1
EXHIBIT 4.1
[FORM OF INDENTURE]
REPUBLIC BANCSHARES, INC.
AND
WILMINGTON TRUST COMPANY,
AS TRUSTEE
INDENTURE
_______% JUNIOR SUBORDINATED DEBENTURES DUE 2027
DATED AS OF ______________ ____, 1997
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TABLE OF CONTENTS
PAGE
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ARTICLE I DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 1.1 DEFINITIONS OF TERMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II ISSUE, DESCRIPTION, TERMS, CONDITIONS
REGISTRATION AND EXCHANGE OF THE DEBENTURES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 2.1 DESIGNATION AND PRINCIPAL AMOUNT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 2.2 MATURITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 2.3 FORM AND PAYMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 2.4 INTEREST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 2.5 EXECUTION AND AUTHENTICATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 2.6 REGISTRATION OF TRANSFER AND EXCHANGE . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 2.7 TEMPORARY DEBENTURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 2.8 MUTILATED, DESTROYED, LOST OR STOLEN
DEBENTURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 2.9 CANCELLATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 2.10 BENEFIT OF INDENTURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 2.11 AUTHENTICATION AGENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 2.12 RIGHT OF SET-OFF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE III REDEMPTION OF DEBENTURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 3.1 REDEMPTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 3.2 SPECIAL EVENT REDEMPTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 3.3 OPTIONAL REDEMPTION BY COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 3.4 NOTICE OF REDEMPTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 3.5 PAYMENT UPON REDEMPTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 3.6 NO SINKING FUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE IV EXTENSION OF INTEREST PAYMENT PERIOD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 4.1 EXTENSION OF INTEREST PAYMENT PERIOD . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 4.2 NOTICE OF EXTENSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 4.3 LIMITATION ON TRANSACTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE V PARTICULAR COVENANTS OF THE COMPANY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 5.1 PAYMENT OF PRINCIPAL AND INTEREST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 5.2 MAINTENANCE OF AGENCY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 5.3 PAYING AGENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 5.4 APPOINTMENT TO FILL VACANCY IN
OFFICE OF TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 5.5 COMPLIANCE WITH CONSOLIDATION PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 5.6 LIMITATION ON TRANSACTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 5.7 COVENANTS AS TO THE TRUST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 5.8 COVENANTS AS TO PURCHASES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
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ARTICLE VI DEBENTUREHOLDERS' LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 6.1 COMPANY TO FURNISH TRUSTEE NAMES AND
ADDRESSES OF DEBENTUREHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 6.2 PRESERVATION OF INFORMATION;
COMMUNICATIONS WITH DEBENTUREHOLDERS. . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 6.3 REPORTS BY THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 6.4 REPORTS BY THE TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
ARTICLE VII REMEDIES OF THE TRUSTEE AND DEBENTUREHOLDERS
ON EVENT OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 7.1 EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 7.2 COLLECTION OF INDEBTEDNESS AND SUITS
FOR ENFORCEMENT BY TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 7.3 APPLICATION OF MONEYS COLLECTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 7.4 LIMITATION ON SUITS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 7.5 RIGHTS AND REMEDIES CUMULATIVE;
DELAY OR OMISSION NOT WAIVER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 7.6 CONTROL BY DEBENTUREHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 7.7 UNDERTAKING TO PAY COSTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
ARTICLE VIII FORM OF DEBENTURE AND ORIGINAL ISSUE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 8.1 FORM OF DEBENTURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 8.2 ORIGINAL ISSUE OF DEBENTURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 8.3 GLOBAL DEBENTURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
ARTICLE IX CONCERNING THE TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 9.1 CERTAIN DUTIES AND RESPONSIBILITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 9.2 NOTICE OF DEFAULTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 9.3 CERTAIN RIGHTS OF TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 9.4 TRUSTEE NOT RESPONSIBLE FOR RECITALS,
ETC. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 9.5 MAY HOLD DEBENTURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 9.6 MONEYS HELD IN TRUST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 9.7 COMPENSATION AND REIMBURSEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 9.8 RELIANCE ON OFFICERS' CERTIFICATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 9.9 DISQUALIFICATION: CONFLICTING INTERESTS . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 9.10 CORPORATE TRUSTEE REQUIRED; ELIGIBILITY . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 9.11 RESIGNATION AND REMOVAL; APPOINTMENT
