities of any series, the
place or places where the principal of (and premium, if any) and interest on,
Additional Interest, if any, or the Redemption Price and the Repurchase Price,
if any, of the Securities of such series are payable pursuant to Sections 3.1,
3.11, 10.10 and 12.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.6 in lieu of a lost, destroyed or
stolen Security shall be deemed to evidence the same debt as the lost, destroyed
or stolen Security.
11
"Preferred Security", as applied to any Trust, means an undivided
beneficial interest in the assets of such Trust having the rights provided
therefor in the related Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution (each, as defined in the related
Trust Agreement) as provided therein.
"Preferred Stock", as applied to the Capital Stock of any Person, means
Capital Stock of such Person of any class or classes (however designated) that
ranks prior, as to the payment of dividends or as to the distribution of assets
upon any voluntary or involuntary liquidation, dissolution or winding up of such
Person, to shares of Capital Stock of any other class of such Person.
"Proceeding" has the meaning specified in Section 13.2.
"Property Trustee" means, in respect of any Trust, the Person identified as
the "Property Trustee" in the related Trust Agreement, solely in its capacity as
Property Trustee of such Trust under such Trust Agreement and not in its
individual capacity, or its successor in interest in such capacity, or any
successor property trustee appointed as therein provided.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A under
the Securities Act.
"Redeemable Stock" of any Person means any equity security of such Person
that by its terms or otherwise is required to be redeemed prior to the final
Stated Maturity of the Securities or is redeemable at the option of the holder
thereof at any time prior to the final Stated Maturity of the Securities.
"Redemption Date," when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price," when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Registered Exchange Offer," with respect to Securities of a series, shall
have the meaning set forth in the Exchange and Registration Rights Agreement
which relates to the Securities of such series.
"Registered Securities" means any unsecured junior subordinated debt
securities or debt security, as the case may be, authenticated and delivered
under this Indenture and registered under the Securities Act at the time of
issuance.
"Regular Record Date" for the interest payable on any Interest Payment Date
with respect to the Securities of a series means, unless otherwise provided
pursuant to Section 3.1 with respect to Securities of a series, (i) in the case
where all of the Securities of a series are held by the Trust or represented by
one or more Global Securities, the Business Day next preceding such Interest
12
Payment Date and (ii) in the case where some of the Securities of a series are
not held by the Trust or represented by one or more Global Securities, the date
which is 15 days next preceding such Interest Payment Date (whether or not a
Business Day) for all Securities of such series.
"Repurchase Date," when used with respect to any Security to be repurchased
pursuant to Section 10.10, means the date fixed for such repurchase by or
pursuant to Section 10.10.
"Repurchase Election" has the meaning specified in Section 10.10(c).
"Repurchase Price," when used with respect to any Security to be
repurchased pursuant to Section 10.10, means the price at which such Security is
to be repurchased pursuant to Section 10.10.
"Responsible Officer" when used with respect to the Trustee means any
officer of the Trustee assigned by the Trustee from time to time to administer
its corporate trust matters.
"Reserve Account" has the meaning specified in Section 11.1.
"Restricted Certificated Securities" has the meaning specified in Section
3.3.
"Rights Plan" means a plan of the Company providing for the issuance by the
Company to all holders of its Common Stock of rights entitling the holders
thereof to subscribe for or purchase shares of Common Stock or any class or
series of Preferred Stock of the Company, which rights (i) are deemed to be
transferred with such shares of Common Stock, (ii) are not exercisable and (iii)
are also issued in respect of future issuances of Common Stock, in each case
until the occurrence of a specified event or events.
"Sale and Leaseback Transaction" of any Person means an arrangement with
any lender or investor or to which such lender or investor is a party providing
for the leasing by such Person of any property or asset of such Person which has
been or is being sold or transferred by such Person more than 270 days after the
acquisition thereof or the completion of construction or commencement of
operation thereof to such lender or investor or to any person to whom funds have
been or are to be advanced by such lender or investor on the security of such
property or asset. The stated maturity of such arrangement shall be the date of
the last payment of rent or any other amount due under such arrangement prior to
the first date on which such arrangement may be terminated by the lessee without
payment of a penalty.
"S&P" means Standard & Poor's Ratings Services.
"Securities" or "Security" means any (a) Initial Securities or Security
and, when and if issued as contemplated by the related Exchange and Registration
Rights Agreement, any Exchange Securities or Security or (b) any Registered
Securities or Security.
13
"Securities Act" means the Securities Act of 1933 and any statute successor
thereto, in each case as amended from time to time, and the rules and
regulations promulgated thereunder.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 3.5.
"Senior Debt" means any Debt of the Company to its creditors, whether now
outstanding or subsequently incurred, other than any Debt as to which, in the
instrument creating or evidencing the obligation or pursuant to which the Debt
is outstanding, it is provided that such Debt is not Senior Debt. Senior Debt
does not include Senior Subordinated Debt or Junior Subordinated Debt.
"Senior Indebtedness" means (i) Senior Debt (but excluding trade accounts
payable and accrued liabilities arising in the ordinary course of business) and
(ii) the Allocable Amounts of Senior Subordinated Debt.
"Senior Notes" collectively means (i) the 9-1/2% Senior Notes due 2001
issued by the Company pursuant to the Indenture, dated as of October 15, 1994,
between the Company and The First National Bank of Chicago, and (ii) the 8%
Senior Notes due 1999 issued by the Company pursuant to the Indenture, dated as
of August 15, 1992, between the Company and The First National Bank of Chicago.
"Senior Subordinated Debt" means any Debt of the Company to its creditors,
whether now outstanding or subsequently incurred, where the instrument creating
or evidencing the Debt or pursuant to which the Debt is outstanding provides
that it is subordinate and junior in right of payment to Senior Debt pursuant to
subordination provisions substantially similar to those applicable to the
Company's outstanding Senior Subordinated Debt. Senior Subordinated Debt
includes the Company's outstanding subordinated debt securities and any
subordinated debt securities issued in the future with substantially similar
subordination terms and does not include Junior Subordinated Debt.
"Shelf Registration Statement" has the meaning set forth in an Exchange and
Registration Rights Agreement.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.7.
"Stated Maturity" when used with respect to any Security or any installment
of principal thereof means the date specified pursuant to the terms of such
Security as the fixed date on which the principal of such Security is due and
payable, as such date may be shortened as provided pursuant to the terms of such
Security and this Indenture. When used with respect to any installment of
interest on any Security, "Stated Maturity" means the date specified pursuant to
the terms of such Security as the date on which such installment of interest is
due and payable.
14
"Subsidiary" means a corporation more than 50% of the outstanding voting
stock of which is owned, directly or indirectly, by the Company or by one or
more other Subsidiaries, or by the Company and one or more other Subsidiaries.
For purposes of this definition, "voting stock" means stock which ordinarily has
voting power for the election of directors, whether at all times or only so long
as no senior class of securities has such voting power by reason of any
contingency.
"Tax Event", with respect to Securities held by a Trust, means the receipt
by such Trust of an Opinion of Counsel (as defined in the relevant Trust
Agreement) experienced in such matters to the effect that, as a result of any
amendment to, or change (including any announced prospective change) in, the
laws (or any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein, or as a result of any
official administrative pronouncement or judicial decision interpreting or
applying such laws or regulations, which amendment or change is effective or
which prospective change, pronouncement or decision is announced on or after the
date of original issuance of the Preferred Securities of such Trust, there is
more than an insubstantial risk that (i) the Trust is, or will be within 90 days
of the date of such Opinion of Counsel, subject to United States federal income
tax with respect to income received or accrued on the corresponding series of
Securities issued by the Company to such Trust, (ii) interest payable by the
Company on such corresponding series of Securities is not, or within 90 days of
the date of such Opinion of Counsel, will not be, deductible by the Company, in
whole or in part, for United States federal income tax purposes or (iii) such
Trust is, or will be within 90 days of the date of such Opinion of Counsel,
subject to more than a de minimis amount of other taxes, duties or other
governmental charges. With respect to securities not held by the Trust, "Tax
Event" means the receipt by the Company of an opinion of counsel experienced in
such matters to the effect that, as a result of any amendment to, or change
(including any announced prospective change) in, the laws (or any regulations
thereunder) of the United States or any political subdivision or taxing
authority thereof or therein, or as a result of any official administrative
pronouncement or judicial decision interpreting or applying such laws or
regulations, which amendment or change is effective or which prospective change,
pronouncement or decision is announced on or after the date of issuance of the
applicable series of Securities under this Indenture, there is more than an
insubstantial risk that interest payable by the Company on such series of
Securities is not, or within 90 days of the date of such opinion will not be,
deductible by the Company, in whole or in part, for United States federal income
tax purposes.
"Transfer Restricted Security," with respect to the Securities of a series,
has the meaning set forth in the Exchange and Registration Rights Agreement
which relates to the Securities of such series.
"Trust" has the meaning specified in the first recital of this Indenture.
"Trust Agreement", with respect to any Trust, means the Trust Agreement
substantially in the form attached hereto as Annex A, as amended by the form of
Amended and Restated Trust Agreement substantially in the form attached hereto
as Annex B, or substantially in such form as
15
may be specified as contemplated by Section 3.1 with respect to the Securities
of any series, in each case as amended from time to time.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder and, if at any time there is
more than one such Person, "Trustee" as used with respect to the Securities of
any series shall mean the Trustee with respect to Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 (15 U.S.C. (S)
77aaa-77bbb), as amended and as in effect on the date as of this Indenture,
except as provided in Section 9.5.
"Trust Securities", as applied to any Trust, means any of the Common
Securities or the Preferred Securities of the Trust.
"Vice President", when used with respect to the Company means any duly
appointed vice president, whether or not designated by a number or a word or
words added before or after the title "vice president."
"Wholly Owned Subsidiary" of any Person means a Subsidiary of such Person
all of the outstanding Capital Stock or other ownership interests of which
(other than directors' qualifying shares) shall at the time be owned by such
Person or by one or more Wholly Owned Subsidiaries of such Person or by such
Person and one or more Wholly Owned Subsidiaries of such Person.
Section 1.2. Compliance Certificate and Opinions.
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall furnish to the
Trustee an Officers' Certificate stating that all conditions precedent
(including covenants, compliance with which constitutes a condition precedent),
if any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent (including covenants compliance with which
constitute a condition precedent), if any, have been complied with, except that
in the case of any such application or request as to which the furnishing of
such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (other than the certificates provided
pursuant to Section 10.4) shall include:
(1) a statement that each individual signing such certificate or opinion
has read such covenant or condition and the definitions herein relating thereto;
16
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has made
or caused to be made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether, in the opinion of each such individual, such
condition or covenant has been complied with.
Section 1.3. Forms of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer or counsel knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his or her certificate or
opinion is based are erroneous. Any Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel rendering such Opinion of Counsel knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions, or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 1.4. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given to or taken by Holders
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Holders in person or by an agent or proxy duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments is or are
delivered to the Trustee, and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a
17
writing appointing any such agent or proxy shall be sufficient for any purpose
of this Indenture and (subject to Section 6.1) conclusive in favor of the
Trustee and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by
the certificate of any notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a Person acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority.
(c) The fact and date of the execution by any Person of any such instrument
or writing, or the authority of the Person executing the same, may also be
proved in any other manner which the Trustee deems sufficient and in accordance
with such rules as the Trustee may determine.
(d) The ownership of Securities shall be proved by the Securities Register.
(e) Any request, demand, authorization, direction, notice, consent, waiver
or other action by the Holder of any Security shall bind every future Holder of
the same Security and the Holder of every Security issued upon the transfer
thereof or in exchange therefor or in lieu thereof in respect of anything done,
omitted or suffered to be done by the Trustee or the Company in reliance
thereon, whether or not notation of such action is made upon such Security.
(f) The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities entitled to give, make or take
any request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted by this Indenture to be given, made or taken by
Holders of Securities of such series, provided that the Company may not set a
record date for, and the provisions of this paragraph shall not apply with
respect to, the giving or making of any notice, declaration, request or
direction referred to in the next paragraph. If any record date is set pursuant
to this paragraph, the Holders of the relevant Outstanding Securities on such
record date, and no other Holders, shall be entitled to take the relevant
action, whether or not such Holders remain Holders after such record date,
provided that no such action shall be effective hereunder unless taken on or
prior to the applicable Expiration Date by Holders of the requisite principal
amount of the relevant Outstanding Securities on such record date. Nothing in
this paragraph shall be construed to prevent the Company from setting a new
record date for any action for which a record date has previously been set
pursuant to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be canceled and of no effect),
and nothing in this paragraph shall be construed to render ineffective any
action taken by Holders of the requisite principal amount of the relevant
Outstanding Securities on the date such action is taken. Promptly after any
record date is set pursuant to this paragraph, the Company, at its own expense,
shall cause notice of such record date, the proposed action by Holders and the
applicable Expiration Date to be given to the Trustee in writing and to each
Holder of the relevant Securities in the manner set forth in Section 1.6.
18
The Trustee may set any day as a record date for the purpose of determining
the Holders of Outstanding Securities entitled to join in the giving or making
of (i) any Notice of Default, (ii) any declaration of acceleration referred to
in Section 5.2, (iii) any request to institute proceedings referred to in
Section 5.7(2) or (iv) any direction referred to in Section 5.12, in each case
with respect to the relevant Securities. If any record date is set pursuant to
this paragraph, the Holders of the relevant Outstanding Securities on such
record date, and no other Holders, shall be entitled to join in such notice,
declaration, request or direction, whether or not such Holders remain Holders
after such record date, provided that no such action shall be effective
hereunder unless taken on or prior to the applicable Expiration Date by Holders
of the requisite principal amount of the relevant Outstanding Securities on such
record date. Nothing in this paragraph shall be construed to prevent the Trustee
from setting a new record date for any action for which a record date has
previously been set pursuant to this paragraph (whereupon the record date
previously set shall automatically and with no action by any Person be canceled
and of no effect), and nothing in this paragraph shall be construed to render
ineffective any action taken by Holders of the requisite principal amount of the
relevant Outstanding Securities on the date such action is taken. Promptly after
any record date is set pursuant to this paragraph, the Trustee, at the Company's
expense, shall cause notice of such record date, the proposed action by Holders
and the applicable Expiration Date to be given to the Company in writing and to
each Holder of the relevant Securities in the manner set forth in Section 1.6.
With respect to any record date set pursuant to this Section, the party
hereto which sets such record date may designate any day as the "Expiration
Date" and from time to time may change the Expiration Date to any earlier or
later day, provided that no such change shall be effective unless notice of the
proposed new Expiration Date is given to the other party hereto in writing, and
to each Holder of the relevant Outstanding Securities in the manner set forth in
Section 1.6, on or prior to the existing Expiration Date. If an Expiration Date
is not designated with respect to any record date set pursuant to this Section,
the party hereto which set such record date shall be deemed to have initially
designated the 180th day after such record date as the Expiration Date with
respect thereto, subject to its right to change the Expiration Date as provided
in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be
later than the 180th day after the applicable record date.
(g) Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Security may do so with regard to
all or any part of the principal amount of such Security or by one or more duly
appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.
19
Section 1.5. Notices, Etc. to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder, any holder of Preferred Securities or the
Company shall be sufficient for every purpose hereunder if actually made, given,
furnished or filed in writing to or with the Trustee at its Corporate Trust
Office, or
(2) the Company by the Trustee, any Holder or any holder of Preferred
Securities shall be sufficient for every purpose (except as otherwise provided
in Section 5.1) hereunder if in writing and mailed, first class, postage
prepaid, to the Company addressed to it at the address of its principal office
specified in the first paragraph of this instrument or at any other address
previously furnished in writing to the Trustee by the Company.
Section 1.6. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first class postage prepaid, to each Holder as of the
applicable record date (if any) affected by such event, at the address of such
Holder as it appears in the Securities Register, not later than the latest date,
and not earlier than the earliest date, prescribed for the giving of such
notice. In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders. Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
Section 1.7. Conflict with Trust Indenture Act.
If any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by any of Sections 310 to 317, inclusive, of the Trust Indenture
Act through operation of Section 318(c) thereof, such imposed duties shall
control. If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such Act to be a
part and govern this Indenture, the provisions of the Trust Indenture Act shall
control. Any provision of this Indenture may modify or exclude any provision of
the Trust Indenture Act that may be so modified or excluded.
20
Section 1.8. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 1.9. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
Section 1.10. Separability Clause.
In case any provision of this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 1.11. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto and their successors and
assigns, the holders of Senior Indebtedness, the Holders of the Securities and,
to the extent expressly provided in Sections 5.2, 5.8, 5.9, 5.11, 5.13, 9.1 and
9.2, the holders of Preferred Securities, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
Section 1.12. Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS
OF LAW PRINCIPLES THEREOF.
Section 1.13. Non-Business Days.
In any case where any Interest Payment Date, Redemption Date, Repurchase
Date or Stated Maturity of any Security shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or the Securities)
payment of interest or principal (and premium, if any) need not be made on such
date, but may be made on the next succeeding Business Day (and no interest shall
accrue for the period from and after such Interest Payment Date, Redemption
Date, Repurchase Date or Stated Maturity, as the case may be, until such next
succeeding Business Day) except that, if such Business Day is in the next
succeeding calendar year, such payment shall be made on the immediately
preceding Business Day (in each case with the same force and effect as if made
on the Interest Payment Date, Redemption Date or Repurchase Date or at the
Stated Maturity).
21
ARTICLE II
SECURITY FORMS
Section 2.1. Forms Generally.
