Exhibit 4.23
Debt Securities
INDENTURE
Dated as of , 2004
By and Among
TSFG Capital [A], [B], [C], [D] LLC, the Issuer
The South Financial Group, Inc., Guarantor
The Bank of New York Trust Company, N.A., Trustee
THE SOUTH FINANCIAL GROUP, INC.
Reconciliation and tie between Trust Indenture Act of 1939 and
Indenture, dated as of [____________]
TIA Indenture
Section Section
--------- ------------
ss. 310 (a)(1).............................................................. 709
(a)(2).............................................................. 709
(a)(3).............................................................. Not Applicable
(a)(4).............................................................. Not Applicable
(a)(5).............................................................. 709
(b)................................................................. 708, 710
ss. 311 (a)................................................................. 713
(b)................................................................. 713
ss. 312 (a)................................................................. 801, 802(a)
(b)................................................................. 802(b)
(c)................................................................. 802(c)
ss. 313 (a)................................................................. 803(a)
(b)................................................................. 803(a)
(c)................................................................. 803(a)
(d)................................................................. 803(b)
ss. 314 (a)................................................................. 804, 1104
(b)................................................................. Not Applicable
(c)(1).............................................................. 102
(c)(2).............................................................. 102
(c)(3).............................................................. Not Applicable
(d)................................................................. Not Applicable
(e)................................................................. 102
ss. 315 (a)................................................................. 701
(b)................................................................. 702
(c)................................................................. 701
(d)................................................................. 701
(e)................................................................. 614
ss. 316 (a)................................................................. 101
(a)(1)(A)........................................................... 104(h), 602, 612
(a)(1)(B)........................................................... 104(h), 613
(a)(2).............................................................. Not Applicable
(b)................................................................. 608
(c)................................................................. 104(h)
ss. 317 (a)(l).............................................................. 603
(a)(2).............................................................. 604
(b)................................................................. 1103
ss. 318 (a)................................................................. 107
ss. 318 (c)................................................................. 107
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Indenture.
i
Table of Contents
ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION......................................1
Section 101. Definitions............................................................................1
Section 102. Compliance Certificates and Opinions..................................................11
Section 103. Form of Documents Delivered to Trustee................................................12
Section 104. Acts of Holders.......................................................................12
Section 105. Notices, etc., to Trustee, Company and Guarantor......................................14
Section 106. Notice to Holders; Waiver.............................................................14
Section 107. Conflict with Trust Indenture Act.....................................................15
Section 108. Effect of Headings and Table of Contents..............................................15
Section 109. Successors and Assigns................................................................15
Section 110. Separability Clause...................................................................15
Section 111. Benefits of Indenture.................................................................15
Section 112. Governing Law.........................................................................16
Section 113. Legal Holidays........................................................................16
Section 114. Counterparts..........................................................................16
ARTICLE II DEBT SECURITY FORMS..........................................................................16
Section 201. Forms Generally.......................................................................16
Section 202. Form of Trustee's Certificate of Authentication.......................................17
Section 203. Debt Securities in Global Form........................................................17
ARTICLE III THE DEBT SECURITIES.........................................................................17
Section 301. Amount Unlimited; Issuance in Series..................................................17
Section 302. Denominations.........................................................................21
Section 303. Execution, Authentication, Delivery and Dating........................................21
Section 304. Temporary Debt Securities.............................................................24
Section 305. Registration; Registration of Transfer and Exchange...................................26
Section 306. Mutilated, Destroyed, Lost and Stolen Debt Securities.................................29
Section 307. Payment of Interest and Additional Interest; Interest Rights Preserved................30
Section 308. Persons Deemed Owners.................................................................32
Section 309. Cancellation..........................................................................32
Section 310. Computation of Interest...............................................................33
Section 311. Certification by a Person Entitled to Delivery of a Bearer Security...................33
Section 312. Judgments.............................................................................33
Section 313. Deferrals of Interest Payment Dates...................................................33
Section 314. Right of Set-Off......................................................................34
Section 315. Agreed Tax Treatment..................................................................34
Section 316. CUSIP Numbers.........................................................................34
ARTICLE IV GUARANTEE OF SECURITIES......................................................................35
Section 401. Unconditional Guarantee...............................................................35
Section 402. Execution of Guarantee................................................................36
ARTICLE V SATISFACTION AND DISCHARGE....................................................................36
Section 501. Satisfaction and Discharge of Indenture...............................................36
Section 502. Application of Trust Money and Eligible Instruments...................................37
Section 503. Satisfaction, Discharge and Defeasance of Debt Securities of any Series...............38
ARTICLE VI REMEDIES.....................................................................................40
Section 601. Events of Default.....................................................................40
Section 602. Acceleration of Maturity; Rescission and Annulment....................................41
Section 603. Collection of Indebtedness and Suits for Enforcement by Trustee.......................42
Section 604. Trustee May File Proofs of Claim......................................................43
Section 605. Trustee May Enforce Claims without Possession of Debt Securities or Coupons...........43
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Section 606. Application of Money Collected........................................................44
Section 607. Limitation on Suits...................................................................44
Section 608. Unconditional Right of Holders to Receive Principal, Premium and Interest and to
Exchange Debt Securities for Capital Securities; Direct Action by Holders of
Capital Trust Securities..............................................................45
Section 609. Restoration of Rights and Remedies....................................................45
Section 610. Rights and Remedies Cumulative........................................................45
Section 611. Delay or Omission Not Waiver..........................................................46
Section 612. Control by Holders of Debt Securities.................................................46
Section 613. Waiver of Past Defaults...............................................................46
Section 614. Undertaking for Costs.................................................................47
Section 615. Waiver of Stay or Extension Laws......................................................47
ARTICLE VII THE TRUSTEE.................................................................................47
Section 701. Certain Duties and Responsibilities...................................................47
Section 702. Notice of Default.....................................................................48
Section 703. Certain Rights of Trustee.............................................................48
Section 704. Not Responsible for Recitals or Issuance of Debt Securities...........................49
Section 705. May Hold Debt Securities or Coupons...................................................49
Section 706. Money Held in Trust...................................................................50
Section 707. Compensation and Reimbursement........................................................50
Section 708. Disqualification; Conflicting Interests...............................................50
Section 709. Corporate Trustee Required; Eligibility...............................................51
Section 710. Resignation and Removal; Appointment of Successor.....................................51
Section 711. Acceptance of Appointment by Successor................................................53
Section 712. Merger, Conversion, Consolidation or Succession to Business...........................54
Section 713. Preferential Collection of Claims Against Company and the Guarantor...................54
Section 714. Authenticating Agent..................................................................54
ARTICLE VIII HOLDERS' LISTS AND REPORTS BY TRUSTEE, COMPANY AND GUARANTOR...............................55
Section 801. Company and Guarantor to Furnish Trustee Names and Addresses of Holders...............55
Section 802. Preservation of Information; Communications to Holders................................56
Section 803. Reports by Trustee....................................................................56
Section 804. Reports by Company and Guarantor......................................................56
ARTICLE IX CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE.........................................57
Section 901. Company May Consolidate, etc. Only on Certain Terms...................................57
Section 902. Successor Corporation Substituted for Company.........................................58
Section 903. Guarantor May Consolidate, etc. Only on Certain Terms.................................58
Section 904. Successor Corporation Substituted for Guarantor.......................................58
ARTICLE X SUPPLEMENTAL INDENTURES.......................................................................59
Section 1001. Supplemental Indentures without Consent of Holders....................................59
Section 1002. Supplemental Indentures with Consent of Holders.......................................60
Section 1003. Execution of Supplemental Indentures..................................................62
Section 1004. Effect of Supplemental Indentures.....................................................62
Section 1005. Conformity with Trust Indenture Act...................................................62
Section 1006. Reference in Debt Securities to Supplemental Indentures...............................62
ARTICLE XI COVENANTS....................................................................................62
Section 1101. Payment of Principal, Premium and Interest............................................62
Section 1102. Maintenance of Office or Agency.......................................................63
Section 1103. Money for Debt Securities Payments to Be Held in Trust................................64
Section 1104. Officers' Certificate as to Default...................................................65
Section 1105. Waiver of Certain Covenants...........................................................65
Section 1106. Payment of Additional Amounts.........................................................66
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Section 1107. Additional Sums.......................................................................66
Section 1108. Additional Covenants of the Guarantor.................................................67
ARTICLE XII REDEMPTION OF DEBT SECURITIES...............................................................68
Section 1201. Applicability of Article..............................................................68
Section 1202. Election to Redeem; Notice to Trustee.................................................68
Section 1203. Selection by Trustee of Debt Securities to be Redeemed................................69
Section 1204. Notice of Redemption..................................................................69
Section 1205. Deposit of Redemption Price...........................................................70
Section 1206. Debt Securities Payable on Redemption Date............................................70
Section 1207. Debt Securities Redeemed in Part......................................................71
Section 1208. Right of Redemption of Debt Securities Initially Issued to an Issuer Trust............71
ARTICLE XIII SINKING FUNDS..............................................................................71
Section 1301. Applicability of Article..............................................................71
Section 1302. Satisfaction of Sinking Fund Payments with Debt Securities............................72
Section 1303. Redemption of Debt Securities for Sinking Fund........................................72
ARTICLE XIV REPAYMENT AT THE OPTION OF HOLDERS..........................................................73
Section 1401. Applicability of Article..............................................................73
Section 1402. Repayment of Debt Securities..........................................................73
Section 1403. Exercise of Option; Notice............................................................73
Section 1404. Election of Repayment by Remarketing Entities.........................................74
Section 1405. Securities Payable on the Repayment Date..............................................74
ARTICLE XV EXCHANGE OF CAPITAL SECURITIES FOR DEBT SECURITIES...........................................74
Section 1501. Applicability of Article..............................................................74
Section 1502. Exchange of Capital Securities for Debt Securities at Stated Maturity.................75
Section 1503. Right of Early Exchange of Capital Securities for Debt Securities.....................75
Section 1504. Notices of Exchange...................................................................76
Section 1505. Rights and Duties of Holders of Debt Securities to be Exchanged for Capital
Securities............................................................................77
Section 1506. Election to Exchange..................................................................79
Section 1507. Deposit of Capital Exchange Price.....................................................79
Section 1508. Debt Securities Due on Capital Exchange Date; Debt Securities Exchanged in Part.......79
Section 1509. Form of Capital Security Election Form................................................80
Section 1510. Fractional Capital Securities.........................................................81
Section 1511. Company to Obtain Governmental and Regulatory Approvals...............................81
Section 1512. Taxes on Exchange.....................................................................81
Section 1513. Covenants as to Capital Securities and Secondary Offering.............................81
Section 1514. Provision in Case of Consolidation, Merger or Transfer of Assets......................82
Section 1515. Trustee Not Responsible...............................................................82
Section 1516. Revocation of Obligation to Exchange Capital Securities for Debt Securities...........83
Section 1517. Optional Securities Funds.............................................................83
ARTICLE XVI SECURITIES FUNDS............................................................................84
Section 1601. Creation of Securities Funds..........................................................84
Section 1602. Designations of Securities Funds......................................................84
Section 1603. Covenant of the Company to Obtain Securities Funds....................................85
ARTICLE XVII MEETINGS OF HOLDERS OF DEBT SECURITIES.....................................................85
Section 1701. Purposes for Which Meetings May Be Called.............................................85
Section 1702. Call, Notice and Place of Meetings....................................................86
Section 1703. Persons Entitled to Vote at Meetings..................................................86
Section 1704. Quorum; Action........................................................................86
Section 1705. Determination of Voting Rights; Conduct and Adjournment of Meetings...................87
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Section 1706. Counting Votes and Recording Action of Meetings.......................................88
ARTICLE XVIII DEFEASANCE................................................................................88
Section 1801. Termination of Company's and Guarantor's Obligations..................................88
Section 1802. Repayment to Company..................................................................89
Section 1803. Indemnity for Eligible Instruments....................................................89
ARTICLE XIX SUBORDINATION OF GUARANTEES.................................................................90
Section 1901. Guarantees Subordinate to Senior Debt of Guarantor....................................90
Section 1902. Trustee and Holders of Debt Securities May Rely on Certificate of Liquidating Agent;
Trustee May Require Further Evidence as to Ownership of Senior Debt of the Guarantor..92
Section 1903. Payment Permitted If No Default.......................................................92
Section 1904. Trustee Not Charged with Knowledge of Prohibition.....................................93
Section 1905. Trustee to Effectuate Subordination...................................................93
Section 1906. Rights of Trustee as Holder of Senior Debt of the Guarantor...........................93
Section 1907. Article Applicable to Paying Agents...................................................93
Section 1908. Subordination Rights Not Impaired by Acts or Omissions of the Company of the Guarantor
or Holders of Senior Debt of the Guarantor............................................93
Section 1909. Trustee Not Fiduciary for Holders of Senior Debt of Guarantor.........................94
ARTICLE XX CONVERSION OF CONVERTIBLE SECURITIES.........................................................94
Section 2001. Applicability of Article..............................................................94
Section 2002. Right to Convert......................................................................94
Section 2003. Exercise of Conversion Privilege; Delivery of Common Stock on Conversion; No
Adjustment for Interest or Dividends..................................................94
Section 2004. Cash Payments in Lieu of Fractional Shares............................................96
Section 2005. Conversion Price......................................................................96
Section 2006. Adjustment to Conversion Price........................................................96
Section 2007. Effect of Reclassification, Consolidation, Merger, Sale or Share Exchange.............99
Section 2008. Taxes on Shares Issued...............................................................100
Section 2009. Shares to be Fully Paid; Compliance with Governmental Requirements; Listing of
Common Stock.........................................................................100
Section 2010. Trustee Not Responsible..............................................................100
Section 2011. Notice to Holders Prior to Certain Actions...........................................101
Section 2012. Covenant to Reserve Shares...........................................................101
[ARTICLE XXI][REPAYMENT AT OPTION OF HOLDERS UPON A CHANGE OF CONTROL].................................102
[ARTICLE XXII] [CONTINGENT DISTRIBUTIONS]..............................................................102
[ARTICLE XXIII] [CONTINGENT ACCRETIONS]................................................................102
[ARTICLE XXIV] [RESET AND REMARKETING].................................................................102
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INDENTURE (the "Indenture") dated as of , 2004 among TSFG Capital [A],
[B], [C], [D] LLC, a limited liability company formed under the Delaware Limited
Liability Company Act, as amended (hereinafter called the "Company"), having its
principal place of business at , THE SOUTH FINANCIAL GROUP, INC., a South
Carolina corporation (hereinafter called the "Guarantor"), having its principal
place of business at 000 Xxxxx Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000,
and THE BANK OF NEW YORK TRUST COMPANY, N.A., not in its individual capacity but
solely as trustee under this Indenture, a national banking banking association
(hereinafter called the "Trustee"), having its Corporate Trust Office at 00000
Xxxxxxxxx Xxxxxxx, Xxxxxxxxxxxx, XX 00000.
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 senior unsecured
debentures, notes, bonds and other evidences of indebtedness (herein called the
"Debt Securities"), including Debt Securities issued to evidence loans made to
the Company of the proceeds from the issuance from time to time by one or more
statutory trusts (each an "Issuer Trust") of undivided preferred beneficial
interests in the assets of such Issuer Trusts (the "Capital Trust Securities")
and undivided common beneficial interests in the assets of such Issuer Trusts
(the "Common Trust Securities" and, together with the Capital Trust Securities,
the "Trust Securities").
All things necessary have been done to make this Indenture a valid and
legally binding agreement of the Company, in accordance with its terms.
RECITALS OF THE GUARANTOR
The Guarantor has duly authorized the Guarantees provided for herein, and
to provide therefor the Guarantor has duly authorized the execution and delivery
of this Indenture.
All things necessary to make the Guarantees, when endorsed on the Debt
Securities to which they relate and executed by the Guarantor, valid and binding
obligations of the Guarantor and to make this Indenture a valid and binding
agreement of the Guarantor, 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 Debt
Securities of any series created and issued on or after the date hereof by the
Holders thereof, it is mutually covenanted and agreed for the equal and
proportionate benefit of all Holders of such Debt Securities or of any such
series, as follows:
ARTICLE I
Definitions and Other Provisions of
General Application
Section 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
1
(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 or by Commission rule or regulation under the Trust
Indenture Act, either directly or by reference therein, as in force at the
date as of which this instrument was executed, except as provided in
Section 1005, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as
are generally accepted in the United States at the date of such
computation; 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 104.
"Additional Amounts" has the meaning specified in Section 1106.
"Additional Interest" means the interest, if any, that shall accrue on any
interest on the Debt 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 Debt Security.
"Additional Sums" has the meaning specified in Section 1107.
"Additional Taxes" means any additional taxes, duties and other
governmental charges to which an Issuer Trust has become subject from time to
time as a result of a Tax Event.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities by contract or otherwise, and
the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authorized Newspaper" means a newspaper in an official language of the
country of publication or in the English language customarily published on each
Business Day, whether or not published on Saturdays, Sundays or holidays, and of
general circulation in the place in connection with which the term is used or in
the financial community of such place. Where successive publications are
required to be made in Authorized Newspapers, the successive publications may be
made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
"Bearer Security" means any Debt Security established pursuant to Section
201 which is payable to bearer including, without limitation, unless the context
otherwise indicates, a Debt Security in global bearer form.
2
"Board of Directors" means the Member, or the board of directors of the
Guarantor or any duly authorized committee of such board, as the case may be.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary or, in the case of the Company, any other authorized
officer, of the Company or the Guarantor, as the case may be, to have been duly
adopted by the Board of Directors and to be in full force and effect on the date
of such certification, and delivered to the Trustee.
"Business Day," when used with respect to any Place of Payment or Place of
Capital Exchange, means any day which is not a Saturday or Sunday and which is
not a legal holiday or a day on which banking institutions or trust companies in
that Place of Payment or Place of Capital Exchange are authorized or obligated
by law or executive order to close.
"Capital Exchange Agent" means the Person or Persons appointed by the
Company to give notices and to exchange Debt Securities of any series for
Capital Securities as specified in Article Fifteen.
"Capital Exchange Date," when used with respect to the Debt Securities of
any series, means any date on which such Debt Securities are to be exchanged for
Capital Securities pursuant to this Indenture.
"Capital Exchange Price," when used with respect to any Debt Security of
any series to be exchanged for Capital Securities, means the amount of Capital
Securities for which such Debt Security is to be exchanged pursuant to this
Indenture or the aggregate sale price of such Capital Securities in the
Secondary Offering for such Debt Security, as the case may be.
"Capital Securities" means any securities issued by the Guarantor which
consist of any of the following: (i) Common Stock, (ii) Perpetual Preferred
Stock, (iii) junior subordinated debt securities or (iv) securities which at the
date of issuance may be issued in exchange for, or the proceeds from the sale of
which may be designated as Securities Funds or Optional Securities Funds for the
payment of the principal of, "mandatory convertible securities" under applicable
regulations of the Primary Federal Regulator. Capital Securities may have such
terms, rights and preferences as may be determined by the Guarantor.
"Capital Security Election Form" means a form substantially in the form
included in Section 1509.
"Capital Trust Securities" has the meaning specified in the first recital
of this Indenture.
"Capital Treatment Event" means, in respect of any Issuer Trust, the
reasonable determination by the Guarantor (as evidenced by an Officers'
Certificate delivered to the Trustee) that, as a result of the occurrence of any
amendment to, or change (including any announced prospective change) in, the
laws or regulations of the United States or any political subdivision thereof or
therein, or as a result of any official or administrative pronouncement or
action or judicial decision interpreting or applying such laws or regulations,
which amendment or change is effective or such pronouncement, action or decision
is announced on or after the date of the issuance of the Capital Trust
Securities of such Issuer Trust, there is more than an insubstantial risk that
the Guarantor will not be entitled to treat an amount equal to the aggregate
Liquidation Amount (as such term is defined in the related Trust Agreement) of
such Capital Trust Securities as "Tier 1 Capital" (or the then equivalent
thereof) for purposes of the capital adequacy guidelines of the Board of
Governors of the Federal Reserve System, as then in effect and applicable to the
Guarantor.
3
"Clearstream" means Clearstream Banking S.A.
"Closing Price" has the meaning specified in Section 2006(d).
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, or if at
any time after the execution of this instrument such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties on such date.
"Common Trust Securities" has the meaning specified in the first recital
of this Indenture.
"Common Stock" means, when used with reference to the capital stock of the
Guarantor, the class of stock which, at the date of execution of this Indenture,
is designated as common stock of the Guarantor and stock of any class or classes
into which such common stock or any such other class may thereafter be changed
or reclassified. In case by reason of the operation of Article Twenty, the
Convertible Securities shall be convertible into any other shares or other
securities or property of the Guarantor or any other corporation, any reference
in this Indenture to the conversion of Convertible Securities pursuant to
Article Twenty shall be deemed to refer to and include conversion of Convertible
Securities into such other shares or other securities or property.
"Company" means the Person named as the "Company" in the first paragraph
of this instrument 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", "Company Order", "Guarantor Request" and "Guarantor
Order" mean, respectively, a written request or order signed in the name of the
Company or the Guarantor by the Chairman of the Board, a Vice Chairman, the
President or a Vice President, Treasurer, Assistant Treasurer, its Secretary or
an Assistant Secretary, or, in the case of the Company, any other authorized
officer, and delivered to the Trustee.
"Conversion Price" has the meaning specified in Section 2005.
"Convertible Securities" means any series of Debt Securities that are
designated as such pursuant to Section 301.
"Corporate Trust Office" means the principal corporate trust office of the
Trustee at which any particular time its corporate trust business shall be
administered.
The term "corporation" includes corporations, associations, companies and
statutory or business trusts.
The term "coupon" means any interest coupon appertaining to a Bearer
Security.
"Debt Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Debt Securities authenticated and
delivered under this Indenture.
"Defaulted Interest" has the meaning specified in Section 307.
"Delaware Trustee" means, with respect to any Issuer Trust, the Person
identified as the "Delaware Trustee" in the related Trust Agreement, solely in
its capacity as Delaware Trustee of such Issuer Trust under such Trust Agreement
and not in its individual capacity, or its successor in interest in such
capacity, or any successor Delaware trustee appointed as therein provided.
4
"Depositary" means, with respect to the Debt Securities of any series
issuable or issued in the form of a Global Security, the Person designated as
Depositary by the Company pursuant to Section 301 until a successor Depositary
shall have become such pursuant to the applicable provisions of this Indenture,
and thereafter "Depositary" shall mean or include each person who is then a
Depositary hereunder, and if at any time there is more than one such Person,
"Depositary" as used with respect to the Debt Securities of any such series
shall mean the Depositary with respect to the Debt Securities of that series.
"Designated Currency" has the meaning specified in Section 312.
"Distributions," with respect to the Trust Securities issued by an Issuer
Trust, means the amounts payable in respect of such Trust Securities as provided
in the related Trust Agreement and referred to therein as "Distributions."
"Dollar" or "$" means the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
"Euro" means the single currency of the European Monetary Union as defined
under EC Regulation 1103/97 adopted under Article 235 of the EU Treaty and under
EC Regulation 974/98 adopted under Article 109l(4) of the EU Treaty or under any
successor European legislation from time to time.
"Eligible Instruments" means monetary assets, money market instruments and
securities that are payable in Dollars only and essentially risk free as to
collection of principal and interest, including U.S. Government Obligations.
"Euroclear" means Xxxxxx Guarantee Trust Company of New York, Brussels
Office, as operator of the Euroclear System.
"European Communities" means the European Economic Community, the European
Coal and Steel Community and the European Atomic Energy Community.
"Event of Default" has the meaning specified in Section 601.
"Exchange Rate" shall have the meaning specified as contemplated in
Section 301.
"Exchange Rate Agent" shall have the meaning specified as contemplated in
Section 301.
"Exchange Rate Officer's Certificate," with respect to any date for the
payment of principal of (and premium, if any) and interest on any series of Debt
Securities, means a certificate setting forth the applicable Exchange Rate and
the amounts payable in Dollars and Foreign Currencies in respect of the
principal of (and premium, if any) and interest on Debt Securities denominated
in Euro, any other composite currency or Foreign Currency, and signed by the
Chairman of the Board, a Vice Chairman of the Board, the President, the
Treasurer or any Assistant Treasurer of the Company or the Exchange Rate Agent
appointed pursuant to Section 301, and delivered to the Trustee.
"Extension Period" has the meaning specified in Section 313.
"Foreign Currency" means a currency issued by the government of any
country other than the United States of America.
"Global Exchange Agent" has the meaning specified in Section 304.
5
"Global Exchange Date" has the meaning specified in Section 304.
"Global Security" means a Debt Security issued to evidence all or part of
a series of Debt Securities in accordance with Section 303.
"Guarantee Agreement" means, with respect to any Issuer Trust, the
Guarantee Agreement executed by the Guarantor for the benefit of the holders of
the Capital Trust Securities issued by such Issuer Trust as modified, amended or
supplemented from time to time.
"Guarantor" means the Person named as the "Guarantor" in the first
paragraph of this instrument until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Guarantor" shall mean such successor corporation.
"Holder," with respect to a Registered Security, means a Person in whose
name such Registered Security is registered in the Security Register and, with
respect to a Bearer Security or a coupon, means the bearer thereof.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented, amended or restated by or pursuant to one or more
indentures supplemental hereto entered into pursuant to the applicable
provisions hereof and, unless the context otherwise requires, shall include the
terms of a particular series of Debt Securities established as contemplated by
Section 301.
The term "interest," when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date," with respect to any Debt Security, means the
Stated Maturity of an installment of interest on such Debt Security.
"Investment Company Event" means the receipt by an Issuer Trust of an
Opinion of Counsel (as defined in the relevant Trust Agreement) experienced in
such matters to the effect that, as a result of the occurrence of a change in
law or regulation or a written change (including any announced prospective
change) in interpretation or application of law or regulation by any legislative
body, court, governmental agency or regulatory authority, there is more than an
insubstantial risk that such Issuer Trust is or will be considered an
"investment company" that is required to be registered under the Investment
Company Act, which change or prospective change becomes effective or would
become effective, as the case may be, on or after the date of the issuance of
the Capital Trust Securities of such Issuer Trust.
"Issuer Trust" has the meaning specified in the first recital of this
Indenture.
"Market Value" of any Capital Securities issued on any Capital Exchange
Date for Debt Securities of any series shall be the sale price of such Capital
Securities which are sold in the Secondary Offering for the Debt Securities of
such series. In the event no such Secondary Offering takes place, the Market
Value of such Capital Securities shall be the fair value of such Capital
Securities on such Capital Exchange Date for Debt Securities of such series as
determined by three independent nationally recognized investment banking firms
selected by the Company.
"Maturity," when used with respect to any Debt Security, means the date on
which the principal of such Debt Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption, repayment at the option of the Holder or
otherwise.
6
"Member" means the sole member of the Company.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, a Vice Chairman of the Board, the President or a Vice President, and by
the Treasurer, an Assistant Treasurer, the Controller, an Assistant Controller,
the Secretary, an Assistant Secretary or any other authorized officer of the
Company or Guarantor, as the case may be, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may (except
as otherwise expressly provided in this Indenture) be an employee of or counsel
for the Company or the Guarantor, which is delivered to the Trustee.
"Optional Securities Fund" means a fund pursuant to which the proceeds of
sales of Capital Securities may be designated on the books of the Company for
the payment of any of the principal of any Debt Security pursuant to Section
1517 of this Indenture.
"Original Issue Discount Security" means any Debt Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 602.
"Outstanding," when used with respect to Debt Securities means, as of the
date of determination, all Debt Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Debt Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Debt Securities or portions thereof for whose payment or
redemption money or Eligible Instruments in the necessary amount has been
theretofore deposited with the Trustee or any Paying Agent (other than the
Company) in trust or set aside and segregated in trust by the Company (if
the Company shall act as its own Paying Agent) for the Holders of such
Debt Securities and any coupons appertaining thereto; provided, however,
that if such Debt Securities are to be redeemed, notice of such redemption
has been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made; and
(iii) Debt Securities in exchange for or in lieu of which other Debt
Securities have been authenticated and delivered, or which have been paid,
pursuant to this Indenture;
provided, however, that in determining whether the Holders of the requisite
principal amount of Debt Securities Outstanding have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Debt Securities
owned by the Company, the Guarantor or any other obligor upon the Debt
Securities or any Affiliate of the Company, the Guarantor or of such other
obligor shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon such request,
demand, authorization, direction, notice, consent or waiver, only Debt
Securities which a Responsible Officer of the Trustee actually knows to be so
owned shall be so disregarded. Debt 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
Debt Securities and that the pledgee is not the Company or any other obligor
upon the Debt Securities or any Affiliate of the Company, the Guarantor or of
such other obligor. Notwithstanding anything herein to the contrary, Debt
Securities of any series initially issued to an Issuer Trust that are owned by
7
such Issuer Trust shall be deemed to be Outstanding notwithstanding the
ownership by the Company, the Guarantor or an Affiliate of any beneficial
interest in such Issuer Trust.
"Paying Agent" means any Person, including any Affiliate of the Guarantor
or the Company itself, authorized by the Company to pay the principal of (and
premium, if any) or interest on any Debt Securities on behalf of the Company.
"Perpetual Preferred Stock" means any stock of any class of the Guarantor
which has a preference over Common Stock in respect of dividends or of amounts
payable in the event of any voluntary or involuntary liquidation, dissolution or
winding up of the Guarantor and which is not mandatorily redeemable or
repayable, or redeemable or repayable at the option of the Holder, otherwise
than in shares of Common Stock or Perpetual Preferred Stock of another class or
series or with the proceeds of the sale of Common Stock or Perpetual Preferred
Stock.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Capital Exchange," when used with respect to Debt Securities of
any series, means any place where the Debt Securities of such series are
exchangeable for Capital Securities as specified pursuant to Section 301.
"Place of Payment," when used with respect to the Debt Securities of any
series means any place where the principal of (and premium, if any) and interest
on the Debt Securities of that series are payable as specified as contemplated
by Section 301.
"Predecessor Security" of any particular Debt Security means every
previous Debt Security evidencing all or a portion of the same debt as that
evidenced by such particular Debt Security; and, for the purposes of this
definition, any Debt Security authenticated and delivered under Section 306 in
lieu of a lost, destroyed or stolen Debt Security shall be deemed to evidence
the same debt as the lost, destroyed or stolen Debt Security.
"Primary Federal Regulator" means the primary United States federal
regulator of the Guarantor (which at the date of this Indenture is the Board of
Governors of the Federal Reserve System), or any successor body or institution.
"Property Trustee" means, with respect to any Issuer Trust, the Person
identified as the "Property Trustee" in the related Trust Agreement, solely in
its capacity as Property Trustee of such Issuer Trust and not in its individual
capacity, or its successor in interest in such capacity, or any successor
property trustee appointed as therein provided.
"Ranking junior to the Guarantees," when used with respect to any
obligation of the Guarantor shall mean any obligation of the Guarantor which (a)
ranks junior to and not equally with or prior to the Guarantees (or any other
obligations of the Guarantor ranking on a parity with the Guarantees) in right
of payment upon the happening of any event of the kind specified in the first
sentence of the second paragraph in Section 1901 or (b) is specifically
designated as ranking junior to the Guarantees by express provision in the
instrument creating or evidencing such obligation. The securing of any
obligations of the Guarantor, otherwise ranking junior to the Guarantees, shall
be deemed to prevent such obligations from constituting obligations ranking
junior to the Guarantees.
8
"Ranking on a parity with the Guarantees," when used with respect to any
obligation of the Guarantor shall mean any obligation of the Guarantor which (a)
ranks equally with and not prior to the Guarantees in right of payment upon the
happening of any event of the kind specified in the first sentence of the second
paragraph in Section 1901 or (b) is specifically designated as ranking on a
parity with the Guarantees by express provision in the instrument creating or
evidencing such obligation. The securing of any obligations of the Guarantor,
otherwise ranking on a parity with the Guarantees, shall not be deemed to
prevent such obligations from constituting obligations ranking on a parity with
the Guarantees.
"Redemption Date," when used with respect to any Debt 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 Debt Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Security" means any Debt Security in the form of Registered
Securities established pursuant to Section 201 which is registered in the
Security Register.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Registered Securities of any series means the date specified for
that purpose as contemplated by Section 301.
"Remarketing Entity," when used with respect to Debt Securities of any
series which are repayable at the option of the Holders thereof before their
Stated Maturity, means any person designated by the Company to purchase any such
Debt Securities.
"Repayment Date," when used with respect to any Debt Security to be repaid
upon exercise of an option for repayment by the Holder, means the date fixed for
such repayment pursuant to this Indenture.
"Repayment Price," when used with respect to any Debt Security to be
repaid upon exercise of an option for repayment by the Holder, means the price
at which it is to be repaid pursuant to this Indenture.
"Responsible Officer" when used with respect to the Trustee, means any
officer of the Trustee assigned by it to administer its corporate trust matters
and who shall have direct responsibility for the administration of this
Indenture.
"Rights" has the meaning specified in Section 2006(c).
"Rights Plan" means a plan of the Guarantor providing for the issuance by
the Guarantor to all holders of its Common Stock of rights entitling the holders
thereof to subscribe for or purchase shares of any class or series of capital
stock of the Guarantor which rights (i) are deemed to be transferred with such
shares of such Common Stock, and (ii) are also issued in respect of future
issuances of such Common Stock, in each case until the occurrence of a specified
event or events.