OF SUCCESSOR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 9.12 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 9.13 MERGER, CONVERSION, CONSOLIDATION
OR SUCCESSION TO BUSINESS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 9.14 PREFERENTIAL COLLECTION OF CLAIMS AGAINST
THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
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ARTICLE X CONCERNING THE DEBENTUREHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 10.1 EVIDENCE OF ACTION BY HOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 10.2 PROOF OF EXECUTION BY DEBENTUREHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 10.3 WHO MAY BE DEEMED OWNERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 10.4 CERTAIN DEBENTURES OWNED BY COMPANY
DISREGARDED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 10.5 ACTIONS BINDING ON FUTURE
DEBENTUREHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
ARTICLE XI SUPPLEMENTAL INDENTURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 11.1 SUPPLEMENTAL INDENTURES WITHOUT THE CONSENT
OF DEBENTUREHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 11.2 SUPPLEMENTAL INDENTURES WITH CONSENT
OF DEBENTUREHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 11.3 EFFECT OF SUPPLEMENTAL INDENTURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 11.4 DEBENTURES AFFECTED BY SUPPLEMENTAL
INDENTURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 11.5 EXECUTION OF SUPPLEMENTAL INDENTURES . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
ARTICLE XII SUCCESSOR CORPORATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 12.1 COMPANY MAY CONSOLIDATE, ETC. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 12.2 SUCCESSOR CORPORATION SUBSTITUTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 12.3 EVIDENCE OF CONSOLIDATION, ETC. TO
TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
ARTICLE XIII SATISFACTION AND DISCHARGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 13.1 SATISFACTION AND DISCHARGE OF INDENTURE . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 13.2 DISCHARGE OF OBLIGATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 13.3 DEPOSITED MONEYS TO BE HELD IN TRUST . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 13.4 PAYMENT OF MONIES HELD BY PAYING AGENTS . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 13.5 REPAYMENT TO COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
ARTICLE XIV IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 14.1 NO RECOURSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
ARTICLE XV MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 15.1 EFFECT ON SUCCESSORS AND ASSIGNS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 15.2 ACTIONS BY SUCCESSOR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 15.3 SURRENDER OF COMPANY POWERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 15.4 NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 15.5 GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 15.6 TREATMENT OF DEBENTURES AS DEBT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 15.7 COMPLIANCE CERTIFICATES AND OPINIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 15.8 PAYMENTS ON BUSINESS DAYS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 15.9 CONFLICT WITH TRUST INDENTURE ACT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
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SECTION 15.10 COUNTERPARTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 15.11 SEPARABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 15.12 ASSIGNMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 15.13 ACKNOWLEDGMENT OF RIGHTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
ARTICLE XVI SUBORDINATION OF DEBENTURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 16.1 AGREEMENT TO SUBORDINATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 16.2 DEFAULT ON SENIOR DEBT OR SUBORDINATED
DEBT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 16.3 LIQUIDATION; DISSOLUTION; BANKRUPTCY . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 16.4 SUBROGATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 16.5 TRUSTEE TO EFFECTUATE SUBORDINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 16.6 NOTICE BY THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 16.7 RIGHTS OF THE TRUSTEE; HOLDERS OF
SENIOR INDEBTEDNESS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 16.8 SUBORDINATION MAY NOT BE IMPAIRED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
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CROSS-REFERENCE TABLE
Section of
Trust Indenture Act Section of
of 1939, as amended Indenture
------------------- ---------
310(a) 9.10
310(b) 9.9
9.11
310(c) N/A
311(a) 9.14
311(b) 9.14
311(c) N/A
312(a) 6.1
6.2(a)
312(b) 6.2(c)
312(c) 6.2(c)
313(a) 6.4(a)
313(b) 6.4(b)
313(c) 6.4(a)
6.4(b)
313(d) 6.4(c)
314(a) 6.3(a)
314(b) N/A
314(c) 15.7
314(d) N/A
314(e) 15.7
314(f) N/A
315(a) 9.1(a)
9.3
315(b) 9.2
315(c) 9.1(a)
315(d) 9.1(b)
315(e) 7.7
316(a) 1.1
7.6
316(b) 7.4(b)
316(c) 10.1(b)
317(a) 7.2
317(b) 5.3
318(a) 15.9
Note: This Cross-Reference Table does not constitute part of this Indenture
and shall not affect the interpretation of any of its terms or provisions.