The Initial Securities, the Exchange Securities and the Registered
Securities of each series and the Trustee's certificate of authentication shall
be in substantially the forms set forth in this Article, or in such other form
or forms as shall be established by or pursuant to a Board Resolution or in one
or more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with applicable tax laws or the rules of any securities
exchange or automated quotation system on which the Securities may be listed or
traded or as may, consistently herewith, be determined by the officers executing
such Securities, as evidenced by their execution of the Securities. If the form
of Securities of any series is established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of such action shall be certified by
the Secretary or an Assistant Secretary of the Company, and the record of such
action and the form of Securities so established shall be delivered to the
Trustee at or prior to the delivery of the Company Order contemplated by Section
3.3 with respect to the authentication and delivery of such Securities.
The definitive Securities shall be typewritten, printed, lithographed
or engraved or produced by any combination of these methods, if required by any
securities exchange or automated quotation system on which the Securities may be
listed or traded, on a steel engraved border or steel engraved borders or may be
produced in any other manner permitted by the rules of any securities exchange
or automated quotation system on which the Securities may be listed or traded,
all as determined by the officers executing such Securities, as evidenced by
their execution of such securities.
Section 2.2A Form of Face of Initial Security.
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT") AND MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED EXCEPT (A) BY THE INITIAL INVESTOR, (I) TO A PERSON WHO
THE TRANSFEROR BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT ACQUIRING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (II) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(III) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT
PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), OR (IV) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES
22
ACT, OR (B) BY SUBSEQUENT INVESTORS, AS SET FORTH IN (A) ABOVE AND, IN ADDITION,
TO AN INSTITUTIONAL ACCREDITED INVESTOR IN A TRANSACTION EXEMPT FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH
ANY APPLICABLE SECURITIES LAWS OF THE STATES AND OTHER JURISDICTIONS OF THE
UNITED STATES. THE HOLDER OF THIS SECURITY AGREES THAT IT WILL COMPLY WITH THE
FOREGOING RESTRICTIONS.
INTEGON CORPORATION [CUSIP ____]
__% JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURES
No. $
INTEGON CORPORATION, a corporation organized and existing under the
laws of the State of Delaware (hereinafter called the "Company", which term
includes any successor corporation under the Indenture hereinafter referred to),
for value received, hereby promises to pay to , or registered
assigns, the principal sum of Dollars on __________ __, ____[;
provided that the Company may, subject to certain conditions set forth in
Section 3.14 of the Indenture, shorten the Stated Maturity of the principal of
this Security to a date not earlier than __________]. The Company further
promises to pay interest on said principal sum from ,
or from the most recent interest payment date (each such date, an "Interest
Payment Date") on which interest has been paid or duly provided for,[monthly]
[quarterly] [semi-annually] [if applicable, insert -(subject to deferral as set
forth herein)] in arrears on [insert applicable Interest Payment Dates] of each
year, commencing , , at the rate of % per annum,
until the principal hereof shall have become due and payable, plus Additional
Interest, if any, until the principal hereof is paid or duly provided for or
made available for payment [if applicable, insert -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
rate of % per annum, compounded [monthly] [quarterly] [semi-annually]]. The
amount of interest [and Additional Interest, if any] payable for any period
shall be computed on the basis of twelve 30-day months and a 360-day year. The
amount of interest payable 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 Security is not a
Business Day, then a payment of the interest payable on such date will be made
on the next succeeding day which is a Business Day (and without any interest or
other payment in respect of any such delay), except that, if such Business Day
is in the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force and effect
as if made on the date the payment was originally payable. A "Business Day"
shall mean any day other than (i) a Saturday or Sunday, (ii) a day on which
banking institutions in The City of New York are authorized or required by law
or executive order to remain closed or (iii) a day on which the Corporate Trust
Office of the Trustee [if applicable, insert - or the principal office of the
Property Trustee under the Trust Agreement] is closed for business. The interest
installment so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in the Indenture, be paid to the Person
in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on
23
the Regular Record Date for such interest installment, which shall be the
[insert definition of Regular Record Dates]. Any such interest installment not
so punctually paid or duly provided for shall forthwith cease to be payable to
the Holder on such Regular Record Date and may either be paid to the Person in
whose name this Security (or one or more Predecessor Securities) is registered
at the close of business on a Special Record Date for the payment of such
Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to
Holders of Securities of this series not less than 10 days prior to such Special
Record Date, or be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange or automated quotation system
on which the Securities of this series may be listed or traded, and upon such
notice as may be required by such exchange or self-regulatory organization, all
as more fully provided in said Indenture.
[If applicable, insert - So long as no Event of Default has occurred
and is continuing, the Company shall have the right at any time during the term
of this Security to defer payment of interest on this Security, at any time or
from time to time, for up to consecutive [monthly] [quarterly] [semi-annual]
interest payment periods with respect to each deferral period (each an
"Extension Period"), during which Extension Periods the Company shall have the
right to make partial payments of interest on any Interest Payment Date, and at
the end of which the Company shall pay all interest then accrued and unpaid
(together with Additional Interest thereon to the extent permitted by applicable
law); provided, however, that no Extension Period shall extend beyond the Stated
Maturity of the principal of this Security; provided, further, that during any
such Extension Period, the Company shall not, and shall not permit any
Subsidiary of the Company to, (i) declare or pay any dividends or distributions
on or redeem, purchase, acquire or make a liquidation payment with respect to,
any of the Company's capital stock or (ii) make any payment of principal of or
interest or premium, if any, on or repay, repurchase or redeem any debt
securities of the Company that rank pari passu in all respects with or junior in
interest to this Security or (iii) make any guarantee payments with respect to
any guarantee by the Company of the debt securities of any Subsidiary of the
Company if such guarantee ranks pari passu with or junior in interest to this
Security (other than (a) dividends or distributions in the Company's capital
stock, (b) any declaration of a dividend in connection with the implementation
of a Rights Plan or the issuance of stock under any such Rights Plan in the
future, or the redemption or repurchase of any rights distributed pursuant to a
Rights Plan, (c) payments under the Guarantee with respect to this Security, (d)
purchases of Common Stock related to the issuance of Common Stock or rights or
options under any of the Company's benefit plans for its directors, officers,
employees or other persons within the definition of "employee" for purposes of a
registration of shares for an employee benefit plan of the Company, related to
the issuance of Common Stock or rights under a dividend reinvestment or stock
purchase plan, or related to the issuance of Common Stock (or securities
convertible into or exchangeable for Common Stock) as consideration in an
acquisition transaction that was entered into prior to the commencement of such
Extension Period and (e) payments of accrued dividends (and cash in lieu of
fractional shares) upon conversion into Common Stock of any convertible
preferred stock of the Company of any series now or hereinafter outstanding, in
accordance with the terms of such stock). Prior to the termination of any such
Extension Period, the Company may further defer the payment of interest,
provided that no Extension Period shall exceed consecutive [monthly]
[quarterly] [semi-annual] periods or extend beyond the Stated Maturity of the
principal of this Security. Upon
24
the termination of any such Extension Period and upon the payment of all accrued
and unpaid interest and any Additional Interest then due, the Company may elect
to begin a new Extension Period, subject to the above requirements. No interest
shall be due and payable during an Extension Period except at the end thereof.
The Company shall give the Holder of this Security and the Trustee notice of its
election to begin any Extension Period at least one Business Day prior to the
next succeeding Interest Payment Date on which interest on this Security would
be payable but for such deferral [if applicable, insert - or, with respect to
the Securities issued to a Trust, so long as such Securities are held by such
Trust, prior to the earlier of (i) the next succeeding date on which
Distributions on the Preferred Securities would be payable but for such deferral
or (ii) the date the Administrative Trustees are required to give notice to any
securities exchange or other applicable self-regulatory organization or to
holders of such Preferred Securities of the record date or the date such
Distributions are payable, but in any event not less than one Business Day prior
to such record date.]]
Payment of principal of (and premium, if any) and interest on this
Security will be made at the office or agency of the Company maintained for that
purpose in the United States, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts; [if applicable, insert -; provided, however, that at the option
of the Company] payment of interest may be made (i) by check mailed to the
address of the Person entitled thereto as such address shall appear in the
Securities Register or (ii) by wire transfer or direct deposit in immediately
available funds at such place and to such account as may be designated in
writing by the relevant Regular Record Date by the Person entitled thereto as
specified in the Securities Register. ]
The indebtedness evidenced by this Security 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 Security is issued subject
to the provisions of the Indenture with respect thereto. Each Holder of this
Security, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his behalf to take such
actions as may be necessary or appropriate to effectuate the subordination so
provided and (c) appoints the Trustee his attorney-in-fact for any and all such
purposes. Each Holder hereof, by his acceptance hereof, waives all notice of the
acceptance of the subordination provisions contained herein and in the Indenture
by each holder of Senior Indebtedness, whether now outstanding or hereafter
incurred, and waives reliance by each such holder upon said provisions.
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
25
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
INTEGON CORPORATION
By:
---------------------------------
[President or Vice President]
Attest:
-------------------------------------
[Secretary or Assistant Secretary]
Section 2.2B Form of Face of Exchange Security and Registered Security.
INTEGON CORPORATION [CUSIP ____]
__% JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURES
No. $
INTEGON CORPORATION, a corporation organized and existing under the
laws of the State of Delaware (hereinafter called the "Company", which term
includes any successor corporation under the Indenture hereinafter referred to),
for value received, hereby promises to pay to , or registered
assigns, the principal sum of Dollars on __________ __, ____[;
provided that the Company may, subject to certain conditions set forth in
Section 3.14 of the Indenture, shorten the Stated Maturity of the principal of
this Security to a date not earlier than __________]. The Company further
promises to pay interest on said principal sum from ,
or from the most recent interest payment date (each such date, an "Interest
Payment Date") on which interest has been paid or duly provided for, [monthly]
[quarterly] [semi-annually] [if applicable, insert - (subject to deferral as set
forth herein)] in arrears on [insert applicable Interest Payment Dates] of each
year, commencing , , at the rate of % per annum,
until the principal hereof shall have become due and payable [if applicable,
insert - , plus Additional Interest, if any,] until the principal hereof is
paid or duly provided for or made available for payment [if applicable, insert -
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 rate of % per annum, compounded [monthly]
[quarterly] [semi-annually]]. The amount of interest [plus Additional Interest,
if any] payable for any period shall be computed on the basis of twelve 30-day
months and a 360-day year. The amount of interest payable 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 Security is not a Business Day, then a payment of the interest payable
on such date will be made on the next succeeding day which is a Business Day
(and without any interest or other payment in respect of any such delay), except
that, if such Business Day is in
26
the next succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on the date the payment was originally payable. A "Business Day" shall mean any
day other than (i) a Saturday or Sunday, (ii) a day on which banking
institutions in The City of New York are authorized or required by law or
executive order to remain closed or (iii) a day on which the Corporate Trust
Office of the Trustee [if applicable, insert - or the principal office of the
Property Trustee under the Trust Agreement] is closed for business. The interest
installment so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in the Indenture, be paid to the Person
in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such interest
installment, which shall be the [insert definition of Regular Record Dates]. Any
such interest installment not so punctually paid or duly provided for shall
forthwith cease to be payable to the Holder on such Regular Record Date and may
either be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities of this series
not less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange or automated quotation system on which the Securities of
this series may be listed or traded, and upon such notice as may be required by
such exchange or self-regulatory organization, all as more fully provided in
said Indenture.
[If applicable, insert - So long as no Event of Default has occurred
and is continuing, the Company shall have the right at any time during the term
of this Security to defer payment of interest on this Security, at any time or
from time to time, for up to consecutive [monthly] [quarterly] [semi-annual]
interest payment periods with respect to each deferral period (each an
"Extension Period"), during which Extension Periods the Company shall have the
right to make partial payments of interest on any Interest Payment Date, and at
the end of which the Company shall pay all interest then accrued and unpaid
(together with Additional Interest thereon to the extent permitted by applicable
law); provided, however, that no Extension Period shall extend beyond the Stated
Maturity of the principal of this Security; provided, further, that during any
such Extension Period, the Company shall not, and shall not permit any
Subsidiary of the Company to, (i) declare or pay any dividends or distributions
on or redeem, purchase, acquire or make a liquidation payment with respect to,
any of the Company's capital stock or (ii) make any payment of principal of or
interest or premium, if any, on or repay, repurchase or redeem any debt
securities of the Company that rank pari passu in all respects with or junior in
interest to this Security or (iii) make any guarantee payments with respect to
any guarantee by the Company of the debt securities of any Subsidiary of the
Company if such guarantee ranks pari passu with or junior in interest to this
Security (other than (a) dividends or distributions in the Company's capital
stock, (b) any declaration of a dividend in connection with the implementation
of a Rights Plan or the issuance of stock under any such Rights Plan in the
future, or the redemption or repurchase of any rights distributed pursuant to a
Rights Plan, (c) payments under the Guarantee with respect to this Security, (d)
purchases of Common Stock related to the issuance of Common Stock or rights or
options under any of the Company's benefit plans for its directors, officers,
employees or other persons within the definition of "employee" for purposes of a
registration of shares for an employee benefit plan of the Company,
27
related to the issuance of Common Stock or rights under a dividend reinvestment
and stock purchase plan, or related to the issuance of Common Stock (or
securities convertible into or exchangeable for Common Stock) as consideration
in an acquisition transaction that was entered into prior to the commencement of
such Extension Period and (e) payments of accrued dividends (and in cash in lieu
of fractional shares) upon conversion into Common Stock of any convertible
preferred stock of the Company of any series now or hereinafter outstanding, in
accordance with the terms of such stock). Prior to the termination of any such
Extension Period, the Company may further defer the payment of interest,
provided that no Extension Period shall exceed consecutive [months] [quarters]
[semi-annual periods] or extend beyond the Stated Maturity of the principal of
this Security. Upon the termination of any such Extension Period and upon the
payment of all accrued and unpaid interest and any Additional Interest then due,
the Company may elect to begin a new Extension Period, subject to the above
requirements. No interest shall be due and payable during an Extension Period
except at the end thereof. The Company shall give the Holder of this Security
and the Trustee notice of its election to begin any Extension Period at least
one Business Day prior to the next succeeding Interest Payment Date on which
interest on this Security would be payable but for such deferral [if applicable,
insert - or, with respect to the Securities issued to a Trust, so long as such
Securities are held by such Trust, prior to the earlier of (i) the next
succeeding date on which Distributions on the Preferred Securities would be
payable but for such deferral or (ii) the date the Administrative Trustees are
required to give notice to any securities exchange or other applicable self-
regulatory organization or to holders of such Preferred Securities of the record
date or the date such Distributions are payable, but in any event not less than
one Business Day prior to such record date]].
Payment of principal of (and premium, if any) and interest on this
Security will be made at the office or agency of the Company maintained for that
purpose in the United States, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts; [if applicable, insert - provided, however, that at the option of
the Company payment of interest may be made (i) by check mailed to the address
of the Person entitled thereto as such address shall appear in the Securities
Register or (ii) by wire transfer or direct deposit in immediately available
funds at such place and to such account as may be designated in writing by the
relevant Regular Record Date by the Person entitled thereto as specified in the
Securities Register.]
The indebtedness evidenced by this Security 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 Security is issued subject
to the provisions of the Indenture with respect thereto. Each Holder of this
Security, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his behalf to take such
actions as may be necessary or appropriate to effectuate the subordination so
provided and (c) appoints the Trustee his attorney-in-fact for any and all such
purposes. Each Holder hereof, by his acceptance hereof, waives all notice of the
acceptance of the subordination provisions contained herein and in the Indenture
by each holder of Senior Indebtedness, whether now outstanding or hereafter
incurred, and waives reliance by each such holder upon said provisions.
28
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
INTEGON CORPORATION
By:
-------------------------------
[President or Vice President]
Attest:
-------------------------------------
[Secretary or Assistant Secretary]
Section 2.3. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under a Junior Subordinated Indenture, dated as of February 10, 1997
(herein called the "Indenture"), between the Company and First Union National
Bank of North Carolina, as Trustee (herein called the "Trustee", which term
includes any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Trustee, the Company and the Holders of the Securities, and of the terms
upon which the Securities are, and are to be, authenticated and delivered. This
Security is one of the series designated on the face hereof [, limited in
aggregate principal amount to $ ].
All terms used in this Security that are defined in the Indenture [if
applicable, insert -or in the Amended and Restated Trust Agreement, dated as of
___________, as amended (the "Trust Agreement") among Integon Corporation, as
Depositor, and the Trustees named therein,] shall have the meanings assigned to
them in the Indenture [if applicable, insert -or the Trust Agreement, as the
case may be].
29
[If applicable, insert - The Company may at any time, at its option,
and subject to the terms and conditions of Article XII of the Indenture, redeem
this Security in whole at any time or in part from time to time [if applicable,
insert - on or after ______ at the following redemption prices (expressed in
percentages of principal amount thereof), together with accrued and unpaid
interest, including Additional Interest, if any, up to but excluding the
Redemption Date, if the redemption occurs during the relevant 12-month period
beginning ________ of the years indicated:
Year Redemption Price Year Redemption Price
---- ---------- ----- ---- ----------------
and thereafter at a redemption price equal to 100% of the principal amount
thereof] [if applicable, insert - on or after ______ in any year commencing at a
redemption price equal to ____% of the principal amount thereof] [if applicable,
insert - including Additional Interest, if any] to but excluding the Redemption
Date. ]
[If applicable, insert - Upon the occurrence and during the
continuation of a Tax Event [if applicable, insert description of other
conditions], the Company may, at its option, at any time within 90 days of the
occurrence of such Tax Event, redeem this Security, in whole but not in part,
subject to the provisions of Section 12.7 and the other provisions of Article
XII of the Indenture, at a redemption price equal to 100% of the principal
amount thereof plus accrued and unpaid interest, including Additional Interest,
if any, to but excluding the Redemption Date.