"Secondary Offering," when used with respect to the Debt Securities of any
series, means the offering and sale by the Guarantor of Capital Securities for
the account of Holders of Debt Securities of such series who elect to receive
cash and not Capital Securities on the Capital Exchange Date for such series.
9
"Securities Fund" means a fund pursuant to which the proceeds of sales of
Capital Securities are designated on the books of the Guarantor for the payment
of any principal of any Debt Security pursuant to the provisions of Section
1601.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Senior Debt" means any obligation of the Guarantor to its creditors, or
guarantees or other similar contingent obligations of the Guarantor in respect
of obligations of others, whether now outstanding or subsequently incurred,
other than any obligation as to which, in the instrument creating or evidencing
the obligation or pursuant to which the obligation is outstanding, it is
provided that such obligation is not senior debt, but it does not include (i)
the Guarantor's trade accounts payable and accrued liabilities arising in the
ordinary course of business, (ii) Guarantor's guarantees of Debt Securities
issued under this Indenture (unless the guarantee of such Debt Securities is not
subject to Article XIX of this Indenture) or (iii) Guarantor's guarantees of
Trust Related Securities.
["Special Distribution" means a payment (other than a periodic payment of
interest) on the Debt Securities in accordance with the terms thereof.]
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity," when used with respect to any Debt Security or any
installment of interest (including any Additional Interest) thereon, means the
date specified in such Debt Security or a coupon representing such installment
of interest (including any Additional Interest) as the fixed date on which the
principal of such Debt Security or such installment is due and payable, subject,
in the case of any installment of interest, to the deferral of any such date in
the case of an Extension Period.
"Tax Event" means the receipt by an Issuer Trust of an Opinion of Counsel
(as defined in the relevant Trust Agreement) experienced in such matters to the
effect that, as a result of any amendment to, or change (including any announced
prospective change) in, the laws or regulations of the United States or any
political subdivision or taxing authority thereof or therein, or as a result of
any official administrative pronouncement or judicial decision interpreting or
applying such laws or regulations, which amendment or change is effective or
which pronouncement or decision is announced on or after the date of issuance of
the Capital Trust Securities of such Issuer Trust, there is more than an
insubstantial risk that (i) such Issuer Trust is, or will be within 90 days of
the delivery of such Opinion of Counsel, subject to United States Federal income
tax with respect to income received or accrued on the corresponding series of
Debt Securities issued by the Company to such Issuer Trust, (ii) interest
payable by the Company on such corresponding series of Debt Securities is not,
or within 90 days of the delivery of such Opinion of Counsel will not be,
deductible by the Guarantor, in whole or in part, for United States Federal
income tax purposes in its consolidated Federal income tax return, or (iii) such
Issuer Trust is, or will be within 90 days of the delivery of such Opinion of
Counsel, subject to more than a de minimis amount of other taxes, duties or
other governmental charges.
"Trust Agreement" means, with respect to any Issuer Trust, the declaration
of trust, trust agreement or other governing instrument of such Issuer Trust.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this instrument was executed, except as provided in Section
1005.
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"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 Debt
Securities of any series shall mean the Trustee with respect to Debt Securities
of that series.
"Trust Related Securities" means any obligations evidenced by debt
securities (and guarantees in respect of those debt securities) initially issued
to any trust, limited liability company, partnership or other entity affiliated
with the Company or the Guarantor that is, directly or indirectly, a financing
vehicle of the Company or the Guarantor in connection with the issuance by such
entity of capital securities or other similar securities.
"Trust Securities" has the meaning specified in the first recital of this
Indenture.
"United States" means the United States of America (including the District
of Columbia) and its possessions.
"United States Alien" means any Person who, for United States Federal
income tax purposes, is a foreign corporation, a non-resident alien individual,
a non-resident alien fiduciary of a foreign estate or trust, or a foreign
partnership, one or more of the members of which is, for United States Federal
income tax purposes, a foreign corporation, a non-resident alien individual or a
non-resident alien fiduciary of a foreign estate or trust.
"U.S. Government Obligations" means direct obligations of the United
States for the payment of which its full faith and credit is pledged, or
obligations of a person controlled or supervised by and acting as an agency or
instrumentality of the United States the timely payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States, and shall also include a depository receipt issued by a bank (as defined
in Section 3(a)(2) of the Securities Act of 1933, as amended) as custodian with
respect to any such U.S. Government Obligation or a specific payment of
principal of or interest on any such U.S. Government Obligation held by such
custodian for the account of the holder of such depository receipt, provided
that (except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of principal of or interest on the U.S.
Government Obligation evidenced by such depository receipt.
Section 102. Compliance Certificates and Opinions.
Upon any application or request by the Company or the Guarantor to the
Trustee to take any action under any provision of this Indenture (other than the
delivery of any Debt Security to the Trustee for authentication pursuant to
Section 303), the Company or the Guarantor, as the case may be, shall furnish to
the Trustee an Officers' Certificate stating that all conditions 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, 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 shall include:
11
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he or
she has made such examination or investigation as is necessary to enable
him or her to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 103. Form 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 or the Guarantor
may be based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his or her certificate or
opinion is based is erroneous. Any such certificate or Opinion of Counsel may be
based, insofar as it relates to factual matters, upon a certificate or opinion
of, or representations by, an officer or officers of the Company or the
Guarantor stating that the information with respect to such factual matters is
in the possession of the Company or the Guarantor, unless such counsel knows, or
in the exercise of reasonable care should know, that the certificate or opinions
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 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Holders may
be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent duly appointed in writing.
If Debt Securities of a series are issuable in whole or in part as Bearer
Securities, any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may, alternatively, be embodied in and evidenced by the record of
Holders of Debt Securities voting in favor thereof, either in person or by
proxies duly appointed in writing, at any meeting of Holders of the Debt
Securities duly called and held in accordance with the provisions of Article
Seventeen, or a combination of such instruments and any such record. Except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments or record or both are delivered to the Trustee,
and, where it is hereby expressly required, to the Company and the Guarantor.
Such instrument or instruments and any such record (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the "Act" of
the Holders signing such instrument or instruments and so voting at any such
meeting. Proof of execution of any such instrument or of a writing appointing
any such agent, or the holding by any Person of a Debt Security, shall be
12
sufficient for any purpose of this Indenture and (subject to Section 701)
conclusive in favor of the Trustee, the Company and the Guarantor, if made in
the manner provided in this Section. The record of any meeting of Holders of
Debt Securities shall be proved in the manner provided in Section 1706.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any manner which the Trustee deems
sufficient.
(c) The ownership of Registered Securities shall be proved by the Security
Register.
(d) The principal amount and serial numbers of Bearer Securities held by
any Person, and the date of holding the same, may be proved by the production of
such Bearer Securities or by a certificate executed, as depositary, by any trust
company, bank, banker or other depositary, wherever situated, if such
certificate shall be deemed by the Trustee to be satisfactory, showing that at
the date therein mentioned such Person had on deposit with such depositary, or
exhibited to it, the Bearer Securities in the amount and with the serial numbers
therein described; or such facts may be proved by the certificate or affidavit
of the Person holding such Bearer Securities, if such certificate or affidavit
is deemed by the Trustee to be satisfactory. The Trustee and the Company may
assume that such ownership of any Bearer Security continues until (1) another
certificate or affidavit bearing a later date issued in respect of the same
Bearer Security is produced, or (2) such Bearer Security is produced to the
Trustee by some other person, or (3) such Bearer Security is surrendered in
exchange for a Registered Security, or (4) such Bearer Security is no longer
Outstanding.
(e) The fact and date of execution of any such instrument or writing, the
authority of the Person executing the same and the principal amount and serial
numbers of Bearer Securities held by the Person so executing such instrument or
writing and the date of holding the same may also be proved in any other manner
which the Trustee deems sufficient; and the Trustee may in any instance require
further proof with respect to any of the matters referred to in this Section.
(f) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Debt Security shall bind every future holder
of the same Debt Security and the Holder of every Debt Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, suffered or omitted by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such Debt
Security.
(g) For purposes of determining the principal amount of Outstanding Debt
Securities of any series of Holders of which are required, requested or
permitted to give any request, demand, authorization, direction, notice,
consent, waiver or take any other Act under this Indenture, (i) each Original
Issue Discount Security shall be deemed to have the principal amount determined
by the Trustee that could be declared to be due and payable pursuant to the
terms of such Original Issue Discount Security as of the date there is delivered
to the Trustee and, where it is hereby expressly required, to the Company, such
Act by Holders of the required aggregate principal amount of the Outstanding
Debt Securities of such series and (ii) each Debt Security denominated in a
Foreign Currency or composite currency shall be deemed to have the principal
amount determined by the Exchange Rate Agent by converting the principal amount
of such Debt Security in the currency in which such Debt Security is denominated
into Dollars at the Exchange Rate as of the date such Act is delivered to the
Trustee and, where it is hereby expressly required, to the Company, by Holders
13
of the required aggregate principal amount of the Outstanding Debt Securities of
such series (or, if there is no such rate on such date, such rate on the date
determined as specified as contemplated in Section 301).
(h) The Company may set a record date for purposes of determining the
identity of Holders of Debt Securities of any series entitled to vote or consent
to any action by vote or consent authorized or permitted by Section 612 or
Section 613. Such record date shall be the later of 30 days prior to the first
solicitation of such consent or the date of the most recent list of Holders of
such Debt Securities furnished to the Trustee pursuant to Section 801 prior to
such solicitation.
Section 105. Notices, etc., to Trustee, Company and Guarantor.
Any request, demand, authorization, direction, notice, consent, waiver or
other Act of Holders or other document provided or permitted by this Indenture
to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder, any holder of Capital Trust
Securities or the Company or the Guarantor shall be sufficient for every
purpose hereunder (unless otherwise herein expressly provided), if made,
given, furnished or filed in writing to or with the Trustee at its
Corporate Trust Office, Attention: Corporate Trust Division, or
(2) the Company or the Guarantor by the Trustee, any Holder or any
holder of Capital Trust Securities shall be sufficient for every purpose
hereunder (unless otherwise herein expressly provided) if in writing and
mailed, first-class postage prepaid, to the Company or the Guarantor
addressed to the attention of its (or, in the case of the Company, the
Member's) Secretary 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 or the Guarantor.
Section 106. Notice to Holders; Waiver.
Except as otherwise expressly provided herein, where this Indenture
provides for notice to Holders of any event, (1) such notice shall be
sufficiently given to Holders of Registered Securities if in writing and mailed,
first-class postage prepaid, to each Holder of a Registered Security affected by
such event, at such Holder's address as it appears in the Security Register, not
later than the latest date, and not earlier than the earliest date, prescribed
for the giving of such notice; and (2) such notice shall be sufficiently given
to Holders of Bearer Securities by publication thereof in an Authorized
Newspaper in The City of New York and, if the Debt Securities of such series are
then listed on The International Stock Exchange of the United Kingdom and the
Republic of Ireland and such stock exchange shall so require, in London, and, if
the Debt Securities of such series are then listed on the Luxembourg Stock
Exchange and such stock exchange shall so require, in Luxembourg and, if the
Debt Securities of such series are then listed on any other stock exchange
outside the United States and such stock exchange shall so require, in any other
required city outside the United States or, if not practicable, in Europe on a
Business Day at least twice, the first such publication to be not later than the
latest date and not earlier than the earliest date prescribed for the giving of
such notice.
In case, by reason of the suspension of or irregularities in regular mail
service or for any other reason, it shall be impossible or impracticable to mail
notice of any event to Holders when said notice is required to be given pursuant
to any provision of this Indenture or of the Debt Securities, then any manner of
giving such notice as shall be satisfactory to the Trustee shall be deemed to be
a sufficient giving of such notice. In any case where notice to Holders of
14
Registered Securities is to be given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder of a
Registered Security shall affect the sufficiency of such notice with respect to
other Holders of Registered Securities or the sufficiency of any notice by
publication to Holders of Bearer Securities given as provided above.
In case, by reason of the suspension of publication of any Authorized
Newspaper, or by reason of any other cause, it shall be impossible or
impracticable to make publication of any notice to Holders of Bearer Securities
as provided above, then such method of publication or notification as shall be
made with the approval of the Trustee shall constitute a sufficient publication
of such notice. Neither failure to give notice by publication to Holders of
Bearer Securities as provided above, nor any defect in any notice so published,
shall affect the sufficiency of any notice mailed to Holders of Registered
Securities as provided above.
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.
Any request, demand, authorization, direction, notice, consent, election,
waiver or other Act required or permitted under this Indenture shall be in the
English language, except that any published notice may be in an official
language of the country of publication.
Section 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Indenture by any of
the provisions of the Trust Indenture Act, such required provision shall
control.
Section 108. 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 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company and the
Guarantor shall bind its successors and assigns, whether expressed or not.
Section 110. Separability Clause.
In case any provision in this Indenture or in the Debt Securities or
coupons 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 111. Benefits of Indenture.
Nothing in this Indenture or in the Debt Securities, coupons or related
Guarantees, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder, any Paying Agent, any Securities
Registrar, any Authenticating Agent, the holders of Senior Debt of the
Guarantor, the Holders, and the holders of Capital Trust Securities, any benefit
or any legal or equitable right, remedy or claim under this Indenture.
15
Section 112. Governing Law.
This Indenture and the Debt Securities and the related Guarantees and
coupons shall be governed by and construed in accordance with the laws of the
State of New York.
Section 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date, Capital
Exchange Date, Repayment Date or Stated Maturity of any Debt Security shall not
be a Business Day at any Place of Payment or Place of Capital Exchange, then
(notwithstanding any other provision of this Indenture or of the Debt Securities
or coupons) payment of interest or principal (and premium, if any) or exchange
of Debt Securities for Capital Securities or cash need not be made at such Place
of Payment or Place of Capital Exchange on such date, but may be made on the
next succeeding Business Day at such Place of Payment or Place of Capital
Exchange with the same force and effect as if made on the Interest Payment Date,
Capital Exchange Date, Redemption Date, Repayment Date or at the Stated
Maturity, and no interest shall accrue for the period from and after such
Interest Payment Date, Redemption Date, Repayment Date, Capital Exchange Date or
Stated Maturity, as the case may be.
Section 114. Counterparts.
This Indenture 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 Indenture.
Article II
Debt Security Forms
Section 201. Forms Generally.
The Registered Securities, if any, and the Bearer Securities and related
coupons, if any, of each series shall be in substantially the form (including
temporary or permanent global form) as shall be established in 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 the rules of any securities exchange,
or as may, consistently herewith, be determined by the officers executing such
Debt Securities or coupons, as evidenced by their signatures on the Debt
Securities or coupons. If the form of Debt Securities of any series or coupons
(including any such Global Security) is established by action taken pursuant to
a Board Resolution, a copy of an appropriate record of such action shall be
certified by any authorized officer of the Company and delivered to the Trustee
at or prior to the delivery of the Company Order contemplated by Section 303 for
the authentication and delivery of such Debt Securities or coupons.
Unless otherwise specified as contemplated by Section 301, Debt Securities
in bearer form other than Debt Securities in temporary or permanent global form
shall have coupons attached.
The definitive Debt Securities and coupons, if any, shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Debt Securities,
as evidenced by the execution of such Debt Securities and coupons.
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Section 202. Form of Trustee's Certificate of Authentication.
This is one of the Debt Securities, of the series designated herein,
described in the within-mentioned Indenture.
The Bank of New York Trust Company, N.A.,
not in its individual capacity but
solely as Trustee
By:
-----------------------------------
Authorized Officer
Dated:
------------------
Section 203. Debt Securities in Global Form.
If Debt Securities of a series are issuable in whole or in part in global
form, as specified as contemplated by Section 301, then, notwithstanding clause
(23) of Section 301 and the provisions of Section 302, such Global Security
shall represent such of the outstanding Debt Securities of such series as shall
be specified therein and may provide that it shall represent the aggregate
amount of Outstanding Debt Securities from time to time endorsed thereon and
that the aggregate amount of Outstanding Debt Securities represented thereby may
from time to time be reduced to reflect exchanges. Any endorsement of a Global
Security to reflect the amount, or any increase or decrease in the amounts, of
Outstanding Debt Securities represented thereby shall be made in such manner and
upon instructions given by such Person or Persons as shall be specified therein
or in the Company Order to be delivered to the Trustee pursuant to Section 303
or Section 304.
The provisions of the last sentence of Section 303(g) shall apply to any
Debt Securities represented by a Debt Security in global form if such Debt
Security was never issued and sold by the Company and the Company delivers to
the Trustee the Debt Security in global form together with written instructions
(which need not comply with Section 102 and need not be accompanied by an
Opinion of Counsel) with respect to the reduction in the principal amount of
Debt Securities represented thereby, together with the written statement
contemplated by the last sentence of Section 303(g).
Global Securities may be issued in either registered or bearer form and in
either temporary or permanent form.
Article III
The Debt Securities
Section 301. Amount Unlimited; Issuance in Series.
The aggregate principal amount of Debt Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Debt Securities may be issued in one or more series. There 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 Debt Securities of any series:
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(1) the title and type of the Debt Securities of the series
including CUSIP numbers (which shall distinguish the Debt Securities of
the series from all other Debt Securities);
(2) the limit, if any, upon the aggregate principal amount of the
Debt Securities of the series which may be authenticated and delivered
under this Indenture (except for Debt Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in lieu
of, other Debt Securities of the series pursuant to Section 304, 305, 306,
1006, 1207, 1403, 1508 or 2003 and except for any Debt Securities which,
pursuant to Section 303, are deemed never to have been authenticated and
delivered hereunder);
(3) the date or dates on which the principal and premium, if any, of
the Debt Securities of the series are payable;
(4) the maturity date or dates of the Debt Securities of the series
or the method by which those dates can be determined;
(5) the rate or rates, if any, at which the Debt Securities of the
series shall bear interest, the rate or rates of and extent to which
Additional Interest, if any, shall be payable in respect of any Debt
Securities of the series, or the method or methods by which such rate or
rates may be determined, whether payment of interest will be contingent in
any respect and/or the interest rate reset, the date or dates from which
such interest or Additional Interest shall accrue, the Interest Payment
Dates on which such interest shall be payable, the right, pursuant to
Section 313 or as otherwise set forth therein, of the Company to defer or
extend an Interest Payment Date, the Regular Record Date for the interest
payable on any Registered Security on any Interest Payment Date and the
other circumstances, if any, in which the Company may defer interest
payments;
(6) if applicable, the remarketing or extension features of the Debt
Securities of the series;
(7) the place or places where, subject to the provisions of Section
1102, the principal of (and premium, if any) and interest (including
Additional Interest) on Debt Securities of the series shall be payable,
any Registered Securities of the series may be surrendered for
registration of transfer, Debt Securities of the series may be surrendered
for exchange and notices and demands to or upon the Company in respect of
the Debt Securities of the series and this Indenture may be served and
where notices to Holders pursuant to Section 106 will be published;
(8) if applicable, the period or periods within which or the date or
dates on which, the price or prices at which and the terms and conditions
upon which Debt Securities of the series may be redeemed, in whole or in
part, at the option of the Company or the Holders, before their final
maturity;
(9) the obligation, if any, of the Company to redeem before their
final maturity, repay or purchase Debt Securities of the series pursuant
to any sinking fund or analogous provisions or at the option of a Holder
thereof and the period or periods within which, the price or prices at
which and the terms and conditions upon which Debt Securities of the
series shall be redeemed, repaid or purchased, in whole or in part,
pursuant to such obligation;
(10) any covenant or option of the Company to create a Securities
Fund for the repayment of the Debt Securities and the terms and conditions
of such Securities Fund;
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(11) if applicable, the place or places at which, the period or
periods within which, the price or prices at which and the terms and
conditions upon which Debt Securities shall be exchangeable for Capital
Securities or depository shares for Perpetual Preferred Stock;
(12) whether the Debt Securities of the series are Convertible
Securities and the terms related thereto including the Conversion Price
and the date on which the right to convert expires;
(13) whether Debt Securities of the series are to be issuable as
Registered Securities, Bearer Securities or both, whether Debt Securities
of the series are to be issuable with or without coupons or both and, in
the case of Bearer Securities, the date as of which such Bearer Securities
shall be dated if other than the date of original issuance of the first
Debt Security of such series of like tenor and term to be issued;
(14) the currency or currencies of denomination of the Debt
Securities of any series, which may be in Dollars, any Foreign Currency or
any composite currency, including but not limited to the Euro, and, if any
such currency of denomination is a composite currency other than the Euro,
the agency or organization, if any, responsible for overseeing such
composite currency;
(15) the currency or currencies in which payment of the principal of
(and premium, if any) and interest (including any Additional Interest) on
the Debt Securities will be made, the currency or currencies, if any, in
which payment of the principal of (and premium, if any) or the interest
(including any Additional Interest) on Registered Securities, at the
election of each of the Holders thereof, may also be payable and the
periods within which and the terms and conditions upon which such election
is to be made and the Exchange Rate and Exchange Rate Agent, and any
special provisions relating thereto;
(16) if the amount of payments of principal of (and premium, if any)
or interest (including any Additional Interest) on the Debt Securities of
the series may be determined with reference to an index based on a
currency or currencies other than that in which the Debt Securities are
denominated or designated to be payable, the manner in which such amounts
shall be determined, and any provisions relating thereto;
(17) if payments of principal of (and premium, if any) or interest
(including any Additional Interest) on the Debt Securities of the series
are to be made in a Foreign Currency other than the currency in which such
Debt Securities are denominated, the manner in which the Exchange Rate
with respect to such payments shall be determined or if the Exchange Rate
is to be determined otherwise than as provided in Section 101;
(18) whether the provisions described in Article Eighteen under this
Indenture apply to the Debt Securities;
(19) the terms and conditions, if any, pursuant to which the
Company's obligations under this Indenture may be terminated through the
deposit of money or Eligible Instruments as provided in Articles Five and
Eighteen;
(20) any Events of Default with respect to Debt Securities of such
series, if not set forth herein and any Events of Default set forth herein
that shall not apply to Debt Securities of the series;
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(21) any other covenant or warranty included for the benefit of the
Debt Securities of the series in addition to (and not inconsistent with)
those set forth herein for the benefit of Debt Securities of all series,
or any other covenant or warranty included for the benefit of Debt
Securities of the series in lieu of any covenant or warranty set forth
herein for the benefit of Debt Securities of all series, or any provision
that any covenant or warranty set forth herein for the benefit of Debt
Securities of all series shall not be for the benefit of Debt Securities
of such series, or any combination of such covenants, warranties or
provisions, whether the provisions of Section 1105 will not apply to such
covenants and warranties and whether the Holders will have the ability, if
any, to waive the Company's or Guarantor's, as the case may be, compliance
with those additional or changed covenants, warranties or provisions;
(22) if other than the principal amount thereof, the portion of the
principal amount of Debt Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 602;
(23) whether the Debt Securities of the series shall be issued in
whole or in part in the form of a Global Security or Securities and, in
such case, the Depositary and Global Exchange Agent for such Global
Security or Securities, whether such global form shall be permanent or
temporary and, if applicable, the Global Exchange Date;
(24) if Debt Securities of the series are to be issuable initially
in the form of a temporary Global Security, the circumstances under which
the temporary Global Security can be exchanged for definitive Debt
Securities or permanent Global Securities and whether the definitive Debt
Securities will be Registered and/or Bearer Securities and will be in
global form and whether interest (including any Additional Interest) in
respect of any portion of such Global Security payable in respect of an
Interest Payment Date prior to the Global Exchange Date shall be paid to
any clearing organization with respect to a portion of such Global
Security held for its account and, in such event, the terms and conditions
(including any certification requirements) upon which any such interest
payment received by a clearing organization will be credited to the
Persons entitled to interest payable on such Interest Payment Date if
other than as provided in this Article Three;
(25) the Person or Persons who shall be Security Registrar for the
Debt Securities of such series if other than the Trustee, and the place or
places where the Security Register for such series shall be maintained and
the Person or Persons who will be the initial Paying Agent or Agents, if
other than the Trustee;
(26) the terms and conditions of any obligation or right of the
Company or a Holder to convert or exchange the Debt Securities into Trust
Securities or other securities of the Guarantor;
(27) whether, and under what conditions, Additional Amounts will be
payable to Holders of Debt Securities of the series pursuant to Section
1106;
(28) the denominations in which any Registered Securities of the
series shall be issuable, if other than denominations of $1,000 and any
integral multiple thereof, and the denominations in which any Bearer
Securities of such series shall be issuable, if other than the
denomination of $5,000;
(29) if such Debt Securities are to be issued to an Issuer Trust,
the form or forms of the Trust Agreement and Guarantee Agreement relating
thereto;
20
(30) if other than as set forth herein, the relative degree, if any,
to which the Debt Securities of the series shall be senior to or be
subordinated to other series of Debt Securities in right of payment,
whether such other series of Debt Securities are Outstanding or not; and
(31) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Debt Securities of any one series and the coupons appertaining to
Bearer Securities of such series, if any, shall be substantially identical
except, in the case of Registered Securities, as to denomination and except as
may otherwise be provided in or pursuant to such Board Resolution and set forth
in such Officers' Certificate or in any such indenture supplemental hereto.
Debt Securities of any particular series may be issued at various times,
with different dates on which the principal or any installment of principal is
payable, with different rates of interest, if any, or different methods by which
rates of interest may be determined, with different dates on which such interest
may be payable and with different Redemption or Repayment Dates and may be
denominated in different currencies or payable in different currencies.
If any of the terms of a series of Debt Securities are established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified any authorized officer 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. Debt Securities shall be
dated the date of their authentication.
Section 302. Denominations.
Debt Securities of each series shall be issuable in such form and
denominations as shall be specified in the form of Debt Security for such series
approved or established pursuant to Section 201 or in the Officers' Certificate
delivered pursuant to Section 301. In the absence of any specification with
respect to the Debt Securities of any series, the Registered Securities of such
series, if any, shall be issuable in denominations of $1,000 and any integral
multiple thereof and the Bearer Securities of such series, if any, shall be
issuable in denominations of $5,000.
Section 303. Execution, Authentication, Delivery and Dating.
(a) The Debt Securities shall be executed on behalf of the Company by any
two authorized officers of the Company. The signatures on the Debt Securities
may be manual or facsimile. Coupons shall bear facsimile signatures.
Debt Securities and coupons 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 Debt
Securities or coupons of any series or did not hold such offices at the date of
such Debt Securities or coupons.
(b) At any time and from time to time after the execution and delivery of
this Indenture, Debt Securities of any series may be executed by the Company and
delivered to the Trustee for authentication, and, except as otherwise provided
in this Article Three, shall thereupon be authenticated and delivered by the
Trustee upon Company Order, without any further action by the Company; provided,
however, that, in connection with its original issuance, a Bearer Security may
be delivered only outside the United States and, except in the case of a
temporary Global Security, only if the Company or its agent shall have received
21
the certification required pursuant to Sections 304(b)(iii) and (iv), unless
such certification shall have been provided earlier pursuant to section
304(b)(v) hereof, and only if the Company has no reason to know that such
certification is false.
To the extent authorized in or pursuant to a Board Resolution and set
forth in an Officers' Certificate, or established in one or more indentures
supplemental hereto, such written Company Order may be given by any one officer
or employee of the Company, may be electronically transmitted, and may provide
instructions as to registration of holders, principal amounts, rates of
interest, maturity dates and other matters contemplated by such Board Resolution
and Officers' Certificate or supplemental indenture to be so instructed in
respect thereof. Before authorizing and delivering the first Debt Securities of
any series (and upon request of the Trustee thereafter), the Company shall
deliver to the Trustee (i) the certificates called for under Sections 201 and
301 hereof and (ii) an Opinion of Counsel described in the next sentence.
In authenticating such Debt Securities, and accepting the additional
responsibilities under this Indenture in relation to any Debt Securities, the
Trustee shall be provided with, prior to the initial authentication of such Debt
Securities, and (subject to Section 701) shall be fully protected in relying
upon:
(i) a Board Resolution relating thereto and, if applicable, an
appropriate record of any action taken pursuant to such resolution
certified by any authorized officer of the Company;
(ii) an executed supplemental indenture, if any, relating thereto;
(iii) an Officers' Certificate setting forth the form and terms of
the Debt Securities of such series and coupons, if any, pursuant to
Sections 201 and 301 and stating that all conditions precedent provided
for in this Indenture relating to the issuance of such Debt Securities
have been complied with; and
(iv) an Opinion of Counsel stating
(A) that the form of such Debt Securities and coupons, if any,
has been established in or pursuant to a Board Resolution or by a
supplemental indenture as permitted by Section 201 in conformity
with the provisions of this Indenture;
(B) that the terms of such Debt Securities and coupons, if
any, have been established in or pursuant to a Board Resolution or
by a supplemental indenture as permitted by Section 301 in
conformity with the provisions of this Indenture; and
(C) that such Debt Securities and coupons, if any, 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 binding obligations of
the Company, enforceable in accordance with their terms, except that
where Debt Securities of any series are to be exchanged for Capital
Securities or paid from the Securities Fund, the issuance of Capital
Securities will require further action by the Board of Directors,
and subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other laws
affecting creditors' rights generally and the application of general
principles of equity and except further as enforcement thereof may
be limited by (i) requirements that a claim with respect to any Debt
Securities denominated other than in Dollars (or a Foreign Currency
or currency unit judgment in respect of such claim) be converted
into Dollars at a rate of exchange prevailing on a date determined
22
pursuant to applicable law or (ii) governmental authority to limit,
delay or prohibit the making of payments in Foreign Currencies or
currency units or payments outside the United States.
(c) If the Company shall establish pursuant to Section 301 that the Debt
Securities of a series are to be issued in whole or in part in the form of one
or more Global Securities, then the Company shall execute and the Trustee shall,
in accordance with this Section and the Company Order with respect to such
series, authenticate and deliver one or more Global Securities in permanent or
temporary form that (i) shall represent and shall be denominated in an aggregate
amount equal to the aggregate principal amount of the Outstanding Debt
Securities of such series to be represented by one or more Global Securities,
(ii) shall be registered in the name of the Depositary for such Global Security
or Securities or the nominee of such Depositary and (iii) shall be delivered by
the Trustee to such Depositary or pursuant to such Depositary's instructions.
(d) The Trustee shall have the right to decline to authenticate and
deliver any Debt Securities under this Section 303 if the issuance of such Debt
Securities will adversely affect the Trustee's own rights, duties or immunities
under the Debt Securities and this Indenture or otherwise in a manner which is
not reasonably acceptable to the Trustee.
(e) If all the Debt Securities of any series are not to be issued at one
time, it shall not be necessary to deliver an Opinion of Counsel at the time of
issuance of each Debt Security, but such Opinion of Counsel, with appropriate
modifications, may instead be delivered at or prior to the time of the first
issuance of Debt Securities of such series.
(f) Each Registered Security shall be dated the date of its
authentication.
(g) No Debt Security or coupon attached thereto shall be entitled to any
benefit under this Indenture or be valid or obligatory for any purpose, unless
there appears on such Debt Security a certificate of authentication
substantially in the form provided for herein executed by the Trustee, and such
certificate upon any Debt Security shall be conclusive evidence, and the only
evidence, that such Debt Security has been duly authenticated and delivered
hereunder. Except as permitted by Section 306, the Trustee shall not
authenticate and deliver any Bearer Security unless all appurtenant coupons for
interest then matured have been detached and cancelled. Notwithstanding the
foregoing, if any Debt Security or portion thereof shall have been duly
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Debt Security to the Trustee for cancellation
as provided in Section 309 together with a written statement (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
stating that such Debt Security or portion thereof has never been issued and
sold by the Company, for all purposes of this Indenture such Debt Security shall
be deemed never to have been authenticated and delivered hereunder and shall
never be entitled to the benefits of this Indenture.
(h) Each Depositary designated pursuant to Section 301 for a Global
Security in registered form must, at the time of its designation and at all
times while it serves as Depositary, be a clearing agency registered under the
Securities Exchange Act of 1934 and any other applicable statute or regulation.
(i) Debt Securities distributed to holders of Book-Entry Capital
Securities (as defined in the applicable Trust Agreement) upon the dissolution
of an Issuer Trust shall be distributed in the form of one or more Global
Securities registered in the name of a Depositary or its nominee, and deposited
with the Security Registrar, as custodian for such Depositary, or with such
Depositary, for credit by the Depositary to the respective accounts of the
beneficial owners of the Debt Securities represented thereby (or such other
accounts as they may direct). Debt Securities distributed to holders of Capital
Trust Securities other than Book-Entry Capital Securities upon the dissolution
of an Issuer Trust shall not be issued in the form of a Global Security or any
other form intended to facilitate book-entry trading in beneficial interests in
such Debt Securities.
23
Section 304. Temporary Debt Securities.
(a) Pending the preparation of definitive Debt Securities of any series,
the Company may execute, and upon receipt of documents required by Sections 301
and 303, together with a Company Order, the Trustee shall authenticate and
deliver, temporary Debt Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any denomination, substantially of the
tenor and terms of the definitive Debt Securities in lieu of which they are
issued in registered form or, if authorized, in bearer form with one or more
coupons or without coupons, and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Debt
Securities may determine, as evidenced by their signatures on such Debt
Securities. In the case of Debt Securities of any series issuable as Bearer
Securities, such temporary Debt Securities may be in global form, representing
all or any part of the Outstanding Debt Securities of such series.