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INDENTURE
INDENTURE, dated as of _________, 1997, between REPUBLIC BANCSHARES, INC., a
Florida corporation (the "Company"), and WILMINGTON TRUST COMPANY, a banking
corporation duly organized and existing under the laws of the State of
Delaware, as trustee (the "Trustee");
RECITALS
WHEREAS, for its lawful corporate purposes, the Company has duly authorized the
execution and delivery of this Indenture to provide for the issuance of
unsecured securities to be known as its _____% Junior Subordinated Debentures
due 2027 (hereinafter referred to as the "Debentures"), the form and substance
of such Debentures and the terms, provisions and conditions thereof to be set
forth as provided in this Indenture; and
WHEREAS, RBI Capital Trust I, a Delaware statutory business trust (the "Trust"),
has offered to the public $_______ million aggregate liquidation amount of its
Preferred Securities (as defined herein) and proposes to invest the proceeds
from such offering, together with the proceeds of the issuance and sale by the
Trust to the Company of $_______ million aggregate liquidation amount of its
Common Securities (as defined herein), in $_________ million aggregate principal
amount of the Debentures; and
WHEREAS, the Company has requested that the Trustee execute and deliver this
Indenture; and
WHEREAS, all requirements necessary to make this Indenture a valid instrument
in accordance with its terms, and to make the Debentures, when executed by the
Company and authenticated and delivered by the Trustee, the valid obligations
of the Company, have been performed, and the execution and delivery of this
Indenture have been duly authorized in all respects; and
WHEREAS, to provide the terms and conditions upon which the Debentures are to
be authenticated, issued and delivered, the Company has duly authorized the
execution of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, in consideration of the premises and the purchase of the
Debentures by the holders thereof, it is mutually covenanted and agreed as
follows for the equal and ratable benefit of the holders of the Debentures and
intending to be legally bound hereby:
8
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITIONS OF TERMS.
The terms defined in this Section 1.1 (except as in this Indenture otherwise
expressly provided or unless the context otherwise requires) for all purposes
of this Indenture and of any indenture supplemental hereto shall have the
respective meanings specified in this Section 1.1 and shall include the plural
as well as the singular. All other terms used in this Indenture that are
defined in the Trust Indenture Act, or that are by reference in the Trust
Indenture Act defined in the Securities Act (except as herein otherwise
expressly provided or unless the context otherwise requires), shall have the
meanings assigned to such terms in the Trust Indenture Act and in the
Securities Act as in force at the date of the execution of this instrument.
All accounting terms used herein and not expressly defined shall have the
meanings assigned to such terms in accordance with Generally Accepted
Accounting Principles as in effect at the time of computation.
"25% Capital Limitation" means the limitation imposed by the Federal Reserve
that the proceeds of certain qualifying securities like the Trust Securities
will qualify as Tier 1 capital of the issuer up to an amount not to exceed 25%
of the issuer's Tier 1 capital, or any subsequent limitation adopted by the
Federal Reserve.
"Accelerated Maturity Date" means if the Company elects to accelerate the
Maturity Date in accordance with Section 2.2(b), the date selected by the
Company which is prior to the Scheduled Maturity Date, but is after
_____________, 2002.
"Additional Interest" shall have the meaning set forth in Section 2.4.
"Administrative Trustees" shall have the meaning set forth in the Trust
Agreement.
"Affiliate" means, with respect to a specified Person, (a) any Person directly
or indirectly owning, controlling or holding with power to vote 10% or more of
the outstanding voting securities or other ownership interests of the specified
Person; (b) any Person 10% or more of whose outstanding voting securities or
other ownership interests are directly or indirectly owned, controlled or held
with power to vote by the specified Person; (c) any Person directly or
indirectly controlling, controlled by, or under common control with the
specified Person; (d) a partnership in which the specified Person is a general
partner; (e) any officer or director of the specified Person; and (f) if the
specified Person is an
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individual, any entity of which the specified Person is an officer, director or
general partner.