[If applicable, insert - So long as no Event of Default has occurred
and is continuing, if (i) the Trust is the Holder of all of the outstanding
Securities of this series, and (ii) a Tax Event has occurred and is continuing
in respect of such Securities, the Company shall pay to the Trust (or its
permitted successor under the Trust Agreement) for so long as the Trust (or its
permitted successor) is the registered holder of all of the Outstanding
Securities of such series, together with any payment of principal of (or
premium, if any) or interest (including any Additional Interest) on such
Securities, such additional sums as may be necessary in order that the amount of
Distributions (including any Additional Amounts (as defined in the Trust
Agreement)) then payable by the Trust in respect of the Preferred Securities and
Common Securities in accordance with the terms thereof shall not be reduced as a
result of any Additional Taxes arising from such Tax Events.]
[If applicable, insert - Upon the occurrence of a Change of Control,
the Holder of this Security will have the right, subject to certain conditions
specified in the Indenture, to require the Company to repurchase in whole or in
part this Security at a repurchase price equal to % of the aggregate
principal amount of this Security, plus accrued and unpaid interest, including
Additional Interest, if any, to but excluding the Repurchase Date, as provided
in, and subject to the terms of, the Indenture.]
30
In the event of redemption [or repurchase] of this Security in part
only, a new Security or Securities of this series for the unredeemed [or non-
repurchased] portion hereof will be issued in the name of the Holder hereof upon
the cancellation hereof.
The Indenture contains provisions for satisfaction and discharge of
the entire indebtedness of this Security upon compliance by the Company with
certain conditions set forth in the Indenture.
[If applicable, insert description of covenants]
The Indenture permits, with certain exceptions as therein provided,
the Company and the Trustee at any time to enter into a supplemental indenture
or indentures for the purpose of modifying in any manner the rights and
obligations of the Company and of the Holders of the Securities, with the
consent of the Holders of not less than a majority in principal amount of the
Outstanding Securities of all series to be affected by such supplemental
indenture [if the Securities of this series are issued to a Trust, insert - ;
provided that so long as any of the Preferred Securities issued by the Trust
remain outstanding no such amendment shall be made that adversely affects the
holders of such Preferred Securities in any material respect]. The Indenture
also contains provisions permitting Holders of specified percentages in
principal amount of the Securities of all series at the time Outstanding, on
behalf of the Holders of all Securities of such series, [if the Securities of
this series are issued to a Trust, insert - and the holders of specified
percentages in Liquidation Amount of Preferred Securities issued by the Trust,
on behalf of all holders of Preferred Securities issued by the Trust,] to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any Security issued
upon the registration of transfer hereof or in exchange hereof or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Security.
[If the Security is not a Discount Security, - As provided in and
subject to the provisions of the Indenture, if an Event of Default with respect
to the Securities of this series at the time Outstanding occurs and is
continuing, then and in every such case the Trustee or the Holders of not less
than 25% in principal amount of the Outstanding Securities of this series may
declare the principal amount of all the Securities of this series to be due and
payable immediately, by a notice in writing to the Company (and to the Trustee
if given by Holders) [if the Securities of this series are issued to a Trust,
insert - provided that, if upon an Event of Default, the Trustee or the Holders
of not less than 25% in principal amount of the Outstanding Securities of this
series fails to declare the principal of all the Securities of this series to be
immediately due and payable, the holders of at least 25% in aggregate
Liquidation Amount of the Preferred Securities then outstanding shall have such
right by a notice in writing to the Company and the Trustee]; and upon any such
declaration the principal amount of and the accrued interest (including any
Additional Interest) on all the Securities of this series shall become
immediately due and payable, provided that the payment of principal and interest
(including any Additional Interest) on such Securities shall remain subordinated
to the extent provided in Article XIII of the Indenture.]
31
[If the Security is a Discount Security, -As provided in and subject
to the provisions of the Indenture, if an Event of Default with respect to the
Securities of this series at the time Outstanding occurs and is continuing, then
and in every such case the Trustee or the Holders of not less than such portion
of the principal amount as may be specified in the terms of this series may
declare an amount of principal of the Securities of this series to be due and
payable immediately, by a notice in writing to the Company (and to the Trustee
if given by Holders) [if the Securities of this series issued are to a Trust,
insert - provided that, if upon an Event of Default, the Trustee or the Holders
of the requisite principal amount of the Outstanding Securities of this series
fails to declare the principal of all the Securities of this series to be
immediately due and payable, the holders of at least 25% in aggregate
Liquidation Amount of the Preferred Securities then outstanding shall have such
right by a notice in writing to the Company and the Trustee. Such amount shall
be equal to - insert formula for determining the amount.] Upon any such
declaration, such amount of the principal of and the accrued interest (including
any Additional Interest) on all the Securities of this series shall become
immediately due and payable, provided that the payment of principal and interest
(including any Additional Interest) on such Securities shall remain subordinated
to the extent provided in Article XIII of the Indenture. Upon payment (i) of the
amount of principal so declared due and payable and (ii) of interest on any
overdue principal and overdue interest (in each case to the extent that the
payment of such interest shall be legally enforceable), all of the Company's
obligations in respect of the payment of the principal of and interest, if any,
on this Security shall terminate.]
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the
Securities Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company maintained under Section 10.2 of
the Indenture duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Securities Registrar duly
executed by, the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Securities of this series, of authorized denominations
and for the same aggregate principal amount, will be issued to the designated
transferee or transferees. No service charge shall be made for any such
registration of transfer or exchange, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject
32
to certain limitations therein set forth, Securities of this series are
exchangeable for a like aggregate principal amount of Securities of such series
of a different authorized denomination, as requested by the Holder surrendering
the same.
The Company and, by its acceptance of this Security or a beneficial
interest therein, the Holder of, and any Person that acquires a beneficial
interest in, this Security agree that for United States federal, state and local
tax purposes it is intended that this Security constitute indebtedness.
THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF
LAWS PRINCIPLES THEREOF.
[If applicable, insert certification for transfers of Transfer
Restricted Securities]
Section 2.4. Additional Provisions Required in Global Security.
Any Global Security issued hereunder shall, in addition to the
provisions contained in Sections 2.2A, 2.2B and 2.3, bear a legend in
substantially the following form:
"This Security is a Global Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of a Depository
or a nominee of a Depository. This Security is exchangeable for Securities
registered in the name of a person other than the Depository or its nominee only
in the limited circumstances described in the Indenture and may not otherwise be
transferred except as a whole by the Depository to a nominee of the Depository
or by a nominee of the Depository to the Depository or another nominee of the
Depository, which shall be treated by the Company and any agent thereof as the
owner and holder of the Securities for all purposes."
Section 2.5. Form of Trustee's Certificate of Authentication.
"This is one of the Securities referred to in the within mentioned
Indenture.
Dated:
First Union National Bank of North Carolina
as Trustee
By:
--------------------------
Authorized Signatory"
33
ARTICLE III
THE SECURITIES
Section 3.1. Title and Terms.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued from time to time in one or more series.
The following matters shall be established in or pursuant to a Board Resolution,
and set forth in an Officers' Certificate, or established in one or more
indentures supplemental hereto, prior to the issuance of Securities of a series:
(a) the title of the Securities of such series, which shall
distinguish the Securities of the series from all other Securities;
(b) the limit, if any, upon the aggregate principal amount of the
Securities of such series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 3.4, 3.5, 3.6, 9.6 or 12.6 and except for any
Securities which, pursuant to the last paragraph of Section 3.3, are deemed
never to have been authenticated and delivered hereunder); provided, however,
that the authorized aggregate principal amount of such series may be increased
above such amount by a Board Resolution to such effect;
(c) the Stated Maturity or Maturities on which the principal of the
Securities of such series is payable or the method of determination thereof and
the right, pursuant to Section 3.14 or as otherwise set forth therein, of the
Company to shorten the Stated Maturity or Maturities of the principal of the
Securities of such series;
(d) the rate or rates, if any, at which the Securities of such series
shall bear interest, if any, the rate or rates and extent to which Additional
Interest, if any, shall be payable in respect of any Securities of such series,
the Interest Payment Dates on which such interest shall be payable, the right,
pursuant to Section 3.11 or as otherwise set forth therein, of the Company to
defer or extend an Interest Payment Date, and the Regular Record Date for the
interest payable on any Interest Payment Date or the method by which any of the
foregoing shall be determined;
(e) the place or places where the principal of (and premium, if any)
and interest on the Securities of such series shall be payable, the place or
places where the Securities of such series may be presented for registration of
transfer or exchange, and the place or places where notices and demands to or
upon the Company in respect of the Securities of such series may be made;
34
(f) the period or periods within which, or the date or dates on which,
if any, the price or prices at which and the terms and conditions upon which the
Securities of such series may be redeemed, in whole or in part, at the option of
the Company;
(g) the obligation or the right, if any, of the Company to redeem,
repay or purchase the Securities of such series pursuant to any sinking fund,
amortization or analogous provisions or upon the happening of a specified event,
or at the option of a Holder thereof, and the period or periods within which,
the price or prices at which, the currency or currencies (including currency
unit or units) in which and the other terms and conditions upon which Securities
of the series shall be redeemed, repaid or purchased, in whole or in part,
pursuant to such obligation;
(h) the denominations in which any Securities of such series shall be
issuable, if other than denominations of $1,000 and any integral multiple of
$1,000 in excess thereof;
(i) if other than Dollars, the currency or currencies (including
currency unit or units) in which the principal of (and premium, if any) and
interest, if any, on the Securities of the series shall be payable, or in which
the Securities of the series shall be denominated;
(j) the additions, modifications or deletions, if any, in the Events
of Default or covenants of the Company set forth herein with respect to the
Securities of such series;
(k) if other than the principal amount thereof, the portion of the
principal amount of Securities of such series that shall be payable upon
declaration of acceleration of the Maturity thereof;
(l) the additions or changes, if any, to this Indenture with respect
to the Securities of such series as shall be necessary to permit or facilitate
the issuance of the Securities of such series in bearer form, registrable or not
registrable as to principal, and with or without interest coupons;
(m) any index or indices used to determine the amount of payments of
principal of and premium, if any, on the Securities of such series or the manner
in which such amounts will be determined;
(n) whether the Securities of the series, or any portion thereof,
shall initially be issuable in the form of a temporary Global Security
representing all or such portion of the Securities of such series and provisions
for the exchange of such temporary Global Security for Definitive Securities of
such series;
(o) if applicable, that any Securities of the series shall be issuable
in whole or in part in the form of one or more Global Securities and, in such
case, the respective Depositories for such Global Securities, the form of any
legend or legends which shall be borne by any such Global Security in addition
to or in lieu of that set forth in Section 2.4 and any circumstances in addition
to or in lieu of those set forth in Sections 3.3 and 3.5 in which any such
Global Security may be
35
exchanged in whole or in part for Securities registered, and any transfer of
such Global Security in whole or in part may be registered, in the name or names
of Persons other than the Depository for such Global Security or a nominee
thereof;
(p) the appointment of any Paying Agent or Agents for the Securities
of such series;
(q) the terms of any right to convert or exchange Securities of such
series into any other securities or property of the Company, and the additions
or changes, if any, to this Indenture with respect to the Securities of such
series to permit or facilitate such conversion or exchange;
(r) the form or forms of the Trust Agreement, Amended and Restated
Trust Agreement and Guarantee Agreement, if different from the forms attached
hereto as Annexes A, B and C, respectively;
(s) the relative degree, if any, to which the Securities of the series
shall be senior to or be subordinated to other series of Securities in right of
payment, whether such other series of Securities are Outstanding or not; and
(t) any other terms of the Securities of such series (which terms
shall not be inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided herein or in
or pursuant to such Board Resolution and set forth in such Officers' Certificate
or in any such indenture supplemental hereto.
If any of the terms of the Securities of any series are established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of the series.
The Securities shall be subordinated in right of payment to Senior
Indebtedness as provided in Article XIII.
Section 3.2. Denominations.
The Securities of each series shall be in registered form without
coupons and shall be issuable in denominations of $1,000 and any integral
multiples of $1,000 in excess thereof, unless otherwise specified as
contemplated by Section 3.1.
Section 3.3. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
President or one of its Vice Presidents under its corporate seal reproduced or
impressed thereon and attested by its Secretary or
36
one of its Assistant Secretaries. The signature of any of these officers on the
Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities. At any time and from time to
time after the execution and delivery of this Indenture, the Company may deliver
(i) Initial Securities or Registered Securities of any series for original
issue, executed by the Company to the Trustee for authentication, and (ii)
Exchange Securities for issue only in a Registered Exchange Offer pursuant to an
Exchange and Registration Rights Agreement in exchange for a like aggregate
principal amount of Initial Securities exchanged pursuant thereto, provided, in
each such case, such Securities are accompanied by a Company Order for the
authentication and delivery of such Securities, whereupon the Trustee in
accordance with the Company Order shall authenticate and make such Securities
available for delivery as in the Indenture provided and not otherwise. If the
form or terms of the Securities of the series have been established by or
pursuant to one or more Board Resolutions as permitted by Sections 2.1 and 3.1,
in authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to Section 6.1) shall be fully protected in
relying upon, an Opinion of Counsel stating,
(1) if the form of such Securities has been established by or pursuant
to Board Resolution as permitted by Section 2.1, that such form has been
established in conformity with the provisions of this Indenture;
(2) if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 3.1, that such terms have
been established in conformity with the provisions of this Indenture;
(3) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and legally binding
obligations of the Company enforceable in accordance with their terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and to general equity principles; and
(4) that all requirements of New York and Federal law, the Delaware
General Corporation Law and the Delaware Business Trust Act in respect of the
execution and delivery by the Company of such Securities, and all covenants and
conditions set forth in this Indenture which are conditions precedent hereto,
have been complied with.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own
37
rights, duties or immunities under the Securities and this Indenture or
otherwise in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.1 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 3.1 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the
authentication of each Security of such series if such documents are delivered
at or prior to the authentication upon original issuance of the first Security
of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose, unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by the manual signature of one of its authorized
signatories, and such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly authenticated
and delivered hereunder. Notwithstanding the foregoing, if any Security shall
have been authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Security to the Trustee for can
cellation as provided in Section 3.9, for all purposes of this Indenture such
Security shall be deemed never to have been authenticated and delivered
hereunder and shall not be entitled to the benefits of this Indenture.
The following clauses (1), (2) and (3) shall apply only to Global
Securities deposited with or on behalf of the Depository.
(1) The Company shall execute and the Trustee shall authenticate and
deliver initially one or more Global Securities that (i) shall be registered in
the name of the Depository for such Global Security or Global Securities or the
registered nominee of such Depository and (ii) shall be held by the Trustee as
Securities Custodian for the Depository.
(2) Members of, or participants in, the Depository ("Agent Members")
shall have no rights under this Indenture with respect to any Global Security
held on their behalf by the Depository or by the Trustee as the Securities
Custodian of the Depository under such Global Security, and the Depository may
be treated by the Company, the Trustee and any agent of the Company or the
Trustee as the absolute owner of such Global Security for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the
Company, the Trustee or any agent of the Company or the Trustee from giving
effect to any written certification, proxy or other authorization furnished by
the Depository or shall impair, as between the Depository and its Agent Members,
the operation of customary practices of such Depository governing the exercise
of the rights of a holder of a beneficial interest in any Global Security.
38
(3) Except as otherwise provided herein, owners of beneficial
interests in Global Securities shall not be entitled to receive physical
delivery of certificated Securities. Purchasers of Initial Securities who are
not QIBs shall receive certificated Initial Securities ("Restricted Certificated
Securities"); provided, however, that upon transfer of such Restricted
Certificated Securities to a QIB, such Restricted Certificated Securities shall,
unless the relevant Global Security has previously been exchanged, be exchanged
for an interest in a Global Security pursuant to the provisions of Section 3.5
hereof.
Section 3.4. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
make available for delivery, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities of such
series in lieu of which they are issued and with such appropriate insertions,
omissions, substitutions and other variations as the officers executing such
Securities may determine, as evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will
cause definitive Securities of such series to be prepared without unreasonable
delay. After the preparation of definitive Securities, the temporary Securities
shall be exchangeable for definitive Securities upon surrender of the temporary
Securities at the office or agency of the Company designated for that purpose
without charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities, the Company shall execute and the Trustee shall
authenticate and make available for delivery in exchange therefor one or more
definitive Securities of the same series, of any authorized denominations, of
like aggregate principal amount, having the same Original Issue Date and Stated
Maturity and having the same terms as such temporary Securities. Until so
exchanged, the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
such series.
Section 3.5. Registration, Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register in which, subject to such reasonable regulations as it
may prescribe, the Company shall provide for the registration of Securities and
of transfers of Securities. Such register is herein sometimes referred to as the
"Securities Register." The Trustee is hereby appointed "Securities Registrar"
for the purpose of registering Securities and transfers of Securities as herein
provided.