(b) Unless otherwise provided pursuant to Section 301:
(i) Except in the case of temporary Debt Securities in global form,
if temporary Debt Securities of any series are issued, the Company will
cause definitive Debt Securities of such series to be prepared without
unreasonable delay. After the preparation of definitive Debt Securities of
such series, the related temporary Debt Securities shall be exchangeable
for such definitive Debt Securities upon surrender of the temporary Debt
Securities of such series at the office or agency of the Company in the
Place of Payment for such series, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Debt Securities of
any series (accompanied, if applicable, by all unmatured coupons and all
matured coupons in default appertaining thereto), the Company shall
execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Debt Securities of the same
series of like tenor and terms and of authorized denominations; provided,
however, that no Bearer Security shall be delivered in exchange for a
Registered Security; and provided, further, that a Bearer Security shall
be delivered in exchange for a Bearer Security only in compliance with the
conditions set forth in Section 305.
(ii) If Debt Securities of any series are issued in temporary global
form, any such temporary Global Security shall, unless otherwise provided
pursuant to Section 301, be delivered to the Depositary for the benefit of
Euroclear and Clearstream, for credit to the respective accounts of the
beneficial owners of such Debt Securities (or to such other accounts as
they may direct).
(iii) Without unnecessary delay but in any event not later than the
date specified in, or determined pursuant to the terms of, any such
temporary Global Security (the "Global Exchange Date"), the Company shall
deliver definitive Debt Securities to the Trustee or the agent appointed
by the Company pursuant to Section 301 to effect the exchange of the
temporary Global Security for definitive Debt Securities (the "Global
Exchange Agent"), in an aggregate principal amount equal to the principal
amount of such temporary Global Security, executed by the Company. On or
after the Global Exchange Date, such temporary Global Security shall be
surrendered by the Depositary to the Global Exchange Agent, to be
exchanged, in whole or from time to time in part, for definitive Debt
Securities without charge and the Trustee or the Global Exchange Agent, if
authorized by the Trustee pursuant to Section 714, shall authenticate and
24
deliver, in exchange for each portion of such temporary Global Security,
an equal aggregate principal amount of definitive Debt Securities of the
same series of authorized denominations and of like tenor and terms as the
portion of such temporary Global Security to be exchanged. Upon any
exchange of a part of such temporary Global Security for definitive Debt
Securities, the portion of the principal amount and any interest
(including any Additional Interest) thereon so exchanged shall be endorsed
by the Global Exchange Agent on a schedule to such temporary Global
Security, whereupon the principal amount and interest payable with respect
to such temporary Global Security shall be reduced for all purposes by the
amount so exchanged and endorsed. The definitive Debt Securities to be
delivered in exchange for any such temporary Global Security shall be in
bearer form, registered form, global registered form or global bearer
form, or any combination thereof, as specified as contemplated by Section
301, and, if any combination thereof is so specified, as requested by the
beneficial owner thereof; provided, however, that, in the case of the
exchange of the temporary Global Security for definitive Bearer Securities
(including a definitive Global Bearer Security), upon such presentation by
the Depositary, such temporary Global Security shall be accompanied by a
certificate signed by Euroclear as to the portion of such temporary Global
Security held for its account then to be exchanged and a certificate
signed by Clearstream as to the portion of such temporary Global Security
held for its account then to be exchanged, each in the form set forth in
Exhibit B to this Indenture, unless such certificate(s) shall have been
provided earlier pursuant to section 304(b)(v) hereof; and provided,
further, that definitive Bearer Securities (including a definitive Global
Bearer Security) shall be delivered in exchange for a portion of a
temporary Global Security only in compliance with the requirements of
Section 303.
(iv) The interest of a beneficial owner of Debt Securities of a
series in a temporary Global Security shall be exchanged for definitive
Debt Securities of the same series and of like tenor and terms following
the Global Exchange Date when the account holder instructs Euroclear or
Clearstream, as the case may be, to request such exchange on such account
holder's behalf and, in the case of the exchange of the temporary Global
Security for definitive Bearer Securities (including a definitive Global
Bearer Security), unless such certificate(s) shall have been provided
earlier pursuant to Section 304(b)(v) hereof, the account holder delivers
to Euroclear or Clearstream, as the case may be, a certificate in the form
set forth in Exhibit A-1 and, if applicable, A-2 to this Indenture, dated
no earlier than 15 days prior to the Global Exchange Date, copies of which
certificate shall be available from the offices of Euroclear and
Clearstream, the Global Exchange Agent, any authenticating agent appointed
for such series of Debt Securities and each Paying Agent. Unless otherwise
specified in such temporary Global Security, any such exchange shall be
made free of charge to the beneficial owners of such temporary Global
Security, except that a Person receiving definitive Debt Securities must
bear the cost of insurance, postage, transportation and the like in the
event that such Person does not take delivery of such definitive Debt
Securities in person at the offices of Euroclear and Clearstream.
Definitive Debt Securities in bearer form to be delivered in exchange for
any portion of a temporary Global Security shall be delivered only outside
the United States.
(v) Until exchanged in full as hereinabove provided, the temporary
Debt Securities of any series shall in all respects be entitled to the
same benefits under this Indenture as definitive Debt Securities of the
same series and of like tenor and terms authenticated and delivered
hereunder, except that interest (including any Additional Interest)
payable on a temporary Global Security on an Interest Payment Date shall
25
be payable to Euroclear and Clearstream on such Interest Payment Date only
if there has been delivery by Euroclear and Clearstream to the Global
Exchange Agent of a certificate or certificates in the form set forth in
Exhibit B to this Indenture dated no earlier than the first Interest
Payment Date, for credit without further interest on or after such
Interest Payment Date to the respective accounts of the Persons who are
the beneficial owners of such temporary Global Security on such Interest
Payment Date and who have each delivered to Euroclear or Clearstream, as
the case may be, a certificate in the form set forth in Exhibit A-1 and,
if applicable, A-2 to this Indenture dated no earlier than the first
Interest Payment Date. Any interest so received by Euroclear and
Clearstream and not paid as herein provided prior to the Global Exchange
Date shall be returned to the Global Exchange Agent which, upon expiration
of two years after such Interest Payment Date, shall repay such interest
to the Company in accordance with Section 1103.
Section 305. Registration; Registration of Transfer and Exchange.
The Company shall cause to be kept at one of the offices or agencies to be
maintained by the Company in accordance with the provisions of this Section 305
and Section 1102, with respect to the Debt Securities of each series which are
Registered Securities, a register (herein sometimes referred to as the "Security
Register") in which, subject to such reasonable regulations as it may prescribe,
the Company shall provide for the registration of Registered Securities and of
transfers of Registered Securities. Pursuant to Section 301, the Company shall
appoint, with respect to Debt Securities of each series which are Registered
Securities, a "Security Registrar" for the purpose of registering such Debt
Securities and transfers and exchanges of such Debt Securities as herein
provided.
Upon surrender for registration of transfer of any Registered Security of
any series at the office or agency of the Company maintained for such purpose,
the Company shall execute, and the Trustee shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new Registered
Securities of the same series of any authorized denomination or denominations,
of like tenor and terms and aggregate principal amount.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series of any authorized
form and denomination, of like tenor and terms and aggregate principal amount,
upon surrender of the Registered Securities to be exchanged at such office or
agency. Bearer Securities may not be delivered in exchange for Registered
Securities.
At the option of the Holder, Registered Securities or Bearer Securities of
any series may be issued in exchange for Bearer Securities (except as otherwise
specified as contemplated by Section 301 with respect to a Bearer Security in
global form) of the same series, of any authorized denominations and of like
tenor and terms and aggregate principal amount, upon surrender of the Bearer
Securities to be exchanged at any such office or agency, with all unmatured
coupons and all matured coupons in default thereto appertaining. If the Holder
of a Bearer Security is unable to produce any such unmatured coupon or coupons
or matured coupon or coupons in default, such exchange may be effected if the
Bearer Securities are accompanied by payment in funds acceptable to the Company
and the Trustee in an amount equal to the face amount of such missing coupon or
coupons, or the surrender of such missing coupon or coupons may be waived by the
Company and the Trustee if there be furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to any Paying Agent any
such missing coupon in respect of which such a payment shall have been made,
such Holder shall be entitled to receive the amount of such payment; provided,
however, that, except as otherwise provided in Section 1102, interest
26
represented by coupons shall be payable only upon presentation and surrender of
those coupons at an office or agency located outside the United States.
Notwithstanding the foregoing, in case a Bearer Security of any series is
surrendered at any such office or agency in exchange for a Registered Security
of the same series and like tenor and terms after the close of business at such
office or agency of (i) any Regular Record Date and before the opening of
business at such office or agency on the relevant Interest Payment Date, or (ii)
any Special Record Date and before the opening of business at such office or
agency on the related date for payment of Defaulted Interest, such Bearer
Security shall be surrendered without the coupon relating to such Interest
Payment Date or proposed date of payment, as the case may be.
Whenever any Debt Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Debt
Securities which the Holder making the exchange is entitled to receive.
If at any time the Depositary for the Debt Securities of a series notifies
the Company that it is unwilling or unable to continue as Depositary for the
Debt Securities of such series or if at any time the Depositary for the Debt
Securities of such series shall no longer be eligible under Section 303(h), the
Company shall appoint a successor Depositary with respect to the Debt Securities
of such series. If a successor Depositary for the Debt Securities of such series
is not appointed by the Company within 90 days after the Company receives such
notice or becomes aware of such ineligibility, the Company's election pursuant
to Section 301(22) shall no longer be effective with respect to the Debt
Securities of such series and the Company will execute, and the Trustee, upon
receipt of a Company Order for the authentication and delivery of definitive
Debt Securities of such series, will authenticate and deliver, Debt Securities
of such series in definitive form in an aggregate principal amount equal to the
principal amount of the Global Security or Securities representing such series
in exchange for such Global Security or Securities.
The Company may at any time and in its sole discretion determine that the
Debt Securities of any series issued in the form of one or more Global
Securities shall no longer be represented by such Global Security or Securities.
In such event the Company will execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of definitive Debt Securities
of such series, will authenticate and deliver, Debt Securities of such series in
definitive form and in an aggregate principal amount equal to the principal
amount of the Global Security or Securities representing such series in exchange
for such Global Security or Securities.
If specified by the Company pursuant to Section 301 with respect to a
series of Debt Securities, the Depositary for such series of Debt Securities may
surrender a Global Security for such series of Debt Securities in exchange in
whole or in part for Debt Securities of such series of like tenor and terms and
in definitive form on such terms as are acceptable to the Company and such
Depositary. Thereupon, the Company shall execute, and the Trustee shall
authenticate and deliver, without service charge,
(a) to each Person specified by such Depositary a new Debt Security
or Securities of the same series, of like tenor and terms and of any
authorized denominations as requested by such person in aggregate
principal amount equal to and in exchange for such Person's beneficial
interest in the Global Security; and
(b) to such Depositary a new Global Security of like tenor and terms
and in a denomination equal to the difference, if any, between the
principal amount of the surrendered Global Security and the aggregate
principal amount of Debt Securities delivered to Holders thereof.
27
In any exchange provided for in any of the preceding three paragraphs, the
Company will execute and the Trustee will authenticate and deliver Debt
Securities (a) in definitive registered form in authorized denominations, if the
Debt Securities of such series are issuable as Registered Securities, (b) in
definitive bearer form in authorized denominations, with coupons attached, if
the Debt Securities of such series are issuable as Bearer Securities or (c) as
either Registered or Bearer Securities, as shall be specified by the beneficial
owner thereof, if the Debt Securities of such series are issuable in either
form; provided, however, that no definitive Bearer Security shall be delivered
in exchange for a temporary Global Security unless the Company or its agent
shall have received from the person entitled to receive the definitive Bearer
Security a certificate substantially in the form set forth in Exhibit A-1 and,
if applicable, A-2 hereto; and provided further that delivery of a Bearer
Security shall occur only outside the United States; and provided further that
no definitive Bearer Security will be issued if the Company has reason to know
that any such certificate is false.
Upon the exchange of a Global Security for Debt Securities in definitive
form, such Global Security shall be cancelled by the Trustee. Registered
Securities issued in exchange for a Global Security pursuant to this Section
shall be registered in such names and in such authorized denominations as the
Depositary for such Global Security, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Registered Securities to the persons in whose names such Debt
Securities are so registered. The Trustee shall deliver Bearer Securities issued
in exchange for a Global Security pursuant to this Section to the persons, and
in such authorized denominations, as the Depositary for such Global Security,
pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee; provided, however, that no definitive Bearer
Security shall be delivered in exchange for a temporary Global Security unless
the Company or its agent shall have received from the person entitled to receive
the definitive Bearer Security a certificate substantially in the form set forth
in Exhibit A-1 and, if applicable, A-2 hereto; and provided further that
delivery of a Bearer Security shall occur only outside the United States; and
provided further that no definitive Bearer Security will be issued if the
Company has reason to know that any such certificate is false.
All Debt Securities issued upon any registration of transfer or exchange
of Debt Securities shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the Debt
Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company, the Security
Registrar or the Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company, the Security
Registrar and the Trustee duly executed, by the Holder thereof or such Holder's
attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Debt Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any transfer, registration of transfer or exchange of Debt
Securities, other than exchanges expressly provided in this Indenture to be made
at the Company's own expense or without expense or without charge to the
Holders.
The Company shall not be required (i) to issue, register the transfer of
or exchange Debt Securities of any particular series to be redeemed or exchanged
for Capital Securities for a period of fifteen days preceding the first
publication of the relevant notice of redemption or exchange or, if Registered
28
Securities are outstanding and there is no publication, the mailing of the
relevant notice of redemption or exchange, or (ii) to register the transfer of
or exchange any Registered Security so selected for redemption or exchange in
whole or in part, except the unredeemed or unexchanged portion of such
Registered Security being redeemed or exchanged in part, or (iii) to exchange
any Bearer Security so selected for redemption or exchange except that such a
Bearer Security may be exchanged for a Registered Security of like tenor and
terms of that series, provided that such Registered Security shall be
simultaneously surrendered for redemption or exchange.
Notwithstanding anything herein to the contrary, the exchange of Bearer
Securities into Registered Securities shall be subject to applicable laws and
regulations in effect at the time of exchange; neither the Company, the Trustee
nor the Security Registrar shall exchange any Bearer Securities into Registered
Securities if it has received an Opinion of Counsel that as a result of such
exchanges the Company would suffer adverse consequences under the United States
Federal income tax laws and regulations then in effect and the Company has
delivered to the Trustee a Company Order directing the Trustee not to make such
exchanges thereafter unless and until the Trustee receives a subsequent Company
Order to the contrary. The Company shall deliver copies of such Company Orders
to the Security Registrar.
Section 306. Mutilated, Destroyed, Lost and Stolen Debt Securities.
If (i) any mutilated Debt Security or a Bearer Security with a mutilated
coupon appertaining to it is surrendered to a Paying Agent outside the United
States designated by the Company, or, in the case of any Registered Security, to
the Trustee, or (ii) the Company and the Trustee receive evidence to their
satisfaction of the destruction, loss or theft of any Debt Security or coupon,
and there is delivered to the Company and the Trustee such security or indemnity
as may be required by them to save each of them harmless, then, in the absence
of notice to the Company and the Trustee that such Debt Security or coupon has
been acquired by a bona fide purchaser, the Company shall execute and upon its
written request the Trustee shall authenticate and deliver, in exchange for any
such mutilated Debt Security or Bearer Security with a mutilated coupon
appertaining to it or to which a destroyed, lost or stolen coupon appertains
(with all appurtenant coupons not destroyed, lost or stolen) or in lieu of any
such destroyed, lost or stolen Debt Security, a new Debt Security of like tenor
and terms and principal amount, bearing a number not contemporaneously
outstanding, with coupons corresponding to the coupon, if any, appertaining to
such destroyed, lost or stolen Debt Security or to the Debt Security to which
such destroyed, lost or stolen coupon appertains; provided, however, that any
such new Bearer Security will be delivered only in compliance with the
conditions set forth in Section 305.
In case any such mutilated, destroyed, lost or stolen Debt Security or
coupon has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Debt Security, pay such Debt Security
or coupon; provided, however, that payment of principal of (and premium, if any)
and any interest on Bearer Securities shall, except as otherwise provided in
Section 1102, be payable only at an office or agency located outside the United
States; and provided, further, that, with respect to any such coupons, interest
represented thereby (but not any Additional Amounts payable as provided in
Section 1106), shall be payable only upon presentation and surrender of the
coupons appertaining thereto.
Upon the issuance of any new Debt Security or coupons 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 and printing expenses)
connected therewith.
29
Every new Debt Security of any series, with its coupons, if any, issued
pursuant to this Section in lieu of any destroyed, lost or stolen Debt Security,
or in exchange for a Bearer Security to which a destroyed, lost or stolen coupon
appertains, shall constitute an original additional contractual obligation of
the Company, whether or not the destroyed, lost or stolen Debt Security and its
coupons, if any, or the destroyed, lost or stolen coupon shall be at any time
enforceable by anyone, and any such new Debt Security and coupons, if any, shall
be entitled to all the benefits of this Indenture equally and proportionately
with any and all other Debt Securities of that series and their coupons, if any,
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 Debt Securities or coupons.
Section 307. Payment of Interest and Additional Interest; Interest Rights
Preserved.
Interest and any Additional Interest on any Registered Security 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 Registered Security (or one
or more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest. In case a Bearer Security of any series
is surrendered in exchange for a Registered Security of such series after the
close of business (at an office or agency in a Place of Payment for such series)
on any Regular Record Date and before the opening of business (at such office or
agency) on the next succeeding Interest Payment Date, such Bearer Security shall
be surrendered without the coupon relating to such Interest Payment Date and
interest and any Additional Interest will not be payable on such Interest
Payment Date in respect of the Registered Security issued in exchange for such
Bearer Security, but will be payable only to the Holder of such coupon when due
in accordance with the provisions of this Indenture. At the option of the
Company, payment of interest and any Additional Interest on any Registered
Security may be made by check in the currency designated for such payment
pursuant to the terms of such Registered Security mailed to the address of the
Person entitled thereto as such address shall appear in the Security Register or
by wire transfer to an account in such currency designated by such Person in
writing not later than ten days prior to the date of such payment.
Any interest (including any Additional Interest) on any Registered
Security of any series which is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date (herein called "Defaulted Interest")
shall forthwith cease to be payable to the registered Holder on the relevant
Regular Record Date by virtue of his 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 Registered Securities of such series (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 Registered Security of such series and the date of the
proposed payment, and at the same time the Company shall deposit with the
Trustee an amount of money and/or, to the extent such Debt Securities are
denominated and payable in Dollars only, Eligible Instruments the payments
of principal and interest on which when due (and without reinvestment and
providing no tax liability will be imposed upon the Trustee or the Holder
of such Registered Securities) will provide money in such amounts as will
(together with any money irrevocably deposited in trust with the Trustee,
without investment) be 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
30
proposed payment, such money and/or Eligible Instruments 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. Unless the Trustee is
acting as the Security Registrar, promptly after such Special Record Date,
the Company shall furnish the Trustee with a list, or shall make
arrangements satisfactory to the Trustee with respect thereto, of the
names and addresses of, and principal amounts of Registered Securities of
such series held by, the Holders appearing on the Security Register at the
close of business on such Special Record Date. In the name and at the
expense of the Company, the Trustee 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 Registered
Securities of such series at his address as it appears in the Security
Register, not less than 10 days prior to 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 Registered Securities of
such series (or their respective Predecessor Securities) are registered at
the close of business on such Special Record Date and shall no longer be
payable pursuant to the following Clause (2). In case a Bearer Security of
any series is surrendered at the office or agency in a Place of Payment
for such series in exchange for a Registered Security of such series after
the close of business at such office or agency on any Special Record Date
and before the opening of business at such office or agency on the related
proposed date for payment of Defaulted Interest, such Bearer Security
shall be surrendered without the coupon relating to such proposed date of
payment and Defaulted Interest will not be payable on such proposed date
of payment in respect of the Registered Security issued in exchange for
such Bearer Security, but will be payable only to the Holder of such
coupon when due in accordance with the provisions of this Indenture.
(2) The Company may make payment of any Defaulted Interest on the
Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Registered Securities may be listed, and upon such notice as may be
required by such exchange, if, after notice given by the Company to the
Trustee of the proposed payment pursuant to this Clause, such manner of
payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Debt Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Debt Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Debt
Security.
Subject to the limitations set forth in Section 1102, the Holder of any
coupon appertaining to a Bearer Security shall be entitled to receive the
interest payable on such coupon upon presentation and surrender of such coupon
on or after the Interest Payment Date of such coupon at an office or agency
maintained for such purpose pursuant to Section 1102.
31
If any Registered Security is exchanged for Capital Securities after any
record date and on or prior to the next succeeding Interest Payment Date (other
than any Debt Security whose Maturity is prior to such Interest Payment Date),
interest whose Stated Maturity is on such Interest Payment Date shall be paid by
the Company on such Interest Payment Date notwithstanding such exchange, and
such interest (whether or not punctually paid or duly provided for) shall be
paid to the Person in whose name that Debt Security is registered at the close
of business on such record date.
If any Bearer Security is exchanged for Capital Securities after any
record date and on or prior to the next succeeding Interest Payment Date (other
than any Debt Security whose Maturity is prior to such Interest Payment Date),
interest whose Stated Maturity is on such Interest Payment Date shall be payable
on such Interest Payment Date notwithstanding such exchange, and such interest
(whether or not punctually paid or duly provided for) shall be paid by the
Company pursuant to such procedures as may be satisfactory to the Trustee.
Section 308. Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or of the
Trustee may treat the Person in whose name such Registered Security is
registered as the owner of such Registered Security for the purpose of receiving
payment of principal of (and premium, if any) and (subject to Section 307)
interest (including any Additional Interest) on such Registered Security and for
all other purposes whatsoever, whether or not such Registered 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.
The Company, the Trustee and any agent of the Company or the Trustee may
treat the bearer of any Bearer Security and the bearer of any coupon as the
absolute owner of such Bearer Security or coupon for the purpose of receiving
payment thereof or on account thereof and for all other purposes whatsoever,
whether or not such Bearer Security or coupon 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.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
Section 309. Cancellation.
Unless otherwise provided with respect to a series of Debt Securities, all
Debt Securities and coupons surrendered for payment, redemption, repayment,
transfer, exchange or credit against any sinking fund payment pursuant to this
Indenture, shall, if surrendered to the Company or any agent of the Company, be
delivered to the Trustee and shall be promptly cancelled by it. The Company may
at any time deliver to the Trustee for cancellation any Debt Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Debt Securities so delivered shall be
promptly cancelled by the Trustee. No Debt Securities shall be authenticated in
lieu of or in exchange for any Debt Securities cancelled as provided in this
Section, except as expressly permitted by this Indenture. All cancelled Debt
Securities and coupons held by the Trustee shall be disposed of by the Trustee
in its customary manner and certification of their disposal delivered to the
Company, upon request, unless by a Company Order the Company shall direct that
the cancelled Debt Securities or coupons be returned to it.
32
Section 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for Debt
Securities of any series, interest (including any Additional Interest) on the
Debt Securities of each series shall be computed on the basis of a 360-day year
of twelve 30-day months.
Section 311. Certification by a Person Entitled to Delivery of a Bearer
Security.
Whenever any provision of this Indenture or a Debt Security contemplates
that certification be given by a Person entitled to delivery of a Bearer
Security, such certification shall be provided substantially in the form of
Exhibit A-1 and, if applicable, A-2 hereto, with only such changes as shall be
approved by the Company and consented to by the Trustee whose consent shall not
unreasonably be withheld.
Section 312. Judgments.
The Company may provide, pursuant to Section 301, for the Debt Securities
of any series that, to the fullest extent possible under applicable law and
except as may otherwise be specified as contemplated in Section 301, (a) the
obligation, if any, of the Company to pay the principal of (and premium, if any)
and interest (including any Additional Interest) on the Debt Securities of any
series and any appurtenant coupons in a Foreign Currency, composite currency or
Dollars (the "Designated Currency") as may be specified pursuant to Section 301
is of the essence and agrees that judgments in respect of such Debt Securities
shall be given in the Designated Currency; (b) the obligation of the Company to
make payments in the Designated Currency of the principal of (and premium, if
any) and interest (including any Additional Interest) on such Debt Securities
and any appurtenant coupons shall, notwithstanding any payment in any other
currency (whether pursuant to a judgment or otherwise), be discharged only to
the extent of the amount in the Designated Currency that the Holder receiving
such payment may, in accordance with normal banking procedures, purchase with
the sum paid in such other currency (after any premium and cost of exchange) in
the country of issue of the Designated Currency in the case of Foreign Currency
or Dollars or in the international banking community in the case of a composite
currency on the Business Day immediately following the day on which such Holder
receives such payment; (c) if the amount in the Designated Currency that may be
so purchased for any reason falls short of the amount originally due, the
Company shall pay such additional amounts as may be necessary to compensate for
such shortfall; and (d) any obligation of the Company not discharged by such
payment shall be due as a separate and independent obligation and, until
discharged as provided herein, shall continue in full force and effect.
Section 313. Deferrals of Interest Payment Dates.
If specified as contemplated by Section 301 with respect to the Debt
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 Debt
Securities for such period or periods as may be specified as contemplated by
Section 301 (each, an "Extension Period"), during which Extension Periods the
Company shall, if so specified as contemplated by Section 301, have the right to
make partial payments of interest on any Interest Payment Date. No Extension
Period shall end on a date other than an Interest Payment Date. At the end of
any such Extension Period the Company shall pay all interest then accrued and
unpaid on the Debt Securities (together with Additional Interest thereon, if
any, at the rate specified for the Debt Securities of such series to the extent
permitted by applicable law); provided, however, that no Extension Period shall
extend beyond the Stated Maturity of the principal of the Debt Securities of
such series. Prior to the termination of any such Extension Period, the Company
may further defer the payment of interest, provided that no Event of Default has
occurred and is continuing, and provided, further that no Extension Period shall
exceed the period or periods specified in such Debt Securities, extend beyond
33
the Stated Maturity of the principal of such Debt Securities or end on a date
other than an Interest Payment Date. Upon the termination of any such Extension
Period and upon the payment of all accrued and unpaid interest and any
Additional Interest then due on any Interest Payment Date, the Company may elect
to begin a new Extension Period, subject to the above conditions. No interest or
Additional Interest shall be due and payable during an Extension Period, except
at the end thereof, but each installment of interest that would otherwise have
been due and payable during such Extension Period shall bear Additional Interest
as and to the extent as may be specified as contemplated by Section 301. The
Company shall give the Holders of the Debt Securities of such series and the
Trustee notice of its election to begin any such Extension Period at least one
Business Day prior to the next succeeding Interest Payment Date on which
interest on Debt Securities of such series would be payable but for such
deferral or, with respect to any Debt Securities of a series issued to an Issuer
Trust, so long as any such Debt Securities are held by such Issuer Trust, at
least one Business Day prior to the earlier of (i) the next succeeding date on
which Distributions on the Capital Trust Securities of such Issuer Trust would
be payable but for such deferral, and (ii) the date on which the Property
Trustee of such Issuer Trust is required to give notice to holders of such
Capital Trust Securities of the record date or the date such Distributions are
payable.
The Trustee shall promptly give notice of the Company's election to begin
any such Extension Period to the Holders of the Outstanding Debt Securities of
such series.
Section 314. Right of Set-Off.
With respect to the Debt Securities of a series initially issued to an
Issuer Trust, notwithstanding anything to the contrary herein, the Company shall
have the right to set off any payment it is otherwise required to make in
respect of any such Debt Security to the extent the Company has theretofore
made, or is concurrently on the date of such payment making, a payment under the
Guarantee Agreement relating to such Debt Security or to a holder of Capital
Trust Securities pursuant to an action undertaken under Section 608 of this
Indenture.
Section 315. Agreed Tax Treatment.
Each Debt Security issued hereunder shall provide that the Company and, by
its acceptance of a Debt Security or a beneficial interest therein, the Holder
of, and any Person that acquires a beneficial interest in, such Debt Security
agree that for United States Federal, state and local tax purposes it is
intended that such Debt Security constitutes indebtedness.
Section 316. CUSIP Numbers.
The Company in issuing the Debt Securities may use "CUSIP" numbers (if
then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in
notices of redemption or other related material as a convenience to Holders;
provided that any such notice or other related material may state that no
representation is made as to the correctness of such numbers either as printed
on the Debt Securities or as contained in any notice of redemption or other
related material and that reliance may be placed only on the other
identification numbers printed on the Debt 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 in writing of any change in "CUSIP" numbers.
34
Article IV
Guarantee of Securities
Section 401. Unconditional Guarantee.
The Guarantor hereby unconditionally guarantees to each Holder of a Debt
Security of any series authenticated and delivered by the Trustee or
Authenticating Agent the due and punctual payment of the principal of and
premium, if any, and interest (including any Additional Amounts, Additional
Interest or Additional Sums) on such Debt Security and the due and punctual
payment of the sinking fund payments, if any, provided for pursuant to the terms
of such Debt Security, when and as the same shall become due and payable,
whether at maturity, by acceleration or redemption or otherwise, in accordance
with the terms of such Debt Security and of this Indenture. In case of the
failure of the Company punctually to pay any such principal, premium, interest
or sinking fund payment, the Guarantor hereby agrees to cause any such payment
to be made punctually when and as the same shall become due and payable, whether
at maturity, upon acceleration or redemption or otherwise, and as if such
payment were made by the Company; provided, however, that in the case of the
Company exercising its deferral of interest payment right pursuant to Section
313 of this Indenture the Guarantor's guarantee of interest payment will apply
only at the end of the related Extension Period.
The Guarantor hereby agrees that its obligations hereunder shall be as
principal and not merely as surety, and shall be absolute and unconditional,
irrespective of, and shall be unaffected by, any invalidity, irregularity or
unenforceability of such Debt Security or this Indenture, any failure to enforce
the provisions of any such Debt Security or this Indenture, or any waiver,
modification, consent or indulgence granted to the Company with respect thereto,
by the Holder of such Debt Security or the Trustee, the recovery of any judgment
against the Company or any action to enforce the same, or any other
circumstances which may otherwise constitute a legal or equitable discharge of a
surety or guarantor. The Guarantor hereby waives diligence, presentment, demand
of payment, filing of claims with a court in the event of merger, insolvency or
bankruptcy of the Company, any right to require a proceeding first against the
Company, protest or notice with respect to any such Debt Security or the
indebtedness evidenced thereby and all demands whatsoever, and covenants that
this Guarantee will not be discharged except by payment in full of the principal
of and premium, if any, and interest on, and any sinking fund payments required
with respect to, the Debt Securities and the complete performance of all other
obligations contained in the Debt Securities.
The Guarantor shall be subrogated to all rights of the Holder of any Debt
Security against the Company in respect of any amounts paid to such Holder by
the Guarantor pursuant to the provisions of this Guarantee; provided, however,
that the Guarantor shall not be entitled to enforce, or to receive any payments
arising out of or based upon, such right of subrogation until the principal of
and premium, if any, and interest on, and any sinking fund payments required
with respect to, all Debt Securities shall have been paid in full.
Claims under the Guarantee are, to the extent provided in this Indenture,
subordinate and subject in right of payment to the prior payment in full of all
Senior Debt of the Guarantor, and the Guarantee is issued subject to the
provisions of this Indenture with respect thereto. Each Holder of a Security
upon which the Guarantee is endorsed, 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 action 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.
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Section 402. Execution of Guarantee.
To evidence its Guarantee to the Holders specified in Section 401, the
Guarantor hereby agrees to execute the Guarantee in substantially the form above
recited to be endorsed on each Debt Security authenticated and delivered by the
Trustee or Authenticating Agent. Each such Guarantee shall be executed on behalf
of the Guarantor and dated as set forth in Section 303 prior to the
authentication of the Debt Security on which it is endorsed, and the delivery of
such Debt Security by the Trustee or Authenticating Agent, after the
authentication thereof hereunder, shall constitute due delivery of such
Guarantee on behalf of the Guarantor.
The Guarantee set forth in this Article shall not be valid or become
obligatory for any purpose with respect to a Debt Security until the certificate
of authentication on such Debt Security shall have been signed by the Trustee or
Authenticating Agent.