"Agent Member" means any member of, or participant in, the Depositary.
"Applicable Procedures" means, with respect to any transfer or transaction
involving a Global Debenture or beneficial interest therein, the rules and
procedures of the Depositary for such Global Debenture, in each case to the
extent applicable to such transaction and as in effect from time to time.
"Authenticating Agent" means an authenticating agent with respect to the
Debentures appointed by the Trustee pursuant to Section 2.11.
"Bankruptcy Law" means Title 11, U.S. Code, or any similar federal or state law
for the relief of debtors.
"Board of Directors" means the Board of Directors of the Company or any duly
authorized committee of such Board.
"Board Resolution" means a copy of a resolution certified by the Secretary or
an Assistant Secretary of the Company to have been duly adopted by the Board of
Directors and to be in full force and effect on the date of such certification.
"Business Day" means, with respect to the Debentures, any day other than a
Saturday or a Sunday or a day on which federal or state banking institutions in
the Borough of Manhattan, The City of New York, or the State of Florida are
authorized or required by law, executive order or regulation to close, or a day
on which the Corporate Trust Office of the Trustee or the Property Trustee is
closed for business.
"Capital Treatment Event" means the reasonable determination by the Company
that, as a result of any amendment to, or change (including any proposed
change) in, the laws (or any regulations thereunder) of the United States or
any political subdivision thereof or therein, or as a result of any official or
administrative pronouncement or action or judicial decision interpreting or
applying such laws or regulations, which amendment or change is effective or
such proposed change pronouncement, action or decision is announced on or after
the date of original issuance of the Preferred Securities under the Trust
Agreement, there is more than an insubstantial risk that the Company will not
be entitled to treat an amount equal to the Liquidation Amount (as defined in
the Trust Agreement) of such Preferred Securities as "Tier 1 Capital" (or the
then equivalent thereof), except as otherwise restricted under the 25% Capital
Limitation, for purposes of the risk-based
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capital adequacy guidelines of the Federal Reserve (or any successor regulatory
authority with jurisdiction over bank holding companies), as then in effect and
applicable to the Company.
"Certificate" means a certificate signed by the principal executive officer,
the principal financial officer, the principal accounting officer, the
treasurer or any vice president of the Company. The Certificate need not
comply with the provisions of Section 15.7.
"Change in 1940 Act Law" shall have the meaning set forth in the definition of
"Investment Company Event."
"Commission" means the Securities and Exchange Commission, as from time to time
constituted, created under the Exchange Act.
"Common Securities" means undivided beneficial interests in the assets of the
Trust which rank pari passu with the Preferred Securities; provided, however,
that upon the occurrence of an Event of Default, the rights of holders of
Common Securities to payment in respect of (i) distributions, and (ii) payments
upon liquidation, redemption and otherwise are subordinated to the rights of
holders of Preferred Securities.
"Company" means Republic Bancshares, Inc., a corporation duly organized and
existing under the laws of the State of Florida, and, subject to the provisions
of Article XII, shall also include its successors and assigns.
"Compounded Interest" shall have the meaning set forth in Section 4.1.
"Corporate Trust Office" means the office of the Trustee at which, at any
particular time, its corporate trust business shall be principally
administered, which office at the date hereof is located at
________________________, Attention:_________________.
"Coupon Rate" shall have the meaning set forth in Section 2.4.
"Custodian" means any receiver, trustee, assignee, liquidator, or similar
official under any Bankruptcy Law.
"Debentures" shall have the meaning set forth in the Recitals hereto.
"Debentureholder," "holder of Debentures," "registered holder," or other
similar term, means the Person or Persons in whose name or names a particular
Debenture shall be registered on the books of the Company or the Trustee kept
for that purpose in accordance with the terms of this Indenture.
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"Debenture Register" shall have the meaning set forth in Section 2.6(b).