(a) Transfer and Exchange of Definitive Securities. When Definitive
----------------------------------------------
Securities are presented to the Securities Registrar with a request:
(i) to register the transfer of such Definitive Securities; or
39
(ii) to exchange such Definitive Securities for Definitive Securities
in an equal aggregate principal amount of Definitive Securities of other
authorized denominations,
the Securities Registrar shall register the transfer or make the exchange as
requested if its reasonable requirements for such transaction are met; provided,
however, that the Definitive Securities surrendered for transfer or exchange:
(A) shall be duly endorsed or accompanied by a written instrument of
transfer in form reasonably satisfactory to the Trustee and the Securities
Registrar, duly executed by the Holder thereof or his attorney duly authorized
in writing; and
(B) in the case of Transfer Restricted Securities that are Definitive
Securities, are being transferred or exchanged either pursuant to an effective
registration statement under the Securities Act, or pursuant to clause (1), (2),
or (3) below and are accompanied by the following additional information and
documents, as applicable:
(1) if such Transfer Restricted Securities are being delivered to the
Securities Registrar by a Holder for registration in the name of such Holder,
without transfer, a certification from such Holder to that effect (in
substantially the form set forth on the reverse of the Security); or
(2) if such Transfer Restricted Securities are being transferred to
the Company or to a QIB in accordance with Rule 144A under the Securities Act, a
certification to that effect (in substantially the form set forth on the reverse
of the Security); or
(3) if such Transfer Restricted Securities are being transferred (w)
pursuant to an exemption from registration in accordance with Rule 144 under the
Securities Act or (x) to an institutional "accredited investor" within the
meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act that is
acquiring the security for its own account, or for the account of such an
institutional accredited investor, in each case in a minimum principal amount of
the Securities of $100,000 for investment purposes and not with a view to, or
for offer or sale in connection with, any distribution in violation of the
Securities Act or (y) in reliance on another exemption from the registration
requirements of the Securities Act: (I) a certification to that effect and (II)
if the Company or the Securities Registrar so requests, an Opinion of Counsel
reasonably acceptable to the Company and to the Securities Registrar to the
effect that such transfer is in compliance with the Securities Act.
(b) Restrictions of Transfer of a Definitive Security For a
-------------------------------------------------------
Beneficial Interest in a Global Security. A Definitive Security may not be
----------------------------------------
exchanged for a beneficial interest in a Global Security except upon
satisfaction of the requirements set forth below. Upon receipt by the Trustee
of a
40
Definitive Security, duly endorsed or accompanied by appropriate instruments of
transfer, in form satisfactory to the Trustee, together with:
(i) if such Definitive Security is a Transfer Restricted Security,
certification that such Definitive Security is being transferred to a QIB in
accordance with Rule 144A under the Securities Act; and
(ii) whether or not such Definitive Security is a Transfer Restricted
Security, written instructions directing the Trustee to make, or to direct the
Securities Custodian to make, an adjustment on its books and records with
respect to such Global Security to reflect an increase in the aggregate
principal amount of the Securities represented by the Global Security,
then the Trustee shall cancel such Definitive Security and cause, or direct the
Securities Custodian to cause, in accordance with the standing instructions and
procedures existing between the Depository and the Securities Custodian, the
aggregate principal amount of Securities represented by the Global Security to
be increased accordingly. If no Global Securities are then outstanding, the
Company shall issue and the Trustee shall authenticate, upon written order of
the Company in the form of an Officers' Certificate, a new Global Security in
the appropriate principal amount.
Neither the Trustee nor the Securities Registrar has duties to obtain
certificates or other documentation with respect to the transfer or exchange
between or among any Depository participants, members or beneficial owners in
any global security and shall have no liability or responsibility with respect
to the legality thereof.
(c) Transfer and Exchange of Global Securities. The transfer and
------------------------------------------
exchange of Global Securities or beneficial interests therein shall be effected
through the Depository, in accordance with this Indenture (including applicable
restrictions on transfer set forth herein, if any) and the procedures of the
Depository therefor.
(d) Transfer of a Beneficial Interest in a Global Security For a
Definitive Security.
--------------------------------------------------------------------------
(i) Any person having a beneficial interest in a Global Security that
is being transferred or exchanged either pursuant to an effective registration
statement under the Securities Act or pursuant to clause (A), (B) or (C) below
may upon request, and if accompanied by the information specified below,
exchange such beneficial interest for a Definitive Security of the same
aggregate principal amount. Upon receipt by the Trustee of written instructions
or such other form of instructions as is customary for the Depository from the
Depository or its nominee on behalf of any Person having a beneficial interest
in a Global Security and upon receipt by the Trustee of a written order or such
other form of instructions as is customary for the Depository or the Person
designated by the Depository as having such a beneficial interest in a Transfer
Restricted Security only, the following additional information and documents
(all of which may be submitted by facsimile):
41
(A) if such beneficial interest is being transferred to the Person
designated by the Depository as being the owner of a beneficial interest in a
Global Security, a certification from such Person to that effect (in
substantially the form set forth on the reverse of the Security); or
(B) if such beneficial interest is being transferred to a QIB in
accordance with Rule 144A under the Securities Act, a certification to that
effect (in substantially the form set forth on the reverse of the Security); or
(C) if such beneficial interest is being transferred (w) pursuant to
an exemption from registration in accordance with Rule 144 under the Securities
Act, or (x) to an institutional "accredited investor" within the meaning of Rule
501(a)(1), (2), (3) or (7) under the Securities Act that is acquiring the
security for its own account, or for the account of such an institutional
accredited investor, in each case in a minimum principal amount of the
Securities of $100,000, for investment purposes and not with a view to, or for
offer or sale in connection with, any distribution in violation of the
Securities Act; or (y) in reliance on another exemption from the registration
requirements of the Securities Act: (I) a certification to that effect from the
transferee or transferor and (II) if the Trustee or the Securities Registrar so
requests, an Opinion of Counsel from the transferee or transferor reasonably
acceptable to the Company and to the Securities Registrar to the effect that
such transfer is in compliance with the Securities Act,
then the Trustee or the Securities Custodian, at the direction of the Trustee,
shall cause, in accordance with the standing instructions and procedures
existing between the Depository and the Securities Custodian, the aggregate
principal amount of the Global Security to be reduced on its books and records
and, following such reduction, the Company shall execute and the Trustee shall
authenticate and deliver to the transferee a Definitive Security.
(ii) Definitive Securities issued in exchange for a beneficial
interest in a Global Security pursuant to this Section 3.5(d) shall be
registered in such names and in such authorized denominations as the Depository,
pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee. The Trustee shall deliver such Definitive
Securities to the Persons in whose names such Securities are so registered in
accordance with the written instructions of the Depository.
(e) Restrictions on Transfer and Exchange of Global Securities.
----------------------------------------------------------
Notwithstanding any other provisions of this Indenture, a Global Security may
not be transferred as a whole except by the Depository to a nominee of the
Depository or by a nominee of the Depository to the Depository or another
nominee of the Depository or by the Depository or any such nominee to a
successor Depository or a nominee of such successor Depository.
42
(f) Legend.
------
(i) Except as permitted by the following paragraph (ii), each
certificate evidencing the Global Securities and the Definitive Securities (and
all Securities issued in exchange therefor or substitution thereof) shall bear a
legend in substantially the form contemplated by Sections 2.2A, 2.2B and 2.4, if
applicable.
(ii) Upon any sale or transfer of a Transfer Restricted Security
(including any Transfer Restricted Security represented by a Global Security)
pursuant to Rule 144 under the Securities Act or an effective registration
statement under the Securities Act:
(A) in the case of any Transfer Restricted Security that is a
Definitive Security, the Securities Registrar shall permit the Holder thereof to
exchange such Transfer Restricted Security for a Definitive Security that does
not bear the legend set forth in Section 2.4 and rescind any restriction on the
transfer of such Transfer Restricted Security; and
(B) any such Transfer Restricted Security represented by a Global
Security shall not be subject to the provisions set forth in clause (i) of this
Section 3.5(f) (such sales or transfers being subject only to the provisions of
Section 3.5(c) hereof); provided, however, that with respect to any request for
an exchange of a Transfer Restricted Security that is represented by a Global
Security for a Definitive Security that does not bear the legend set forth in
Section 2.4, which request is made in reliance upon Rule 144, the Holder thereof
shall certify in writing to the Securities Registrar that such request is being
made pursuant to Rule 144.
(g) Cancellation and/or Adjustment of Global Security. At such time
-------------------------------------------------
as all beneficial interests in a Global Security have either been exchanged for
Definitive Securities, redeemed, repurchased or canceled, such Global Security
shall be returned to the Depository for cancellation or retained and canceled by
the Trustee. At any time prior to such cancellation, if any beneficial interest
in a Global Security is exchanged for Definitive Securities, redeemed,
repurchased or canceled, the principal amount of Securities represented by such
Global Security shall be reduced and an adjustment shall be made on the books
and records of the Trustee (if it is then the Securities Custodian for such
Global Security) with respect to such Global Security, by the Trustee or the
Securities Custodian, to reflect such reduction.
(h) Obligations With Respect to Transfers and Exchanges of Securities.
-----------------------------------------------------------------
(i) To permit registrations of transfers and exchanges, the Company
shall execute and the Trustee shall authenticate Definitive Securities and
Global Securities at the Securities Registrar's written request.
43
(ii) No service charge shall be made for any registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any transfer tax, assessments, or similar governmental charge payable in
connection therewith.
(iii) The Securities Registrar shall not be required to register the
transfer of or exchange of any Security called for redemption during a period
beginning 15 days before the day of selection for such redemption.
(iv) Prior to the due presentation for registration of transfer of any
Security, the Company, the Trustee, the Paying Agent or the Securities Registrar
may deem and treat the person in whose name a Security is registered in the
Securities Register of such series as the absolute owner of such Security for
the purpose of receiving payment of principal and interest on such Security and
for all other purposes whatsoever, whether or not such Security is overdue, and
none of the Company, the Trustee, the Paying Agent or the Securities Registrar
shall be affected by notice to the contrary.
(v) All Securities issued upon any transfer or exchange pursuant to
the terms of this Indenture shall evidence the same Securities and shall be
entitled to the same benefits under this Indenture as the Securities surrendered
upon such transfer or exchange.
(i) Termination of Certain Restrictions on Transfer and Provisions As
-----------------------------------------------------------------
to Legends and Global Form. After a transfer of any Initial Securities during
--------------------------
the period of the effectiveness of, and pursuant to, a Shelf Registration
Statement with respect to the Initial Securities, all requirements pertaining to
legends on such Initial Securities shall cease to apply, the requirements
requiring that any such Initial Securities issued to certain Holders be issued
in global form shall cease to apply, and certificated Initial Securities without
legends shall be made available to the Holders of such Initial Securities. Upon
the consummation of a Registered Exchange Offer with respect to the Initial
Securities pursuant to which Holders of Initial Securities are offered Exchange
Securities in exchange for their Initial Securities, all requirements pertaining
to such Initial Securities that Initial Securities issued to certain Holders be
issued in global form shall cease to apply and certificated Initial Securities
shall be available to Holders of such Initial Securities that do not exchange
their Initial Securities, and Exchange Securities in certificated form shall be
available to Holders that exchange such Initial Securities in such Registered
Exchange Offer.
Section 3.6. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee together with
such security or indemnity as may be required by the Company or the Trustee to
hold each of them harmless, the Company shall execute and the Trustee shall
authenticate and make available for delivery in exchange therefor a new
Security of the same issue and series of like tenor and principal amount, having
the same Original Issue Date and Stated Maturity and bearing the same interest
rate as such mutilated Security, and bearing a number not contemporaneously
outstanding.
44
If there shall be delivered to the Company and to the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security, and (ii) such security or indemnity as may be required by them to hold
each of them harmless, then, in the absence of notice to the Company or the
Trustee that such Security has been acquired by a bona fide purchaser, the
Company shall execute and upon its request the Trustee shall authenticate and
make available for delivery, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same issue and series of like tenor and
principal amount, having the same Original Issue Date and Stated Maturity and
bearing the same interest rate as such destroyed, lost or stolen Security, and
bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
Section 3.7. Payment of Interest; Interest Rights Preserved.
Interest on any Security of any series which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date, shall be
paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest in respect of Securities of such series, except that, unless
otherwise provided in the Securities of such series, interest payable on the
Stated Maturity of the principal of a Security shall be paid to the Person to
whom principal is paid. The initial payment of interest on any Security of any
series which is issued between a Regular Record Date and the related Interest
Payment Date shall be payable as provided in such Security or in the Board
Resolution pursuant to Section 3.1 with respect to the related series of
Securities. At the option of the Company, interest on any series of Securities
may be paid (i) by check mailed to the address of the Person entitled thereto as
it shall appear on the Securities Register of such series or (ii) by wire
transfer or direct deposit in immediately available funds at such place and to
such account as designated by the Person entitled
45
thereto as specified in the Securities Register of such series, provided that
proper transfer instructions have been received prior to the relevant Regular
Record Date.
Any interest on any Security which is payable, but is not timely paid
or duly provided for, on any Interest Payment Date for Securities of such series
(herein called "Defaulted Interest"), shall forthwith cease to be payable to the
registered Holder on the relevant Regular Record Date by virtue of having been
such Holder, and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities of such series in respect of which
interest is in default (or their respective Predecessor Securities) are
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security and the date of the proposed payment (which
shall allow sufficient time to the Trustee to comply with the notice requirement
thereof), and at the same time the Company shall deposit with the Trustee an
amount of money equal to the aggregate amount proposed to be paid in respect of
such Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this Clause provided. Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest which shall be
not more than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify the
Company of such Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be mailed, first class, postage prepaid,
to each Holder of a Security of such series at the address of such Holder as it
appears in the Securities Register not less than 10 days prior to such Special
Record Date. The Trustee may, in its discretion, in the name and at the expense
of the Company, cause a similar notice to be published at least once in a
newspaper, customarily published in the English language on each Business Day
and of general circulation in the Borough of Manhattan, The City of New York,
but such publication shall not be a condition precedent to the establishment of
such Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been mailed as aforesaid,
such Defaulted Interest shall be paid to the Persons in whose names the
Securities of such series (or their respective Predecessor Securities) are
registered on such Special Record Date and shall no longer be payable pursuant
to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any securities
exchange or automated quotation system on which the Securities of the series in
respect of which interest is in default may be listed or traded and, upon such
notice as may be required by such exchange (or by the Trustee if the Securities
are not listed), if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this Clause, such payment shall be deemed
practicable by the Trustee.
46
Any interest on any Security which is deferred or extended pursuant to
Section 3.11 shall not be Defaulted Interest for the purposes of this Section
3.7.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon transfer of or in exchange for or in lieu of
any other Security shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security.
Section 3.8. Persons Deemed Owners.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name any Security is registered in the Securities
Register of such series as the owner of such Security for the purpose of
receiving payment of principal of and (subject to Section 3.7) any interest on
such Security and for all other purposes whatsoever, whether or not such
Security be overdue, and neither the Company, the Trustee nor any agent of the
Company or the Trustee shall be affected by notice to the contrary.
Section 3.9. Cancellation.
All Securities surrendered for payment, redemption, repurchase,
transfer or exchange shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee, and any such Securities and Securities surrendered
directly to the Trustee for any such purpose shall be promptly canceled by it.
The Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever, and all Securities so delivered
shall be promptly canceled by the Trustee. No Securities shall be authenticated
in lieu of or in exchange for any Securities canceled as provided in this
Section, except as expressly permitted by this Indenture. All canceled
Securities shall be returned by the Trustee to the Company and destroyed by the
Company.
Section 3.10. Computation of Interest.
Except as otherwise specified as contemplated by Section 3.1 for
Securities of any series, interest on the Securities of each series for any
period shall be computed on the basis of a 360-day year of twelve 30-day months
and interest on the Securities of each series 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.
Section 3.11. Deferrals of Interest Payment Dates.
If specified as contemplated by Section 2.1 or Section 3.1 with
respect to the Securities of a particular series, so long as no Event of Default
has occurred and is continuing, the Company shall have the right, at any time
during the term of such series, from time to time to defer the payment of
interest on such Securities for such period or periods as may be specified as
contemplated by Section 3.1 (each, an "Extension Period") during which Extension
Periods the Company shall have the right to make partial payments of interest on
any Interest Payment Date. No Extension Period shall end
47
on a date other than an Interest Payment Date. At the end of any such Extension
Period the Company shall pay all interest then accrued and unpaid on the
Securities (together with Additional Interest thereon, if any, at the rate
specified for the Securities of such series to the extent permitted by
applicable law) to the Persons in whose names that Securities are registered at
the close of business on the Regular Record Date with respect to the Interest
Payment Date at the end of such Extension Period; provided, however, that no
Extension Period shall extend beyond the Stated Maturity of the principal of the
Securities of such series; provided, further, that during any such Extension
Period, the Company shall not, and shall not permit any Subsidiary to, (i)
declare or pay any dividends or distributions on, or redeem, purchase, acquire
or make a liquidation payment with respect to, any of the Company's capital
stock, (ii) make any payment of principal of or interest or premium, if any, on
or repay, repurchase or redeem any debt securities of the Company that rank pari
passu in all respects with or junior in interest to the Securities of such
series or (iii) make any guarantee payments with respect to any guarantee by the
Company of the debt securities of any Subsidiary of the Company if such
guarantee ranks pari passu with or junior in interest to the securities of such
series (other than (a) dividends or distributions in the Company's capital
stock, (b) any declaration of a dividend in connection with the implementation
of a Rights Plan or the issuance of stock under any such Rights Plan in the
future, or the redemption or repurchase of any rights distributed pursuant to a
Rights Plan, (c) payments under the Guarantee with respect to such Security, (d)
purchases of Common Stock related to the issuance of Common Stock or rights or
options under any of the Company's benefit plans for its directors, officers,
employees or other persons within the definition of "employee" for purposes of a
registration of shares for an employee benefit plan of the Company, related to
the issuance of Common Stock or rights under a dividend reinvestment or stock
purchase plan, or related to the issuance of Common Stock (or securities
convertible into or exchangeable for Common Stock) as consideration in an
acquisition transaction that was entered into prior to the commencement of such
Extension Period and (e) payments of accrued dividends (and cash in lieu of
fractional shares) upon conversion into Common Stock of any convertible
preferred stock of the Company of any series now or hereinafter outstanding, in
accordance with the terms of such stock). Prior to the termination of any such
Extension Period, the Company may further defer the payment of interest,
provided that no Extension Period shall exceed the period or periods specified
in such Securities or extend beyond the Stated Maturity of the principal of such
Securities. Upon termination of any Extension Period and upon the payment of all
accrued and unpaid interest and any Additional Interest then due, the Company
may elect to begin a new Extension Period, subject to the above requirements. No
interest shall be due and payable during an Extension Period, except at the end
thereof. The Company shall give the Holders of the Securities of such series and
the Trustee written notice of its election to begin any such Extension Period at
least one Business Day prior to the next succeeding Interest Payment Date on
which interest on Securities of such series would be payable but for such
deferral or, with respect to the Securities of a series issued to a Trust, so
long as such Securities are held by such Trust, prior to the earlier of (i) the
next succeeding date on which Distributions on the Preferred Securities of such
Trust would be payable but for such deferral or (ii) the date the Administrative
Trustees of such Trust are required to give notice to any securities exchange or
other applicable self-regulatory organization or to holders of such Preferred
Securities of the record date or the date such Distributions are payable, but in
any event not less than one Business Day prior to such record date.