Article V
Satisfaction and Discharge
Section 501. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect,
including the provisions of Article Nineteen hereof (except as to any surviving
rights of registration of transfer or exchange of Debt Securities herein
expressly provided for and rights to receive payments of principal and interest
thereon (including any Additional Interest) and any right to receive Additional
Amounts, as provided in Section 1106) and the Trustee, at the expense of the
Company and the Guarantor, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture when
(1) either
(A) all Debt Securities theretofore authenticated and
delivered and all coupons appertaining thereto (other than (i)
coupons appertaining to Bearer Securities surrendered in exchange
for Registered Securities and maturing after such exchange,
surrender of which is not required or has been waived as provided in
Xxxxxxx 000, (xx) Debt Securities and coupons which have been
destroyed, lost or stolen and which have been replaced or paid as
provided in Xxxxxxx 000, (xxx) coupons appertaining to Bearer
Securities called for redemption or surrendered for repayment and
maturing after the relevant Redemption Date or Repayment Date, as
appropriate, surrender of which has been waived as provided in
Section 1206 or 1403 and (iv) Debt Securities and coupons for whose
payment money and/or Eligible Instruments have 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 1103) have been delivered to the Trustee
cancelled or for cancellation; or
(B) all such Debt 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, or
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(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 Guarantor,
and the Company, in the case of (B)(i), (B)(ii) or (B)(iii) above,
has irrevocably deposited or caused to be deposited with the Trustee
as trust funds in trust for the purpose money and/or, to the extent
such Debt Securities are denominated and payable in Dollars only,
Eligible Instruments the payments of principal and interest on which
when due (and without reinvestment and providing no tax liability
will be imposed upon the Trustee or the Holders of Debt Securities)
will provide money in such amounts as will (together with any money
irrevocably deposited in trust with the Trustee, without investment)
be sufficient to pay and discharge the entire indebtedness on such
Debt Securities and coupons of such series for principal (and
premium, if any) and interest (including any Additional Interest),
and any mandatory sinking fund, repayment or analogous payments
thereon, on the scheduled due dates therefor to the date of such
deposit (in the case of Debt Securities and coupons which have
become due and payable) or to the Stated Maturity or Redemption
Date, if any, and all Repayment Dates (in the case of Debt
Securities repayable at the option of the Holders thereof);
provided, however, that in the event a petition for relief under the
Bankruptcy Reform Act of 1978 or a successor statute is filed with
respect to the Company within 91 days after the deposit, the
obligations of the Company and the Guarantor under the Indenture
with respect to the Debt Securities of such series and the related
Guarantees shall not be deemed terminated or discharged, and in such
event the Trustee shall be required to return the deposited money
and Eligible Instruments to the Company;
(2) the Company or the Guarantor has paid or caused to be paid all
other sums payable hereunder by the Company and the Guarantor; and
(3) the Company and the Guarantor have 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 and the Guarantor to the Trustee under Section 707
and, if money or Eligible Instruments shall have been deposited with the Trustee
pursuant to Subclause (B) of Clause (1) of this Section, the obligations of the
Trustee under Section 502 and the last paragraph of Section 1103 shall survive
such satisfaction and discharge.
Section 502. Application of Trust Money and Eligible Instruments.
(a) Subject to the provisions of the last paragraph of Section 1103, all
money and Eligible Instruments deposited with the Trustee pursuant to Section
501, 503 or 1801 shall be held in trust and such money and the principal and
interest received on such Eligible Instruments shall be applied by it, in
accordance with the provisions of the Debt Securities, the coupons 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 (including any Additional Interest) for whose payment such
money or Eligible Instruments have been deposited with the Trustee.
(b) The Trustee shall deliver or pay to the Company from time to time upon
Company Request any Eligible Instruments or money held by it as provided in
37
Section 503 or 1801 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are then in excess of the amount thereof which then
would have been required to be deposited for the purpose for which such Eligible
Instruments or money were deposited or received.
(c) If this Section 502(c) is specified, as contemplated by Section 301,
to be applicable to the Debt Securities of any series, the Trustee shall deliver
to the Company from time to time upon Company Request any Eligible Instruments
held by it as provided in Section 503 or 1801, provided that the Company in
substitution therefor simultaneously delivers to the Trustee, money or other
Eligible Instruments which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, would then be sufficient to satisfy the Company's
payment obligations in respect of the Debt Securities in the manner contemplated
by Section 503 or 1801.
Section 503. Satisfaction, Discharge and Defeasance of Debt Securities of
any Series.
If this Section 503 is specified, as contemplated by Section 301, to be
applicable to Debt Securities of any series, then, notwithstanding Section 501,
(i) the Company shall be deemed to have paid and discharged the entire
indebtedness on all the Outstanding Debt Securities of any such series and
related coupons; (ii) the provisions of this Indenture as it relates to such
Outstanding Debt Securities and related coupons shall no longer be in effect,
including the provisions of Article Nineteen hereof (except as to the rights of
Holders of Debt Securities to receive, from the trust fund described in
subparagraph (1) below, payment of (x) the principal of (and premium, if any)
and any installment of principal of (and premium, if any) or interest (including
any Additional Interest) on such Debt Securities and related coupons on the
Stated Maturity of such principal (and premium, if any) or installment of
principal (and premium, if any) or interest (including any Additional Interest)
or (y) any mandatory sinking fund, repayment or analogous payments applicable to
the Debt Securities of that series on that day on which such payments are due
and payable in accordance with the terms of this Indenture and of such Debt
Securities, the Company's obligations with respect to such Debt Securities under
Sections 304, 305, 306, 1102, 1103 and 1106 and the rights, powers, trusts,
duties and immunities of the Trustee hereunder, including those under Section
707 hereof); and (iii) the Trustee, at the expense of the Company, shall, upon
Company Order, execute proper instruments provided to it acknowledging
satisfaction and discharge of such indebtedness, when
(1) either
(A) with respect to all Outstanding Debt Securities of such
series and related coupons, with reference to this Section 503, the
Company has deposited or caused to be deposited with the Trustee (or
another trustee satisfying the requirements of Section 709 who shall
agree to comply with the provisions of this Section 503 applicable
to it) irrevocably, as trust funds in trust, money and/or, to the
extent such Debt Securities are denominated and payable in Dollars
only, Eligible Instruments the payments of principal and interest on
which when due (and without reinvestment and providing no tax
liability will be imposed upon the Trustee or the Holders of such
Debt Securities) will provide money in such amounts as will
(together with any money irrevocably deposited in trust with the
Trustee, without investment) be sufficient to pay and discharge (i)
the principal of (and premium, if any) and interest (including any
Additional Interest) on the Outstanding Debt Securities of that
series and related coupons on the Stated Maturity of such principal
or interest (including any Additional Interest) or, if such series
38
may be redeemed by the Company prior to the Stated Maturity thereof,
and the Company shall have given irrevocable instructions to the
Trustee to effect such redemption, at the date fixed for such
redemption pursuant to Article Twelve, and (ii) any mandatory
sinking fund payments or analogous payments applicable to Debt
Securities of such series on the date on which such payments are due
and payable in accordance with the terms of this Indenture and of
such Debt Securities; or
(B) the Company has properly fulfilled such other means of
satisfaction and discharge as is specified, as contemplated by
Section 301, to be applicable to the Debt Securities of such series;
(2) the Company has paid or caused to be paid all sums payable with
respect to the Outstanding Debt Securities of such series and related
coupons;
(3) such deposit will not result in a breach of, or constitute a
default under, this Indenture or any other agreement or instrument to
which the Company is a party or by which it is bound;
(4) no Event of Default or event which, with the giving of notice or
lapse of time, or both, would become an Event of Default with respect to
the Debt Securities of such series shall have occurred and be continuing
on the date of such deposit and no Event of Default under Section 601(5)
or Section 601(6) or event which, with the giving of notice or lapse of
time, or both, would become an Event of Default under Section 601(5) or
Section 601(6) shall have occurred and be continuing on the 91st day after
such date; provided, however, that should that condition fail to be
satisfied on or before such 91st day, the Trustee shall promptly, upon
satisfactory receipt of evidence of such failure, return such deposit to
the Company;
(5) the Company has delivered to the Trustee an Opinion of Counsel
to the effect that (a) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling, or (b) since the date
of this Indenture there has been a change in applicable Federal income tax
law, in either case to the effect that, and based thereon such Opinion of
Counsel shall confirm that, the Holders of Debt Securities and related
coupons of such series will not recognize income, gain or loss for Federal
income tax purposes as a result of such deposit, defeasance and discharge
and will be subject to Federal income tax on the same amount and in the
same manner and at the same times as would have been the case if such
deposit, defeasance and discharge had not occurred;
(6) if the Debt Securities of that series are then listed on any
domestic or foreign securities exchange, the Company shall have delivered
to the Trustee an Opinion of Counsel to the effect that such deposit,
defeasance and discharge will not cause such Debt Securities to be
delisted;
(7) such deposit shall have been effected in compliance with any
additional terms, conditions or limitations which may be imposed on the
Company in connection therewith pursuant to Section 301; and
(8) 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 the entire indebtedness of all Outstanding Debt Securities and related
coupons have been complied with.
39
Any deposits with the Trustee referred to in Section 503(1)(A) above shall
be irrevocable and shall be made under the terms of an escrow trust agreement in
form and substance satisfactory to the Trustee. If any Outstanding Debt
Securities of such series are to be redeemed prior to their Stated Maturity,
whether pursuant to any optional redemption provisions or in accordance with any
mandatory sinking fund requirement, the applicable escrow trust agreement shall
provide therefor and the Company shall make such arrangements as are
satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Company.
Upon the satisfaction of the conditions set forth in this Section 503 with
respect to all the Outstanding Debt Securities of any series, the terms and
conditions of such series, including the terms and conditions with respect
thereto set forth in this Indenture, shall no longer be binding upon, or
applicable to, the Company; provided that the Company shall not be discharged
from any payment obligations in respect of Debt Securities of such series which
are deemed not to be Outstanding under clause (iii) of the definition thereof if
such obligations continue to be valid obligations of the Company under
applicable law.
Notwithstanding the cessation, termination and discharge of all
obligations, covenants and agreements (except as provided above in this Section
503) of the Company under this Indenture with respect to any series of Debt
Securities, the obligations of the Company to the Trustee under Section 707, and
the obligations of the Trustee under Section 502 and the last paragraph of
Section 1103, shall survive with respect to such series of Debt Securities.
Article VI
Remedies
Section 601. Events of Default.
"Event of Default," wherever used herein with respect to Debt 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, 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 Debt Security of
such series or a related coupon, if any, when it becomes due and payable,
and continuance of such default for a period of 30 days (subject to the
deferral of any due date in the case of an Extension Period); or
(2) default in the payment of the principal of (or premium, if any,
on) any Debt Security of such series at its Maturity; or
(3) the entry of a decree or order for relief in respect of the
Company or the Guarantor by a court having jurisdiction in the premises in
an involuntary case under the Federal bankruptcy laws, as now or hereafter
constituted, and the continuance of any such decree or order unstayed and
in effect for a period of 60 consecutive days; or
(4) the commencement by the Company or the Guarantor of a voluntary
case under the Federal bankruptcy laws, as now or hereafter constituted,
or the consent by the Company to the entry of a decree or order for relief
in an involuntary case under any such law; or
40
(5) any other Event of Default, if any, provided with respect to
Debt Securities of such series specified as contemplated by Section 301.
Section 602. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Debt 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 Outstanding
Debt Securities of such series may declare the principal amount (or, if the Debt
Securities of such series are Original Issue Discount Securities, such portion
of the principal amount as may be specified in the terms of such series) of and
all accrued but unpaid interest (including any Additional Interest) on all the
Debt Securities of such series to be due and payable immediately, by a notice in
writing to the Company and the Guarantor (and to the Trustee if given by such
Holders), provided that, in the case of the Debt Securities of a series issued
to an Issuer Trust, if, upon an Event of Default, the Trustee or the Holders of
not less than 25% in principal amount of the Outstanding Debt Securities of such
series fail to declare the principal of all the Outstanding Debt Securities of
such series to be immediately due and payable, either the Property Trustee or
the holders of at least 25% in aggregate Liquidation Amount (as defined in the
related Trust Agreement) of the related series of Capital Trust Securities
issued by such Issuer Trust then outstanding shall have the right to make such
declaration by a notice in writing to the Company, the Guarantor and the
Trustee; and upon any such declaration such principal amount (or specified
amount) shall become immediately due and payable. Upon payment of such amount,
all obligations of the Company in respect of the payment of principal of the
Debt Securities of such series and all obligations of the Guarantor in respect
of the related Guarantees shall terminate.
At any time after such a declaration of acceleration with respect to Debt
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 Debt Securities of such series, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its consequences if
(1) the Company or the Guarantor has paid or deposited with the
Trustee a sum sufficient to pay
(A) all overdue installments of interest on all Debt
Securities of such series and any related coupons and any accrued
Additional Interest on all Debt Securities of such series,
(B) the principal of (and premium, if any, on) any Debt
Securities of such series which have become due otherwise than by
such declaration of acceleration and interest and Additional
Interest thereon at the rate or rates prescribed therefor in such
Debt Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest on each Debt Security
and any related coupons at the rate or rates prescribed therefor in
such Debt Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
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(2) all Events of Default with respect to Debt Securities of such
series, other than the non-payment of the principal of such series which
have become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 613;
provided, however, that in the case of Debt Securities of a series
initially issued to an Issuer Trust, any such rescission and annulment
shall require the consent of the holders of a majority in aggregate
Liquidation Amount (as defined in the related Trust Agreement) of the
related series of Capital Trust Securities then outstanding.
In the case of Debt Securities of a series initially issued to an Issuer
Trust, if the Holders of such Debt Securities fail to annul such declaration and
waive such default, the holders of a majority in aggregate Liquidation Amount
(as defined in the related Trust Agreement) of the related series of Capital
Trust Securities issued by such Issuer Trust then outstanding shall also have
the right to rescind and annul such declaration and its consequences by written
notice to the Company and the Trustee, subject to the satisfaction of the
conditions set forth in Clauses (1) and (2) above of this Section 602.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 603. 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 Debt Security or any related
coupon when such interest becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium,
if any, on) any Debt Security at the Maturity thereof, the Company will,
upon demand of the Trustee, pay to it, for the benefit of the Holders of
such Debt Securities and coupons, the amount then due and payable on such
Debt Securities and coupons for principal (and premium, if any) and
interest (including any Additional Interest), including the delivery of
any Capital Securities then required to be delivered, and, to the extent
that payment of such interest shall be legally enforceable, interest upon
the overdue principal (and premium, if any) and, upon overdue installments
of interest, at the rate or rates prescribed therefor in such Debt
Securities, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
If the Company or the Guarantor fails to pay such amounts (including the
delivery of any Capital Securities then required to be delivered) 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 the delivery of any Capital Securities required to be delivered and
not so delivered, or, in the case of the failure to deliver Capital Securities,
money equal to the principal amount of the Debt Securities for which the Capital
Securities were to be exchanged, and may prosecute such proceeding to judgment
or final decree, and may enforce the same against the Company, the Guarantor or
any other obligor upon such Debt Securities and coupons and collect the moneys
(or money equal to the principal amount of any Debt Securities for which Capital
Securities were to be exchanged) adjudged or decreed to be payable in the manner
provided by law out of the property of the Company, the Guarantor or any other
obligor upon such Debt Securities and coupons, wherever situated.
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If an Event of Default with respect to Debt 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 Debt Securities of such
series and any related coupons 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 604. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceedings, or any voluntary or involuntary case under the Federal
bankruptcy laws as now or hereafter constituted, relative to the Company, the
Guarantor or any other obligor upon the Debt Securities of a particular series
or any related coupons or the property of the Company, the Guarantor or of such
other obligor or their creditors, the Trustee (irrespective of whether the
principal of such Debt Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee
shall have made any demand on the Company or the Guarantor for the payment of
overdue principal or interest (including any Additional Interest)) shall be
entitled and empowered, by intervention in such proceedings or otherwise,
(1) to file and prove a claim for the whole amount of principal (and
premium, if any) and interest (including any Additional Interest) owing
and unpaid in respect of the Debt Securities of such series and any
appurtenant coupons and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and of
the Holders allowed in such judicial proceeding, and
(2) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, custodian, liquidator, sequestrator or
other similar official in any such proceeding is hereby authorized by each
Holder to make such payments to the Trustee, 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 it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 707.
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 Debt
Securities or coupons 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.
Section 605. Trustee May Enforce Claims without Possession of Debt
Securities or Coupons.
All rights of action and claims under this Indenture, the Debt Securities,
coupons or the related Guarantees may be prosecuted and enforced by the Trustee
without the possession of any of the Debt Securities or coupons 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 the reasonable compensation, expenses, disbursements and advances of
43
the Trustee, its agents and counsel, be for the ratable benefit of the Holders
of the Debt Securities and coupons in respect of which such judgment has been
recovered.
Section 606. Application of Money Collected.
Any money collected by the Trustee 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 on account of principal (and premium,
if any) or interest (including any Additional Interest), upon presentation of
the Debt Securities or coupons, or both, as the case may be, 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 under Section 707;
SECOND: To the payment of amounts then due and unpaid to the holders of
Senior Debt of the Guarantor, to the extent required by Article Nineteen;
THIRD: To the payment of the amounts then due and unpaid for principal of
(and premium, if any) and interest (including any Additional Interest) on the
Debt Securities and any coupons, in respect of which or for the benefit of which
such money has been collected ratably, without preference or priority of any
kind, according to the amounts due and payable on such Debt Securities and any
coupons for principal (and premium, if any) and interest (including any
Additional Interest), respectively. The Holders of each series of Debt
Securities denominated in Euro, any other composite currency or a Foreign
Currency and any matured coupons relating thereto shall be entitled to receive a
ratable portion of the amount determined by the Exchange Rate Agent by
converting the principal amount Outstanding of such series of Debt Securities
and matured but unpaid interest (including any Additional Interest) on such
series of Debt Securities in the currency in which such series of Debt
Securities is denominated into Dollars at the Exchange Rate as of the date of
declaration of acceleration of the Maturity of the Debt Securities; and
FOURTH: The balance, if any, to the Company.
Section 607. Limitation on Suits.
No Holder of any Debt Securities of any series or any related coupons
shall have any right to institute any proceeding, judicial or otherwise, with
respect to this Indenture, or for the appointment of a receiver or trustee, 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 Debt Securities of
such series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Debt Securities of such series shall have made written request
to the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity satisfactory to it against the costs, expenses and liabilities
to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
44
(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 Debt Securities of such
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 of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other such
Holders, 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 of such
Holders.
Section 608. Unconditional Right of Holders to Receive Principal, Premium
and Interest and to Exchange Debt Securities for Capital Securities; Direct
Action by Holders of Capital Trust Securities.
Notwithstanding any other provision in this Indenture, the Holder of any
Debt Security or coupon shall have the right which is absolute and unconditional
to receive payment of the principal of (and premium, if any) and (subject to
Section 307) interest (including any Additional Interest) on such Debt Security
or payment of such coupon on the respective Stated Maturity or Maturities
expressed in such Debt Security or coupon (or, in the case of redemption or
repayment, on the Redemption Date or the Repayment Date, as the case may be), to
have the Debt Securities exchanged for Capital Securities pursuant to Article
Fifteen, if applicable, and to directly institute a suit for the enforcement
against the Company or the Guarantor (and the Guarantor hereby waives any right
or remedy to require that any action be first brought against the Company or any
other person before proceeding directly against the Guarantor) of any such
payment or exchange, and such right shall not be impaired without the consent of
such Holder, subject, however, to the provisions of Article Nineteen. In the
case of Debt Securities of a series and the related Guarantees issued to an
Issuer Trust, any registered holder of the series of Capital Trust Securities
issued by such Issuer Trust shall have the right, upon the occurrence of an
Event of Default described in Section 701(1) or (2), to institute a suit
directly against the Company or the Guarantor (and the Guarantor hereby waives
any right or remedy to require that any action be first brought against the
Company or any other person before proceeding directly against the Guarantor)
for enforcement of payment to such holder of principal of (premium, if any) and
(subject to Sections 307 and 313) interest (including any Additional Interest)
on the Debt Securities having a principal amount equal to the aggregate
Liquidation Amount (as defined in the related Trust Agreement) of such Capital
Trust Securities held by such holder.
Section 609. Restoration of Rights and Remedies.
If the Trustee, any Holder or any holder of Capital Trust Securities
issued by an Issuer Trust has instituted any proceedings to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee, such
Holder or such holder of Capital Trust Securities, then and in every such case
the Company, the Guarantor, the Trustee, the Holders and the holders of Capital
Trust 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 the Capital Trust Securities shall continue as though no such proceeding had
been instituted.
Section 610. Rights and Remedies Cumulative.
Except as otherwise provided in Section 306, 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
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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 611. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Debt Security
or coupon 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 bylaw to the Trustee or to the Holders and the right and remedy given
to the holders of Capital Trust Securities by Section 608 may be exercised from
time to time, and as often as may be deemed expedient, by the Trustee, the
Holders or the holders of Capital Trust Securities, as the case may be.
Section 612. Control by Holders of Debt Securities.
The Holders of a majority in principal amount of the Outstanding Debt
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 Debt
Securities of such series, provided, that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture;
(2) subject to the provisions of Section 701, the Trustee shall have
the right to decline to follow any such direction if the Trustee in good
faith shall, by a Responsible Officer or Responsible Officers of the
Trustee, determine that the proceedings so directed would be unjustly
prejudicial to the Holders of Debt Securities of such series not joining
in any such direction; and
(3) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Section 613. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Debt Securities of any series on behalf of the Holders of all the
Debt Securities of any such series and any related coupons and, in the case of
any Debt Securities of a series initially issued to an Issuer Trust, the holders
of a majority in aggregate Liquidation Amount (as defined in the related Trust
Agreement) of Capital Trust Securities issued by such Issuer Trust may waive any
past default hereunder with respect to such series and its consequences, except
a default
(1) in the payment of the principal of (or premium, if any) or
interest (including any Additional Interest) on any Debt Security of such
series, or
(2) in respect of a covenant or provision hereof which under Article
Ten cannot be modified or amended without the consent of the Holder of
each Outstanding Debt Security of such series or coupons affected;
provided, however, that in the case of any Debt Securities of a series initially
issued by an Issuer Trust, such waiver shall not be effective as to such Debt
Securities unless the holders of at least a majority in aggregate Liquidation
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Amount (as defined in the related Trust Agreement) of Capital Trust Securities
issued by such Issuer Trust shall have consented to such waiver; provided
further, that if the consent of the Holder of each Outstanding Debt Security is
required, such waiver shall not be effective unless each holder of Capital Trust
Securities issued by such Issuer Trust shall have consented to such waiver.
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 614. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Debt Security
or coupon 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, suffered 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 a
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 Company or 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 Debt 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 Debt Security or
the payment of any coupons on or after the respective Stated Maturity or
Maturities expressed in such Debt Security or coupon (or, in the case of
redemption or repayment, on or after the Redemption Date or Repayment Date, as
the case may be) or for the enforcement of the right to exchange any Debt
Securities for Capital Securities as provided in Article Fifteen.
Section 615. Waiver of Stay or Extension Laws.
Each of the Company and the Guarantor covenants (to the extent that each
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 stay or
extension law whenever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and each of the
Company and the Guarantor (to the extent that it may lawfully do so) hereby
expressly waives all benefits or advantage of any such law, and covenants that
it will not hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
ARTICLE VII
The Trustee
Section 701. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided in the
Trust Indenture Act. Notwithstanding the foregoing, 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 it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it. 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.
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Section 702. Notice of Default.
If a default occurs hereunder with respect to Debt Securities of any
series the Trustee shall transmit by mail to all Holders of Debt Securities of
such series notice of such default as and to the extent provided by the Trust
Indenture Act; provided, however, that in the case of any default of the
character specified in Section 601(4) with respect to Debt Securities of such
series no such notice to Holders shall be given until at least 30 days after the
occurrence thereof; and provided further, 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 Debt Security of such series or any related
coupons or in the payment of any sinking fund installment with respect to Debt
Securities of such series or in the exchange of Capital Securities for Debt
Securities of such series, the Trustee shall be protected in withholding such
notice if and so long as 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 interest of the Holders of Debt Securities of such series. 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 Debt Securities of such series.
Section 703. Certain Rights of Trustee.
Except as otherwise provided in Section 701:
(a) the Trustee may conclusively rely and shall be fully protected in
acting or refraining from acting upon any signature, resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, coupon 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 or the Guarantor mentioned
herein shall be sufficiently evidenced by a Company Request or Company Order or
Guarantor Request or Guarantor Order and any resolution of the Board of
Directors shall be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the advice of such counsel or
any Opinion of Counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Holders of Debt Securities of such series or any related coupons pursuant to
this Indenture, unless such Holders shall have offered to the Trustee reasonable
security or indemnity satisfactory to it 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, debenture,
note, coupon, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
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books, records and premises of the Company and the Guarantor, personally or by
agent or attorney, at the expense of the Company or the Guarantor, as the case
may be, and shall incur no liability of any kind by reason of such inquiry or
investigation;
(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; no Exchange Rate Agent, Capital Exchange Agent, Global Exchange
Agent, Depositary or Paying Agent shall be deemed an agent of the Trustee and
the Trustee shall not be responsible for any act or omission by any of them;
(h) in no event shall the Trustee be responsible or liable for special,
indirect, or consequential loss or damage of any kind whatsoever (including, but
not limited to, loss of profit) irrespective of whether the Trustee has been
advised of the likelihood of such loss or damage and regardless of the form of
action;
(i) the Trustee shall not be deemed to have notice of any Default or Event
of Default unless a Responsible Officer of the Trustee has actual knowledge
thereof or unless written notice of any event which is in fact such a default is
received by the Trustee at the Corporate Trust Office of the Trustee, and such
notice references the Debt Securities and this Indenture;
(j) the rights, privileges, protections, immunities and benefits given to
the Trustee, including, without limitation, its right to be indemnified, are
extended to, and shall be enforceable by, the Trustee in each of its capacities
hereunder, and each agent, custodian and other Person employed to act hereunder;
and
(k) the Trustee may request that the Company and the Guarantor deliver an
Officers' Certificate setting forth the names of individuals and/or titles of
officers authorized at such time to take specified actions pursuant to this
Indenture, which Officers' Certificate may be signed by any person authorized to
sign an Officers' Certificate, including any person specified as so authorized
in any such certificate previously delivered and not superseded.
Section 704. Not Responsible for Recitals or Issuance of Debt Securities.
The recitals contained herein and in the Debt Securities and the
Guarantees, except the Trustee's certificates of authentication, and in any
coupons, and the information in any registration statement, including all
attachments thereto, except information provided by the Trustee therein, shall
be taken as the statements of the Company or the Guarantor, as the case may be,
and the Trustee assumes no responsibility for their correctness. The Trustee
makes no representations as to the validity or sufficiency of this Indenture or
of the Debt Securities of any series or any coupons or any Capital Securities.
The Trustee shall not be accountable for the use or application by the Company
or the Guarantor of any Debt Securities or the proceeds thereof. The Trustee
shall not be responsible for and makes no representations to the Company's or
Guarantor's ability or authority to issue Bearer Securities or the lawfulness
thereof.
Section 705. May Hold Debt Securities or Coupons.
The Trustee, any Paying Agent, the Security Registrar or any other agent
of the Company, the Guarantor or the Trustee, in its individual or any other
capacity, may become the owner or pledgee of Debt Securities and coupons, and,
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subject to Sections 708 and 713, may otherwise deal with the Company and the
Guarantor with the same rights it would have if it were not Trustee, Paying
Agent, Security Registrar or such agent.
Section 706. Money Held in Trust.
Money held by the Trustee or any Paying Agent in trust hereunder need not
be segregated from other funds except to the extent required by law. Neither the
Trustee nor any Paying Agent shall be under any liability for interest on any
money received by it hereunder except as Compensation and Reimbursement.
Section 707. Compensation and Reimbursement.
The Company and the Guarantor agree:
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder which shall have been separately
agreed to by the Company and the Trustee (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(2) except as otherwise expressly provided herein, 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 shall be determined to have been caused by its
own negligence or willful misconduct; and
(3) to indemnify the Trustee for, and to hold it harmless against,
any claim, loss, liability, damage or expense incurred without negligence
or bad faith on its part, arising out of or in connection with the
acceptance or administration of this trust or 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.
As security for the performance of the obligations of the Company and the
Guarantor under this Section the Trustee shall have a claim prior to the Debt
Securities, the Guarantees and any coupons upon all property and funds held or
collected by the Trustee as such, except funds held in trust for the payment of
principal of (and premium, if any) or interest on particular Debt Securities or
any coupons. The claims of the Trustee under this Section shall not be subject
to the provisions of Article Nineteen. The provisions of this Section 707 shall
survive the termination of this Indenture and the resignation or removal of the
Trustee.
Section 708. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire any conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by such Act, the Trustee shall not be deemed to have a conflicting
interest with respect to Debt Securities of any series by virtue of being a
trustee under this Indenture with respect to Debt Securities of any particular
series of Debt Securities other than that series. The Trust Agreement and the
Guarantee Agreement with respect to each Issuer Trust shall be deemed to be
specifically described in this Indenture for the purposes of clause (i) of the
first proviso contained in Section 310(b) of the Trust Indenture Act.
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Section 709. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
corporation that is eligible pursuant to the Trust Indenture Act to act as such
and organized and doing business under the laws of the United States, any State
thereof or the District of Columbia, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least
$5,000,000, and subject to supervision or examination by Federal or State
authority; provided, however, that if Section 310(a) of the Trust Indenture Act
or the rules and regulations of the Commission under the Trust Indenture Act at
any time permit a corporation organized and doing business under the laws of any
other jurisdiction to serve as trustee of an indenture qualified under the Trust
Indenture Act, this Section 709 shall be automatically amended to permit a
corporation organized and doing business under the laws of any such other
jurisdiction to serve as Trustee hereunder. 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.
Section 710. 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 711.
(b) The Trustee may resign at any time with respect to the Debt Securities
of one or more series by giving written notice thereof to the Company and the
Guarantor. If an instrument of acceptance by a successor Trustee shall not have
been delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition at the expense of the Company
and the Guarantor any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Debt Securities of such series.
(c) The Trustee may be removed at any time with respect to the Debt
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Debt Securities of such series, delivered to the Trustee and
to the Company and the Guarantor. If an instrument of acceptance by a successor
Trustee shall not have been delivered to the Trustee within 30 days of such
removal, the Trustee may petition at the expense of the Company and the
Guarantor any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Debt Securities of such series.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 708 with respect
to the Debt Securities of any series after written request therefor by the
Company, the Guarantor or by any Holder who has been a bona fide Holder of
a Debt Security of such series for at least six months, or
(2) the Trustee shall cease to be eligible under Section 709 with
respect to any series of Debt Securities and shall fail to resign after
written request therefor by the Company, the Guarantor or by any such
Holder, or
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(3) the Trustee shall become incapable of acting with respect to any
series of Debt Securities or a decree or order for relief by a court
having jurisdiction in the premises shall have been entered in respect of
the Trustee in an involuntary case under the Federal bankruptcy laws, as
now or hereafter constituted, or any other applicable Federal or State
bankruptcy, insolvency or similar law; or a decree or order by a court
having jurisdiction in the premises shall have been entered for the
appointment of a receiver, custodian, liquidator, assignee, trustee,
sequestrator or other similar official of the Trustee or of its property
or affairs, or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation, winding up or liquidation, or
(4) the Trustee shall commence a voluntary case under the Federal
bankruptcy laws, as now or hereafter constituted, or any other applicable
Federal or State bankruptcy, insolvency or similar law or shall consent to
the appointment of or taking possession by a receiver, custodian,
liquidator, assignee, trustee, sequestrator or other similar official of
the Trustee or its property or affairs, or shall make an assignment for
the benefit of creditors, or shall admit in writing its inability to pay
its debts generally as they become due, or shall take corporate action in
furtherance of any such action,
then, in any such case, (i) the Company or the Guarantor by a Board Resolution
may remove the Trustee with respect to such series or (ii) subject to Section
614, any Holder who has been a bona fide Holder of a Debt Security of any series
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 for the Debt Securities of such series and the appointment of a
successor Trustee. In addition, the Company or the Guarantor may remove the
Trustee if the Company or the Guarantor shall determine by a Board Resolution
that the services provided by the Trustee may be obtained at a substantially
lower cost to the Company.
(e) If the Trustee shall resign, be removed or become incapable of acting
with respect to any series of Debt Securities, or if a vacancy shall occur in
the office of Trustee for any cause, with respect to the Debt Securities of one
or more series, the Company, by a Board Resolution, shall promptly appoint a
successor Trustee or Trustees with respect to the Debt Securities of that or
those series (it being understood that any such successor Trustee may be
appointed with respect to the Debt Securities of one or more or all of such
series and that at any time there shall be only one Trustee with respect to the
Debt Securities of any particular series) and shall comply with the applicable
requirements of Section 711. If, within one year after such resignation, removal
or incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Debt Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Debt 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 Debt Securities of such series
and to that extent supersede the successor Trustee appointed by the Company or
the Guarantor. If no successor Trustee with respect to the Debt Securities of
any series shall have been so appointed by the Company, the Guarantor or the
Holders and accepted appointment in the manner hereinafter provided, any Holder
who has been a bona fide Holder of a Debt Security of such series for at least
six months may, subject to Section 614, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Debt Securities of such
series.
(f) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Debt Securities of any series and each
appointment of a successor Trustee with respect to the Debt Securities of any
series by mailing written notice of such event by first-class mail, postage
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prepaid, to the Holders of Registered Securities, if any, of such series as
their names and addresses appear in the Security Register and, if Debt
Securities of such series are issuable as Bearer Securities, by publishing
notice of such event once in an Authorized Newspaper in each Place of Payment
located outside the United States. Each notice shall include the name of the
successor Trustee with respect to the Debt Securities of such series and the
address of its Corporate Trust Office.