"Debt" means with respect to any Person, whether recourse is to all or a
portion of the assets of such Person and whether or not contingent, (i) every
obligation of such Person for money borrowed; (ii) every obligation of such
Person evidenced by bonds, debentures, notes or other similar instruments,
including obligations incurred in connection with the acquisition of property,
assets or businesses; (iii) every reimbursement obligation of such Person with
respect to letters of credit, bankers' acceptances or similar facilities issued
for the account of such Person; (iv) every obligation of such Person issued or
assumed as the deferred purchase price of property or services (but excluding
trade accounts payable or accrued liabilities arising in the ordinary course of
business); (v) every capital lease obligation of such Person; and (vi) every
obligation of the type referred to in clauses (i) through (v) of another Person
and all dividends of another Person the payment of which, in either case, such
Person has guaranteed or is responsible or liable, directly or indirectly, as
obligor or otherwise.
"Default" means any event, act or condition that with notice or lapse of time,
or both, would constitute an Event of Default.
"Deferred Interest" shall have the meaning set forth in Section 4.1.
"Depositary" means, with respect to the Debentures issuable or issued in whole
or in part in the form of one or more Global Debentures, the Person designated
as Depositary by the Company.
"Dissolution Event" means that as a result of the occurrence and continuation
of a Special Event, the Trust is to be dissolved in accordance with the Trust
Agreement and the Debentures held by the Property Trustee are to be distributed
to the holders of the Trust Securities issued by the Trust pro rata in
accordance with the Trust Agreement.
"Event of Default" means, with respect to the Debentures, any event specified
in Section 7.1 , which has continued for the period of time, if any, and after
the giving of the notice, if any, therein designated.
"Exchange Act" means the Securities Exchange Act of 1934, and any statute
successor thereto, in each case as amended from time to time.
"Extended Interest Payment Period" shall have the meaning set forth in Section
4.1.
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"Federal Reserve" means the Board of Governors of the Federal Reserve System.
"Generally Accepted Accounting Principles" means such accounting principles as
are generally accepted at the time of any computation required hereunder.
"Global Debenture" means a Debenture in the form prescribed in Exhibit A hereto
evidencing all or part of the Debentures, issued to the Depositary or its
nominee, and registered in the name of such Depositary or its nominee.
"Governmental Obligations" means securities that are (i) direct obligations of
the United States of America for the payment of which its full faith and credit
is pledged; or (ii) obligations of a Person controlled or supervised by and
acting as an agency or instrumentality of the United States of America, the
payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America that, in either case, are not
callable or redeemable at the option of the issuer thereof, and shall also
include a depositary receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act) as custodian with respect to any such Governmental
Obligation or a specific payment of principal of or interest on any such
Governmental Obligation held by such custodian for the account of the holder of
such depositary receipt; provided, however, that (except as required by law)
such custodian is not authorized to make any deduction from the amount payable
to the holder of such depositary receipt from any amount received by the
custodian in respect of the Governmental Obligation or the specific payment of
principal of or interest on the Governmental Obligation evidenced by such
depositary receipt.
"Herein," "hereof," and "hereunder," and other words of similar import, refer
to this Indenture as a whole and not to any particular Article, Section or
other subdivision.
"Indenture" means this instrument as originally executed or as it may from time
to time be supplemented or amended by one or more indentures supplemental
hereto entered into in accordance with the terms hereof.
"Interest Payment Date," when used with respect to any installment of interest
on the Debentures, means the date specified in the Debenture or in a Board
Resolution or in an indenture supplemental hereto with respect to the
Debentures as the fixed date on which an installment of interest with respect
to the Debentures is due and payable.
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"Investment Company Act" means the Investment Company Act of 1940, and any
statute successor thereto, in each case as amended from time to time.
"Investment Company Event" means the receipt by the Trust of an Opinion of
Counsel, rendered by a law firm experienced in such matters, to the effect
that, as a result of the occurrence of a change in law or regulation or a
change in interpretation or application of law or regulation by any legislative
body, court, governmental agency or regulatory authority (a "Change in 1940 Act
Law"), the Trust is or shall be considered an "investment company" that is
required to be registered under the Investment Company Act, which Change in
1940 Act Law becomes effective on or after the date of original issuance of the
Preferred Securities under the Trust Agreement.
"Maturity Date" means the date on which the Debentures mature and on which the
principal shall be due and payable together with all accrued and unpaid
interest thereon including Compounded Interest and Additional Interest, if any.
"Ministerial Action" shall have the meaning set forth in Section 3.2.