48
The Trustee shall promptly give notice, in the name and at the expense
of the Company, of the Company's election to begin any such Extension Period to
the holders of the Outstanding Preferred Securities.
Section 3.12. Right of Set-Off.
With respect to the Securities of a series issued to a Trust,
notwithstanding anything to the contrary in the Indenture, the Company shall
have the right to set-off any payment it is otherwise required to make
thereunder in respect of any such Security to the extent the Company has
theretofore made, or is concurrently on the date of such payment making, a
payment under the related Guarantee Agreement for Securities of such series or
under Section 5.8 of the Indenture.
Section 3.13. Agreed Tax Treatment.
Each Security issued hereunder shall provide that the Company and, by
its acceptance of a Security or a beneficial interest therein, the Holder of,
and any Person that acquires a beneficial interest in, such Security intend that
such Security constitutes indebtedness and agree to treat such Security as
indebtedness for United States federal, local and state tax purposes.
Section 3.14. Shortening of Stated Maturity.
If specified as contemplated by Section 2.1 or 3.1 with respect to the
Securities of a particular series, the Company shall have the right to shorten
the Stated Maturity of the principal of the Securities of such series at any
time to any date not earlier than the first date on which the Company has the
right to redeem the Securities of such series. In the event the Company elects
to shorten the Stated Maturity of any Securities, it shall give written notice
to the Trustee (which shall allow sufficient time to the Trustee to comply with
the notice requirement thereof), and the Trustee shall give notice of such
shortening to the Holders, no less than 30 and no more than 60 days prior to the
effectiveness thereof.
Section 3.15. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption or other notices and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee of any change in the CUSIP numbers.
49
ARTICLE IV
SATISFACTION AND DISCHARGE
Section 4.1. Satisfaction and Discharge of Indenture.
This Indenture shall, upon Company Request, cease to be of further
effect (except as to any surviving rights of registration of transfer or
exchange of Securities herein expressly provided for and as otherwise provided
in this Section 4.1) and the Trustee, on demand of and at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other than
(i) Securities which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 3.6 and (ii) Securities for whose
payment money has theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or discharged from
such trust, as provided in Section 10.3) have been delivered to the Trustee for
cancellation; or
(B) all such Securities not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one
year of the date of deposit, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of redemption
by the Trustee in the name, and at the expense, of the Company,
and the Company, in the case of Clause (B) (i), (ii) or (iii) above,
has deposited or caused to be deposited with the Trustee as trust funds in trust
for such purpose an amount in the currency or currencies in which the Securities
of such series are payable sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to the Trustee for
cancellation, including principal (and premium, if any) and interest (including
any Additional Interest) to the date of such deposit (in the case of Securities
which have become due and payable) or to the Stated Maturity or Redemption Date,
as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
50
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have
been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.7, the obligations of
the Company to any Authenticating Agent under Section 6.14 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of clause (1) of
this Section, the obligations of the Trustee under Section 4.2 and the last
paragraph of Section 10.3 shall survive.
Section 4.2. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 10.3, all
money deposited with the Trustee pursuant to Section 4.1 shall be held in trust
and applied by the Trustee, in accordance with the provisions of the Securities
and this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for the payment of which such money or obligations have been
deposited with or received by the Trustee.
ARTICLE V
REMEDIES
Section 5.1. Events of Default.
"Event of Default", wherever used herein with respect to the
Securities of any series, means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) default in the payment of any interest upon any Security of that
series, including any Additional Interest in respect thereof, when it becomes
due and payable, and continuance of such default for a period of 30 days
(subject to the deferral of any interest payment date in the case of an
Extension Period); or
(2) default in the payment of the principal of (or premium, if any,
on) any Security of that series at its Maturity; or
(3) default in the performance, or breach, in any material respect, of
any covenant or warranty of the Company in this Indenture with respect to that
series (other than a covenant or warranty a default in the performance of which
or the breach of which is elsewhere in this Section specifically dealt with),
and continuance of such default or breach for a period of 90 days after there
51
has been given, by registered or certified mail, to the Company by the Trustee
or to the Company and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities of that series a written notice specifying
such default or breach and requiring it to be remedied; or
(4) the entry of a decree or order by a court having jurisdiction in
the premises adjudging the Company bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company under any applicable federal or
state bankruptcy, insolvency, reorganization or other similar law, or appointing
a receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Company or of any substantial part of its property or ordering
the winding up or liquidation of its affairs, and the continuance of any such
decree or order unstayed and in effect for a period of 60 consecutive days; or
(5) the institution by the Company of proceedings to be adjudicated
bankrupt or insolvent, or the consent by it to the institution of bankruptcy or
insolvency proceedings against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under any applicable federal or
state bankruptcy, insolvency, reorganization or other similar law, or the
consent by it to the filing of any such petition or to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Company or of any substantial part of its property, or the
making by it of an assignment for the benefit for creditors, or the admission by
it in writing of its inability to pay its debts generally as they become due and
its willingness to be adjudicated a bankrupt, or the taking of corporate action
by the Company in furtherance of any such action; or
(6) any other Event of Default provided with respect to Securities of
that series.
Section 5.2. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in
Section 5.1(4) or 5.1(5)) with respect to Securities of any series at the time
Outstanding occurs and is continuing, then and in every such case the Trustee or
the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal amount of all the Securities
of that series to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by Holders), provided that, in the case of
the Securities of a series issued to a Trust, if, upon an Event of Default, the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series fail to declare the principal amount of
all the Securities of that series to be immediately due and payable, the holders
of at least 25% in aggregate liquidation amount of the corresponding series of
Preferred Securities then outstanding shall have such right by a notice in
writing to the Company and the Trustee; and upon any such declaration such
principal amount (or specified portion thereof) of and the accrued interest
(including any Additional Interest) on all the Securities of such series shall
become immediately due and payable. Payment of principal and interest (including
any Additional Interest) on such Securities shall remain subordinated to the
extent provided in Article XIII notwithstanding that such amount shall become
immediately due and payable as herein provided. If an Event of Default specified
in Section 5.1(4) or 5.1(5) with respect
52
to Securities of any series at the time Outstanding occurs, the principal amount
of all the Securities of that series shall automatically, and without any
declaration or other action on the part of the Trustee or any Holder, become
immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay:
(A) all overdue installments of interest (including any Additional
Interest) on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of that
series which have become due otherwise than by such declaration of acceleration
and interest thereon at the rate borne by the Securities, and
(C) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel; and
(2) all Events of Default with respect to Securities of that series,
other than the non-payment of the principal of Securities of that series which
has become due solely by such acceleration, have been cured or waived as
provided in Section 5.13;
provided that, in the case of Securities of a series held by a Trust, if the
Holders of at least a majority in principal amount of the Outstanding Securities
of that series fail to rescind and annul such declaration and its consequences,
the holders of a majority in aggregate Liquidation Amount (as defined in the
Trust Agreement under which such Trust is formed) of the related series of
Preferred Securities then outstanding shall have such right by written notice to
the Company and the Trustee, subject to the satisfaction of the conditions set
forth in Clauses (1) and (2) above of this Section 5.2.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
Section 5.3. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if:
(1) default is made in the payment of any installment of interest
(including any Additional Interest) on any Security when such interest becomes
due and payable and such default continues for a period of 30 days, or
53
(2) default is made in the payment of the principal of (and premium,
if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities, the whole amount then due and payable
on such Securities for principal (and premium, if any) and interest (including
any Additional Interest); and, in addition thereto, all amounts owing the
Trustee under Section 6.7.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon the Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon the Securities, wherever
situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
Section 5.4. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors,
(a) the Trustee (irrespective of whether the principal of the
Securities of any series shall then be due and payable as therein expressed or
by declaration of acceleration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Company for the payment of overdue
principal (and premium, if any) or interest (including any Additional Interest))
shall be entitled and empowered, by intervention in such proceeding or
otherwise,
(i) to file and prove a claim for the whole amount of principal (or,
if the Securities of that series are Discount Securities, such portion of the
principal amount as may be due and payable pursuant to a declaration in
accordance with Section 5.2) (and premium, if any) and interest (including any
Additional Interest) owing and unpaid in respect to the Securities and to file
such other papers or documents as may be necessary or advisable and to take any
and all actions as are authorized under the Trust Indenture Act in order to have
the claims of the Holders and any predecessor to the Trustee under Section 6.7
allowed in any such judicial proceedings; and
54
(ii) in particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same in accordance with Section 5.6; and
(b) any custodian, receiver, assignee, trustee, liquidator,
sequestrator (or other similar official) in any such judicial proceeding is
hereby authorized by each Holder to make such payments to the Trustee for
distribution in accordance with Section 5.6, and in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay to
the Trustee any amount due to it and any predecessor Trustee under Section 6.7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding; provided, however,
that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditors' or
other similar committee.
Section 5.5. Trustee May Enforce Claims Without Possession of
Securities.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of all the amounts owing the Trustee and any
predecessor Trustee under Section 6.7, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
Section 5.6. Application of Money Collected.
Any money or property collected or to be applied by the Trustee with
respect to a series of Securities pursuant to this Article shall be applied in
the following order, at the date or dates fixed by the Trustee and, in case of
the distribution of such money or property on account of principal (or premium,
if any) or interest (including any Additional Interest), upon presentation of
the Securities and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 6.7;
SECOND: Subject to Article XIII, to the payment of the amounts then
due and unpaid upon such series of Securities for principal (and premium, if
any), interest (including any Additional Interest) and Additional Taxes, 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
55
payable on such series of Securities for principal (and premium, if any) and
interest (including any Additional Interest), respectively; and
THIRD: The balance, if any, to the Person or Persons entitled thereto.
Section 5.7. Limitation on Suits.
No Holder of any Securities of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture
or for the appointment of a receiver, assignee, trustee, liquidator,
sequestrator (or other similar official) or for any other remedy hereunder,
unless:
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities to be incurred
in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of security or indemnity has failed to institute any such proceeding;
and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing itself of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other Holders of Securities, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all such Holders.
Section 5.8. Unconditional Right of Holders to Receive Principal,
Premium and Interest; Direct Action by Holders of Preferred Securities.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right which is absolute and unconditional to receive
payment of the principal of (and premium, if any) and (subject to Section 3.7)
interest (including any Additional Interest) on such Security on the respective
Stated Maturities expressed in such Security (or, in the case of redemption or
repurchase, on the Redemption Date or the Repurchase Date, as the case may be),
to cause the Company to repurchase such Security in accordance with Section
10.10 (if applicable to such series
56
of Securities), and to institute suit for the enforcement of any such payment
and of the right to cause such repurchase (if applicable to such series of
Securities), and such rights shall not be impaired without the consent of such
Holder. In the case of Securities of a series held by a Trust, any holder of the
corresponding series of Preferred Securities issued by such Trust shall have the
right, upon the occurrence of an Event of Default described in Section 5.1(1) or
5.1(2), to institute a suit directly against the Company for enforcement of
payment to such holder of principal of (premium, if any) and (subject to Section
3.7) interest (including any Additional Interest) on the Securities having an
aggregate principal amount equal to the aggregate Liquidation Amount (as defined
in the Trust Agreement under which such Trust is formed) of such Preferred
Securities of the corresponding series held by such holder.
Section 5.9. Restoration of Rights and Remedies.
If the Trustee, any Holder or any holder of Preferred Securities has
instituted any proceeding to enforce any right or remedy under this Indenture
and such proceeding has been discontinued or abandoned for any reason, or has
been determined adversely to the Trustee, such Holder or such holder of
Preferred Securities, then and in every such case, the Trustee, the Holders and
such holder of Preferred Securities shall, subject to any determination in such
proceeding, be restored severally and respectively to their former positions
hereunder, and thereafter all rights and remedies of the Trustee, the Holders
and the holders of Preferred Securities shall continue as though no such
proceeding had been instituted.
Section 5.10. Rights and Remedies Cumulative.
Except as otherwise provided in the last paragraph of Section 3.6, no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 5.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee, any Holder of any Security or any
holder of any Preferred Security to exercise any right or remedy accruing upon
any Event of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee
or to the Holders and the right and remedy given to the holders of Preferred
Securities by Section 5.8 may be exercised from time to time, and as often as
may be deemed expedient, by the Trustee, the Holders or the holders of Preferred
Securities, as the case may be.
57
Section 5.12. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that:
(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction, and
(3) subject to the provisions of Section 6.1, the Trustee shall have
the right to decline to follow such direction if a Responsible Officer or
Officers of the Trustee shall, in good faith, determine that the proceeding so
directed would be unjustly prejudicial to the Holders not joining in any such
direction or would involve the Trustee in liability.
Section 5.13. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series and, in the case of any Securities of a
series issued to a Trust, the holders of a majority in Liquidation Amount (as
defined in the relevant Trust Agreement) of Preferred Securities issued by such
Trust may waive any past default hereunder and its consequences with respect to
such series except a default:
(1) in the payment of the principal of (or premium, if any) or
interest (including any Additional Interest) on any Security of such series
(unless all Events of Default with respect to Securities of that series, other
than the non-payment of the principal of Securities of that series which has
become due solely by acceleration, have been cured or annulled as provided in
Section 5.3 and the Company has paid or deposited with the Trustee a sum
sufficient to pay all overdue installments of interest (including any Additional
Interest) on all Securities of that series, the principal of (and premium, if
any, on) any Securities of that series which have become due otherwise than by
such declaration of acceleration and interest thereon at the rate borne by the
Securities, and all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel), or
(2) in respect of a covenant or provision hereof which under Article
IX cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected.
Any such waiver shall be deemed to be on behalf of the Holders of all
the Securities of such series or, in the case of a waiver by holders of
Preferred Securities issued by such Trust, by all holders of Preferred
Securities issued by such Trust.
58
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
Section 5.14. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security
by his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees and
expenses, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party litigant; but
the provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in principal amount of the Outstanding Securities of
any series, or to any suit instituted by any Holder for the enforcement of the
payment of the principal of (or premium, if any) or interest (including any
Additional Interest) on any Security on or after the respective Stated
Maturities expressed in such Security or for the enforcement of the right to
require the Company to repurchase any Security in accordance with Section 10.10
(if applicable to such series of Securities).
Section 5.15. Waiver of Usury, Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
59
ARTICLE VI
THE TRUSTEE
Section 6.1. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture; but in the case of
any such certificates or opinions which by any provisions hereof are
specifically required to be furnished to the Trustee, the Trustee shall be under
a duty to examine the same to determine whether or not they conform to the
requirements of this Indenture but not to verify the accuracy of the contents
thereof.
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct except that
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the Trustee
was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction of
Holders pursuant to Section 5.12 relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this Indenture with respect
to the Securities of such series.
(d) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if there shall be reasonable grounds for believing that
60
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(e) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
Section 6.2. Notice of Defaults.
Within 90 days after actual knowledge by a Responsible Officer of the
Trustee of the occurrence of any default hereunder with respect to the
Securities of any series, the Trustee shall transmit by mail to all Holders of
Securities of such series, as their names and addresses appear in the Securities
Register for such series, notice of such default, unless such default shall have
been cured or waived; provided, however, that, except in the case of a default
in the payment of the principal of (or premium, if any) or interest (including
any Additional Interest) on any Security of such series, the Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee or a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determines that the withholding of such
notice is in the interests of the Holders of Securities of such series; and
provided, further, that, in the case of any default of the character specified
in Section 5.1(3), no such notice to Holders of Securities of such series shall
be given until at least 30 days after the occurrence thereof. For the purpose of
this Section, the term "default" means any event which is, or after notice or
lapse of time or both would become, an Event of Default with respect to
Securities of such series.
Section 6.3. Certain Rights of Trustee.
Subject to the provisions of Section 6.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
Security or other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate;
61
(d) the Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon;
(e) unless an Event of Default shall have occurred and be continuing,
the Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request or direction of any of the Holders
pursuant to this Indenture, unless such Holders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, indenture,
Security or other paper or document, but the Trustee in its discretion may make
such inquiry or investigation into such facts or matters as it may see fit, and,
if the Trustee shall determine to make such inquiry or investigation, it shall
be entitled to examine the books, records and premises of the Company,
personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder; and
(h) the Trustee shall not be liable for any action taken, suffered, 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.
Section 6.4. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities. Neither the
Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of the Securities or the proceeds thereof.
Section 6.5. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any
Securities Registrar or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Securities and, subject to
Sections 6.8 and 6.13, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Securities Registrar or such other agent.
62
Section 6.6. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except for any funds deposited in the Reserve Account pursuant
to Article XI, and except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed in writing with the Company.
Section 6.7. Compensation and Reimbursement.