Section 711. Acceptance of Appointment by Successor.
(a) In the case of an appointment hereunder of a successor Trustee with
respect to all Debt Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company, the Guarantor 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 request of the Company, the Guarantor 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 the case of the appointment hereunder of a successor Trustee with
respect to the Debt Securities of one or more (but not all) series, the Company,
the Guarantor, the retiring Trustee upon payment of its charges and each
successor Trustee with respect to the Debt 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 Debt 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 Debt 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
Debt 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
Debt Securities of that or those series to which the appointment of such
successor Trustee relates; but, on the request of the Company, the Guarantor 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 Debt 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 and the
Guarantor shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts referred to in paragraph (a) or (b) of this Section, as the case may be.
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(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 712. 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 executing or filing of any paper or any further act on the
part of any of the parties hereto. In case any Debt 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 Debt Securities so authenticated with the
same effect as if such successor Trustee had itself authenticated such Debt
Securities. In case any Debt Securities shall not have been authenticated by
such predecessor Trustee, any such successor Trustee may authenticate and
deliver such Debt Securities, in either its own name or that of its predecessor
Trustee, with the full force and effect which this Indenture provides for the
certificate of authentication of the Trustee.
Section 713. Preferential Collection of Claims Against Company and the
Guarantor.
If and when the Trustee shall be or shall become a creditor, directly or
indirectly, secured or unsecured, of the Company (or any other obligor upon the
Debt Securities), the Trustee shall be subject to the provisions of the Trust
Indenture Act regarding collection of claims against the Company or the
Guarantor (or any such other obligor).
Section 714. Authenticating Agent.
The Trustee shall upon Company request appoint one or more authenticating
agents (including, without limitation, the Company or any Affiliate thereof)
with respect to one or more series of Debt Securities which shall be authorized
on behalf of the Trustee in authenticating Debt Securities of such series in
connection with the issue, delivery, registration of transfer, exchange, partial
redemption or repayment of such Debt Securities. Wherever reference is made in
this Indenture to the authentication of Debt Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication on behalf of the Trustee by an authenticating agent and a
certificate of authentication executed on behalf of the Trustee by an
authenticating agent. Each authenticating agent must be acceptable to the
Company and must be a corporation organized and doing business under the laws of
the United States or of any State, having a combined capital and surplus of at
least $1,000,000, authorized under such laws to do a trust business and subject
to supervision or examination by Federal or State authorities or the equivalent
foreign authority, in the case of an authenticating agent who is not organized
and doing business under the laws of the United States or of any State thereof
or the District of Columbia.
The Trustee hereby initially appoints [________________] as its
authenticating agent.
Any corporation succeeding to the corporate agency business of an
authenticating agent shall continue to be an authenticating agent without the
execution or filing of any paper or any further act on the part of the Trustee
or such authenticating agent.
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An authenticating agent may at any time resign with respect to one or more
series of Debt Securities by giving written notice of resignation to the Trustee
and to the Company or the Guarantor. The Trustee may at any time terminate the
agency of any authenticating agent with respect to one or more series of Debt
Securities by giving written notice of termination 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 an authenticating agent shall cease to be
eligible in accordance with the provisions of this Section, the Trustee promptly
may appoint a successor authenticating agent. Any successor authenticating agent
upon acceptance of its appointment hereunder shall become vested with all
rights, powers and duties of its predecessor hereunder, with like effect as if
originally named as an authenticating agent herein. No successor authenticating
agent shall be appointed unless eligible under the provisions of this Section.
The Company and the Guarantor agree to pay to each authenticating agent
from time to time reasonable compensation for its services under this Section.
The provisions of Sections 104, 111, 306, 309, 703, 704 and 705 shall be
applicable to any authenticating agent.
Pursuant to each appointment made under this Section, the Debt Securities
of each series covered by such appointment may have endorsed thereon, in lieu of
the Trustee's certificate of authentication, an alternate certificate of
authentication in substantially the following form:
This is one of the Debt Securities, of the series designated herein,
described in the within-mentioned Indenture.
By:
--------------------------------------------
As Authenticating Agent for the Trustee
By:
---------------------------------------------
Authorized Office
ARTICLE VIII
Holders' Lists and Reports By Trustee, Company and Guarantor
Section 801. Company and Guarantor to Furnish Trustee Names and Addresses
of Holders.
The Company and the Guarantor will furnish or cause to be furnished to the
Trustee with respect to Debt Securities of each series for which it acts as
Trustee:
(1) semi-annually, on or before June 30 and December 31 of each
year; and
(2) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days prior
to the time such list is furnished; provided, however, that if and so long
as the Trustee shall be the Security Registrar, no such list need be
furnished.
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Section 802. 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 of Registered Securities
contained in the most recent list furnished to the Trustee as provided in
Section 801 and the names and addresses of Holders of Registered Securities
received by the Trustee in its capacity as Paying Agent or Security Registrar,
if so acting. The Trustee may destroy any list furnished to it as provided in
Section 801 upon receipt of a new list so furnished. The Trustee shall preserve
for at least two years the names and addresses of Holders of Bearer Securities
filed with the Trustee by such Holders.
(b) The rights of Holders to communicate with other Holders with respect
to their rights under this Indenture or under the Debt Securities, and the
corresponding rights and privileges of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Debt Securities or coupons, by receiving and holding
the same, agrees with the Company, the Guarantor and the Trustee that neither
the Company, the Guarantor nor the Trustee shall be held accountable by reason
of any disclosure of information as to the names and addresses of the Holders
made pursuant to the Trust Indenture Act.
Section 803. Reports by Trustee.
(a) Within 60 days after [_____] [__] of each year commencing with the
first [_____] [__] after the first issuance of Debt Securities pursuant to this
Indenture and at any other time required by the Trust Indenture Act, the Trustee
shall transmit to Holders such reports concerning the Trustee and its actions
under this Indenture and such other matters as may be required pursuant to the
Trust Indenture Act in the manner required by the Trust Indenture Act.
(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 Debt
Securities of such series are listed, with the Commission and also with the
Company and Guarantor. The Company or the Guarantor will notify the Trustee when
any series of Debt Securities are listed on any stock exchange.
Section 804. Reports by Company and Guarantor.
The Company and Guarantor shall file with the Trustee and 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
time and in the manner pursuant to such Act; provided that such information,
documents or reports required to be filed with the Commission pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 shall be
filed with the Trustee within 15 days after the same is so required to be filed
with the Commission.
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 or
determinable from information contained therein, including the Company's and
Guarantor's compliance with any of their covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers' Certificates).
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ARTICLE IX
Consolidation, Merger, Conveyance, Transfer or Lease
Section 901. Company May Consolidate, etc. Only on Certain Terms.
Unless otherwise specified pursuant to Section 301, the Company may not
merge with or into, consolidate, amalgamate, or be replaced by, or convey,
transfer or lease its properties and assets substantially as an entirety to the
Guarantor or any other person, except as described below. The Company may, at
the Guarantor's request, with the consent of the Guarantor but without the
consent of the holders of the Debt Securities or the Trustee, merge with or
into, consolidate, amalgamate, or be replaced by, or convey, transfer or lease
its properties and assets substantially as an entirety to, an LLC or trust
organized as such under the laws of any state if:
(1) such successor entity either (A) expressly assumes all of the
obligations of the Company with respect to the Debt Securities, or (B)
substitutes for the Debt Securities other securities having substantially
the same terms as the Debt Securities, or the "successor securities", so
long as the successor securities rank the same as the Debt Securities in
priority with respect to distribution and payments upon liquidation,
redemption and otherwise;
(2) the successor securities are listed, or any successor securities
will be listed upon notification of issuance, on any national securities
exchange or other organization on which the Debt Securities are then
listed, if any;
(3) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not cause the Debt Securities,
including any successor securities, to be downgraded by any nationally
recognized statistical rating organization;
(4) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the rights,
preferences and privileges of the Holders including any successor
securities, in any material respect;
(5) such successor entity has a purpose substantially identical to
that of the Company;
(6) prior to such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease, the Trustee receives an opinion from
independent counsel to the Company experienced in such matters to the
effect that (A) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the rights,
preferences and privileges of the Holders including any successor
securities, in any material respect, and (B) following such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease,
neither the Company nor such successor entity will be required to register
as an investment company under the Investment Company Act; and
(7) the Guarantor (or any of its subsidiaries) or any permitted
successor or assignee owns all of the common securities of such successor
entity and guarantees the obligations of such successor entity under the
successor securities at least to the extent provided by the applicable
guarantee.
Notwithstanding the foregoing, the Company may not, except with the
consent of the holders of 100% of the Debt Securities, consolidate, amalgamate,
merge with or into, or be replaced by or convey, transfer or lease its
properties and assets substantially as an entirety to any other entity or permit
any other entity to consolidate, amalgamate, merge with or into, or replace it
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if such consolidation, amalgamation, merger, replacement, conveyance, transfer
or lease would cause the Company or the successor entity to be classified as
other than a disregarded entity or grantor trust for United States federal
income tax purposes.
Section 902. Successor Corporation Substituted for Company.
Upon any consolidation with or merger into any other corporation, or any
conveyance, transfer or lease of the properties and assets of the Company
substantially as an entirety in accordance with Section 901, the successor
corporation 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 had been named as the
Company herein, and thereafter, except in the case of a lease, the Company
(which term for this purpose shall mean the Person named as the "Company" in the
first paragraph of this instrument or any successor corporation which shall
theretofore have become such in the manner presented in this Article) shall be
relieved of all obligations and covenants under this Indenture and the Debt
Securities and coupons.
Section 903. Guarantor May Consolidate, etc. Only on Certain Terms.
The Company shall not consolidate with or merge into any other corporation
or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, unless:
(1) the corporation formed by such consolidation or into which the
Guarantor is merged or the Person which acquires by conveyance or
transfer, or which leases, the properties and assets of the Guarantor
substantially as an entirety shall be a corporation organized and existing
under the laws of the United States of America, any political subdivision
thereof or any State thereof 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
and all Additional Amounts, if any, payable pursuant to Section 1106) on
all the Debt Securities and any related coupons and the performance of
every covenant of this Indenture on the part of the Guarantor 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; and
(3) the Guarantor has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance, transfer or lease and such supplemental
indenture comply with this Article and that all conditions precedent
herein provided for relating to such transaction have been met.
Section 904. Successor Corporation Substituted for Guarantor.
Upon any consolidation with or merger into any other corporation, or any
conveyance, transfer or lease of the properties and assets of the Guarantor
substantially as an entirety in accordance with Section 901, the successor
corporation formed by such consolidation or into which the Guarantor 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 Guarantor under
this Indenture with the same effect as if such successor had been named as the
Guarantor herein, and thereafter, except in the case of a lease, the Guarantor
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(which term for this purpose shall mean the Person named as the "Guarantor" in
the first paragraph of this instrument or any successor corporation which shall
theretofore have become such in the manner presented in this Article) shall be
relieved of all obligations and covenants under this Indenture and the Debt
Securities and coupons.
ARTICLE X
Supplemental Indentures
Section 1001. Supplemental Indentures without Consent of Holders.
Without the consent of any Holders, the Company and the Guarantor, 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
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the Company
or the Guarantor, and the assumption by such successor of the covenants of
the Company herein and in the Debt Securities contained; or
(2) to add to the covenants of the Company or the Guarantor, for the
benefit of the Holders of all or any series of Debt Securities or coupons
(and if such covenants are to be for the benefit of less than all series
of Debt Securities or coupons, stating that such covenants are expressly
being included solely for the benefit of such series), 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
the Guarantor; or
(3) to add any additional Events of Default (and if such Events of
Default are to be applicable to less than all series of Debt Securities,
stating that such Events of Default are expressly being included solely to
be applicable to such series); or
(4) to add to, change or eliminate any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to
principal, to change or eliminate any restrictions on the payment of
principal (or premium, if any) on Registered Securities or of principal
(or premium, if any) or any interest on Bearer Securities, to permit
Bearer Securities to be issued in exchange for Registered Securities of
other authorized denominations or to permit or facilitate the issuance of
Debt Securities in uncertificated form, provided any such action shall not
adversely affect the interests of the Holders of Debt Securities of any
series or any related coupons in any material respect; or
(5) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination (a) shall become effective
only when there is no Debt Security Outstanding of any series created
prior to the execution of such supplemental indenture which is entitled to
the benefit of such provisions or (b) shall not apply to any Debt Security
Outstanding; or
(6) to establish the form or terms of Debt Securities of any series
as permitted by Sections 201 and 301; or
(7) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Debt 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 711(b); or
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(8) 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 which shall not be inconsistent
with any provision of this Indenture, provided such other provisions shall
not adversely affect the interests of the Holders of Debt Securities of
any series or any related coupons in any material respect or, in the case
of the Debt Securities of a series issued to an Issuer Trust and for so
long as any of the corresponding series of Capital Trust Securities issued
by such Issuer Trust shall remain outstanding, the holders of such Capital
Trust Securities; or
(9) to add to or change or eliminate any provision of this Indenture
as shall be necessary or desirable in accordance with any amendments to
the Trust Indenture Act, provided such action shall not adversely affect
the interest of Holders of Debt Securities of any series or any
appurtenant coupons in any material respect.
Section 1002. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Debt Securities of all series affected by such
supplemental indenture, acting together as a class, by Act of said Holders
delivered to the Company, the Guarantor and the Trustee, the Company and the
Guarantor, 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 under
this Indenture of such Debt Securities of such series and any related coupons;
provided, however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Debt Security or coupon affected
thereby,
(1) change the Stated Maturity of the principal or any installment
of principal of, or any installment of interest (including any Additional
Interest) on, any Debt Security (other than to the extent set forth in any
such Debt Security), or reduce the principal amount thereof or the
interest thereon or any premium payable upon redemption or repayment
thereof, or change any obligation of the Company or the Guarantor, as the
case may be, to pay Additional Amounts pursuant to Section 1106 (except as
contemplated by Section 901(1) and permitted by Section 1001(1)), or
reduce the amount of the principal of an Original Issue Discount Security
that would be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 602, or change any Place of Payment,
or the coin or currency in which any Debt Security or the interest thereon
or any coupon is payable, or impair any right to the delivery of Capital
Securities in exchange for Debt Securities provided for in this Indenture
or 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 or
repayment, on or after the Redemption Date or Repayment Date or Capital
Exchange Date, as the case may be), or
(2) reduce the percentage in principal amount of the Outstanding
Debt Securities of any series, the consent of whose Holders is required
for any such supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences) provided
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for in this Indenture, or reduce the requirements of Section 1704 for
quorum or voting, or
(3) modify any of the provisions of this Section, Section 613 or
Section 1105, 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 Outstanding Debt Security
affected thereby; provided, however, that this clause shall not be deemed
to require the consent of any Holder with respect to changes in the
references to "the Trustee" and concomitant changes in this Section and
Section 1105, or the deletion of this proviso, in accordance with the
requirements of Section 711(b) and 1001(7); or
(4) adversely affect the right to repayment, if any, of Debt
Securities of any series at the option of the Holders thereof; or
(5) a release of or change in the Guarantor's obligations under the
Guarantees other than in accordance with the express terms of this
Indenture; or
(6) impair the right of any Holder of Debt Securities of any series
to receive Capital Securities on any Capital Exchange Date for Debt
Securities of such series with a Market Value equal to the principal
amount of such Holder's Debt Securities of such series or in an amount
sufficient to provide proceeds upon sale by the Company in the Secondary
Offering equal to the principal amount of such Holder's Debt Securities of
such series; or
(7) impair the right of any Holder of Convertible Securities of any
series to convert such Debt Securities pursuant to Article Twenty;
and provided, further, that no change shall be made in the provisions of Article
Nineteen that will affect adversely the holders of Senior Debt of the Guarantor
without the consent of the holders of all Senior Debt of the Guarantor
Outstanding; and provided, further, that, in the case of the Debt Securities of
a series issued to an Issuer Trust, so long as any of the corresponding series
of Capital Trust Securities issued by such Issuer Trust remains outstanding, (i)
no such amendment shall be made that adversely affects the holders of such
related Capital Trust Securities in any material respect, and no termination of
this Indenture shall occur, and no waiver of compliance with any covenant under
this Indenture shall be effective, without the prior consent of the holders of
at least a majority of the aggregate Liquidation Amount (as defined in the
related Trust Agreement) of such Capital Trust Securities then outstanding
unless and until the principal of (and premium, if any, on) the Debt Securities
of such series and all accrued and (subject to Section 307) unpaid interest
(including any Additional Interest) thereon have been paid in full, (ii) no such
amendment or waiver that requires the consent of the Holder of each Outstanding
Debt Security affected thereby shall be made without the prior consent of all
the holders of the related Capital Trust Securities then outstanding unless and
until the principal of (and premium, if any, on) the Debt Securities of such
series and all accrued interest and (subject to Section 307) unpaid interest
(including any Additional Interest) therein have been paid in full, and (iii) no
amendment shall be made to Section 608 of this Indenture that would impair the
rights of the holders of Capital Trust Securities issued by any Issuer Trust
provided therein without the prior consent of the holders of each such Capital
Trust Security then outstanding unless and until the principal of (and premium,
if any, on) the Debt Securities of such series and all accrued and (subject to
Section 307) unpaid interest (including any Additional Interest) thereon have
been paid in full.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Debt Securities or any corresponding
series of Capital Trust Securities of an Issuer Trust that holds the Debt
Securities of any series, or which modifies the rights of the Holders of Debt
Securities of such series or holders of such Capital Trust Securities of such
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corresponding series with respect to such covenant or other provision, shall be
deemed not to affect the rights under this Indenture of the Holders of Debt
Securities of any other series or holders of Capital Trust Securities of any
other such corresponding series.
It shall not be necessary for any Act of Holders of the Debt Securities
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 1003. 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 provided with, and
(subject to Section 701) shall be fully protected in relying upon, an Opinion of
Counsel and an Officers' Certificate each stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. 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 1004. 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 Debt Securities theretofore or thereafter authenticated and delivered
hereunder and of any coupons appertaining thereto shall be bound thereby.
Section 1005. 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 1006. Reference in Debt Securities to Supplemental Indentures.
Debt Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Debt Securities of any series and any appurtenant coupons so
modified as to conform, in the opinion of the Trustee and the Board of
Directors, to any such supplemental indenture may be prepared and executed by
the Company and authenticated and delivered by the Trustee in exchange for
Outstanding Debt Securities of such series and any appurtenant coupons.
ARTICLE XI
Covenants
Section 1101. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of Debt
Securities and any appurtenant coupons that it will duly and punctually pay the
principal of (and premium, if any) and interest (including any Additional
Interest) on the Debt Securities and any appurtenant coupons in accordance with
the terms of the Debt Securities, any appurtenant coupons and this Indenture.
Any interest due on Bearer Securities on or before Maturity, other than
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Additional Amounts, if any, payable as provided in Section 1106 in respect of
principal of (or premium, if any, on) such a Debt Security, shall be payable
only upon presentation and surrender of the several coupons for such interest
installments as are evidenced thereby as they severally mature. For all purposes
of this Indenture, the exchange of Capital Securities for Debt Securities of any
series pursuant to the Indenture shall constitute full payment of principal of
the Debt Securities of such series being exchanged on any Capital Exchange Date
for Debt Securities of such series, without prejudice to any Holder's rights
pursuant to Section 1513.
Section 1102. Maintenance of Office or Agency.
The Company or the Guarantor will maintain in each Place of Payment for
any series of Debt Securities an office or agency where Debt Securities (but,
except as otherwise provided below, unless such Place of Payment is located
outside the United States, not Bearer Securities) may be presented or
surrendered for payment, where Debt Securities may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company or the Guarantor in respect of the Debt Securities and this
Indenture may be served. If Debt Securities of a series are issuable as Bearer
Securities, the Company or the Guarantor will maintain, subject to any laws or
regulations applicable thereto, an office or agency in a Place of Payment for
such series which is located outside the United States where Debt Securities of
such series and the related coupons may be presented and surrendered for payment
(including payment of any Additional Amounts payable on Debt Securities of such
series pursuant to Section 1106); provided, however, that if the Debt Securities
of such series are listed on The Stock Exchange of the United Kingdom and the
Republic of Ireland or the Luxembourg Stock Exchange or any other stock exchange
located outside the United States and such stock exchange shall so require, the
Company or the Guarantor will maintain a Paying Agent in London or Luxembourg or
any other required city located outside the United States, as the case may be,
so long as the Debt Securities of such series are listed on such exchange. The
Company or the Guarantor will give prompt written notice to the Trustee of the
location, and any change in the location, of any such office or agency. If at
any time the Company and the Guarantor shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices or demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company and the Guarantor each
hereby appoints the Trustee its agent to receive all presentations, surrenders,
notices and demands, except that Bearer Securities of that series and the
related coupons may be presented and surrendered for payment (including payment
of any Additional Amounts payable on Bearer Securities of that series pursuant
to Section 1106) at the place specified for the purpose pursuant to Section
301(5).
No payment of principal of, premium or interest on Bearer Securities shall
be made at any office or agency of the Company or the Guarantor in the United
States or by check mailed to any address in the United States or by transfer to
an account maintained with a bank located in the United States; provided,
however, payment of principal of and any premium and interest denominated in
Dollars (including Additional Amounts payable in respect thereof) on any Bearer
Security may be made at an office or agency of, and designated by, the Company
or the Guarantor located in the United States if (but only if) payment of the
full amount of such principal, premium, interest or Additional Amounts in
Dollars at all offices outside the United States maintained for the purpose by
the Company or the Guarantor in accordance with this Indenture is illegal or
effectively precluded by exchange controls or other similar restrictions and the
Trustee receives an Opinion of Counsel that such payment within the United
States is legal. Unless otherwise provided as contemplated by Section 301 with
respect to any series of Debt Securities, at the option of the Holder of any
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Bearer Security or related coupon, payment may be made by check in the currency
designated for such payment pursuant to the terms of such Bearer Security
presented or mailed to an address outside the United States or by transfer to an
account in such currency maintained by the payee with a bank located outside the
United States.
The Company and the Guarantor may also from time to time designate one or
more other offices or agencies (in or outside of such Place of Payment) where
the Debt Securities of one or more series and any appurtenant coupons (subject
to the preceding paragraph) may be presented or surrendered for any or all 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 or the Guarantor of its obligation to maintain an office or agency in
each Place of Payment for any series of Debt Securities for such purposes. The
Company and the Guarantor will give prompt written notice to the Trustee of any
such designation and any change in the location of any such other office or
agency.
Section 1103. Money for Debt Securities 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 Debt Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest on any of the Debt Securities of
such series and any appurtenant coupons, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay the principal
(and premium, if any) or interest (including any Additional Interest) so
becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided, and will promptly notify the Trustee of its action or
failure so to act.
Whenever the Company shall have one or more Paying Agents with respect to
any series of Debt Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest (including any Additional
Interest) on any of the Debt Securities of such series and any appurtenant
coupons, deposit with a Paying Agent a sum sufficient to pay the principal (and
premium, if any) or interest (including any Additional Interest) so becoming
due, such sum to be held in trust for the benefit of the Persons entitled to
such principal, premium or interest (including any Additional Interest), and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
The Company will cause each Paying Agent with respect to any series of
Debt Securities 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 any Additional Interest) on
Debt Securities of such series and any appurtenant coupons 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 Debt Securities of such series or any appurtenant
coupons) in the making of any payment of principal of (and premium, if
any) or interest (including any Additional Interest) on the Debt
Securities of such series or any appurtenant coupons or any default by the
Guarantor under the Guarantees; and
(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.
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The Company or the Guarantor may at any time, for the purpose of
terminating its obligations under this Indenture with respect to the Debt
Securities or for any other purpose, pay, or by Company Order or Guarantor
Order, as the case may be, 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 any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any principal and interest received on the Eligible Instruments deposited
with the Trustee or 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 any Additional Interest) on any Debt
Security of any series or any appurtenant coupons or any money on deposit with
the Trustee or any Paying Agent representing amounts deducted from the
Redemption Price or Repayment Price with respect to unmatured coupons not
presented upon redemption or exercise of the Holder's option for repayment
pursuant to Section 1206 or 1403 and remaining unclaimed for two years after
such principal (and premium, if any) or interest has become due and payable
shall be paid to the Company on Company Request (or if deposited by the
Guarantor, paid to the Guarantor on Guarantor Request), or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Debt
Security or any coupon appertaining thereto shall thereafter, as an unsecured
general creditor, look only to the Company and the Guarantor for payment
thereof, and all liability of the Trustee or such Paying Agent with respect to
such trust money (including the principal and interest received on Eligible
Instruments deposited with the Trustee), 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 an Authorized Newspaper of
general circulation in the Borough of Manhattan, The City of New York, and each
Place of Payment or mailed to each such Holder, or both, 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 or mailing, any unclaimed
balance of such money then remaining will be repaid to the Company or the
Guarantor, as the case may be.
Section 1104. Officers' Certificate as to Default.
The Company and the Guarantor will each deliver to the Trustee, on or
before a date not more than four months after the end of each fiscal year of the
Company or the Guarantor, as applicable, ending after the date hereof, an
Officers' Certificate, stating whether or not to the best knowledge of the
signers thereof the Company or the Guarantor, as applicable, is in default in
the performance and observance of any of the terms, provisions and conditions of
this Indenture, and, if the Company or the Guarantor, as applicable, shall be in
default, specifying all such defaults and the nature thereof of which they may
have knowledge.
The Company or the Guarantor shall deliver to the Trustee, as soon as
possible and in any event within five days after the Company or the Guarantor
becomes aware of the occurrence of any Event of Default or an event which, with
notice or the lapse of time or both, would constitute an Event of Default, an
Officers' Certificate setting forth the details of such Event of Default or
default and the action which the Company or the Guarantor proposes to take with
respect thereto.
Section 1105. Waiver of Certain Covenants.
Subject to the rights of holders of Capital Trust Securities specified in
Section 1002, if any, the Company or the Guarantor, as the case may be, may omit
in any particular instance to comply with any covenant or condition applicable
to the Debt Securities of any series pursuant to Section 301 unless such
covenant or condition is determined pursuant to Section 301 not to be subject to
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this provision if, before the time for such compliance the Holders of at least a
majority in principal amount of all series of the Debt Securities at the time
Outstanding to which such covenant or condition applies shall, acting together
as a class, 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 and the Guarantor and the duties of the Trustee in
respect of any such covenant or condition shall remain in full force and effect.
Section 1106. Payment of Additional Amounts.
If the Debt Securities of a series provide for the payment of Additional
Amounts, the Company or the Guarantor, as the case may be, will pay to the
Holder of any Debt Security of any series or any coupon appertaining thereto
Additional Amounts upon the terms and subject to the conditions provided
therein. Whenever in this Indenture there is mentioned, in any context, the
payment of the principal of (or premium, if any) or interest on, or in respect
of, any Debt Security of any series or any related coupon or the net proceeds
received on the sale or exchange of any Debt Security of any series, such
mention shall be deemed to include mention of the payment of Additional Amounts
provided for in the terms of such Debt Securities and this Section to the extent
that, in such context, Additional Amounts are, were or would be payable in
respect thereof pursuant to the provisions of this Section and express mention
of the payment of Additional Amounts (if applicable) in any provisions hereof
shall not be construed as excluding Additional Amounts in those provisions
hereof where such express mention is not made.
If the Debt Securities of a series provide for the payment of Additional
Amounts, at least 10 days prior to the first Interest Payment Date with respect
to that series of Debt Securities (or if the Debt Securities of that series will
not bear interest prior to Maturity, the first day on which a payment of
principal (and premium, if any) is made), and at least 10 days prior to each
date of payment of principal (and premium, if any) or interest if there has been
any change with respect to the matters set forth in the below-mentioned
Officers' Certificate, the Company will furnish the Trustee and the Company's
principal Paying Agent or Paying Agents, if other than the Trustee, with an
Officers' Certificate instructing the Trustee and such Paying Agent or Paying
Agents whether such payment of principal of (and premium, if any) or interest on
the Debt Securities of that series shall be made to Holders of Debt Securities
of that series or the related coupons who are United States Aliens without
withholding for or on account of any tax, assessment or other governmental
charge described in the Debt Securities of that series. If any such withholding
shall be required, then such Officers' Certificate shall specify by country the
amount, if any, required to be withheld on such payments to such Holders of Debt
Securities or coupons and the Company or the Guarantor, as the case may be, will
pay to the Trustee or such Paying Agent the Additional Amounts, if any, required
by the terms of such Debt Securities and the first paragraph of this Section.
Each of the Company and the Guarantor covenants to indemnify the Trustee and any
Paying Agent for, and to hold them harmless against, any loss, liability or
expense reasonably incurred without negligence or bad faith on their part
arising out of or in connection with actions taken or omitted by any of them in
reliance on any Officers' Certificate furnished pursuant to this Section.
Section 1107. Additional Sums.
In the case of the Debt Securities of a series initially issued to an
Issuer Trust, so long as no Event of Default has occurred and is continuing and
except as otherwise specified as contemplated by Section 301, if (i) an Issuer
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Trust is the Holder of all of the Outstanding Debt Securities of such series,
and (ii) a Tax Event has occurred and is continuing in respect of such Issuer
Trust, the Company or the Guarantor, as the case may be, shall pay to such
Issuer Trust (and its permitted successors or assigns under the related Trust
Agreement) for so long as such Issuer Trust (or its permitted successor or
assignee) is the registered holder of the Outstanding Debt Securities of such
series, such additional sums as may be necessary in order that the amount of
Distributions (including any Additional Amounts (as defined in such Trust
Agreement)) then due and payable by such Issuer Trust on the related Capital
Trust Securities and Common Trust Securities that at any time remain outstanding
in accordance with the terms thereof shall not be reduced as a result of any
Additional Taxes arising from such Tax Event; provided, however, that Additional
Sums shall not include any withholding taxes arising after the occurrence of a
Tax Event and which have been withheld from payments to Holders of Trust
Securities and for which Holders are liable (the "Additional Sums"). Whenever in
this Indenture or the Debt Securities there is a reference in any context to the
payment of principal of or interest on the Debt Securities, such mention shall
be deemed to include mention of the payments of the Additional Sums provided for
in this paragraph to the extent that, in such context, Additional Sums are, were
or would be payable in respect thereof pursuant to the provisions of this
paragraph and express mention of the payment of Additional Sums (if applicable)
in any provisions hereof shall not be construed as excluding Additional Sums in
those provisions hereof where such express mention is not made; provided,
however, that the deferral of the payment of interest pursuant to Section 313 or
the Debt Securities shall not defer the payment of any Additional Sums that may
be due and payable.
Section 1108. Additional Covenants of the Guarantor.
Unless otherwise specified pursuant to Section 301, the Guarantor
covenants and agrees with each Holder of Debt Securities of each series that it
shall not (x) make any payment of principal of or interest or premium, if any,
on or repay, repurchase or redeem any debt securities of the Guarantor that rank
pari passu in all respects with or junior in interest to the obligations of the
Guarantor under the Guarantees relating to the payment of principal and interest
on the Debt Securities, (y) make any payment under any guarantee that ranks pari
passu in all respects or junior in interest to such Guarantees, or (z) declare
or pay any dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any shares of the Guarantor's capital stock
(other than (a) repurchases, redemptions or other acquisitions of shares of
capital stock of the Guarantor in connection with any employment contract,
benefit plan or other similar arrangement with or for the benefit of any one or
more employees, officers, directors, consultants or independent contractors, in
connection with a dividend reinvestment or stockholder stock purchase plan or in
connection with the issuance of capital stock of the Guarantor (or securities
convertible into or exercisable for such capital stock) as consideration in an
acquisition transaction entered into prior to the applicable event specified in
(i), (ii) or (iii) below, (b) as a result of an exchange, redemption or
conversion of any other class or series of the Guarantor's capital stock (or any
capital stock of a subsidiary of the Guarantor) for any class or series of the
Guarantor's capital stock, or of any class or series of the Guarantor's
indebtedness for any class or series of the Guarantor's capital stock, (c) the
purchase of fractional interests in shares of the Guarantor's capital stock
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pursuant to the conversion or exchange provisions of such capital stock or the
securities being converted or exchanged, (d) any declaration of a dividend in
connection with any Rights Plan, or the issuance of rights, stock or other
property under any Rights Plan, or the redemption or repurchase of rights
pursuant thereto, (e) any payment by the Guarantor under any Guarantee
Agreement, or (f) any dividend in the form of stock, warrants, options or other
rights where the dividend stock or the stock issuable upon exercise of such
warrants, options or other rights is the same stock as that on which the
dividend is being paid or ranks pari passu with or junior to such stock) if at
such time (i) there shall have occurred any event (A) of which the Guarantor has
actual knowledge that with the giving of notice or the lapse of time, or both,
would constitute an Event of Default with respect to the Guarantees, and (B)
which the Guarantor shall not have taken reasonable steps to cure, (ii) if the
Debt Securities of such series are held by an Issuer Trust, the Guarantor shall
be in default with respect to its payment of any obligations under the Guarantee
Agreement relating to the Capital Trust Securities issued by such Issuer Trust,
or (iii) the Company shall have given notice of its election to begin an
Extension Period with respect to the Debt 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.