"Officers' Certificate" means a certificate signed by the President or a Vice
President and by the Treasurer or an Assistant Treasurer or the Controller or
an Assistant Controller or the Secretary or an Assistant Secretary, of the
Company, and delivered to the Trustee. Any Officers' Certificate delivered
with respect to compliance with a condition or covenant provided for in this
Indenture shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the
definitions relating thereto;
(b) a brief statement of the nature and scope of the examination
or investigation undertaken by each officer in rendering the
Officers' Certificate;
(c) a statement that each such officer has made such examination
or investigation as, in such officer's opinion, is necessary
to enable such officer to express an informed opinion as to
whether or not such covenant or condition has been complied
with; and
(d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
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"Opinion of Counsel" means an opinion in writing of legal counsel, who may be an
employee of or counsel for the Company, that is delivered to the Trustee in
accordance with the terms hereof.
"Outstanding," when used with reference to the Debentures, means, subject to
the provisions of Section 10.4, as of any particular time, all Debentures
theretofore authenticated and delivered by the Trustee under this Indenture,
except (a) Debentures theretofore canceled by the Trustee or any paying agent,
or delivered to the Trustee or any paying agent for cancellation or that have
previously been canceled; (b) Debentures or portions thereof for the payment or
redemption of which moneys or Governmental Obligations in the necessary amount
shall have been deposited in trust with the Trustee or with any paying agent
(other than the Company) or shall have been set aside and segregated in trust
by the Company (if the Company shall act as its own paying agent); provided,
however, that if such Debentures or portions of such Debentures are to be
redeemed prior to the maturity thereof, notice of such redemption shall have
been given as provided in Article III or provision satisfactory to the Trustee
shall have been made for giving such notice; and (c) Debentures in lieu of or
in substitution for which other Debentures shall have been authenticated and
delivered pursuant to the terms of Section 2.6.
"Person" means any individual, corporation, partnership, joint-venture, trust,
joint-stock company, unincorporated organization or government or any agency or
political subdivision thereof.
"Place of Payment" means the place or places where the principal of and
interest on the Debentures are payable in accordance with the terms of this
Indenture.
"Predecessor Debenture" means every previous Debenture evidencing all or a
portion of the same debt as that evidenced by such particular Debenture; and,
for the purposes of this definition, any Debenture authenticated and delivered
under Section 2.8 in lieu of a lost, destroyed or stolen Debenture shall be
deemed to evidence the same debt as the lost, destroyed or stolen Debenture.
"Preferred Securities" means undivided beneficial interests in the assets of
the Trust which rank pari passu with Common Securities issued by the Trust;
provided, however, that upon the occurrence of an Event of Default, the rights
of holders of Common Securities to payment in respect of distributions and
payments upon liquidation, redemption and otherwise are subordinated to the
rights of holders of Preferred Securities.
"Preferred Securities Guarantee" means any guarantee that the Company may enter
into with the Trustee or other Persons that
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operate directly or indirectly for the benefit of holders of Preferred
Securities.
"Property Trustee" has the meaning set forth in the Trust Agreement.
"Responsible Officer" when used with respect to the Trustee means the Chairman
of the Board of Directors, the President, any Vice President, the Secretary,
the Treasurer, any trust officer, any corporate trust officer or any other
officer or assistant officer of the Trustee customarily performing functions
similar to those performed by the Persons who at the time shall be such
officers, respectively, or to whom any corporate trust matter is referred
because of his or her knowledge of and familiarity with the particular subject.
"Scheduled Maturity Date" means _____________, 2027.
"Securities Act," means the Securities Act of 1933, and any statute successor
thereto, in each case as amended from time to time.