The Company, as borrower, agrees
(1) to pay to the Trustee from time to time such compensation as shall
be agreed in writing between the Company and the Trustee for all services
rendered by it hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust);
(2) to reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(3) to indemnify each of the Trustee and any predecessor Trustee for,
and to hold it harmless against, any and all loss, liability, damage, claim or
expense (including the reasonable compensation and the expenses and
disbursements of its agents and counsel) incurred without negligence or bad
faith, arising out of or in connection with the acceptance or administration of
this trust or the performance of its duties hereunder, including the costs and
expenses of defending itself against any claim or liability in connection with
the exercise or performance of any of its powers or duties hereunder. This
indemnification shall survive the defeasance or termination of this Indenture or
the earlier resignation or removal of the Trustee.
To secure the Company's payment obligations in this Section, the
Company and the Holders agree that the Trustee shall have a lien prior to the
Securities on all money or property held or collected by the Trustee. Such lien
shall survive the satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 5.1(4) or (5) occurs (including the reasonable
charges and expenses of its counsel), the expenses and the compensation for the
services are intended to constitute expenses of administration under the
Bankruptcy Reform Act of 1978 or any successor statute.
63
Section 6.8. Disqualification; Conflicting Interests
The Trustee for the Securities of any series issued hereunder shall be
subject to the provisions of Section 310(b) of the Trust Indenture Act. Nothing
herein shall prevent the Trustee from filing with the Commission the application
referred to in the second to last paragraph of said Section 310(b).
Section 6.9. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be
(a) a corporation organized and doing business under the laws of the
United States of America or of any state or territory or the District of
Columbia, authorized under such laws to exercise corporate trust powers and
subject to supervision or examination by federal, state, territorial or District
of Columbia authority, or
(b) a corporation or other Person organized and doing business under
the laws of a foreign government that is permitted to act as Trustee pursuant to
a rule, regulation or order of the Commission, authorized under such laws to
exercise corporate trust powers, and subject to supervision or examination by
authority of such foreign government or a political subdivision thereof
substantially equivalent to supervision or examination applicable to United
States institutional trustees,
in either case having a combined capital and surplus of at least $50,000,000,
subject to supervision or examination by federal or state 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, 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. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect hereinafter specified
in this Article. Neither the Company nor any Person directly or indirectly
controlling, controlled by or under common control with the Company shall serve
as Trustee for the Securities of any series issued hereunder.
Section 6.10. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 6.11.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If an instrument of acceptance by a successor Trustee shall not have
been delivered to the Trustee within 30 days after the giving of such notice
64
of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company. If an instrument of acceptance by a successor Trustee shall not
have been delivered to the Trustee within 30 days after such removal, the
Trustee being removed may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 6.8 after written
request therefor by the Company or by any Holder who has been a bona fide Holder
of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 6.9 and shall
fail to resign after written request therefor by the Company or by any such
Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property shall be
appointed or any public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (i) the Company, acting pursuant to the authority of a
Board Resolution, may remove the Trustee with respect to all Securities, or (ii)
subject to Section 5.14, any Holder who has been a bona fide Holder of a
Security for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the removal
of the Trustee with respect to all Securities and the appointment of a successor
Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause with
respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee with respect to the
Securities of that or those series. If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a successor Trustee
with respect to the Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities of such
series delivered to the Company and the retiring Trustee, the successor Trustee
so appointed shall, forthwith upon its acceptance of such appointment, become
the successor Trustee with respect to the Securities of such series and
supersede the successor Trustee appointed by the Company. If no successor
Trustee with respect to the Securities of any series shall have been so
appointed by the Company or the Holders and accepted appointment in the manner
hereinafter provided, any Holder who has been a bona fide Holder of a Security
for at least six months may, subject to Section 5.14, on behalf of himself and
all others similarly situated, petition any court of
65
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
(f) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series by mailing
written notice of such event by first-class mail, postage prepaid, to the
Holders of Securities of such series as their names and addresses appear in the
Securities Register for such series. Each notice shall include the name of the
successor Trustee with respect to the Securities of such series and the address
of its Corporate Trust Office.
Section 6.11. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each 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 with respect to the
Securities of that or those series to which the appointment of such
66
successor Trustee relates; but, on request of the Company or any successor
Trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee hereunder
with respect to the Securities of that or those series to which the appointment
of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all rights, powers and trusts referred to
in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
Section 6.12. Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated, and in case any
Securities shall not have been authenticated, any successor to the Trustee may
authenticate such Securities either in the name of any predecessor Trustee or in
the name of such successor Trustee, and in all cases the certificate of
authentication shall have the full force which it is provided anywhere in the
Securities or in this Indenture that the certificate of the Trustee shall have.
Section 6.13. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
Section 6.14. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect
to one or more series of Securities which shall be authorized to act on behalf
of the Trustee to authenticate Securities of such series issued upon original
issue and upon exchange, registration of transfer, partial redemption or partial
repurchase thereof or pursuant to Section 3.6, and Securities so authenticated
shall be entitled to the benefits of this Indenture and shall be valid and
obligatory for all purposes as if authenticated by the Trustee hereunder.
Wherever reference is made in this Indenture to the authentication and delivery
of Securities by the Trustee or the Trustee's certificate
67
of authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and shall at all times
be a corporation organized and doing business under the laws of the United
States of America, or of any state or territory or the District of Columbia,
authorized under such laws to act as Authenticating Agent, having a combined
capital and surplus of not less than $50,000,000 and subject to supervision or
examination by federal or state authority. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section the combined capital and surplus of such Authenticating Agent
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all of
the corporate trust business of an Authenticating Agent shall be the successor
Authenticating Agent hereunder, provided such corporation shall be otherwise
eligible under this Section, without the execution or filing of any paper or any
further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give notice of such
appointment in the manner provided in Section 1.6 to all Holders of Securities
of the series with respect to which such Authenticating Agent will serve. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provision of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
68
"This is one of the Securities referred to in the within mentioned
Indenture.
Dated:
/s/FIRST UNION NATIONAL BANK OF NORTH CAROLINA
-------------------------------------
As Trustee
By:
----------------------------------
As Authenticating Agent
By:
----------------------------------
Authorized Officer"
Section 6.13. Officers' Certificates as Evidence.
Except as otherwise provided in this Indenture, whenever in the
administration of the provisions of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking or
omitting any action thereunder, such matter (unless other evidence in respect
thereof is herein specifically prescribed) may, in the absence of negligence or
bad faith on the part of the Trustee, be deemed to be conclusively proved and
established by an Officers' Certificate delivered to the Trustee, and such
certificate, in the absence of negligence or bad faith on the part of the
Trustee, shall be full warrant to the Trustee for any action taken or omitted
by it under the provisions of this Indenture upon the faith thereof.
69
ARTICLE VII
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.1. Company to Furnish Trustee Names and Addresses of
Holders.
The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not more than 15 days after January 15 and July 15
in each year, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders as of such January 1 and July 1, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished,
excluding from any such list names and addresses received by the Trustee in its
capacity as Securities Registrar.
Section 7.2. Preservation of Information, Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 7.1 and the names and
addresses of Holders received by the Trustee in its capacity as Securities
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 7.1 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and privileges of the Trustee, shall be as provided in the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of the
disclosure of information as to the names and addresses of the Holders made
pursuant to the Trust Indenture Act.
Section 7.3. Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto.
If required by Section 313(a) of the Trust Indenture Act, the Trustee shall,
within sixty days after each May 15 following the date of this Indenture deliver
to
70
Holders a brief report, dated as of such May 15, which complies with the
provisions of such Section 313(a).
(b) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed and also with the Commission. The Company will promptly
notify the Trustee when any Securities are listed on any stock exchange.
Section 7.4. Reports by Company.
The Company shall file with the Trustee and with the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided in the Trust Indenture Act; provided that any
such information, documents or reports required to be filed with the Commission
pursuant to Section 13 or Section 15(d) of the Exchange Act shall be filed with
the Trustee within 15 days after the same is required to be filed with the
Commission. Notwithstanding that the Company may not be required to remain
subject to the reporting requirements of Section 13 or 15(d) of the Exchange
Act, the Company shall continue to file with the Commission and provide the
Trustee with the annual reports and the information, documents and other reports
which are specified in Sections 13 and 15(d) of the Exchange Act. The Company
also shall comply with the other provisions of Trust Indenture Act Section
314(a). Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein, including
the Company's compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers' Certificates).
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 8.1. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person
or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, and no Person shall consolidate with or merge into the
Company or convey, transfer or lease its properties and assets substantially as
an entirety to the Company, unless:
(1) in case the Company shall consolidate with or merge into another
Person or convey, transfer or lease its properties and assets substantially as
an entirety to any Person, the Person formed by such consolidation or into which
the Company is merged or the Person which acquires by conveyance or transfer, or
which leases, the properties and assets of the Company substantially as an
entirety shall be a corporation, partnership or trust organized and existing
under the laws of
71
the United States of America or any State or the District of Columbia and shall
expressly assume, by an indenture supplemental hereto, executed and delivered to
the Trustee, in form satisfactory to the Trustee, the due and punctual payment
of the principal of (and premium, if any) and interest (including any Additional
Interest) on all the Securities and the performance of every covenant of this
Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time, or both, would
become an Event of Default, shall have happened and be continuing;
(3) in the case of the Securities of a series held by a Trust, such
consolidation, merger, conveyance, transfer or lease is permitted under the
related Trust Agreement and Guarantee and does not give rise to any breach or
violation of the related Trust Agreement or Guarantee; and
(4) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and any such supplemental indenture complies with
this Article and that all conditions precedent herein provided for relating to
such transaction have been complied with; and the Trustee, subject to Section
6.1, may rely upon such Officers' Certificate and Opinion of Counsel as
conclusive evidence that such transaction complies with this Section 8.1.
Section 8.2. Successor Corporation Substituted.
Upon any consolidation or merger by the Company with or into any other
Person, or any conveyance, transfer or lease by the Company of its properties
and assets substantially as an entirety to any Person in accordance with Section
8.1, the successor Person formed by such consolidation or into which the Company
is merged or to which such conveyance, transfer or lease is made shall succeed
to, and be substituted for, and may exercise every right and power of, the
Company under this Indenture with the same effect as if such successor Person
had been named as the Company herein; and in the event of any such conveyance,
transfer or lease the Company shall be discharged from all obligations and
covenants under the Indenture and the Securities and may be dissolved and
liquidated.
Such successor Person may cause to be signed, and may issue either in
its own name or in the name of the Company, any or all of the Securities
issuable hereunder which theretofore shall not have been signed by the Company
and delivered to the Trustee; and, upon the written order of such successor
Person instead of the Company and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and
shall make available for delivery any Securities which previously shall have
been signed and delivered by the officers of the Company to the Trustee for
authentication pursuant to such provisions and any Securities which such
successor Person thereafter shall cause to be signed and delivered to the
Trustee on its behalf for the purpose pursuant to such provisions. All the
Securities so issued shall in all respects have the same legal rank and benefit
under this Indenture as the Securities theretofore or thereafter issued in
72
accordance with the terms of this Indenture as though all of such Securities had
been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, conveyance or lease,
such changes in phraseology and form may be made in the Securities thereafter to
be issued as may be appropriate.
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9.1. Supplemental Indentures without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form reasonably satisfactory
to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company, and
the assumption by any such successor of the covenants of the Company herein and
in the Securities contained; or
(2) to convey, transfer, assign, mortgage or pledge any property to or
with the Trustee or to surrender any right or power herein conferred upon the
Company; or
(3) to establish the form or terms of Securities of any series as
permitted by Sections 2.1 or 3.1; or
(4) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be for
the benefit of less than all series of Securities, stating that such covenants
are expressly being included solely for the benefit of such series) or to
surrender any right or power herein conferred upon the Company; or
(5) to add any additional Events of Default for the benefit of the
Holders of all or any series of Securities (and if such additional Events of
Default are to be for the benefit of less than all series of Securities, stating
that such additional Events of Default are expressly being included solely for
the benefit of such series); or
(6) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only when
there is no Security Outstanding of any series created prior to the execution of
such supplemental indenture which is entitled to the benefit of such provision;
or
73
(7) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision herein,
or to make any other provisions with respect to matters or questions arising
under this Indenture, provided that such action pursuant to this clause (7)
shall not adversely affect the interest of the Holders of Securities of any
series in any material respect or, in the case of the Securities of a series
issued to a Trust and for so long as any of the corresponding series of
Preferred Securities issued by such Trust shall remain outstanding, the holders
of such Preferred Securities; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or more
series and to add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of Section
6.11(b); or
(9) to comply with the requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the Trust Indenture
Act.
Section 9.2. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(1) except as otherwise specified as contemplated by Section 2.1 or
Section 3.1 with respect to the deferral of the payment of interest on the
Securities of any series and the shortening of the Stated Maturity of the
principal of the Securities of any series, change the Stated Maturity of the
principal of, or any installment of interest (including any Additional Interest)
on, any Security, or reduce the principal amount thereof or the rate of interest
thereon or reduce any premium payable upon the redemption thereof, or change the
place of payment where, or the coin or currency in which, the principal of, or
interest (including any Additional Interest) on any security is payable, or
impair the right to institute suit for the enforcement of any such payment on or
after the Stated Maturity thereof (or, in the case of redemption, on or after
the Redemption Date or, in the case of repurchase, on or after the Repurchase
Date, as the case may be), or adversely affect the right to cause the Company to
repurchase the Securities as provided in Section 10.10 (if applicable to such
series of Securities), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose
74
Holders is required for any waiver (of compliance with certain provisions of
this Indenture or certain defaults hereunder and their consequences) provided
for in this Indenture, or
(3) modify any of the provisions of this Section, Section 5.13 or
Section 10.5, except to increase any such percentage or to provide that certain
other provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Security affected thereby; or
(4) modify the provisions in Article XIII of this Indenture with
respect to the subordination of Outstanding Securities of any series in a manner
adverse to the Holders thereof;
provided, further, that, in the case of the Securities of a series issued to a
Trust, so long as any of the corresponding series of Preferred Securities issued
by such Trust remain outstanding, (i) no such amendment shall be made that
adversely affects the holders of such Preferred Securities in any material
respect, and no termination of this Indenture shall occur, and no waiver of any
Event of Default or compliance with any covenant under this Indenture shall be
effective, without the prior consent of the holders of at least a majority of
the aggregate Liquidation Amount (as defined in the Trust Agreement under which
such Trust is organized) of such Preferred Securities then outstanding unless
and until the principal (and premium, if any) of the Securities of such series
and all accrued and (subject to Section 3.7) unpaid interest (including any
Additional Interest) thereon have been paid in full and (ii) no amendment shall
be made to Section 5.8 of this Indenture that would impair the rights of the
holders of Preferred Securities provided therein without the prior consent of
the holders of each Preferred Security then outstanding unless and until the
principal (and premium, if any) of the Securities of such series and all accrued
and (subject to Section 3.7) unpaid interest (including any Additional Interest)
thereon have been paid in full.
A supplemental indenture that changes or eliminates any covenant or
other provision of this Indenture that has expressly been included solely for
the benefit of one or more particular series of Securities or Preferred
Securities, or which modifies the rights of the Holders of Securities or holders
of Preferred Securities of such series with respect to such covenant or other
provision, shall be deemed not to affect the rights under this Indenture of the
Holders of Securities or holders of Preferred Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
Section 9.3. Execution of Supplemental Indentures.
In executing or accepting the additional trusts created by any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 6.1) shall be fully protected in relying upon, an
Officers' Certificate and an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture, and
that all conditions precedent
75
have been complied with. The Trustee may, but shall not be obligated to, enter
into any such supplemental indenture which affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise.
Section 9.4. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section 9.5. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
Section 9.6. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Company, bear a notation in form approved by the Company as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities of such series.
ARTICLE X
COVENANTS
Section 10.1. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any) and interest (including Additional Interest, if any) on the Securities
of that series in accordance with the terms of such Securities and this
Indenture.
Section 10.2. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Securities, an office or agency where Securities of that series may be presented
or surrendered for payment and an office or agency where Securities of that
series may be surrendered for redemption, repurchase, transfer or exchange and
where notices and demands to or upon the Company in respect of the Securities of
76
that series and this Indenture may be served. The Company initially appoints the
Trustee, acting through its Corporate Trust Office, as its agent for said
purposes. The Company will give prompt written notice to the Trustee of any
change in the location of any such office or agency. If at any time the Company
shall fail to maintain such office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Trustee, and
the Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for any
or all of such purposes, and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in each
Place of Payment for Securities of any series for such purposes. The Company
will give prompt written notice to the Trustee of any such designation and any
change in the location of any such office or agency.
Section 10.3. Money for Security Payments to be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest on any of the Securities of such
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal (and premium, if any) or interest
so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided, and will promptly notify the Trustee of its
failure so to act.
Whenever the Company shall have one or more Paying Agents, it will,
prior to 10:00 a.m. New York City time on each due date of the principal of or
interest on any Securities, deposit with a Paying Agent a sum sufficient to pay
the principal (and premium, if any) or interest so becoming due, such sum to be
held in trust for the benefit of the Persons entitled to such principal and
premium (if any) or interest, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its failure so to act.
The Company will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest (including Additional Interest) on Securities in
trust for the benefit of the Persons entitled thereto until such sums shall be
paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities) in the making of any payment of principal
(and premium, if any) or interest (including Additional Interest);
77
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held in
trust by such Paying Agent; and
(4) comply with the provisions of the Trust Indenture Act applicable
to it as a Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by the Company or any Paying Agent to
the Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and premium, if
any) or interest (including Additional Interest) on any Security and remaining
unclaimed for two years after such principal (and premium, if any) or interest
has become due and payable shall (unless otherwise required by mandatory
provision of applicable escheat or abandoned or unclaimed property law) be paid
on Company Request to the Company, or (if then held by the Company) shall
(unless otherwise required by mandatory provision of applicable escheat or
abandoned or unclaimed property law) be discharged from such trust; and the
Holder of such Security shall thereafter, as an unsecured general creditor, look
only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in a newspaper
published in the English language, customarily published on each Business Day
and of general circulation in the Borough of Manhattan, The City of New York,
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication,
any unclaimed balance of such money then remaining will be repaid to the
Company.