Unless otherwise specified pursuant to Section 301, the Guarantor also
covenants with each Holder of Debt Securities of a series issued to an Issuer
Trust (i) to hold, directly or indirectly, (a) 100% of the Common Trust
Securities of such Issuer Trust and (b) 100% of the voting securities of the
Company, provided that any permitted successor of the Guarantor hereunder may
succeed to the Guarantor's ownership of such Common Trust Securities, (ii) as
holder of such Common Trust Securities, not to voluntarily terminate, wind-up or
liquidate such Issuer Trust, other than (a) in connection with a distribution of
the Debt Securities of such series to the holders of the related Capital Trust
Securities in liquidation of such Issuer Trust, or (b) in connection with
certain mergers, consolidations or amalgamations permitted by the related Trust
Agreement, and (iii) to use its reasonable efforts, consistent with the terms
and provisions of such Trust Agreement, to cause such Issuer Trust to continue
not to be taxable as a corporation for United States federal income tax
purposes.
ARTICLE XII
Redemption of Debt Securities
Section 1201. Applicability of Article.
Subject to the Company having received the prior approval of the Primary
Federal Regulator, if then required under the applicable capital guidelines or
policies of the Primary Federal Regulator, Debt Securities of any series which
are redeemable before their Stated Maturity shall be redeemable in accordance
with their terms and (except as otherwise specified as contemplated by Section
301 for Debt Securities of any series) in accordance with this Article.
Section 1202. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Debt Securities shall be
evidenced by a Board Resolution. In case of any redemption at the election of
the Company of less than all of the Debt Securities of any series, the Company
shall, at least 45 days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee and, in the case of Debt Securities of a series held by an Issuer Trust,
the Property Trustee under the related Trust Agreement, of such Redemption Date
and of the principal amount and the tenor and terms of the Debt Securities of
any series to be redeemed; provided that in the case of any series of Debt
Securities initially issued to an Issuer Trust, for so long as such Debt
Securities are held by such Issuer Trust, such notice shall be given not less
than 45 nor more than 75 days prior to such Redemption Date (unless a shorter
notice shall be satisfactory to the Property Trustee under the related Trust
Agreement). In the case of any redemption of Debt Securities prior to the
expiration of any restriction on such redemption provided in the terms of such
Debt Securities or elsewhere in this Indenture, the Company shall furnish the
Trustee with an Officers' Certificate evidencing compliance with such
restriction.
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Section 1203. Selection by Trustee of Debt Securities to be Redeemed.
Except as otherwise specified as contemplated by Section 301 for Debt
Securities of any series, if less than all the Debt Securities of any series
with like tenor and terms are to be redeemed, the particular Debt Securities to
be redeemed shall be selected not more than 60 days prior to the Redemption Date
by the Trustee, from the Outstanding Debt Securities of such series with like
tenor and terms not previously called for redemption, by such method as the
Trustee shall deem fair and appropriate and which may provide for the selection
for redemption of portions (equal to the minimum authorized denomination for
Debt Securities of such series or any integral multiple thereof which is also an
authorized denomination) of the principal amount of Registered Securities or
Bearer Securities (if issued in more than one authorized denomination) of such
series of a denomination larger than the minimum authorized denomination for
Debt Securities of such series.
The Trustee shall promptly notify the Company in writing of the Debt
Securities selected for redemption and, in the case of any Debt Securities
selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Debt Securities shall relate, in
the case of any Debt Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Debt Security which has been or is to be
redeemed.
Section 1204. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section 106
not less than 30 nor more than 60 days prior to the Redemption Date, to each
Holder of Debt Securities to be redeemed, provided that in the case of any
series of Debt Securities initially issued to an Issuer Trust, for so long as
such Debt Securities are held by such Issuer Trust, such notice shall be given
not less than 45 nor more than 75 days prior to such Redemption Date (unless a
shorter notice shall be satisfactory to the Property Trustee under the related
Trust Agreement).
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all Outstanding Debt Securities of any series are
to be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular Debt Securities to be
redeemed,
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Debt Security to be redeemed, and that interest
(including any Additional Interest) thereon shall cease to accrue on and
after said date,
(5) the Place or Places of Payment where such Debt Securities,
together in the case of Bearer Securities with all coupons, if any,
appertaining thereto maturing after the Redemption Date, are to be
surrendered for payment of the Redemption Price,
(6) that Bearer Securities may be surrendered for payment only at
such place or places which are outside the United States, except as
otherwise provided in Section 1102,
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(7) that the redemption is for a sinking fund, if such is the case,
and
(8) the CUSIP number, if any.
A notice of redemption published as contemplated by Section 106 need not
identify particular Registered Securities to be redeemed.
Notice of redemption of Debt 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.
Section 1205. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1103) an amount of
money and/or, to the extent the Debt Securities to be redeemed are denominated
and payable in Dollars only, Eligible Instruments the payments of principal and
interest on which when due (and without reinvestment and providing no tax
liability will be imposed upon the Trustee or the Holders of the Debt Securities
to be redeemed) will provide money on or prior to the Redemption Date in such
amounts as will (together with any money irrevocably deposited in trust with the
Trustee, without investment) be sufficient to pay the Redemption Price of, and
(except if the Redemption Date shall be an Interest Payment Date) accrued
interest (including any Additional Interest) on, all the Debt Securities or
portions thereof which are to be redeemed on that date; provided, however, that
deposits with respect to Bearer Securities shall be made with a Paying Agent or
Paying Agents located outside the United States except as otherwise provided in
Section 1102, unless otherwise specified as contemplated by Section 301.
Section 1206. Debt Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Debt Securities
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Debt Securities shall cease to bear interest and the coupons for
such interest appertaining to any Bearer Securities so to be redeemed, except to
the extent provided below, shall be void. Upon surrender of any such Debt
Security for redemption in accordance with said notice, such Debt Security shall
be paid by the Company at the Redemption Price, together with accrued interest
(including any Additional Interest) to the Redemption Date; provided, however,
that installments of interest (including any Additional Interest) on Bearer
Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable only upon presentation and surrender of coupons for such interest (at an
office or agency located outside the United States except as otherwise provided
in Section 1102), and provided further, that installments of interest (including
any Additional Interest) on Registered Securities whose Stated Maturity is on or
prior to the Redemption Date shall be payable to the Holders of such Debt
Securities, or one or more Predecessor Securities, registered as such on the
relevant Record Dates according to their terms and the provisions of Section
307.
If any Bearer Security surrendered for redemption shall not be accompanied
by all appurtenant coupons maturing after the Redemption Date, such Bearer
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Bearer
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Security shall surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made from the Redemption
Price, such Holder shall be entitled to receive the amount so deducted without
interest thereon; provided, however, that interest represented by coupons shall
be payable only upon presentation and surrender of those coupons at an office or
agency located outside of the United States except as otherwise provided in
Section 1102.
If any Debt Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Debt Security.
Section 1207. Debt Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company, the Security
Registrar or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company, the Security
Registrar and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Debt Security without
service charge, a new Registered Security or Registered Securities of the same
series and of like tenor and terms, of any authorized denominations as requested
by such Holder in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Debt Security so surrendered.
Section 1208. Right of Redemption of Debt Securities Initially Issued to
an Issuer Trust.
In the case of the Debt Securities of a series initially issued to an
Issuer Trust, except as otherwise specified as contemplated by Section 301, the
Company, at its option, may redeem such Debt Securities (i) on or after the date
specified in such Debt Security, in whole at any time or in part from time to
time, or (ii) upon the occurrence and during the continuation of a Tax Event, an
Investment Company Event or a Capital Treatment Event, at any time within 90
days following the occurrence and during the continuation of such Tax Event,
Investment Company Event or Capital Treatment Event, in whole (but not in part),
in each case at a Redemption Price specified in such Debt Security, together
with accrued interest (including any Additional Interest) to, but excluding, the
Redemption Date.
If less than all the Debt Securities of any such series are to be
redeemed, the aggregate principal amount of such Debt Securities remaining
Outstanding after giving effect to such redemption shall be sufficient to
satisfy any provisions of the Trust Agreement related to the Issuer Trust to
which such Debt Securities were issued, including any requirement in such Trust
Agreement as to the minimum Liquidation Amount (as defined in such Trust
Agreement) of Capital Trust Securities that may be held by a holder of Capital
Trust Securities thereunder.
ARTICLE XIII
Sinking Funds
Section 1301. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Debt Securities of a series except as otherwise specified as
contemplated by Section 301 for Debt Securities of such series.
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The minimum amount of any sinking fund payment provided for by the terms
of Debt Securities of any series is herein referred to as a "mandatory sinking
fund payment," and any payment in excess of such minimum amount provided for by
the term of Debt Securities of any series is herein referred to an "optional
sinking fund payment". If provided for by the terms of Debt Securities of any
series, the amount of any sinking fund payment may be subject to reduction as
provided in Section 1302. Each sinking fund payment shall be applied to the
redemption of Debt Securities of any series as provided for by the terms of Debt
Securities of such series.
Section 1302. Satisfaction of Sinking Fund Payments with Debt Securities.
The Company (1) may deliver Outstanding Debt Securities of a series (other
than any previously called for redemption), together in the case of any Bearer
Securities of such series with all unmatured coupons appertaining thereto, and
(2) may apply as a credit Debt Securities of a series which have been redeemed
either at the election of the Company pursuant to the terms of such Debt
Securities or through the application of permitted optional sinking fund
payments pursuant to the terms of such Debt Securities, in each case in
satisfaction of all or any part of any sinking fund payment with respect to the
Debt Securities of such series required to be made pursuant to the terms of such
Debt Securities as provided for by the terms of such series; provided that such
Debt Securities have not been previously so credited. Such Debt Securities shall
be received and credited for such purpose by the Trustee at the Redemption Price
specified in such Debt Securities for redemption through operation of the
sinking fund and the amount of such sinking fund payment shall be reduced
accordingly. If as a result of the delivery or credit of Debt Securities in lieu
of cash payments pursuant to this Section 1302, the principal amount of Debt
Securities to be redeemed in order to exhaust the aforesaid cash payment shall
be less than $100,000, the Trustee need not call Debt Securities for redemption,
except upon Company Request, and such cash payment shall be held by the Trustee
or a Paying Agent and applied to the next succeeding sinking fund payment,
provided, however, that the Trustee or such Paying Agent shall at the request of
the Company from time to time pay over and deliver to the Company any cash
payment so being held by the Trustee or such Paying Agent upon delivery by the
Company to the Trustee of Debt Securities purchased by the Company having an
unpaid principal amount equal to the cash payment requested to be released to
the Company.
Section 1303. Redemption of Debt Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
series of Debt Securities (unless a shorter period shall be satisfactory to the
Trustee), the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash, the portion thereof, if any, which is to be
satisfied by crediting Debt Securities of that series pursuant to Section 1302
and the basis for any such credit and, prior to or concurrently with the
delivery of such Officers' Certificate, will also deliver to the Trustee any
Debt Securities to be so credited and not theretofore delivered to the Trustee.
Not less than 30 days (unless a shorter period shall be satisfactory to the
Trustee) before each such sinking fund payment date the Trustee shall select the
Debt Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 1203 and cause notice of the redemption thereof to be given
in the name of and at the expense of the Company in the manner provided in
Section 1204. Such notice having been duly given, the redemption of such Debt
Securities shall be made upon the terms and in the manner stated in Sections
1205, 1206 and 1207.
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ARTICLE XIV
Repayment at the Option of Holders
Section 1401. Applicability of Article.
Debt Securities of any series which are repayable at the option of the
Holders thereof before their Stated Maturity shall be repaid in accordance with
their terms and (except as otherwise specified pursuant to Section 301 for Debt
Securities of such series) in accordance with this Article.
Section 1402. Repayment of Debt Securities.
Each Debt Security which is subject to repayment in whole or in part at
the option of the Holder thereof on a Repayment Date shall be repaid at the
applicable Repayment Price together with interest accrued to such Repayment Date
as specified pursuant to Section 301.
Section 1403. Exercise of Option; Notice.
Each Holder desiring to exercise such Holder's option for repayment shall,
as conditions to such repayment, surrender the Debt Security to be repaid in
whole or in part together with written notice of the exercise of such option at
any office or agency of the Company in a Place of Payment, not less than 30 nor
more than 45 days prior to the Repayment Date; provided, however, that surrender
of Bearer Securities together with written notice of exercise of such option
shall be made at an office or agency located outside the United States except as
otherwise provided in Section 1102. Such notice, which shall be irrevocable,
shall specify the principal amount of such Debt Security to be repaid, which
shall be equal to the minimum authorized denomination for such Debt Security or
an integral multiple thereof, and shall identify the Debt Security to be repaid
and, in the case of a partial repayment of the Debt Security, shall specify the
denomination or denominations of the Debt Security or Debt Securities of the
same series to be issued to the Holder for the portion of the principal of the
Debt Security surrendered which is not to be repaid.
If any Bearer Security surrendered for repayment shall not be accompanied
by all unmatured coupons and all matured coupons in default, such Bearer
Security may be paid after deducting from the Repayment Price an amount equal to
the face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Bearer
Security shall surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made from the Repayment
Price, such Holder shall be entitled to receive the amount so deducted without
interest thereon; provided, however, that interest represented by coupons shall
be payable only at an office or agency located outside the United States except
as otherwise provided in Section 1102.
The Company and the Guarantor shall execute and the Trustee shall
authenticate and deliver without service charge to the Holder of any Registered
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Security and the related Guarantee so surrendered a new Registered Security or
Debt Securities of the same series, of any authorized denomination specified in
the foregoing notice, in an aggregate principal amount equal to any portion of
the principal of the Registered Security so surrendered which is not to be
repaid.
The Company and the Guarantor shall execute and the Trustee shall
authenticate and deliver without service charge to the Holder of any Bearer
Security so surrendered a new Registered Security and the related Guarantee or
Securities or new Bearer Security and the related Guarantee or Securities (and
all appurtenant unmatured coupons and matured coupons in default) or any
combination thereof of the same series of any authorized denomination or
denominations specified in the foregoing notice, in an aggregate principal
amount equal to any portion of the principal of the Debt Security so surrendered
which is not to be paid; provided, however, that the issuance of a Registered
Security therefor shall be subject to applicable laws and regulations, including
provisions of the United States Federal income tax laws and regulations in
effect at the time of the exchange; neither the Company, the Guarantor, the
Trustee nor the Security Registrar shall issue Registered Securities for Bearer
Securities if it has received an Opinion of Counsel that as a result of such
issuance the Company or the Guarantor would suffer adverse consequences under
the United States Federal income tax laws then in effect and the Company has
delivered to the Trustee a Company Order directing the Trustee not to make such
issuances thereafter unless and until the Trustee receives a subsequent Company
Order or Guarantor Order to the contrary. The Company or Guarantor, as the case
may be, shall deliver copies of such Company Order or Guarantor Order to the
Security Registrar.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the repayment of Debt Securities shall relate, in the
case of any Debt Security repaid or to be repaid only in part, to the portion of
the principal of such Debt Security which has been or is to be repaid.
Section 1404. Election of Repayment by Remarketing Entities.
The Company may elect, with respect to Debt Securities of any series which
are repayable at the option of the Holders thereof before their Stated Maturity,
at any time prior to any Repayment Date to designate one or more Remarketing
Entities to purchase, at a price equal to the Repayment Price, Debt Securities
of such series from the Holders thereof who give notice and surrender their Debt
Securities in accordance with Section 1403.
Section 1405. Securities Payable on the Repayment Date.
Notice of exercise of the option of repayment having been given and the
Debt Securities so to be repaid having been surrendered as aforesaid, such Debt
Securities shall, unless purchased in accordance with Section 1404, on the
Repayment Date become due and payable at the price therein specified and from
and after the Repayment Date such Debt Securities shall cease to bear interest
and shall be paid on the Repayment Date, and the coupons for such interest
appertaining to Bearer Securities so to be repaid, except to the extent provided
above, shall be void, unless the Company shall default in the payment of such
price in which case the Company shall continue to be obligated for the principal
amount of such Debt Securities and shall be obligated to pay interest on such
principal amount at the rate borne by such Debt Securities from time to time
until payment in full of such principal amount.
ARTICLE XV
Exchange of Capital Securities for Debt Securities
Section 1501. Applicability of Article.
If an Officers' Certificate or supplemental indenture pursuant to Section
301 provides for the exchange of Capital Securities for Debt Securities of any
series at the election of the Company or otherwise, Debt Securities of such
series shall be exchanged for Capital Securities in accordance with their terms
and (except as otherwise specified in such Officers' Certificate or supplemental
indenture) in accordance with this Article.
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Section 1502. Exchange of Capital Securities for Debt Securities at Stated
Maturity.
At the Stated Maturity of Debt Securities of any series which may be
exchanged, subject to prepayment prior to such Stated Maturity on the Capital
Exchange Date selected by the Company for Debt Securities of such series, as
described below, early exchange pursuant to Section 1503 or payment in cash
pursuant to Section 602, 1516 or 1517, the Company shall exchange Capital
Securities with a Market Value equal to the principal amount of the Outstanding
Debt Securities of such series for the Debt Securities of such series in whole.
The Company shall give notice in the manner provided in Section 106 to
Holders of the Debt Securities of any series to be exchanged, the Trustee and
the Capital Exchange Agent as to the type of Capital Securities to be exchanged
for the Debt Securities of such series on the Capital Exchange Date for Debt
Securities of such series. Such notice shall include a form of Capital Security
Election Form substantially as set forth in Section 1509, shall make the
statements and contain the information included in Section 1504(a), and shall be
given no less than 90 days prior to the Stated Maturity of such Debt Securities.
Notice of such Capital Exchange Date, together with the amount of Capital
Securities being exchanged for each $1,000 principal amount of Debt Securities
of such series, or the minimum denomination of the Debt Securities of such
series, if larger, shall also be given by the Company in the manner required by
Section 1504(b) not less than three Business Days prior to such Capital Exchange
Date.
The Capital Exchange Date for any prepayment of Debt Securities of each
series may be selected by the Company to be any date between a date 60 days
prior to the Stated Maturity of such Debt Securities and such Stated Maturity,
inclusive, and to be the date of the closing of the Secondary Offering for Debt
Securities of such series. In the event the Company fails to effect such
Secondary Offering, the Capital Exchange Date will be the Stated Maturity of the
Debt Securities of such series. Notice of each such Capital Exchange Date,
together with the amount of Capital Securities being exchanged for each $1,000
principal amount of Debt Securities of such series, or the minimum denomination
of the Debt Securities of such series, if larger, shall also be given by the
Company in the manner required by Section 1504(b) not less than three Business
Days prior to such Capital Exchange Date.
The Company will effect each Secondary Offering such that the closing of
the Secondary Offering will occur on the Capital Exchange Date.
Section 1503. Right of Early Exchange of Capital Securities for Debt
Securities.
The Debt Securities of any series to be exchanged may be exchanged at the
election of the Company, as a whole or from time to time in part, prior to the
Stated Maturity thereof for Capital Securities with a Market Value equal to the
principal amount of such Debt Securities on any early Capital Exchange Date,
together with accrued interest to such Capital Exchange Date.
The Company shall give notice in the manner provided in Section 106 to
Holders of the Debt Securities of any series to be exchanged, the Trustee and
the Capital Exchange Agent not less than 90 days nor more than 120 days prior to
any early Capital Exchange Date for Debt Securities of such series, which notice
shall include a form of Capital Security Election Form substantially as set
forth in Section 1509 and make the statements and contain the information
included in Section 1504(a). Notice of each such early Capital Exchange Date,
together with the amount of Capital Securities being exchanged for each $1,000
principal amount of Debt Securities of such series, or the minimum denomination
of such series, if larger, shall also be given by the Company in the manner
required by Section 1504(b) not less than three Business Days prior to such
early Capital Exchange Date.
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The Company may at its option accelerate any such Capital Exchange Date
within the 60-day period prior to such Capital Exchange Date by giving notice of
such accelerated Capital Exchange Date, together with the amount of Capital
Securities being exchanged for each $1,000 principal amount of Debt Securities
of such series, or the minimum denomination of such series, if larger, in the
manner required by Section 1504(b) not less than three Business Days prior to
such accelerated Capital Exchange Date.
The Company will effect each Secondary Offering such that the closing of
such Secondary Offering will occur on the Capital Exchange Date.
Section 1504. Notices of Exchange.
(a) All notices of exchange subject to this paragraph shall state:
(1) the type of Capital Securities to be exchanged for the Debt
Securities of such series on the Capital Exchange Date for Debt Securities
of such series;
(2) the proposed Capital Exchange Date;
(3) that each Holder of Debt Securities of such series being
exchanged will receive on such Capital Exchange Date accrued and unpaid
interest in cash and may elect to receive on such Capital Exchange Date
Capital Securities with a Market Value equal to the principal amount of
the Debt Securities of such series owned by such Holder and that, in the
absence of any such election by the Holder, such Holder will be deemed to
have received on such Capital Exchange Date Capital Securities having such
Market Value and to have elected to have such Capital Securities sold for
such Holder by the Company in the related Secondary Offering for cash
proceeds to such Holder on such Capital Exchange Date equal to the
aggregate principal amount of all Debt Securities of such series being
exchanged owned by such Holder;
(4) that on such Capital Exchange Date the Capital Exchange Price
will become due and payable upon each such Debt Security to be exchanged
and that interest thereon will cease to accrue on and after said date;
(5) if less than all the Outstanding Debt Securities of any series
are to be exchanged, the identification and principal amount of the
particular Debt Securities to be exchanged;
(6) that each Holder for whom Capital Securities are being offered
in the Secondary Offering shall be deemed to have appointed the Company
its attorney-in-fact to execute any and all documents and agreements the
Company deems necessary or appropriate to effect such Secondary Offering;
(7) (A) that the Company will assume, unless advised to the contrary
in writing within 30 days after the date of notice of exchange, that the
Capital Securities are to be offered for the account of the Holder, that
such Holder has not held any position, office or other material
relationship with the Company within three years preceding the Secondary
Offering, that the Holder owns no other Capital Securities, and that after
completion of the Secondary Offering the Holder will own less than one
percent of the class of such Capital Securities, and (B) that if any of
these assumptions is not correct, the Holder shall promptly so advise the
Company;
(8) the Place or Places of Capital Exchange;
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(9) that Bearer Securities may be surrendered for payment or
exchange only at a Place or Places of Capital Exchange which are outside
the United States, except as otherwise provided in Section 1102; and
(10) the CUSIP number, if any.
(b) Each notice of exchange subject to this paragraph shall be given in
the manner provided in Section 106 to each Holder of Debt Securities to be
exchanged, and the Company shall forthwith give such notice by telephone to the
Trustee and the Capital Exchange Agent, promptly confirmed in writing.
(c) (1) Except as may otherwise be specified pursuant to Section 301
for Debt Securities of any series, if less than all the Debt Securities of
any series are to be exchanged, the Company shall at least 135 days prior
to the related Capital Exchange Date (unless a shorter period shall be
satisfactory to the Trustee) notify the Trustee of such Capital Exchange
Date and of the principal amount of Debt Securities of such series to be
exchanged and the particular Debt Securities to be exchanged shall be
selected not more than 135 days prior to the related Capital Exchange Date
by the Trustee, from the Outstanding Debt Securities of such series not
previously exchanged, by such method as the Trustee shall deem fair and
appropriate and which may provide for the selection for exchange of
portions (equal to the minimum authorized denomination for Debt Securities
of such series or any integral multiple thereof) of the principal amount
of Registered or Bearer Securities of such series of a denomination larger
than the minimum authorized denomination for Debt Securities of such
series.
In any case where Debt Securities of such series are registered in
the same name, the Trustee in its discretion may treat the aggregate
principal amount so registered as if it were represented by one Debt
Security of such series.
(2) The Trustee shall promptly notify the Company in writing of the
Debt Securities selected for exchange and, in the case of any Debt
Securities selected for partial exchange, the principal amount thereof to
be exchanged.
(3) For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the exchange of Debt Securities shall
relate, in the case of any Debt Securities exchanged or to be exchanged
only in part, to the portion of the principal amount of such Debt Security
which has been or is to be exchanged.
Section 1505. Rights and Duties of Holders of Debt Securities to be
Exchanged for Capital Securities.
(a) Subject to Section 603, and without prejudice to the rights pursuant
to Section 1513 of Holders of Debt Securities of any series to be exchanged, no
Holder of Debt Securities of such series shall be entitled to receive any cash
from the Company on any Capital Exchange Date or at the Stated Maturity of any
Debt Security of such series except from the proceeds of the sale of such
Holder's Capital Securities in the related Secondary Offering and except as
provided herein with respect to fractional Capital Securities, amounts equal to
expenses of the sale in the related Secondary Offering of such Capital
Securities, accrued and unpaid interest and acceleration upon an Event of
Default. In the event that the Company does not effect such Secondary Offering,
such Holder will receive Capital Securities with a Market Value equal to the
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principal amount of Debt Securities of such series owned by such Holder which
are subject to such exchange and not cash other than in lieu of any fractional
Capital Securities and for accrued and unpaid interest, without prejudice to
such Holder's rights pursuant to Section 1513.
(b) Each Holder for whom Capital Securities are being offered in the
Secondary Offering shall be deemed to have appointed the Company its
attorney-in-fact to execute any and all documents and agreements the Company
deems necessary or appropriate to effect such Secondary Offering.
(c) Unless advised to the contrary in writing within 30 days following the
date of the notice described in Section 1504(a) by any Holder for whom Capital
Securities are being offered in the Secondary Offering, the Company shall assume
for the purposes of any Secondary Offering that the Capital Securities are to be
offered for the account of such Holder, that such Holder has not held any
position, office or other material relationship with the Company within three
years preceding the Secondary Offering, that such Holder owns no other Capital
Securities, and that after completion of the Secondary Offering such Holder will
own less than one percent of the class of such Capital Securities.
(d) Each Holder for whom Capital Securities are being offered in the
Secondary Offering agrees to indemnify and hold harmless the Company, any other
Holder, and any underwriter, agent or other similar person from and against any
and all losses, claims, damages and liabilities resulting from or based upon any
untrue statement or alleged untrue statement of any material fact contained in
any notice of exchange, any offering memorandum or selling document or
registration statement relating to the Secondary Offering, any preliminary
prospectus or prospectus contained therein, or any amendment thereof or
supplement thereto, or resulting from or based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, which untrue statement,
alleged untrue statement, omission or alleged omission is made therein (i) in
reliance upon and in conformity with any written information furnished to the
Company by or on behalf of any such Holder specifically for use in connection
with the preparation thereof or (ii) because of such Holder's failure to advise
the Company in writing that any of the assumptions described in Section
1504(a)(7)(A) and Subsection (c) of this Section is incorrect.
(e) In order for any Holder who has duly returned a Capital Security
Election Form to receive Capital Securities on any Capital Exchange Date for any
Debt Security of any series, (1) the Holder of any Registered Security to be
exchanged shall surrender such Debt Security (with, if the Company or the
Trustee so requires, due endorsement by, or a written instrument of transfer in
form satisfactory to the Company and the Trustee duly executed by, the Holder of
any Registered Security or his attorney duly authorized in writing) to the
Capital Exchange Agent on the Capital Exchange Date, and (2) the Holder of any
Bearer Security to be exchanged shall surrender such Debt Security and all
unmatured coupons and all matured coupons in default with the Capital Security
Election Form at a Place of Capital Exchange outside the United States
designated pursuant to Section 1504(a)(8) except as otherwise provided in
Section 1102. If the Holder of a Bearer Security is unable to produce any such
Debt Security or coupons, the surrender of such Debt Security or coupons may be
waived by the Company and the Trustee, if there be furnished to them such
security or indemnity as they may require to save each of them and any Capital
Exchange Agent harmless in respect of such Debt Security or coupons. Except as
provided in Section 307, no payment or adjustment shall be made upon any
exchange on account of any interest accrued on any Debt Securities surrendered
for exchange or on account of any dividends or interest on the Capital
Securities issued upon exchange.
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(f) Debt Securities of any series to be exchanged shall be deemed to have
been exchanged on the Capital Exchange Date therefor in accordance with the
foregoing provisions, and at such time the rights of the Holders of such Debt
Securities as Holders shall cease (subject to the provisions of Section 307 and
without prejudice to the rights of Holders of Debt Securities of such series
pursuant to Section 1513), and the Person or Persons entitled to receive the
Capital Securities issuable upon such exchange shall be treated for all purposes
as the record holder or holders of such Capital Securities at such time.
Section 1506. Election to Exchange.
The election of the Company to exchange Capital Securities for Debt
Securities pursuant to Section 1503 shall be evidenced by a Board Resolution.
Section 1507. Deposit of Capital Exchange Price.
On any Capital Exchange Date for Debt Securities of any series which may
be exchanged, the Company shall deposit with the Trustee or with a Capital
Exchange Agent in the United States (or, if the Company is acting as Capital
Exchange Agent, segregate and hold in trust as provided in Section 1103) Capital
Securities and an amount of money which together are sufficient to pay the
Capital Exchange Price of, and (except if such Capital Exchange Date shall be an
Interest Payment Date) accrued interest on, all the Debt Securities of such
series or portions thereof which are to be exchanged on that date; provided,
however, that deposits with respect to Bearer Securities shall be made with a
Capital Exchange Agent or Capital Exchange Agents located outside the United
States except as otherwise provided in Section 1102, unless otherwise specified
as contemplated by Section 301.
Section 1508. Debt Securities Due on Capital Exchange Date; Debt
Securities Exchanged in Part.
Notice of exchange having been given as aforesaid, the Debt Securities of
any series so to be exchanged shall, on the Capital Exchange Date for such Debt
Securities, become due and payable at the Capital Exchange Price therein
specified, and from and after such date (unless the Company shall default in the
payment of the Capital Exchange Price and accrued interest) Debt Securities of
such series to be exchanged shall cease to bear interest and the coupons for
such interest appertaining to any Bearer Securities to be exchanged, except to
the extent provided below, shall be void. Upon surrender of any Debt Security of
such series for exchange in accordance with said notice, such Debt Security
shall be paid by the Company at the Capital Exchange Price, together with
accrued interest to the Capital Exchange Date; provided, however, that if such
Capital Exchange Date is an Interest Payment Date, the interest payable on such
date shall be paid to the Holder of Debt Securities of such series according to
the terms of the Debt Securities of such series and the provisions of Section
307; and provided further, that exchanges of Bearer Securities shall be made
only and installments of interest on Bearer Securities whose Stated Maturity is
on or prior to the Capital Exchange Date shall be payable only at an office or
agency located outside the United States except as otherwise provided in Section
1102 and, unless otherwise specified as contemplated by Section 301, only upon
presentation and surrender of those Bearer Securities and coupons.
If any Bearer Security surrendered for exchange shall not be accompanied
by all unmatured coupons and all matured coupons in default, such Bearer
Security may be paid after deducting from the Capital Exchange Price an amount
equal to the face amount of all missing coupons, or the surrender of such
missing coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Capital Exchange Agent harmless. If thereafter the Holder of such
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Bearer Security shall surrender to the Trustee or Capital Exchange Agent any
such missing coupon in respect of which a deduction shall have been made from
the Capital Exchange Price, such Holder shall be entitled to receive the amount
so deducted without interest thereon; provided, however, that interest on Bearer
Securities shall be payable only at an office or agency located outside of the
United States except as otherwise provided in Section 1102.
If any Debt Security of any series called for exchange shall not be so
paid or exchanged upon surrender thereof for exchange, the principal shall,
until paid, bear interest from such Capital Exchange Date at the rate or rates
prescribed therefor in such Debt Security; provided, however, that in the case
of Bearer Securities, any such principal and interest thereon shall be paid at
an office or agency located outside the United States except as otherwise
provided in Section 1102.
Any Registered Security which is to be exchanged only in part shall be
surrendered as provided herein (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder or his attorney duly
authorized in writing) and the Company shall execute, the Trustee shall
authenticate and there shall be delivered to the Holder of such Debt Security
without service charge a new Registered Security or Securities of the same
series, of any authorized denomination or denominations as requested by such
Holder in aggregate principal amount equal to and in exchange for the
unexchanged portion of principal of the Debt Security so surrendered.
Any Bearer Security which is to be exchanged only in part shall be
surrendered as provided herein and the Company shall execute, the Trustee shall
authenticate and there shall be delivered to the Holder of such Debt Security
without service charge a new Registered Security or Securities or new Bearer
Security or Securities (and all appurtenant unmatured coupons and coupons in
default) or any combination thereof of the same series, of any surrendered
denomination or denominations as requested by such Holder in aggregate principal
amount equal to and in exchange for the unexchanged portion of principal of the
Debt Security so surrendered; provided, however, the issuance of a Registered
Security therefor shall be subject to applicable laws and regulations, including
provisions of the United States federal income tax laws and regulations in
effect at the time of the exchange; neither the Company, the Trustee nor the
Security Registrar shall issue Registered Securities in exchange for Bearer
Securities if it has received an Opinion of Counsel that as a result of such
exchanges the Company would suffer adverse consequences under the United States
Federal income tax laws then in effect and the Company has delivered to the
Trustee a Company Order directing the Trustee not to make such exchanges
thereafter unless and until the Company delivers to the Trustee a subsequent
Company Order to the contrary. The Company shall deliver copies of such Company
Orders to the Security Registrar.
Section 1509. Form of Capital Security Election Form.
The form of Capital Security Election Form shall be substantially as
follows with such additions, deletions or changes thereto as may be approved by
the Company:
CAPITAL SECURITY ELECTION FORM
To: [Insert Names and Addresses of Capital Exchange Agents]
The undersigned Holder of [insert title of Debt Security] ("Debt
Securities") of TSFG Capital [A], [B], [C], [D] LLC (the "Company") hereby
elects to receive on the Capital Exchange Date determined pursuant to the
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Indenture dated as of , 2004, ("Indenture"), between the Company, The South
Financial Group, Inc. and , as Trustee, and referred to in the notice of
exchange published or delivered to the undersigned with this Capital Security
Election Form, Capital Securities of The South Financial Group, Inc. with a
Market Value equal to the principal amount of the Debt Securities being
exchanged owned by the undersigned Holder and, in the case of Bearer Securities,
delivered herewith together with all coupons appertaining thereto. Unless this
Capital Security Election Form together with, in the case of Bearer Securities,
such Bearer Securities and coupons, is received by any Capital Exchange Agent
named above at an address shown above on or prior to , the Holder will be deemed
to have elected to participate in the sale of the Holder's Capital Securities in
the Secondary Offering and will receive cash on the Capital Exchange Date in an
amount equal to the principal amount of all Debt Securities being exchanged
owned by the Holder. All terms used herein and not otherwise defined herein
shall have the meanings specified in the Indenture.
Dated:
-----------------------------------
Name of Holder
Section 1510. Fractional Capital Securities.
No fractional Capital Securities shall be issued upon exchange for any
Debt Securities. If more than one Debt Security of any series shall be
surrendered for exchange at one time by the same Holder, the amount of all
Capital Securities which shall be issuable upon exchange thereof shall be
computed on the basis of the aggregate principal amount of Debt Securities of
such series so surrendered. In lieu of issuing any fractional Capital Security,
the Company shall pay a cash adjustment in respect of such fraction in an amount
equal to the same fraction of the Market Value of the Capital Security.
Section 1511. Company to Obtain Governmental and Regulatory Approvals.
The Company covenants that if any Capital Securities required to be
exchanged for Debt Securities hereunder require registration with or approval of
any governmental authority under any federal or state law, or any national
securities exchange, before such Capital Securities may be issued, the Company
will in good faith and as expeditiously as possible endeavor to cause such
Capital Securities to be duly registered or approved, as the case may be;
provided, however, that nothing in this Section shall be deemed to affect in any
way the obligation of the Company to exchange Capital Securities for Debt
Securities as provided in this Article.
Section 1512. Taxes on Exchange.
The Company will pay any and all transfer, stamp or similar taxes that may
be payable in respect of the issue or delivery of Capital Securities in exchange
for Debt Securities pursuant hereto.
Section 1513. Covenants as to Capital Securities and Secondary Offering.
(a) The Guarantor covenants that it will issue, or cause to be issued,
Capital Securities of the type, in the amounts and at the times required by this
Indenture.
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(b) The Guarantor covenants that all Capital Securities which may be
issued in exchange for Debt Securities will upon issuance be duly and validly
issued and, if applicable, fully paid and nonassessable.
(c) The Guarantor unconditionally undertakes to sell Capital Securities in
each Secondary Offering (and to bear all expenses of each Secondary Offering,
including underwriting discounts and commissions) at the times and in the manner
required by this Indenture unless all Holders have duly elected to receive
Capital Securities on the related Capital Exchange Date.
(d) The Guarantor agrees to indemnify and hold harmless in connection with
any Secondary Offering any Holder for the account of whom Capital Securities are
being offered and sold from and against any and all losses, claims, damages and
liabilities resulting from or based upon any untrue statement or alleged untrue
statement of any material fact contained in any notice of exchange, any offering
memorandum or selling document or registration statement relating to the
Secondary Offering, any preliminary prospectus or prospectus contained therein,
or any amendment thereof or supplement thereto, or resulting from or based upon
the omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
resulting from the Guarantor's failure to comply with Section 1511; provided,
however, the Guarantor will not be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based upon any
such untrue statement, alleged untrue statement, omission or alleged omission
made therein (i) in reliance upon and in conformity with written information
furnished to the Guarantor by or on behalf of any such Holder specifically for
use in connection with the preparation thereof or (ii) because of such Holder's
failure to advise the Guarantor in writing that any of the assumptions described
in Section 1504(a)(7)(A) is incorrect. In connection with any Secondary
Offering, the Guarantor agrees to obtain appropriate indemnification of any
Holder for the account of whom Capital Securities are being offered and sold in
any Secondary Offering from any underwriter, agent or other similar person.
Section 1514. Provision in Case of Consolidation, Merger or Transfer of
Assets.
In case of any consolidation of the Company with, or merger of the Company
into, any other corporation (other than a consolidation or merger in which the
Company is the continuing corporation), or in case of any conveyance or transfer
of the properties and assets of the Company substantially as an entirety, the
corporation formed by such consideration or the corporation into which the
Company shall have been merged or the corporation which shall have acquired such
assets of the Company, as the case may be, shall execute and deliver to the
Trustee a supplemental indenture providing that the Holder of each Debt Security
then Outstanding shall have the right thereafter to receive securities of such
successor on the Capital Exchange Date for such Debt Security with a Market
Value equal to the principal amount of such Debt Security. The above provisions
of this Section shall similarly apply to successive consolidations, mergers,
conveyances or transfers.
Section 1515. Trustee Not Responsible.
The Trustee shall not at any time be under any duty or responsibility to
any Holder of Debt Securities of any series to be exchanged to determine the
Market Value of any Capital Securities delivered in exchange for Debt Securities
of such series and may rely on and shall be entitled to receive prior to any
Capital Exchange Date for Debt Securities of such series an Officers'
Certificate of the Company as to the Market Value of the Capital Securities
being exchanged for the Debt Securities of such series and the amount of Capital
Securities being exchanged for each $1,000 principal amount of Debt Securities
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of such series or the minimum denomination of such series, if larger, and that
such Capital Securities qualify as Capital Securities under the definition
thereof contained herein. The Trustee shall not be accountable with respect to
the validity or value (or the kind or amount) of any Capital Securities which
may at any time be issued or delivered in exchange for any Debt Security; and
the Trustee does not make any representation with respect thereto. The Trustee
shall not be responsible for any failure of the Company to issue, transfer or
deliver any Capital Securities or Capital Security certificates or other
securities or property upon the surrender of any Debt Security for the purpose
of exchange or to comply with any of the covenants of the Company contained in
this Article.
Section 1516. Revocation of Obligation to Exchange Capital Securities for
Debt Securities.
The Company's obligations to exchange Capital Securities for Debt
Securities of any series as provided in Section 1502 is absolute and
unconditional; provided, however, that such obligation may be revoked at the
option of the Company at any time on not less than 60 days' prior notice given
in the manner provided in Section 106 to the Holders of Debt Securities of such
series, the Trustee and the Capital Exchange Agent, if the Company shall
determine that under regulations then in effect of the Company's Primary Federal
Regulator either the Debt Securities are no longer includable as capital or it
is no longer necessary for the Company to be obligated to exchange Capital
Securities for Debt Securities in order for the Debt Securities to maintain the
same capital treatment as they are then receiving under the regulations or if
approval of the Primary Federal Regulator is obtained for such revocation.
In the event such obligation is revoked
(a) the Company will pay the Debt Securities of such series in cash at
100% of the principal amount thereof on the Stated Maturity thereof, and
(b) the Company may, at any time on or after a date selected by the
Company, on not less than 60 days' prior notice given in the manner provided in
Section 106 to the Holders of Debt Securities of such series and the Trustee,
redeem the Debt Securities of such series, in whole or in part, for cash at 100%
of the principal amount thereof, plus accrued interest to the Redemption Date.
Section 1517. Optional Securities Funds.
(a) (1) With respect to Debt Securities of any series for which an
Officers' Certificate or supplemental indenture pursuant to Section 301
provides that the Debt Securities of such series are exchangeable for
Capital Securities, the Company may elect to establish a fund (referred to
herein as the "Optional Securities Funds") to which funds may at any time
be designated by the Company as provided in Section 1602 as if such
Optional Securities Funds were Securities Funds (as defined in Article
Sixteen) to be used to pay the principal of the Debt Securities of such
series.
(2) Notwithstanding any provisions to the contrary contained in this
Indenture or in the Debt Securities of any series, neither funds
designated as Optional Securities Funds nor any other property from time
to time held as Optional Securities Funds shall be deemed to be for any
purpose property of the Holders or trust funds for the benefit of the
Holders, and the Optional Securities Funds shall not constitute security
for the payment of the Debt Securities.
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(b) In lieu of, or in addition to, any exchange of Capital Securities for
Debt Securities of any series which may be made in accordance with the
provisions of Sections 1502 and 1503, the Company may elect to redeem the Debt
Securities of such series in accordance with the provisions of Section 1206 and
the terms of the Debt Securities of each series, in whole or in part, by paying
the principal of such Debt Securities with funds designated as Optional
Securities Funds at a price equal to the percentage of the principal amount
established in the terms of the Debt Securities of such series on the Redemption
Date of the Debt Securities to be so redeemed, and (except if such Redemption
Date shall be an Interest Payment Date) by paying accrued interest on such Debt
Securities. If such Redemption Date is an Interest Payment Date, the interest
payable on such date shall be paid to the Holder of Debt Securities of such
series according to the terms of the Debt Securities of such series and the
provisions of Section 307.
(c) The Company shall give notice of such proposed redemption in the
manner provided in Section 106 to the Holders of the Debt Securities of such
series within the time prescribed for the giving of the initial notice in
Section 1502 or 1503, depending upon the Redemption Date selected by the
Company. Such notice shall state the Redemption Date and the place or places
where the Debt Securities of the series to be paid are to be surrendered for
payment; provided, however, if such redemption is of less than all of the Debt
Securities of such series and is to be made on a Capital Exchange Date specified
in accordance with Section 1502 or 1503, then such notice may be incorporated
into any initial notice of such Capital Exchange Date and provided that no
notice of any redemption may be given unless there are sufficient Optional
Securities Funds to pay the principal amount of the Debt Securities to be
redeemed.
(d) If less than all the Debt Securities of any series are to be so
redeemed, then Sections 1504(c) and 1508 shall apply to the redemption in the
same manner as if such Debt Securities were to be exchanged for Capital
Securities.
(e) Funds designated as Optional Securities Funds shall be released from
such designation under the circumstances described in Section 1603.
ARTICLE XVI
Securities Funds
Section 1601. Creation of Securities Funds.
A fund (the "Securities Funds") will be established when specified in an
Officers' Certificate or supplemental indenture pursuant to Section 301 for the
Debt Securities of any series pursuant to which funds may be designated by the
Company as provided in Section 1602, to be used to pay the principal of the Debt
Securities of that series.
Notwithstanding any provision to the contrary contained in this Indenture
or in the Debt Securities of any series, neither funds designated as Securities
Funds nor any other property from time to time held as Securities Funds shall be
deemed to be for any purpose property of the Holders or trust funds for the
benefit of the Holders, and the Securities Funds shall not constitute security
for the payment of the Debt Securities.
Section 1602. Designations of Securities Funds.
The Securities Funds will consist of amounts equal to (i) the net proceeds
of the sale of Capital Securities for cash from time to time after the date of
initial issuance of the Debt Securities of any series for which funds may be
designated by the Company as provided in this Section, and (ii) the market
value, as determined by the Company, of Capital Securities sold from time to
time after the date of initial issuance of the Debt Securities of such series in
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exchange for other property, less the expenses to effect any such exchanges, and
(iii) other funds which the regulations of the Primary Federal Regulator then
permit for the payment of principal of "mandatory convertible securities (equity
commitment notes)" as defined in such regulations; provided that (x) the Company
has designated such amounts as Securities Funds on its books and records in the
manner required by the Primary Federal Regulator, and (y) there shall be
deducted from the Securities Funds an amount equal to the amount of any funds
used to redeem or repay the Debt Securities of such series for which Securities
Funds are required to be designated or any similar securities.
Section 1603. Covenant of the Company to Obtain Securities Funds.
Notwithstanding anything else contained herein, the Company hereby
covenants and agrees that with regard to the Debt Securities of any series which
by its terms requires the designation of Securities Funds (i) by the Interest
Payment Date which occurs on or next preceding the date when one-third of the
period from the date of issuance of the Debt Securities of such series to their
Stated Maturity has elapsed, it will have obtained Securities Funds in an amount
that will equal at least one-third of the original aggregate principal amount of
the Debt Securities of such series (or such lesser amount as the Primary Federal
Regulator may permit from time to time) and will have prepared and delivered to
the Trustee an Officers' Certificate to the foregoing effect, (ii) by the
Interest Payment Date which occurs on or next preceding the date when two-thirds
of the period from the date of issuance of the Debt Securities of such series to
their Stated Maturity has elapsed, it will have obtained Securities Funds in an
amount that will equal at least two-thirds of the original aggregate principal
amount of the Debt Securities of such series (or such lesser amount as the
Primary Federal Regulator may permit from time to time) and will have prepared
and delivered to the Trustee an Officers' Certificate to the foregoing effect,
and (iii) by 60 days prior to the Stated Maturity of the Debt Securities of such
series, it will have obtained Securities Funds in an amount that will equal not
less than the original aggregate principal amount of the Debt Securities of such
series (or such lesser amount as the Primary Federal Regulator may permit from
time to time) and will have prepared and delivered to the Trustee an Officers'
Certificate to the foregoing effect; provided, however, that such covenant and
agreement of the Company shall be cancelled and amounts theretofore designated
as Securities Funds will be released from such designation in the event and to
the extent that the Company shall determine that under the regulations of the
Company's Primary Federal Regulator either the Debt Securities are no longer
includable as capital or it is no longer necessary for the Company to be
obligated to pay the principal of the Debt Securities out of Securities Funds in
order for the Debt Securities to maintain the same capital treatment as they are
then receiving under such regulations, in the event and to the extent that
approval of the Primary Federal Regulator is obtained for such cancellation and
release or in the event and to the extent that the Company shall have exchanged
or redeemed such Debt Securities pursuant to the terms of such Debt Securities
of such series from a source other than amounts designated as Securities Funds.
ARTICLE XVII
Meetings of Holders of Debt Securities
Section 1701. Purposes for Which Meetings May Be Called.
If Debt Securities of a series are issuable in whole or in part as Bearer
Securities, a meeting of Holders of Debt Securities of such series may be called
at any time and from time to time pursuant to this Article to make, give or take
any request, demand, authorization, direction, notice, consent, waiver or other
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Act provided by this Indenture to be made, given or taken by Holders of Debt
Securities of such series.
Section 1702. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of Debt
Securities of any series issuable as Bearer Securities for any purpose specified
in Section 1701, to be held at such time and at such place in the Borough of
Manhattan, The City of New York, or in Greenville, South Carolina as the Trustee
shall determine. Notice of every meeting of Holders of Debt Securities of any
series, setting forth the time and the place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be given, in the
manner provided in Section 106, not less than 21 nor more than 180 days prior to
the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board Resolution, or
the Holders of at least 10% in principal amount of the Outstanding Debt
Securities of any series shall have requested the Trustee to call a meeting of
the Holders of Debt Securities of such series for any purpose specified in
Section 1701, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have made the
first publication of the notice of such meeting within 21 days after receipt of
such request or shall not thereafter proceed to cause the meeting to be held as
provided herein, then the Company or the Holders of Debt Securities of such
series in the amount above specified, as the case may be, may determine the time
and the place in the Borough of Manhattan, The City of New York, or in
Greenville, South Carolina for such meeting and may call such meeting for such
purposes by giving notice thereof as provided in subsection (a) of this Section.
Section 1703. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Debt Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding Debt
Securities of such series, or (2) a Person appointed by an instrument in writing
as proxy for a Holder or Holders of one or more Outstanding Debt Securities of
such series by such Holder or Holders. The only Persons who shall be entitled to
be present or to speak at any meeting of Holders of Debt Securities of any
series shall be the Persons entitled to vote at such meeting and their counsel,
any representatives of the Trustee and its counsel and any representatives of
the Company and its counsel.
Section 1704. Quorum; Action.
The Persons entitled to vote a majority in principal amount of the
Outstanding Debt Securities of a series shall constitute a quorum for a meeting
of Holders of Debt Securities of such series. In the absence of a quorum within
30 minutes of the time appointed for any such meeting, the meeting shall, if
convened at the request of Holders of Debt Securities of such series, be
dissolved. In the absence of a quorum in any other case the meeting may be
adjourned for a period of not less than 10 days as determined by the chairperson
of the meeting prior to the adjournment of such meeting. In the absence of a
quorum at any such adjourned meeting, such adjourned meeting may be further
adjourned for a period of not less than 10 days as determined by the chairperson
of the meeting prior to the adjournment of such adjourned meeting. Notice of
this reconvening of any adjourned meeting shall be given as provided in Section
1702(a), except that such notice need be given only once not less than five days
prior to the date on which the meeting is scheduled to be reconvened. Notice of
the reconvening of an adjourned meeting shall state expressly the percentage, as
provided above, of the principal amount of the Outstanding Debt Securities of
such series which shall constitute a quorum.
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Except as limited by the proviso to Section 1002, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is present
as aforesaid may be adopted only by the affirmative vote of the Holders of
majority in principal amount of the Outstanding Debt Securities of that series,
provided however, that, except as limited by the proviso to Section 1002, any
resolution with respect to any request, demand, authorization, direction,
notice, consent, waiver or other Act which this Indenture expressly provides may
be made, given or taken by the Holders of a specified percentage, which is less
than a majority, in principal amount of the Outstanding Debt Securities of a
series may be adopted at a meeting or an adjourned meeting duly reconvened and
at which a quorum is present as aforesaid by the affirmative vote of the Holders
of such specified percentage in principal amount of the Outstanding Debt
Securities of that series.
Any resolution passed or decision taken at any meeting of Holders of Debt
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Debt Securities of such series and the related
coupons, whether or not present or represented at the meeting.
Section 1705. Determination of Voting Rights; Conduct and Adjournment of
Meetings.
(a) Notwithstanding any other provisions of this Indenture, the Trustee
may make such reasonable regulations as it may deem advisable for any meeting of
Holders of Debt Securities of such series in regard to proof of the holding of
Debt Securities of such series and of the appointment of proxies and in regard
to the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such regulations,
the holding of Debt Securities shall be proved in the manner specified in
Section 104 and the appointment of any proxy shall be proved in the manner
specified in Section 104 or, in the case of Bearer Securities, by having the
signature of the person executing the proxy witnessed or guaranteed by any trust
company, bank or banker authorized by Section 104 to certify to the holding of
Bearer Securities. Such regulations may provide that written instruments
appointing proxies, regular on their face, may be presumed valid and genuine
without the proof specified in Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a temporary
chairperson of the meeting, unless the meeting shall have been called by the
Company or by Holders of Debt Securities as provided in Section 1702(b), in
which case the Company or the Holders of Debt Securities of the series calling
the meeting, as the case may be, shall in like manner appoint a temporary
chairperson. A permanent chairperson and a permanent secretary of the meeting
shall be elected by vote of the Persons entitled to vote a majority in principal
amount of the Outstanding Debt Securities of such series represented at the
meeting.
(c) At any meeting each Holder of a Debt Security of such series or proxy
shall be entitled to one vote for each $1,000 principal amount (or the
equivalent in Euros, any other composite currency or a Foreign Currency) of Debt
Securities of such series held or represented by him; provided, however, that no
vote shall be cast or counted at any meeting in respect of any Debt Security
challenged as not Outstanding and ruled by the chairperson of the meeting not to
be Outstanding. The chairperson of the meeting shall have no right to vote,
except as a Holder of a Debt Security of such series or proxy.
(d) Any meeting of Holders of Debt Securities of any series duly called
pursuant to Section 1702 at which a quorum is present may be adjourned from time
to time by Persons entitled to vote a majority in principal amount of the
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Outstanding Debt Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
Section 1706. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of Debt
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Debt Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Debt Securities of such series held or represented by them. The
permanent chairperson of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in triplicate of all votes cast at the meeting. A record, at least in
triplicate, of the proceedings of each meeting of Holders of Debt Securities of
any series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1702 and, if
applicable, Section 1701. Each copy shall be signed and verified by the
affidavits of the permanent chairperson and secretary of the meeting and one
such copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
Article XVIII
Defeasance
Section 1801. Termination of Company's and Guarantor's Obligations.
If this Section 1801 is specified, as contemplated by Section 301, to be
applicable to any series of Debt Securities and if the Company deposits
irrevocably in trust with the Trustee money and/or, to the extent such Debt
Securities are denominated and payable in Dollars only, Eligible Instruments the
payments of principal and interest on which when due (and without reinvestment
and providing no tax liability will be imposed upon the Trustee or the Holders
of such Debt Securities) will provide money in such amounts as will (together
with any money irrevocably deposited in trust with the Trustee, without
investment) be sufficient to pay the principal of (and premium, if any) and any
installment of principal of (and premium, if any) or interest (including any
Additional Interest) when due on the Debt Securities of such series and any
coupons appertaining thereto and any mandatory sinking fund, repayment or
analogous payments thereon on the scheduled due dates therefor at the Stated
Maturity thereof, the Company's and Guarantor's obligations under any covenant
determined pursuant to Section 301 to be subject to this Section shall terminate
with respect to the Debt Securities of the series for which such deposit was
made; provided, however, that (i) no Event of Default with respect to the Debt
Securities of such series under Section 601(3) or Section 601(4) or event that
with notice or lapse of time or both would constitute such an Event of Default
shall have occurred and be continuing on such date, (ii) such deposit will not
result in a breach of, or constitute a default under, this Indenture or any
other agreement or instrument to which the Company is a party or by which it is
bound, and (iii) such termination shall not relieve the Company or the Guarantor
of their obligations under the Debt Securities of such series, the related
Guarantees and this Indenture to pay when due the principal of (and premium, if
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any) and interest (including any Additional Interest) and Additional Amounts on
such Debt Securities and any coupons appertaining thereto if such Debt
Securities or coupons are not paid (or payment is not provided for) when due
from the money and Eligible Instruments (and the proceeds thereof) so deposited.
It shall be a condition to the deposit of cash and/or Eligible Instruments and
the termination of the Company's and Guarantor's obligations pursuant to the
provisions of this Section with respect to the Debt Securities of any series
under any covenant determined pursuant to Section 301 to be subject to this
Section that the Company or the Guarantor deliver to the Trustee (i) an Opinion
of Counsel to the effect that: (a) Holders of Debt Securities of such series and
any coupons appertaining thereto will not recognize income, gain or loss for
Federal income tax purposes as a result of such deposit and termination and (b)
such Holders (and future Holders) will be subject to tax in the same amount,
manner and timing as if such deposit and termination had not occurred, (ii) an
Officers' Certificate to the effect that under the laws in effect on the date
such money and/or Eligible Instruments are deposited with the Trustee, the
amount thereof will be sufficient, after payment of all Federal, state and local
taxes in respect thereof payable by the Trustee, to pay principal (and premium,
if any) and interest (including any Additional Interest) when due on the Debt
Securities of such series and any coupons appertaining thereto; and (iii) an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the defeasance contemplated
in this Section have been complied with.
It shall be an additional condition to the deposit of cash and/or Eligible
Instruments and the termination of the Company's and Guarantor's obligations
pursuant to the provisions of this Section under any covenant determined
pursuant to Section 301 to be subject to this Section, with respect to the Debt
Securities of any series then listed on a domestic or foreign securities
exchange that the Company or the Guarantor deliver an Opinion of Counsel that
the Debt Securities of such series will not be delisted from the exchange as a
result of such deposit and termination.
After a deposit as provided herein, the Trustee shall, upon Company or
Guarantor Request, acknowledge in writing the discharge of the Company's and
Guarantor's obligations pursuant to the provisions of this Section with respect
to the Debt Securities of such series under any covenant determined pursuant to
Section 301 to be subject to this Section.
Section 1802. Repayment to Company.
The Trustee and any Paying Agent shall promptly pay to the Company upon
Company Request any money or Eligible Instruments not required for the payment
of the principal of (and premium, if any) and interest (including any Additional
Interest) on the Debt Securities of any series and any related coupons for which
money or Eligible Instruments have been deposited pursuant to Section 1801 held
by them at any time.
The Trustee and any Paying Agent shall promptly pay to the Company upon
Company Request any money held by them for the payment of principal (and
premium, if any) and interest (including any Additional Interest) that remains
unclaimed for two years after the Maturity of the Debt Securities for which a
deposit has been made pursuant to Section 1801. After such payment to the
Company, the Holders of the Debt Securities of such series and any related
coupons shall thereafter, as unsecured general creditors, look only to the
Company for the payment thereof.
Section 1803. Indemnity for Eligible Instruments.
The Company and Guarantor shall pay and shall indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against the
deposited Eligible Instruments or the principal or interest received on such
Eligible Instruments.
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Article XIX
Subordination of Guarantees
Section 1901. Guarantees Subordinate to Senior Debt of Guarantor.
The Guarantor covenants and agrees that anything in this Indenture or the
Debt Securities of any series to the contrary notwithstanding, the obligations
of the Guarantor under the Guarantees relating to payment of principal and
interest on the Debt Securities are subordinate and junior in right of payment
to all Senior Debt of the Guarantor to the extent provided herein and shall rank
on parity with all Trust Related Securities and any outstanding junior
subordinated debt securities of the Guarantor or future issuances of junior
subordinated debt securities of the Guarantor stated to rank on parity with the
Guarantees, and each Holder, by such Holder's acceptance thereof, likewise
covenants and agrees to the subordination herein provided and shall be bound by
the provisions hereof. Senior Debt of the Guarantor shall continue to be Senior
Debt of the Guarantor and entitled to the benefits of these subordination
provisions irrespective of any amendment, modification or waiver of any term of
the Senior Debt of the Guarantor or extension or renewal of the Senior Debt of
the Guarantor.
In the event of
(a) any insolvency, bankruptcy, receivership, liquidation,
reorganization, readjustment, composition or other similar proceeding
relating to the Guarantor, its creditors or its property,
(b) any proceeding for the liquidation, dissolution or other winding
up of the Guarantor, voluntary or involuntary, whether or not involving
insolvency or bankruptcy proceedings,
(c) any assignment by the Guarantor for the benefit of creditors, or
(d) any other marshalling of the assets of the Guarantor,
all Senior Debt of the Guarantor (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 Debt Securities or coupons appurtenant thereto
on account thereof. Any payment or distribution under the Guarantees, 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 Guarantees, to the payment of all
Senior Debt of the Guarantor 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 Guarantees shall be paid or delivered
directly to the holders of Senior Debt of the Guarantor in accordance with the
priorities then existing among such holders until all Senior Debt of the
Guarantor (including any interest thereon accruing after the commencement of any
such proceedings) shall have been paid in full. In the event of any such
proceeding, after payment in full of all sums owing with respect to Senior Debt
of the Guarantor, the Holders of the related Guarantees of the Debt Securities,
together with the holders of any obligations of the Guarantor ranking on a
parity with the Guarantees, shall be entitled to be paid from the remaining
assets of the Guarantor the amounts at the time due and owing on account of
unpaid principal of (and premium, if any) and interest on the Debt Securities
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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 Guarantor ranking junior to the Guarantees 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 Guarantor 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 Guarantees, to the payment of all Senior Debt of the
Guarantor at the time outstanding and to any securities issued in respect
thereof under any such plan or reorganization or readjustment), shall be
received by the Trustee or any Holder in contravention of any of the terms
hereof 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 Debt of the Guarantor at the time outstanding in
accordance with the priorities then existing among such holders for application
to the payment of all Senior Debt of the Guarantor remaining unpaid, to the
extent necessary to pay all such Senior Debt of the Guarantor 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 Debt of the Guarantor
is hereby irrevocably authorized to endorse or assign the same.
No present or future holder of any Senior Debt of the Guarantor shall be
prejudiced in the right to enforce subordination of the indebtedness evidenced
by the Debt Securities by any act or failure to act on the part of the Company.
Nothing contained herein shall impair, as between the Guarantor under the
Guarantees, which are absolute and unconditional, and the Holders, the
obligation of the Guarantor under the Guarantees, which is absolute and
unconditional, to pay to such Holders the principal of (and premium, if any) and
interest (including any Additional Interest) on the Debt Securities and coupons
appurtenant thereto or prevent the Trustee or the Holder (or to the extent
expressly provided herein, the holder of any Capital Trust Securities) from
exercising all rights, powers and remedies otherwise permitted by applicable law
or hereunder upon a default or Event of Default hereunder, all subject to the
rights of the holders of the Senior Debt of the Guarantor to receive cash,
securities or other property otherwise payable or deliverable to the Holders.
Senior Debt of the Guarantor shall not be deemed to have been paid in full
unless the holders thereof shall have received cash, securities or other
property equal to the amount of such Senior Debt of the Guarantor then
outstanding. Upon the payment in full of all Senior Debt of the Guarantor, the
Holders of Debt Securities of each series and coupons appurtenant thereto, if
any, shall be subrogated to all rights of any holders of Senior Debt of the
Guarantor to receive any further payments or distributions applicable to the
Senior Debt of the Guarantor until the indebtedness evidenced by the Debt
Securities of such series and coupons appertaining thereto, if any, shall have
been paid in full, and such payments or distributions received by such Holders,
by reason of such subrogation, of cash, securities or other property which
otherwise would be paid or distributed to the holders of Senior Debt of the
Guarantor shall, as between the Company and its creditors other than the holders
of Senior Debt of the Guarantor, on the one hand, and such Holders, on the other
hand, be deemed to be a payment by the Company on account of Senior Debt of the
Guarantor, and under the Guarantees.
The Trustee and Holders will take such action (including, without
limitation, the delivery of this Indenture to an agent for the holders of Senior
Debt of the Guarantor 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 Debt of the Guarantor at the time
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outstanding, be necessary or appropriate to assure the effectiveness of the
subordination effected by these provisions.
The provisions of this Section 1901 shall not impair any rights,
interests, remedies or powers of any secured creditor of the Guarantor in
respect of any security interest the creation of which is not prohibited by the
provisions of this Indenture.
Section 1902. Trustee and Holders of Debt Securities May Rely on
Certificate of Liquidating Agent; Trustee May Require Further Evidence as to
Ownership of Senior Debt of the Guarantor.
Upon any payment or distribution of assets of the Guarantor referred to in
this Article Nineteen, the Trustee and the Holders shall be entitled to rely
upon an order or decree made by any court of competent jurisdiction in which
such dissolution or winding up or liquidation or reorganization or arrangement
proceedings are pending or upon a certificate of the trustee in bankruptcy,
receiver, assignee for the benefit of creditors or other Person making such
payment or distribution, delivered to the Trustee or to the Holders, for the
purpose of ascertaining the persons entitled to participate in such
distribution, the holders of the Senior Debt of the Guarantor and other
indebtedness of the Guarantor, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article Nineteen. In the absence of any such bankruptcy trustee,
receiver, assignee or other Person, the Trustee shall be entitled to rely upon a
written notice by a Person representing himself or herself to be a holder of
Senior Debt of the Guarantor (or a trustee or representative on behalf of such
holder) as evidence that such Person is a holder of such Senior Debt of the
Guarantor (or is such a trustee or representative). 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 Debt of the Guarantor
to participate in any payments or distributions pursuant to this Article
Nineteen, the Trustee may request such person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Debt of the
Guarantor held by such Person, as to the extent to which such Person is entitled
to participate in such payment or distribution, and as to other facts pertinent
to the rights of such Person under this Article Nineteen, and if such evidence
is not furnished, the Trustee may offer any payment to such Person pending
judicial determination as to the right of such Person to receive payment.
Section 1903. Payment Permitted If No Default.
Nothing contained in this Article Nineteen or elsewhere in this Indenture,
or in any of the Debt Securities or the Guarantees, shall prevent (a) the
Guarantor at any time, except during the pendency of any dissolution, winding
up, liquidation or reorganization proceedings referred to in Section 1901, from
making payments of the principal of (or premium, if any) or interest (including
any Additional Interest) under the Guarantees or (b) the application by the
Trustee or any Paying Agent of any moneys deposited with it hereunder to
payments of the principal of or interest (including any Additional Interest) on
the Debt Securities, if, at the time of such deposit, the Trustee or such Paying
Agent, as the case may be, did not have the written notice provided for in
Section 1904 of any event prohibiting the making of such deposit, or if, at the
time of such deposit (whether or not in trust) by the Guarantees with the
Trustee or any Paying Agent (other than the Guarantees) such payment would not
have been prohibited by the provisions of this Article, and the Trustee or any
Paying Agent shall not be affected by any notice to the contrary received by it
on or after such date.
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Section 1904. Trustee Not Charged with Knowledge of Prohibition.
Anything in this Article Nineteen or elsewhere in this Indenture contained
to the contrary notwithstanding, the Trustee shall not at any time be charged
with knowledge of the existence of any facts which would prohibit the making of
any payment of money to or by the Trustee and shall be entitled conclusively to
assume that no such facts exist and that no event specified in Section 1901 has
happened, until the Trustee shall have received an Officers' Certificate to that
effect or notice in writing to that effect signed by or on behalf of the holder
or holders, or their representatives, of Senior Debt of the Guarantor who shall
have been certified by the Guarantor or otherwise established to the reasonable
satisfaction of the Trustee to be such holder or holders or representatives or
from any trustee under any indenture pursuant to which such Senior Debt of the
Guarantor shall be outstanding. The Guarantor shall give prompt written notice
to the Trustee and to the Paying Agent of any facts which would prohibit the
payment of money to or by the Trustee or any Paying Agent.