Section 10.4. Statement as to Compliance.
The Company shall deliver to the Trustee, within 120 days after the
end of each calendar year of the Company ending after the date hereof, an
Officers' Certificate, one of the signatories of which shall be the principal
executive, principal financial or principal accounting officer of the Company,
covering the preceding calendar year, stating whether or not to the best
knowledge of the signers thereof the Company is in default in the performance,
observance or fulfillment of or compliance with any of the terms, provisions,
covenants and conditions of this Indenture, and if the Company shall be in
default, specifying all such defaults and the nature and status thereof of which
they may have knowledge. For the purpose of this Section 10.4, compliance shall
be determined without regard to any grace period or requirement of notice
provided pursuant to the terms of this Indenture.
78
Section 10.5. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
covenant or condition provided pursuant to Section 3.1, 9.1(3) or 9.1(4) with
respect to the Securities of any series, if before or after the time for such
compliance the Holders of at least a majority in principal amount of the
Outstanding Securities of such series shall, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with such
covenant or condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company in respect of any
such covenant or condition shall remain in full force and effect.
Section 10.6. Additional Sums.
In the case of the Securities of a series initially issued to a Trust,
so long as no Event of Default has occurred and is continuing and except as
otherwise specified as contemplated by Section 2.1 or Section 3.1, if (i) such
Trust is the Holder of all of the Outstanding Securities of such series, and
(ii) a Tax Event has occurred and is continuing in respect of such Securities,
the Company shall pay to such Trust (or its permitted successor under the
related Trust Agreement) for so long as such Trust (or its permitted successor)
is the registered holder of all of the Outstanding Securities of such series,
together with any payment of principal of (or premium, if any) or interest
(including any Additional Interest) on such Securities, such additional sums as
may be necessary in order that the amount of Distributions (including any
Additional Amounts (as defined in such Trust Agreement)) then payable by such
Trust in respect of the related Preferred Securities and Common Securities in
accordance with the terms thereof shall not be reduced as a result of any
Additional Taxes arising from such Tax Event (the "Additional Sums"). Whenever
in this Indenture or the Securities there is a reference in any context to the
payment of principal of (or premium, if any) or interest (including Additional
Interest) on, or Redemption Price or Repurchase Price for, the Securities, such
mention shall be deemed to include mention of the payments of the Additional
Sums provided for in this paragraph to the extent that, in such context,
Additional Sums are, were or would be payable in respect thereof pursuant to the
provisions of this paragraph, and any express mention of the payment of
Additional Sums (if applicable) in any provision hereof shall not be construed
as excluding Additional Sums in those provisions hereof where such express
mention is not made; provided, however, that the deferral of the payment of
interest pursuant to Section 3.11 or the terms of the Securities shall not defer
the payment of any Additional Sums that may be due and payable.
Section 10.7. Additional Covenants.
The Company covenants and agrees with each Holder of Securities of
each series that it shall not, and it shall not permit any Subsidiary of the
Company to, (i) declare or pay any dividends or distributions on, or redeem,
purchase, acquire or make a liquidation payment with respect to, any shares of
the Company's capital stock, or (ii) make any payment of principal of or
interest or premium, if any, on or repay, repurchase or redeem any debt
securities of the Company that rank pari passu in all respects with or junior in
interest to the Securities of such series or (iii) make any
79
guarantee payments with respect to any guarantee by the Company of debt
securities of any Subsidiary of the Company if such guarantee ranks pari passu
with or junior in interest to the Securities of such series (other than (a)
dividends or distributions in the Company's capital stock, (b) any declaration
of a dividend in connection with the implementation of a Rights Plan or the
issuance of stock under any such Rights Plan in the future, or the redemption or
repurchase of any rights distributed pursuant to a Rights Plan, (c) payments
under the Guarantee with respect to the Preferred Securities relating to
Securities of such Series, (d) purchases of Common Stock related to the issuance
of Common Stock or rights or options under any of the Company's benefit plans
for its directors, officers, employees or other persons within the definition of
"employee" for purposes of a registration of shares for an employee benefit plan
of the Company, related to the issuance of Common Stock or rights under a
dividend reinvestment or stock purchase plan, or related to the issuance of
Common Stock (or securities convertible into or exchangeable for Common Stock)
as consideration in an acquisition transaction), (e) payments of accrued
dividends (and cash in lieu of fractional shares) upon conversion into Common
Stock of any convertible preferred stock of the Company of any series now or
hereinafter outstanding in accordance with the terms of such stock), if at such
time (x) there shall have occurred any event of which the Company has actual
knowledge that (A) with the giving of notice or the lapse of time or both, would
constitute an Event of Default with respect to the Securities of such series and
(B) in respect of which the Company shall not have taken reasonable steps to
cure, (y) if the Securities of such series are held by a Trust, the Company
shall be in default with respect to its payment of any obligations under the
Guarantee relating to the Preferred Securities issued by such Trust or (z) the
Company shall have given notice of its election to begin an Extension Period
with respect to the Securities of such series as provided herein and shall not
have rescinded such notice, or such Extension Period, or any extension thereof,
shall be continuing.
The Company also covenants with each Holder of Securities of a series
issued to a Trust (i) to maintain directly or indirectly 100% ownership of the
Common Securities of such Trust; provided, however, that any permitted successor
of the Company hereunder may succeed to the Company's ownership of such Common
Securities, (ii) not to voluntarily terminate, wind-up or liquidate such Trust,
except (a) in connection with a distribution of the Securities of such series to
the holders of the Trust Securities of such Trust in liquidation of such Trust
or (b) in connection with certain mergers, consolidations or amalgamations
permitted by the related Trust Agreement and (iii) to use its reasonable
efforts, consistent with the terms and provisions of the Trust Agreement, to
cause such Trust to remain classified as a grantor trust and not be taxable as a
corporation for United States federal income tax purposes.
Section 10.8. Limitation on Indebtedness.
If specified as contemplated by Section 2.1 or 3.1 with respect to the
Securities of a particular series, unless and until the Company reaches
Investment Grade Status, the Company and its Subsidiaries will not be permitted
to Incur any Debt unless, immediately after giving effect to the Incurrence of
such Debt and the receipt and application of the proceeds thereof, the
Consolidated Cash Flow Ratio for the four full fiscal quarters for which
quarterly or annual financial statements
80
are available next preceding the Incurrence of such Debt, calculated on a pro
forma basis as if such Debt had been Incurred at the beginning of such four full
fiscal quarters, would be greater than 1.5 to 1 for the period ending on the
first anniversary of the date of issuance of such Securities; 1.75 to 1 for the
period from the first anniversary of the date of issuance of such Securities and
ending on the second anniversary of the date of issuance of such Securities, and
2.0 to 1 thereafter; provided, however, that notwithstanding the foregoing
limitations, the Company may Incur Debt (x) of up to $75,000,000 under its
Credit Facility or any renewal, extension, refinancing or refunding thereof and
(y) of up to an amount equal to the aggregate principal amount of the Senior
Notes to the extent Incurred in connection with the refunding or refinancing
thereof, plus the amount of any premium required to be paid in connection
therewith and the reasonable expenses incurred in connection therewith. For
purposes of the foregoing, the Consolidated Cash Flow Ratio for any period from
January 1, 1997 to December 31, 1997, shall be calculated on an annualized basis
as follows: (i) at any time prior to the Company's financial statements for the
second fiscal quarter of 1997 being available, by annualizing the Company's
first 1997 fiscal quarter; (ii) at any time after the Company's financial
statements for the second fiscal quarter of 1997 are available and prior to the
Company's financial statements for the third fiscal quarter of 1997 being
available, by annualizing the Company's first and second 1997 fiscal quarters;
(iii) at any time thereafter and prior to the Company's 1997 results being
available, by annualizing the Company's first three 1997 fiscal quarters, and
(iv) with respect to any Person acquired by the Company or a Subsidiary of the
Company during such period, the Consolidated Cash Flow Ratio shall be calculated
utilizing financial information with respect to such Person for the four full
fiscal quarters for which quarterly or annual financial statements are available
next preceding the Incurrence of such Debt.
Section 10.10. Change of Control.
(a) If specified as contemplated by Section 2.1 or 3.1 with respect
to the Securities of a series, upon the occurrence of a Change of Control, each
Holder of Securities shall have the right, at such Holder's option, to require
the Company to repurchase the Securities of such Holder, and upon the exercise
of such right, the Company shall repurchase all of such Holder's Securities, or
any portion of the principal amount thereof, at a cash price equal to 101% of
the principal amount of the Securities subject to repurchase plus accrued and
unpaid interest (including Additional Interest, if any) thereon to the
Repurchase Date (subject to the right of Holders on the relevant record date to
receive interest due on the relevant interest payment date) (the "Repurchase
Price"); provided, however, that upon a repurchase in part of its Securities,
such Holder shall retain ownership of Securities having a minimum principal
amount of $100,000.
(b) Notice of a change of control (the "Change of Control Notice")
shall be given within five Business Days following the occurrence of a Change of
Control by the Company by first-class mail, postage prepaid, to each Holder of
Securities in the manner provided in Section 1.6, with a copy to the Trustee,
which Change of Control Notice shall state:
81
(1) that a Change of Control has occurred and that such Holder has
the right to require the Company to repurchase its Securities, in whole or in
part, at the Repurchase Price, as set forth in Section 10.10(a);
(2) the circumstances and relevant facts regarding such Change of
Control (including any relevant information with respect to the transaction
giving rise to such Change of Control);
(3) the Repurchase Date for the Securities (which shall be no earlier
than 35 days nor later than 60 days from the date such Change of Control Notice
is mailed);
(4) the date by which the repurchase right must be exercised;
(5) a description of the procedure which a Holder must follow to
exercise a repurchase right (as determined by the Company consistent with this
Section 10.10), and the place or places where such Securities are to be
surrendered for payment of the Repurchase Price and accrued interest, if any;
and
(6) that on the Repurchase Date, the Repurchase Price will become due
and payable upon each such Security (or portion thereof) designated by the
Holder for repurchase, and that interest thereon, if any, shall cease to accrue
on and after said date.
The Change of Control Notice shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company. The
Change of Control Notice if mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the Holder
receives such notice. No failure of the Company to give the foregoing notice or
defects therein shall limit any Holder's right to exercise a repurchase right or
affect the validity of the proceedings for the repurchase of Securities.
(c) Holders wishing to exercise their right to cause a repurchase of
Securities pursuant to this Section 10.10 ("Electing Holders") shall notify the
Trustee in writing (a "Repurchase Election") not later than 5:00 p.m. on the
30th day after the receipt of the Change of Control Notice of their election to
do so, which notice shall identify the Securities to be repurchased (including
CUSIP number, if a CUSIP number has been assigned to such Securities). Any
Repurchase Election shall be deemed irrevocable from the date it is made.
(d) Prior to 10:00 a.m. New York City time on the Repurchase Date
specified in the Change of Control Notice, the Company will deposit with the
Trustee or with one or more Paying Agents (or if the Company is acting as its
own Paying Agent, the Company will segregate and hold in trust as provided in
Section 10.3) an amount of money sufficient to pay the Repurchase Price of all
the Securities which are to be repurchased on that date and will give such
Trustee or Paying Agent irrevocable instructions and authority to pay such
Repurchase Price to the Electing Holders hereof. In the event that the
Repurchase Date is not a Business Day, then payment of the Repurchase Price
82
will be made on the next succeeding day which is a Business Day (and without any
interest or other payment in respect of any such delay), except that, if such
Business Day falls in the next calendar year, such payment will be made on the
immediately preceding Business Day, in each case with the same force and effect
as if made on such date. Payment of the Repurchase Price on the Securities of
Electing Holders shall be made to the applicable Record holders thereof as they
appear on the Securities Register for such Securities on the relevant record
date, which shall be one Business Day prior to the relevant Repurchase Date.
(e) If any Repurchase Elections have been made, the Securities or
portion of Securities subject to such Repurchase Elections shall become due and
payable on the date and at the place or places stated in the Change of Control
Notice at the Repurchase Price. On presentation and surrender of such Securities
as set forth in (g) below, at the Place of Payment specified in said notice,
such Securities or specified portions thereof shall be paid and repurchased by
the Company at the Repurchase Price; provided, however, that, unless otherwise
specified as contemplated by Section 3.1, installments of interest whose Stated
Maturity is on or prior to the Repurchase Date will be payable to the Holders of
such Securities, or one or more Predecessor Securities, registered as such at
the close of business on the relevant Record Dates according to their terms and
the provisions of Section 3.7.
(f) Upon presentation of any Security repurchased in part only, the
Company shall execute and the Trustee shall authenticate and make available for
delivery to the Holder thereof, at the expense of the Company, a new Security or
Securities of the same series, of authorized denominations, in aggregate
principal amount equal to the non-repurchased portion of the Security so
presented and having the same Original Issue Date, Stated Maturity and terms. If
a Global Security is so surrendered, such new Security will also be a new Global
Security.
(g) If any Security (or portion thereof) elected for repurchase shall
not be so paid upon surrender thereof for repurchase, the principal of and
premium, if any, on such Security (or portion thereof) shall, until paid, bear
interest from the Repurchase Date at the rate borne by the Security. Holders
whose Securities are being repurchased hereunder will be required to surrender
the Securities, with an appropriate form duly completed, to the Company at the
address specified in the Change of Control Notice at least three Business Days
prior to the Repurchase Date.
(h) The Company shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of Securities pursuant to this
Section. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this Section, the Company shall comply
with the applicable securities laws and regulations and shall not be deemed to
have breached its obligation under this Section by virtue thereof.
83
ARTICLE XI
RESERVE ACCOUNT
Section 11.1. Establishment of the Reserve Account.
If specified as contemplated by Section 2.1 or 3.1 with respect to the
Securities of a series, the Company shall pay an amount equal to the interest
payable on the first two Interest Payment Dates in respect of the Securities of
such series from the net proceeds from the sale of the Securities of such series
into an account (the "Reserve Account") to be established by the Trustee and
maintained separately from the funds it holds pursuant to this Indenture, the
amounts in which shall be applied by the Trustee to pay interest on the
Securities on the first two Interest Payment Dates for the Securities and no
other use shall be made of such Reserve Account funds except as set forth in
Section 11.2. No further amounts will be required to be paid into the Reserve
Account. The Trustee shall have exclusive control and sole right of withdrawal
with respect to the Reserve Account funds for the purpose of making deposits in
and withdrawals from the Reserve Account in accordance with this Indenture. All
funds deposited in the Reserve Account shall be held by the Trustee in the
Reserve Account on behalf of the Company for the benefit of the Holders and for
distribution as herein provided only. The Reserve Account shall be closed by
the Trustee upon the payment of the interest on the Securities on the second
Interest Payment Date and any amounts then remaining in the Reserve Account
after payment in full of all amounts due and payable in respect of the
Securities on the first two Interest Payment Dates shall be returned to the
Company. In the event of the distribution of the Securities to the holders of
the Preferred Securities and Common Securities in liquidation of the Trust, any
amounts then remaining in the Reserve Account shall be remitted to the Company.
Section 11.2. Investment of Funds in the Reserve Account.
Funds on deposit in the Reserve Account may be invested at the
direction of the Company, as set forth in written instructions to the Trustee
executed by the President or any Vice President of the Company whose signatures
shall have been attested to by the Secretary or an Assistant Secretary of the
Company, in (a) obligations issued or guaranteed by the United States or any
agency or instrumentality thereof, (b) certificates of deposit of or accounts
with national banks or corporations endowed with trust powers having capital and
surplus in excess of $100,000,000; (c) commercial paper of the highest rating
available for S&P or Xxxxx'x or (d) fixed-income securities of the three highest
ratings available from S&P or Xxxxx'x or of comparable quality having a maturity
of five years or less. All interest and other amounts earned upon such
investments shall be for the account of the Company and the holders of the
Preferred Securities, the Trust and the Trustee shall have no right or interest
therein.
84
ARTICLE XII
REDEMPTION OF SECURITIES
Section 12.1. Applicability of This Article.
Redemption of Securities of any series as permitted or required by any
form of Security issued pursuant to this Indenture shall be made in accordance
with such form of Security and this Article; provided, however, that if any
provision of any such form of Security shall conflict with any provision of this
Article, the provision of such form of Security shall govern. Except as
otherwise set forth in the form of Security for such series, each Security of
such series shall be subject to partial redemption only in the amount of $1,000
or, in the case of the Securities of a series issued to the Trust, $1,000 or
integral multiples thereof.
Section 12.2. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by or pursuant to a Board Resolution. In case of any redemption at the
election of the Company of the Securities, the Company shall, not less than 45
nor more than 60 days prior to the Redemption Date (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee of such date and of
the principal amount of Securities of that series to be redeemed. In the case of
any redemption of Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Securities, the Company shall furnish
the Trustee with an Officers' Certificate and an Opinion of Counsel evidencing
compliance with such restriction.
Section 12.3. Selection of Securities to be Redeemed.