Section 1905. Trustee to Effectuate Subordination.
Each Holder of such Holder's acceptance thereof authorizes and directs the
Trustee in such Holder's behalf to take such action as may be necessary or
appropriate to effectuate the subordination as between such Holder and holders
of Senior Debt of the Guarantor as provided in this Article and appoints the
Trustee its attorney-in-fact for any and all such purposes.
Section 1906. Rights of Trustee as Holder of Senior Debt of the Guarantor.
The Trustee shall be entitled to all the rights set forth in this Article
with respect to any Senior Debt of the Guarantor which may at the time be held
by it, to the same extent as any other holder of Senior Debt of the Guarantor;
provided that nothing in this Article shall deprive the Trustee of any rights as
such holder and provided further that nothing in this Article shall apply to
claims of, or payments to, the Trustee under or pursuant to Section 707.
Section 1907. 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 shall otherwise
require) be construed as extending to and including such Paying Agent within its
meaning as fully for all intents and purposes as if the Paying Agent were named
in this Article in addition to or in place of the Trustee, provided, however,
that Sections 1904 and 1906 shall not apply to the Company, the Guarantor or any
Affiliate of the Company or the Guarantor if the Company or such Affiliate acts
as Paying Agent.
Section 1908. Subordination Rights Not Impaired by Acts or Omissions of
the Company of the Guarantor or Holders of Senior Debt of the Guarantor.
No right of any present or future holders of any Senior Debt of the
Guarantor 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, the Guarantor or by any act or failure to act, in good faith, by any
such holder, or by any noncompliance by the Company or the Guarantor with the
terms, provisions and covenants of this Indenture, regardless of any knowledge
thereof which any such holder may have or be otherwise charged with. The holders
of Senior Debt of the Guarantor may, at any time or from time to time and in
their absolute discretion, change the manner, place or terms of payment, change
or extend the time of payment of, or renew or alter, any such Senior Debt of the
Guarantor, or amend or supplement any instrument pursuant to which any such
93
Senior Debt of the Guarantor is issued or by which it may be secured, or release
any security therefor, or exercise or refrain from exercising any other of their
rights under the Senior Debt of the Guarantor including, without limitation, the
waiver of default thereunder, all without notice to or assent from the Holders
or the Trustee and without affecting the obligations of the Company, the
Guarantor, the Trustee or the Holders under this Article.
Section 1909. Trustee Not Fiduciary for Holders of Senior Debt of
Guarantor
The Trustee shall not be deemed to owe any fiduciary duty to the holders
of Senior Debt of the Guarantor and shall not be liable to any such holders if
the Trustee shall in good faith mistakenly pay over or distribute to Holders of
Debt Securities or to the Company, the Guarantor or to any other person cash,
property or securities to which any holders of Senior Debt of the Guarantor
shall be entitled by virtue of this Article or otherwise. With respect to the
holders of Senior Debt of the Guarantor, the Trustee undertakes to perform or to
observe only such of its covenants or obligations as are specifically set forth
in this Article and no implied covenants or obligations with respect to holders
of Senior Debt of the Guarantor shall be read into this Indenture against the
Trustee.
ARTICLE XX
Conversion of Convertible Securities
Section 2001. Applicability of Article.
If an Officers' Certificate or supplemental indenture pursuant to Section
301 provides that the Debt Securities of a series shall be Convertible
Securities, Debt Securities of such series shall be convertible in accordance
with their terms and (except as otherwise specified in such Officers'
Certificate or supplemental indenture) in accordance with this Article.
Section 2002. Right to Convert.
Subject to and upon compliance with the provisions of this Article, the
Holder of any Convertible Security shall have the right, at such Holder's
option, at any time prior to the close of business on the date set forth in the
Officers' Certificate delivered pursuant to Section 301 hereof (or if such
Convertible Security is called for redemption or submitted for repayment, then
in respect of such Convertible Security to and including but not after the close
of business on the Redemption or Repayment Date, as the case may be, unless the
Company shall default in the payment due) to convert the principal amount of any
such Convertible Security, or, in the case of any Convertible Security of a
denomination greater than $1,000, any portion of such principal which is $1,000
or an integral multiple thereof, into that number of fully paid and
nonassessable shares of Common Stock (as such shares shall then be constituted)
obtained by dividing the principal amount of the Convertible Security or portion
thereof surrendered for conversion by the Conversion Price, by surrender of the
Convertible Security so to be converted in whole or in part in the manner
provided in Section 1903. Such conversion shall be effected by the Guarantor.
Section 2003. Exercise of Conversion Privilege; Delivery of Common Stock
on Conversion; No Adjustment for Interest or Dividends.
In order to exercise the conversion privilege, the Holder of any
Convertible Security to be converted in whole or in part shall surrender such
Convertible Security at an office or agency maintained by the Company or
Guarantor pursuant to Section 1102, accompanied by the funds, if any, required
by the last paragraph of this Section, together with written notice of
conversion, in the form provided on the Convertible Securities, that the Holder
94
elects to convert such Convertible Security or the portion thereof specified in
said notice. Such notice shall also state the name or names (with address) in
which the certificate or certificates for shares of Common Stock which shall be
deliverable on such conversion shall be registered, and shall be accompanied by
transfer taxes, if required pursuant to Section 2008. Each Convertible Security
surrendered for conversion shall, unless the shares deliverable on conversion
are to be registered in the same name as the registration of such Convertible
Security, be duly endorsed by, or accompanied by instruments of transfer in form
satisfactory to the Company and the Guarantor duly executed by, the Holder or
such Holder's duly authorized attorney.
As promptly as practicable after the surrender of such Convertible
Security and the receipt of such notice and funds, if any, as aforesaid, the
Guarantor shall deliver at such office or agency to such Holder, or on such
Holder's written order, a certificate or certificates for the number of full
shares deliverable upon the conversion of such Convertible Security or portion
thereof in accordance with the provisions of this Article and a check or cash in
respect of any fractional interest in respect of a share of Common Stock arising
upon such conversion as provided in Section 2004. In case any Convertible
Security of a denomination greater than $1,000 shall be surrendered for partial
conversion and subject to Section 302, the Company shall execute and the Trustee
shall authenticate and deliver to or upon the written order of the Holder of the
Convertible Security so surrendered, without charge to such Holder, a new
Convertible Security or Convertible Securities in authorized denominations in an
aggregate principal amount equal to the unconverted portion of the surrendered
Convertible Security.
Each conversion shall be deemed to have been effected on the date on which
such Convertible Security shall have been surrendered (accompanied by the funds,
if any, required by the last paragraph of this Section) and such notice shall
have been received by the Company and the Guarantor, as aforesaid, and the
person in whose name any certificate or certificates for shares of Common Stock
shall be registrable upon such conversion shall be deemed to have become on said
date the holder of record of the shares represented thereby; provided however,
that any such surrender on any date when the stock transfer books of the
Guarantor shall be closed shall constitute the person in whose name the
certificates are to be registered as the record holder thereof for all purposes
on the next succeeding day on which stock transfer books are open, but such
conversion shall be at the Conversion Price in effect on the date upon which
such Convertible Security shall have been surrendered.
Any Convertible Security or portion thereof surrendered for conversion
during the period from the close of business on the Regular Record Date for any
Interest Payment Date to the opening of business on such Interest Payment Date
shall (unless such Convertible Security or portion thereof being converted shall
have been called for redemption or submitted for repayment on a date in such
period) be accompanied by payment, in legal tender or other funds acceptable to
the Guarantor, of an amount equal to the interest otherwise payable on such
Interest Payment Date on the principal amount being converted; provided,
however, that no such payment need be made if there shall exist at the time of
conversion a default in the payment of interest on the Convertible Securities.
An amount equal to such payment shall be paid by the Company or the Guarantor on
such Interest Payment Date to the Holder of such Convertible Security on such
Regular Record Date, provided, however, that if the Company and the Guarantor
shall default in the payment of interest on such Interest Payment Date, such
amount shall be paid to the person who made such required payment. Except as
provided above in this Section, no adjustment shall be made for interest accrued
on any Convertible Security converted or for dividends on any shares issued upon
the conversion of such Convertible Security as provided in this Article.
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Section 2004. Cash Payments in Lieu of Fractional Shares.
No fractional shares of Common Stock or scrip representing fractional
shares shall be delivered upon conversion of Convertible Securities. If more
than one Convertible Security shall be surrendered for conversion at one time by
the same Holder, the number of full shares which shall be deliverable upon
conversion shall be computed on the basis of the aggregate principal amount of
the Convertible Securities (or specified portions thereof to the extent
permitted hereby) so surrendered. If any fractional share of stock would be
deliverable upon the conversion of any Convertible Security or Convertible
Securities, the Guarantor shall make an adjustment therefor in cash at the
current market value of such fractional share of stock. The market value of a
share of Common Stock shall be the Closing Price on the Business Day immediately
preceding the day on which the Convertible Securities (or specified portions
thereof) are deemed to have been converted.
Section 2005. Conversion Price.
The Conversion Price shall be as specified in the form of Convertible
Security hereinabove set forth, subject to adjustment as provided in this
Article.
Section 2006. Adjustment to Conversion Price.
The Conversion Price shall be adjusted from time to time as follows:
(a) In case the Guarantor shall (i) pay a dividend or make a
distribution on the Common Stock in shares of its capital stock (whether
shares of Common Stock or of capital stock of any other class), (ii)
subdivide or reclassify its outstanding Common Stock into a greater number
of securities (including Common Stock), or (iii) combine or reclassify its
outstanding Common Stock into a smaller number of securities (including
Common Stock), the Conversion Price in effect immediately prior thereto
shall be adjusted so that the Holder of any Convertible Security
thereafter surrendered for conversion shall be entitled to receive the
number of shares of capital stock of the Guarantor which such Holder would
have owned or have been entitled to receive after the happening of any of
the events described above had such Convertible Security been converted
immediately prior to the happening of such event. An adjustment made
pursuant to this subsection (a) shall become effective immediately after
the record date in the case of a dividend and shall become effective
immediately after the effective date in the case of a subdivision or
combination. If, as a result of an adjustment made pursuant to this
subsection (a), the Holder of any Convertible Security thereafter
surrendered for conversion shall become entitled to receive shares of two
or more classes of capital stock of the Guarantor, the Board of Directors
of the Guarantor (whose determination shall be conclusive and shall be
described in a written statement filed with the Trustee and any conversion
agent) shall determine the allocation of the adjusted Conversion Price
between or among shares of such classes of capital stock.
In the event that at any time, as a result of an adjustment made pursuant
to this subsection (a) of this Section 2006, the Holder of any Convertible
Security thereafter converted shall become entitled to receive any shares or
other securities of the Guarantor other than shares of Common Stock, thereafter
the number of such other shares so received upon conversion of any Convertible
Security shall be subject to adjustment from time to time in a manner and on
terms as nearly equivalent as practicable to the provisions with respect to the
shares of Common Stock contained in this Section 2006, and other provisions of
this Article Twenty with respect to the shares of Common Stock shall apply on
like terms to any such other shares or other securities.
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(b) In case the Guarantor shall fix a record date for the issuance
of rights or warrants to all holders of its Common Stock (or securities
convertible into Common Stock) entitling them (for a period expiring
within 45 days after such record date) to subscribe for or purchase Common
Stock at a price per share (or a conversion price per share) less than the
current market price per share of Common Stock (as defined in subsection
(d) below) at such record date, the Conversion Price in effect immediately
prior thereto shall be adjusted so that the same shall equal the price
determined by multiplying the Conversion Price in effect immediately prior
to such record date by a fraction of which the numerator shall be the
number of shares of Common Stock outstanding on such record date plus the
number of shares which the aggregate offering price of the total number of
shares so offered (or the aggregate initial conversion price of the
convertible securities so offered) would purchase at such current market
price, and of which the denominator shall be the number of shares of
Common Stock outstanding on such record date plus the number of additional
shares of Common Stock offered for subscription or purchase (or into which
the convertible securities so offered are initially convertible). Such
adjustment shall be made successively whenever such a record date is
fixed, and shall become effective immediately after such record date. In
determining whether any rights or warrants entitle the holders to
subscribe for or purchase shares of Common Stock at less than such current
market price, and in determining the aggregate offering price of such
shares, there shall be taken into account any consideration received by
the Guarantor for such rights or warrants, the value of such
consideration, if other than cash, to be determined by the Board of
Directors of the Guarantor. Common Stock owned by or held for the account
of the Company or any majority owned subsidiary shall not be deemed
outstanding for the purpose of any adjustment required under this
subsection (b).
(c) In case the Guarantor shall fix a record date for making a
distribution to all holders of its Common Stock evidences of its
indebtedness or assets (excluding regular quarterly or other periodic or
recurring cash dividends or distributions and cash dividends or
distributions paid from retained earnings of the Guarantor or dividends or
distributions referred to in subsection (a) above) or rights or warrants
to subscribe or purchase (excluding those referred to in subsection (b)
above), then in each such case the Conversion Price shall be adjusted so
that the same shall equal the price determined by multiplying the
Conversion Price in effect immediately prior to such record date by a
fraction of which the numerator shall be the current market price per
share (as defined in subsection (d) below) of the Common Stock on such
record date less the then fair market value (as determined by the Board of
Directors of the Guarantor whose determination shall be conclusive, and
described in a certificate filed with the Trustee) of the portion of the
assets or evidences of indebtedness so distributed or of such rights or
warrants applicable to one share of Common Stock, and the denominator
shall be the current market price per share (as defined in subsection (d)
below) of the Common Stock. Such adjustment shall be made successively
whenever such a record date is fixed and shall become effective
immediately after such record date. Notwithstanding the foregoing, in the
event that the Guarantor shall distribute any rights or warrants to
acquire capital stock ("Rights") pursuant to this subsection (c), the
distribution of separate certificates representing such Rights subsequent
to their initial distribution (whether or not such distribution shall have
occurred prior to the date of the issuance of such Convertible Securities)
shall be deemed to be the distribution of such Rights for purposes of this
subsection (c); provided that the Guarantor may, in lieu of making any
adjustment pursuant to this subsection (c) upon a distribution of separate
certificates representing such Rights, make proper provision so that each
Holder of such Convertible Security who converts such Convertible Security
(or any portion thereof) (i) before the record date for such distribution
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of separate certificates shall be entitled to receive upon such conversion
shares of Common Stock issued with Rights and (ii) after such record date
and prior to the expiration, redemption or termination of such Rights
shall be entitled to receive upon such conversion, in addition to the
shares of Common Stock issuable upon such conversion, the same number of
such Rights as would a holder of the number of shares of Common Stock that
such Convertible Security so converted would have entitled the holder
thereof to purchase in accordance with the terms and provisions of and
applicable to the Rights if such Convertible Security were converted
immediately prior to the record date for such distribution. Common Stock
owned by or held for the account of the Guarantor or any majority owned
subsidiary shall not be deemed outstanding for the purpose of any
adjustment required under this subsection (c).
(d) For the purpose of any computation under subsection (b) and (c) above,
the current market price per share of Common Stock at any date shall be deemed
to be the average of the daily Closing Prices for the thirty consecutive days
(which are not legal holidays as defined in Section 113) commencing forty-five
days (which are not legal holidays as defined in Section 113) before the day in
question. The Closing Price for any day shall be (i) if the Common Stock is
listed or admitted for trading on any national securities exchange, the last
sale price (regular way), or the average of the closing bid and ask prices if no
sale occurred, of Common Stock on the principal securities exchange on which the
Common Stock is listed, or, if not listed or admitted to trading on any national
securities exchange, on the National Market System of the National Association
of Securities Dealers, Inc. Automated Quotations System ("NASDAQ"), (ii) if not
listed or quoted as described in (i), the mean between the closing high bid and
low asked quotations of Common Stock reported by NASDAQ, or any similar system
or automated dissemination of quotations of securities prices then in common
use, if so quoted, or (iii) if not quoted as described in clause (ii), the mean
between the high bid and low asked quotations for Common Stock as reported by
the National Quotation Bureau Incorporated if at least two securities dealers
have inserted both bid and asked quotations for Common Stock on at least 5 of
the 10 preceding days. If none of the conditions set forth above is met, the
Closing Price of Common Stock on any day or the average of such Closing Prices
for any period shall be the fair market value of Common Stock as determined by a
member firm of the New York Stock Exchange, Inc. selected by the Guarantor.
(e) (i) Nothing contained herein shall be construed to require
an adjustment in the Conversion Price as a result of the issuance of
Common Stock pursuant to, or the granting or exercise of any rights
under, any dividend reinvestment or stock purchase plan generally
available to all shareholders of the Guarantor.
(ii) In addition, no adjustment in the Conversion Price shall
be required unless such adjustment would require an increase or
decrease of at least 1% in such price; provided, however, that any
adjustments which by reason of this subsection (e)(ii) are not
required to be made shall be carried forward and taken into account
in any subsequent adjustment, further provided, however, that any
adjustments which by reason of this subsection (e)(ii) are not
otherwise required to be made shall be made no later than 3 years
after the date on which occurs an event that requires an adjustment
to be made or carried forward.
(iii) All calculations under this Article Twenty shall be made
to the nearest cent or to the nearest one-hundredth of a share, as
the case may be. Anything in this Section 2006 to the contrary
notwithstanding, the Guarantor shall be entitled to make such
reductions in the Conversion Price, in addition to those required by
this Section 2006, as it in its discretion shall determine to be
advisable in order that any stock dividends, subdivision of shares,
98
distribution of rights to purchase stock or securities, or
distribution of securities convertible into or exchangeable for
stock hereafter made by the Guarantor to its shareholders shall not
be taxable.
(f) Whenever the Conversion Price is adjusted, as herein provided,
the Guarantor shall promptly file with the Trustee and any conversion
agent other than the Trustee an Officers' Certificate setting forth the
Conversion Price after such adjustment and setting forth a brief statement
of the facts requiring such adjustment. Promptly after delivery of such
certificate, the Guarantor shall prepare a notice of such adjustment of
the Conversion Price setting forth the adjusted Conversion Price and the
date on which such adjustment becomes effective and shall mail such notice
of such adjustment of the Conversion Price to the Holder of each
Convertible Security at such Holder's last address appearing on the
Security Register provided for in Section 305 of this Indenture.
(g) In any case in which this Section 2006 provides that an
adjustment shall become effective immediately after a record date for an
event, the Company and the Guarantor may defer until the occurrence of
such event (i) delivering to the Holder of any Convertible Security
converted after such record date and before the occurrence of such event
the additional shares of Common Stock deliverable upon such conversion by
reason of the adjustment required by such event over and above the Common
Stock deliverable upon such conversion before giving effect to such
adjustment and (ii) paying to such Holder any amount in cash in lieu of
any fraction pursuant to Section 2004, provided, however, that the Company
and the Guarantor shall deliver to such Holder a due xxxx or other
appropriate instrument evidencing such Holder's rights to receive such
additional shares, and such cash, upon the occurrence of the event
requiring such adjustment. If such event does not occur, no adjustments
shall be made pursuant to this Section 2006.
Section 2007. Effect of Reclassification, Consolidation, Merger, Sale or
Share Exchange.
If any of the following events occur, namely (i) any reclassification or
change of outstanding shares of Common Stock deliverable upon conversion of the
Convertible Securities (other than a change in par value, or from par value to
no par value, or from no par value to par value, or as a result of a subdivision
or combination, but including any change in the shares of Common Stock into two
or more classes or series of securities), (ii) any consolidation, merger or
share exchange to which the Guarantor is a party (other than a consolidation,
merger or share exchange in which the Guarantor is the continuing corporation
and which does not result in any reclassification of, or change (other than a
change in par value, or from par value to no par value, or from no par value to
par value, or as a result of a subdivision or combination) in, outstanding
shares of its Common Stock) or (iii) any sale or conveyance of the properties
and assets of the Guarantor as, or substantially as, an entirety to any other
corporation; then the Guarantor and the Company, or such successor or purchasing
corporation, as the case may be, shall execute with the Trustee a supplemental
indenture (which shall conform to the Trust Indenture Act as in force at the
date of execution of such supplemental indenture and comply with the provisions
of Article Ten) providing that each Convertible Security shall be convertible
into the kind and amount of shares of stock and other securities or property,
including cash, receivable upon such reclassification, change, consolidation,
merger, share exchange, sale or conveyance by a holder of a number of shares of
Common Stock deliverable upon conversion of such Convertible Securities
immediately prior to such reclassification, change, consolidation, merger, share
99
exchange, sale or conveyance. Such supplemental indenture shall provide for
adjustments which shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Article. The Company and Guarantor shall cause
notice of the execution of such supplemental indenture to be mailed to each
holder of Convertible Securities, at his address appearing on the Security
Register provided for in Section 305 of this Indenture.
The above provisions of this Section shall similarly apply to successive
reclassifications, consolidations, mergers and sales.
Section 2008. Taxes on Shares Issued.
The delivery of stock certificates on conversions of Convertible
Securities shall be made without charge to the Holder converting a Convertible
Security for any tax in respect of the issue thereof. The Guarantor shall not,
however, be required to pay any tax which may be payable in respect of any
transfer involved in the delivery of stock registered in any name other than of
the Holder of any Convertible Security converted, and the Guarantor shall not be
required to deliver any such stock certificate unless and until the person or
persons requesting the delivery thereof shall have paid to the Guarantor the
amount of such tax or shall have established to the satisfaction of the
Guarantor that such tax has been paid.
Section 2009. Shares to be Fully Paid; Compliance with Governmental
Requirements; Listing of Common Stock.
The Guarantor covenants that all shares of Common Stock which may be
delivered upon conversion of Convertible Securities will upon delivery be fully
paid and nonassessable by the Company and free from all taxes, liens and charges
with respect to the issue thereof.
The Guarantor covenants that if any shares of Common Stock to be provided
for the purpose of conversion of Convertible Securities hereunder require
registration with or approval of any governmental authority under any Federal or
state law before such shares may be validly delivered upon conversion, the
Company will in good faith and as expeditiously as possible endeavor to secure
such registration or approval, as the case may be.
The Guarantor further covenants that it will, if permitted by the rules of
the National Association of Securities Dealers Automated Quotations National
Market, list and keep listed for so long as the Common Stock shall be so listed
with such system, upon official notice of issuance, all Common Stock deliverable
upon conversion of the Convertible Securities.
Section 2010. Trustee Not Responsible.
Neither the Trustee nor any authenticating agent nor any conversion agent
shall at any time be under any duty or responsibility to any Holder of
Convertible Securities to determine whether any facts exist which may require
any adjustment of the Conversion Price, or with respect to the nature or extent
of any such adjustment when made, or with respect to the method employed, or
herein or in any supplemental indenture provided to be employed, in making the
same. Neither the Trustee nor any authenticating agent nor any conversion agent
shall be accountable with respect to the validity or value (or the kind or
amount) of any shares of Common Stock, or of any securities or property, which
may at any time be delivered upon the conversion of any Convertible Security,
and neither the Trustee nor any authenticating agent nor any conversion agent
makes any representation with respect thereto. Subject to the provisions of
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Section 701, neither the Trustee nor any authenticating agent nor any conversion
agent shall be responsible for any failure of the Guarantor to deliver any
shares of Common Stock or stock certificates or other securities or property or
cash upon the surrender of any Convertible Security for the purpose of
conversion or for any failure of the Guarantor to comply with any of the
covenants of the Guarantor contained in this Article.
Section 2011. Notice to Holders Prior to Certain Actions.
In case:
(a) the Guarantor shall declare a dividend (or any other
distribution) on the Common Stock (other than in cash out of its current
or retained earnings); or
(b) the Guarantor shall authorize the granting to the holders of the
Common Stock of rights or warrants to subscribe for or purchase any share
of any class or any other rights or warrants; or
(c) of any reclassification or change of the Common Stock (other
than a subdivision or combination of its outstanding Common Stock, or a
change in par value, or from par value to no par value, or from no par
value to par value) or of any consolidation or merger to which the
Guarantor is a party and for which approval of any stockholders of the
Corporation is required or of the sale or transfer of all or substantially
all of the assets of the Guarantor; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Guarantor; the Guarantor shall cause to be filed with
the Trustee and the Guarantor shall cause to be mailed to each holder of
Convertible Securities at his address appearing on the Security Register,
provided for in Section 305 of this Indenture, as promptly as possible but
in any event no less than fifteen days prior to the applicable date
hereinafter specified, a notice stating (x) the date on which a record is
to be taken for the purpose of such dividend, distribution, rights or
warrants, or, if a record is not to be taken, the date as of which the
holders of Common Stock of record to be entitled to such dividend,
distribution, rights or warrants are to be determined, or (y) the date on
which such reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding up is expected to become effective,
and the date as of which it is expected that holders of Common Stock of
record shall be entitled to exchange their Common Stock for securities or
other property deliverable upon such reclassification, consolidation,
merger, sale, transfer, dissolution, liquidation or winding up. Failure to
give such notice, or any defect therein, shall not affect the legality or
validity of such dividend, distribution, reclassification, consolidation,
merger, sale, transfer, dissolution, liquidation or winding up or any
adjustment in the Conversion Price required by this Article Twenty.
Section 2012. Covenant to Reserve Shares.
The Guarantor covenants that it will at all times reserve and keep
available, free from pre-emptive rights, out of its authorized but unissued
Common Stock or treasury shares, such number of shares of Common Stock as shall
then be deliverable upon the conversion of all outstanding Convertible
Securities.
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[Article XXI]
[Repayment at Option of Holders upon a Change of Control]
[Article XXII]
[Contingent Distributions]
[Article XXiii]
[Contingent Accretions]
[Article XXiV]
[Reset and Remarketing]
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the day and year first above written.
TSFG CAPITAL [A],[B],[C],[D], LLC
By:
--------------------------------------------
Its:
THE SOUTH FINANCIAL GROUP, INC.
By:
--------------------------------------------
Its:
[CORPORATE SEAL]
Attest:
----------------------------
Secretary
THE BANK OF NEW YORK
TRUST COMPANY, N.A.,
not in its individual capacity but solely as
trustee
By:
--------------------------------------------
Its:
000
XXXXX XX XXXXX XXXXXXXX )
) SS.
COUNTY OF GREENVILLE )
On the ____ day of _________, 2004 before me personally came
_____________________, to me known, who, being duly sworn, did depose and say
that he resides at ________________, South Carolina; that he is
______________________ of The South Financial Group, Inc., a corporation
described in and which executed the above instrument; that he knows the seal of
said corporation; that it was so affixed pursuant to the authority of the Board
of Directors of said corporation; and that he signed his name thereto pursuant
to like authority.
Notary Public
103
EXHIBIT A-1
[Form of Certificate of Beneficial Ownership by a
Non-United States Person or by Certain Other Persons]
Certificate
TSFG CAPITAL [A], [B], [C], [D] LLC
[Insert title or sufficient description of Debt Securities to be delivered]
Reference is hereby made to the Indenture dated as of , 2004 (the
"Indenture") between TSFG Capital [A], [B], [C], [D] LLC , The South Financial
Group, Inc. and , as trustee (the "Trustee"), covering the above-captioned Debt
Securities. This is to certify that as of the date hereof, principal amount of
Debt Securities credited to you for our account (i) is owned by persons that are
not United States Persons, as defined below; (ii) is owned by United States
Persons that are (a) foreign branches of United States financial institutions
(as defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v)) ("financial
institutions") purchasing for their own account or for resale, or (b) United
States Persons who acquired the Debt Securities through foreign branches of
United States financial institutions and who hold the Debt Securities through
such United States financial institutions on the date hereof (and in either case
(a) or (b), each such United States financial institution encloses herewith a
certificate in the form of Exhibit A-2 to the Indenture); or (iii) is owned by
United States or foreign financial institutions for purposes of resale during
the restricted period (as defined in U.S. Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), which United States or foreign financial institutions
described in clause (iii) above (whether or not also described in clause (i) or
(ii)) certify that they have not acquired the Debt Securities for purposes of
resale directly or indirectly to a United States Person or to a person within
the United States or its possessions.
[Insert if certificate does not relate to an interest payment--We
undertake to advise you by tested telex followed by written confirmation if the
above statement as to beneficial ownership is not correct on the date of
delivery of the above-captioned Debt Securities in bearer form as to all of such
Debt Securities with respect to such of said Debt Securities as then appear in
your books as being held for our account.] We understand that this certificate
is required in connection with United States tax laws. We irrevocably authorize
you to produce this certificate or a copy hereof to any interested party in any
administrative or legal proceedings with respect to the matters covered by this
certificate. "United States Person" shall mean a citizen or resident of the
United States of America (including the District of Columbia), a corporation,
partnership or other entity created or organized in or under the laws of the
United States or any political subdivision thereof or an estate or trust that is
subject to United States Federal income taxation regardless of the source of its
income.
A-1
[This certificate excepts and does not relate to principal amount of Debt
Securities credited to you for our account and to which we are not now able to
make the certification set forth above. We understand that definitive Debt
Securities cannot be delivered and interest cannot be paid until we are able to
so certify with respect to such principal amount of Debt Securities.]1
Dated: .........
---------------------------
[To be dated on or after
--------------------
(the date determined as provided in the Indenture)]
[Name of Person Entitled to Receive Bearer Security]
-----------------------------------------------
(Authorized Signatory)
Name:
------------------------------------------
Title:
------------------------------------------
-----------------------------
*Delete if inappropriate
X-0
XXXXXXX X-0
[Form of Certificate of Status as a Foreign Branch of a United States
Financial Institution]
Certificate
TSFG CAPITAL [A], [B], [C], [D] LLC
[Insert title or sufficient description of Debt Securities to be delivered]
Reference is hereby made to the Indenture dated as of , 2004 (the
"Indenture"), between TSFG Capital [A], [B], [C], [D] LLC, The South Financial
Group, Inc. and , as trustee, relating to the offering of the above-captioned
Debt Securities (the "Debt Securities"). Unless herein defined, terms used
herein have the same meaning as given to them in the Indenture. The undersigned
represents that it is a branch located outside the United States of a United
States securities clearing organization, bank or other financial institution (as
defined in U.S. Treasury Regulation Section 1.165-12(c)(1)(v)) that holds
customers' securities in the ordinary course of its trade or business and
agrees, and authorizes you to advise the issuer or the issuer's agent, that it
will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the
Internal Revenue Code of 1986 and the regulations thereunder and is not
purchasing for resale directly or indirectly to a United States Person or to a
person within the United States or its possessions. We undertake to advise you
by tested telex followed by written confirmation if the statement in the
immediately preceding sentence is not correct on the date of delivery of the
above-captioned Debt Securities in bearer form. We understand that this
certificate is required in connection with the United States tax laws. We
irrevocably authorize you to produce this certificate or a copy hereof to any
interested party in any administrative or legal proceedings with respect to the
matters covered by this certificate.
Dated:
---------------------------
[To be dated on or after
--------------------
(the date determined as provided in the Indenture)]
[Name of Person Entitled to Receive Bearer Security]
-------------------------------------------------
(Authorized Signatory)
Name:
--------------------------------------------
Title:
--------------------------------------------
A-1
EXHIBIT B
[Form of Certificate to be Given by Euroclear and Cedel S.A.
in Connection with the Exchange of All or a Portion of a
Temporary Global Security or to Obtain
Interest Prior to Exchange]
Certificate
TSFG CAPITAL [A], [B], [C], [D] LLC
[Insert title or sufficient description of Debt Securities to be delivered]
We refer to that portion of the Global Security representing the
above-captioned issue [which is herewith submitted to be exchanged for
definitive Debt Securities]* [for which we are seeking to obtain payment of
interest]* (the "Submitted Portion"). This is to certify, pursuant to the
Indenture dated as of , 2004 (the "Indenture") between TSFG Capital [A], [B],
[C], [D] LLC, The South Financial Group, Inc. and , as trustee (the "Trustee"),
that we have received in writing, by tested telex or by electronic transmission
from member organizations with respect to each of the persons appearing in our
records as being entitled to a beneficial interest in the Submitted Portion a
Certificate of Beneficial Ownership by a Non-United States Person or by Certain
Other Persons [and, in some cases, a Certificate of Status as a Foreign Branch
of a United States Financial Institution, authorizing us to inform the issuer or
the issuer's agent that it will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986 and the
regulations thereunder]* substantially in the form of Exhibit A-1 [and A-2]2 to
the Indenture.
We hereby request that you deliver to the office of in definitive Bearer
Securities in the denominations on the attached Schedule A.
We further certify that as of the date hereof we have not received any
notification from any of the persons giving such certificates to the effect that
the statements made by them with respect to any part of the Submitted Portion
are no longer true and cannot be relied on as of the date hereof.
Dated:
---------------------------
[XXXXXX GUARANTY TRUST COMPANY OF
NEW YORK, BRUSSELS OFFICE,
as Operator of the Euroclear System]
[CEDEL S.A.]
By:
--------------------------------------------
--------
* Delete if inappropriate
B-1