If less than all the Securities of any series are to be redeemed
(unless all the Securities of a specified tenor are to be redeemed or unless
such redemption affects only a single Security), the particular Securities to be
redeemed shall be selected not more than 60 days prior to the Redemption Date by
the Trustee, from the Outstanding Securities of such series not previously
called for redemption, by lot or such other method as the Trustee shall deem
fair and appropriate and which may provide for the selection for redemption of a
portion of the principal amount of any Security of such series, provided that
the unredeemed portion of the principal amount of any Security shall be in an
authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security. If less than all the Securities of such series
and of a specified tenor are to be redeemed (unless such redemption affects only
a single Security), the particular Securities to be redeemed shall be selected
not more than 60 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities of such series and specified tenor not previously called
for redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of the
Securities selected for partial redemption and the principal amount thereof to
be redeemed. For all purposes of this
85
Indenture, unless the context otherwise requires, all provisions relating to the
redemption of Securities shall relate, in the case of any Security redeemed or
to be redeemed only in part, to the portion of the principal amount of such
Security which has been or is to be redeemed. If the Company shall so direct,
Securities registered in the name of the Company, any Affiliate or any
Subsidiary thereof shall not be included in the Securities selected for
redemption.
Section 12.4. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not later than the thirtieth day, and not earlier than the
sixtieth day, prior to the Redemption Date, to each Holder of Securities to be
redeemed, at the address of such Holder as it appears in the Securities
Register.
With respect to Securities of each series to be redeemed, each notice
of redemption shall identify the Securities to be redeemed (including CUSIP
number, if a CUSIP number has been assigned to such Securities of such Series)
and shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all Outstanding Securities of such particular series
and having the same terms are to be redeemed, the identification (and, in the
case of partial redemption, the respective principal amounts) of the particular
Securities to be redeemed;
(d) that on the Redemption Date, the Redemption Price will become due
and payable upon each such Security or portion thereof, and that interest
thereon, if any, shall cease to accrue on and after said date; and
(e) the place or places where such Securities are to be surrendered
for payment of the Redemption Price.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company and shall not be
irrevocable. The notice if mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the Holder
receives such notice. In any case, a failure to give such notice by mail or any
defect in the notice to the Holder of any Security designated for redemption as
a whole or in part shall not affect the validity of the proceedings for the
redemption of any other Security.
Section 12.5. Deposit of Redemption Price.
Prior to 10:00 a.m. New York City time on the Redemption Date
specified in the notice of redemption given as provided in Section 12.4, the
Company will deposit with the Trustee or with
86
one or more Paying Agents (or if the Company is acting as its own Paying Agent,
the Company will segregate and hold in trust as provided in Section 10.3) an
amount of money sufficient to pay the Redemption Price of, and any accrued
interest (including Additional Interest) on, all the Securities which are to be
redeemed on that date.
Section 12.6. Payment of Securities Called for Redemption.
If any notice of redemption has been given as provided in Section
12.4, the Securities or portion of Securities with respect to which such notice
has been given shall become due and payable on the date and at the place or
places stated in such notice at the applicable Redemption Price. On presentation
and surrender of such Securities at a Place of Payment in said notice specified,
the said securities or the specified portions thereof shall be paid and redeemed
by the Company at the applicable Redemption Price, together with accrued
interest (including any Additional Interest) to the Redemption Date; provided,
however, that, unless otherwise specified as contemplated by Section 3.1,
installments of interest whose Stated Maturity is on or prior to the Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section
3.7.
Upon presentation of any Security redeemed in part only, the Company
shall execute and the Trustee shall authenticate and make available for delivery
to the Holder thereof, at the expense of the Company, a new Security or
Securities of the same series, of authorized denominations, in aggregate
principal amount equal to the unredeemed portion of the Security so presented
and having the same Original Issue Date, Stated Maturity and terms. If a Global
Security is so surrendered, such new Security will also be a new Global
Security.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal of and premium, if any, on such
Security shall, until paid, bear interest from the Redemption Date at the rate
prescribed therefor in the Security.
Section 12.7. Right of Redemption of Securities.
Except as otherwise established pursuant to Section 3.1 for the
Securities of a series, the Company, at its option, may redeem (A) the
Securities of any series, in whole (but not in part), upon the occurrence and
during the continuation of a Tax Event, at any time within 90 days of the
occurrence of such Tax Event, at a Redemption Price equal to 100% of the
principal amount thereof, plus accrued and unpaid interest, including Additional
Interest, if any, to but excluding the Redemption Date, or (B) the Securities of
any series, on or after ten years after the Original Issue Date of such
Securities, in whole at any time or in part from time to time at a Redemption
Price as provided pursuant to Section 3.1 for the Securities of such series.
87
ARTICLE XIII
SUBORDINATION OF SECURITIES
Section 13.1. Securities Subordinate to Senior Indebtedness.
The Company covenants and agrees, and each Holder of a Security, by
its acceptance thereof, likewise covenants and agrees, that, to the extent and
in the manner hereinafter set forth in this Article, the payment of the
principal of (and premium, if any) and interest (including any Additional
Interest) on each and all of the Securities are hereby expressly made
subordinate and subject in right of payment to the prior payment in full of all
Senior Indebtedness.
Section 13.2. No Payment When Senior Indebtedness in Default; Payment
Over of Proceeds Upon Dissolution, Etc.
In the event that the Company shall default in the payment of any
principal of (or premium, if any) or interest on or any amount in respect of any
Senior Indebtedness when the same becomes due and payable, whether at maturity
or at a date fixed for prepayment or by declaration of acceleration or
otherwise, then, upon written notice of such default to the Company by the
holders of Senior Indebtedness or any trustee therefor, unless and until such
default shall have been cured or waived or shall have ceased to exist, no direct
or indirect payment (in cash, property, securities, by set-off or otherwise)
shall be made or agreed to be made on account of the principal of (or premium,
if any) or interest on any of the Securities, or in respect of any redemption,
repayment, retirement, purchase or other acquisition of any of the Securities.
In the event of (a) any insolvency, bankruptcy, receivership,
liquidation, reorganization, readjustment, composition or other similar
proceedings relating to the Company, its creditors or its property, (b) any
proceeding for the liquidation, dissolution or other winding up of the Company,
voluntary or involuntary, whether or not involving insolvency or bankruptcy
proceedings, (c) any assignment by the Company for the benefit of creditors or
(d) any other marshaling of the assets of the Company (each such event, if any,
herein sometimes referred to as a "Proceeding"), all Senior Indebtedness
(including any interest thereon accruing after the commencement of any such
proceedings) shall first be paid in full before any payment or distribution,
whether in cash, securities or other property, shall be made to any Holder of
any of the Securities on account thereof. Any payment or distribution, whether
in cash, securities or other property (other than securities of the Company or
any other corporation provided for by a plan of reorganization or readjustment
the payment of which is subordinate, at least to the extent provided in these
subordination provisions with respect to the indebtedness evidenced by the
Securities, to the payment of all Senior Indebtedness at the time outstanding
and to any securities issued in respect thereof under any such plan of
reorganization or readjustment), which would otherwise (but for these
subordination provisions) be payable or deliverable in respect of the Securities
of any series, shall be paid or delivered directly to the holders of Senior
Indebtedness in accordance with the priorities then
88
existing among such holders until all Senior Indebtedness (including any
interest thereon accruing after the commencement of any Proceeding) shall have
been paid in full.
In the event of any Proceeding, after payment in full of all sums
owing with respect to Senior Indebtedness, the Holders of the Securities,
together with the holders of any obligations of the Company ranking on a parity
with the Securities (which for this purpose only shall include the Allocable
Amounts of Senior Subordinated Debt), shall be entitled to be paid from the
remaining assets of the Company the amounts at the time due and owing on account
of unpaid principal of (and premium, if any) and interest on the Securities and
such other obligations before any payment or other distribution, whether in
cash, property or otherwise, shall be made on account of any capital stock or
any obligations of the Company ranking junior to the Securities and such other
obligations.
In the event that, notwithstanding the foregoing, any payment or
distribution of any character or any security, whether in cash, securities or
other property (other than securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment the payment of which is
subordinate, at least to the extent provided in these subordination provisions
with respect to the indebtedness evidenced by the Securities, to the payment of
all Senior Indebtedness at the time outstanding and to any securities issued in
respect thereof under any such plan of reorganization or readjustment), shall be
received by the Trustee or any Holder in contravention of any of the terms
hereof and before all Senior Indebtedness shall have been paid in full, such
payment or distribution or security shall be received in trust for the benefit
of, and shall be paid over or delivered and transferred to, the holders of the
Senior Indebtedness at the time outstanding in accordance with the priorities
then existing among such holders for application to the payment of all Senior
Indebtedness remaining unpaid, to the extent necessary to pay all such Senior
Indebtedness in full. In the event of the failure of the Trustee or any Holder
to endorse or assign any such payment, distribution or security, each holder of
Senior Indebtedness is hereby irrevocably authorized to endorse or assign the
same.
The Trustee and Holders will take such action (including, without
limitation, the delivery of this Indenture to an agent for the holders of Senior
Indebtedness or consent to the filing of a financing statement with respect
hereto) as may, in the opinion of counsel designated by the holders of a
majority in principal amount of the Senior Indebtedness at the time outstanding,
be necessary or appropriate to assure the effectiveness of the subordination
effected by these provisions.
The provisions of this Section 13.2 shall not impair any rights,
interests, remedies or powers of any secured creditor of the Company in respect
of any security interest the creation of which is not prohibited by the
provisions of this Indenture.
The securing of any obligations of the Company, otherwise ranking on a
parity with the Securities or ranking junior to the Securities, shall not be
deemed to prevent such obligations from constituting, respectively, obligations
ranking on a parity with the Securities or ranking junior to the Securities.
89
Section 13.3. Payment Permitted If No Default.
Nothing contained in this Article or elsewhere in this Indenture, or
in any of the Securities, shall prevent (a) the Company at any time, except
during the conditions described in the first paragraph of Section 13.2 or the
pendency of any Proceeding referred to in Section 13.2, from making payments at
any time of principal of (and premium, if any) or interest (including Additional
Interest) on the Securities, or (b) the application by the Trustee of any moneys
deposited with it hereunder to the payment of or on account of the principal of
(and premium, if any) or interest (including any Additional Interest) on the
Securities or the retention of such payment by the Holders, if, at the time of
such application by the Trustee, it did not have knowledge that such payment
would have been prohibited by the provisions of this Article.
Section 13.4. Subrogation to Rights of Holders of Senior Indebtedness.
Subject to the payment in full of all amounts due or to become due on
all Senior Indebtedness, or the provision for such payment in cash or cash
equivalents or otherwise in a manner satisfactory to the holders of Senior
Indebtedness, the Holders of the Securities shall be subrogated to the extent of
the payments or distributions made to the holders of such Senior Indebtedness
pursuant to the provisions of this Article (equally and ratably with the holders
of all indebtedness of the Company which by its express terms is subordinated to
Senior Indebtedness of the Company to substantially the same extent as the
Securities are subordinated to the Senior Indebtedness and is entitled to like
rights of subrogation by reason of any payments or distributions made to holders
of such Senior Indebtedness) to the rights of the holders of such Senior
Indebtedness to receive payments and distributions of cash, property and
securities applicable to the Senior Indebtedness until the principal of (and
premium, if any) and interest on the Securities shall be paid in full. For
purposes of such subrogation, no payments or distributions to the holders of the
Senior Indebtedness of any cash, property or securities to which the Holders of
the Securities or the Trustee would be entitled except for the provisions of
this Article, and no payments over pursuant to the provisions of this Article to
the holders of Senior Indebtedness by Holders of the Securities or the Trustee,
shall, as among the Company, its creditors other than holders of Senior
Indebtedness, and the Holders of the Securities, be deemed to be a payment or
distribution by the Company to or on account of the Senior Indebtedness.
Section 13.5. Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended solely for the
purpose of defining the relative rights of the Holders of the Securities on the
one hand and the holders of Senior Indebtedness on the other hand. Nothing
contained in this Article or elsewhere in this Indenture or in the Securities is
intended to or shall (a) impair, as between the Company and the Holders of the
Securities, the obligations of the Company, which are absolute and
unconditional, to pay to the Holders of the Securities the principal of (and
premium, if any) and interest (including any Additional Interest) on the
Securities as and when the same shall become due and payable in accordance with
their terms; or (b) affect the relative rights against the Company of the
Holders of
90
the Securities and creditors of the Company other than their rights in relation
to the holders of Senior Indebtedness; or (c) prevent the Trustee or the Holder
of any Security from exercising all remedies otherwise permitted by applicable
law upon default under this Indenture including, without limitation, filing and
voting claims in any Proceeding, subject to the rights, if any, under this
Article of the holders of Senior Indebtedness to receive cash, property and
securities otherwise payable or deliverable to the Trustee or such Holder.
Section 13.6. Trustee to Effectuate Subordination.
Each Holder of a Security by his or her acceptance thereof authorizes
and directs the Trustee on his or her behalf to take such action as may be
necessary or appropriate to acknowledge or effectuate the subordination provided
in this Article and appoints the Trustee his or her attorney-in-fact for any and
all such purposes.
Section 13.7. No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof that any such holder may have or
be otherwise charged with.
Without in any way limiting the generality of the immediately
preceding paragraph, the holders of Senior Indebtedness may, at any time and
from to time, without the consent of or notice to the Trustee or the Holders of
the Securities, without incurring responsibility to the Holders of the
Securities and without impairing or releasing the subordination provided in this
Article or the obligations hereunder of the Holders of the Securities to the
holders of 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, Senior Indebtedness, or otherwise amend or supplement in any manner
Senior Indebtedness or any instrument evidencing the same or any agreement under
which Senior Indebtedness is outstanding; (ii) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing Senior
Indebtedness; (iii) release any Person liable in any manner for the collection
of Senior Indebtedness; and (iv) exercise or refrain from exercising any rights
against the Company and any other Person.
Section 13.8. Notice to Trustee.
The Company shall give prompt written notice to the Trustee of any
fact known to the Company which would prohibit the making of any payment to or
by the Trustee in respect of the Securities. Notwithstanding the provisions of
this Article or any other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which would prohibit the
making of any payment to or by the Trustee in respect of the Securities, unless
and until the Trustee shall have received written notice thereof from the
Company or a holder of Senior
91
Indebtedness or from any trustee, agent or representative therefor; provided,
however, that if the Trustee shall not have received the notice provided for in
this Section at least two Business Days prior to the date upon which by the
terms hereof any monies may become payable for any purpose (including, without
limitation, the payment of the principal of (and premium, if any) or interest
(including any Additional Interest) on any Security), then, anything herein
contained to the contrary notwithstanding, the Trustee shall have full power and
authority to receive such monies and to apply the same to the purpose for which
they were received and shall not be affected by any notice to the contrary which
may be received by it within two Business Days prior to such date.
Subject to the provisions of Section 6.1, the Trustee shall be
entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Indebtedness (or a trustee or
attorney-in-fact therefor) to establish that such notice has been given by a
holder of Senior Indebtedness (or a trustee or attorney-in-fact therefor). In
the event that the Trustee determines in good faith that further evidence is
required with respect to the right of any Person as a holder of Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
such Person under this Article, and if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.
Section 13.9. Reliance on Judicial Order or Certificate of Liquidating
Agent.
Upon any payment or distribution of assets of the Company referred to
in this Article, the Trustee, subject to the provisions of Section 6.1, and the
Holders of the Securities shall be entitled to rely upon any order or decree
entered by any court of competent jurisdiction in which such Proceeding is
pending, or a certificate of the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee for the benefit of creditors, agent or other Person
making such payment or distribution, delivered to the Trustee or to the Holders
of Securities, for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of the Senior
Indebtedness and other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article.
Section 13.10. Trustee Not Fiduciary for Holders of Senior
Indebtedness.
The Trustee, in its capacity as trustee under this Indenture, shall
not be deemed to owe any fiduciary duty to the holders of Senior Indebtedness
and shall not be liable to any such holders if it shall in good faith mistakenly
pay over or distribute to Holders of Securities or to the Company or to any
other Person cash, property or securities to which any holders of Senior
Indebtedness shall be entitled by virtue of this Article or otherwise. With
respect to the Holders of Senior Indebtedness, the Trustee undertakes to perform
or to observe only such of its covenants or obligations as are
92
specifically set forth in this Article and no implied covenants or obligations
with respect to Holders of Senior Indebtedness shall be read into this Indenture
against the Trustee.
Section 13.11. Rights of Trustee as Holder of Senior Indebtedness;
Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article with respect to any Senior Indebtedness which
may at any time be held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of
its rights as such holder.
Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 6.7.
Section 13.12. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article shall in such case (unless the context otherwise
requires) be construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article in addition to or in place of the Trustee.
93
* * * *
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and Integon Corporation has caused its corporate seal to be
hereunder affixed and attested, all as of the day and year first above written.
Integon Corporation
By:/s/ Xxxx X. Xxxxx
--------------------------
Name: Xxxx X. Xxxxx
Title: Vice President, Corporate
General Counsel & Secretary
First Union National Bank of North Carolina
as Trustee
By:/s/ Xxxxx X. Xxxxxxxx
--------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Asst. Vice President
94
STATE OF )
): ss.:
COUNTY OF )
On the ___ day of February, 1997, before me personally came
Xxxx X. Xxxxx, to me known, who, being by me duly sworn, did depose and say that
he/she is of Integon Corporation, one of the corporations described in and which
executed the foregoing instrument; that he/she knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation; and that he/she signed his/her name thereto by like authority.
--------------------------------------
Notary Public
STATE OF )
): ss.:
COUNTY OF )
On the 7th day of February, 1997, before me personally came
________________________________________________________________________________
_____________________________________, to me known, who, being by me duly sworn,
did depose and say that he/she is
________________________________________________________________________________
_ of First Union National Bank of North Carolina, one of the corporations
described in and which executed the foregoing instrument; that he/she signed
his/her name thereto pursuant to the bylaws of said Corporation.
--------------------------------------
Notary Public