"Senior Debt" means the principal of (and premium, if any) and interest, if any
(including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to the Company whether or not such
claim for post-petition interest is allowed in such proceeding), on Debt,
whether incurred on or prior to the date of this Indenture or thereafter
incurred, unless, in the instrument creating or evidencing the same or pursuant
to which the same is outstanding, it is provided that such obligations are not
superior in right of payment to the Debentures or to other Debt which is pari
passu with, or subordinated to, the Debentures; provided, however, that Senior
Debt shall not be deemed to include (i) any Debt of the Company which when
incurred and without respect to any election under Section 1111(b) of the
United States Bankruptcy Code of 1978, as amended, was without recourse to the
Company; (ii) any Debt of the Company to any of its subsidiaries; (iii) any
Debt to any employee of the Company; (iv) any Debt which by its terms is
subordinated to trade accounts payable or accrued liabilities arising in the
ordinary course of business to the extent that payments made to the holders of
such Debt by the holders of the Debentures as a result of the subordination
provisions of this Indenture would be greater than they otherwise would have
been as a result of any obligation of such holders to pay amounts over to the
obligees on such trade accounts payable or accrued liabilities arising in the
ordinary course of business as a result of subordination provisions to which
such Debt is subject; and (v) any Debt which constitutes Subordinated Debt.
"Senior Indebtedness" shall have the meaning set forth in Section 16.1.
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"Special Event" means a Tax Event, an Investment Company Event or a Capital
Treatment Event.
"Subordinated Debt" means the principal of (and premium, if any) and interest,
if any (including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to the Company whether or not such
claim for post-petition interest is allowed in such proceeding), on Debt,
whether incurred on or prior to the date of this Indenture or thereafter
incurred, which is by its terms expressly provided to be junior and subordinate
to other Debt of the Company (other than the Debentures) including, without
limitation, the Company's currently outstanding 6% Convertible Subordinated
Debentures due 2011.
"Subsidiary" means, with respect to any Person, (i) any corporation at least a
majority of whose outstanding Voting Stock shall at the time be owned, directly
or indirectly, by such Person or by one or more of its Subsidiaries or by such
Person and one or more of its Subsidiaries; (ii) any general partnership, joint
venture, trust or similar entity, at least a majority of whose outstanding
partnership or similar interests shall at the time be owned by such Person, or
by one or more of its Subsidiaries, or by such Person and one or more of its
Subsidiaries; and (iii) any limited partnership of which such Person or any of
its Subsidiaries is a general partner.
"Tax Event" means the receipt by the Trust of an Opinion of Counsel, rendered
by a law firm experienced in such matters, to the effect that, as a result of
any amendment to, or change (including any announced prospective change) in,
the laws (or any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein, or as a result of any
official administrative pronouncement or judicial decision interpreting or
applying such laws or regulations, which amendment or change is effective or
which pronouncement or decision is announced on or after the date of issuance
of the Preferred Securities under the Trust Agreement, there is more than an
insubstantial risk that (i) the Trust is, or shall be within 90 days after the
date of such Opinion of Counsel, subject to United States federal income tax
with respect to income received or accrued on the Debentures; (ii) interest
payable by the Company on the Debentures is not, or within 90 days after the
date of such Opinion of Counsel, shall not be, deductible by the Company, in
whole or in part, for United States federal income tax purposes; or (iii) the
Trust is, or shall be within 90 days after the date of such Opinion of Counsel,
subject to more than a de minimis amount of other taxes, duties, assessments or
other governmental charges. The Trust or the Company shall request and receive
such Opinion of Counsel with regard to such matters within a reasonable period
of time after the Trust or the Company shall have become aware of the possible
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occurrence of any of the events described in clauses (i) through (iii) above.
"Trust" means RBI Capital Trust I, a Delaware statutory business trust.
"Trust Agreement" means the Amended and Restated Trust Agreement, dated
______________, 1997, of the Trust, as amended, modified or supplemented from
time to time, among the trustees of the trust named therein, the Company, as
depositor, and the holders from time to time of undivided beneficial ownership
interests in the assets of the Trust.
"Trustee" means Wilmington Trust Company and, subject to the provisions of
Article IX, shall also include its successors and assigns, and, if at any time
there is more than one Person acting in such capacity hereunder, "Trustee" shall
mean each such Person.
"Trust Indenture Act," means the Trust Indenture Act of 1939, as amended,
subject to the provisions of Sections 11.1, 11.2, and 12.1 and any statute
successor thereto, in each case as amended from time to time.
"Trust Securities" means the Common Securities and Preferred Securities,
collectively.
"Voting Stock," as applied to stock of any Person, means shares, interests,
participations or other equivalents in the equity interest (however designated)
in such Person having ordinary voting power for the election of a majority of
the directors (or the equivalent) of such Person, other than shares, interests,
participations or other equivalents having such power only by reason of the
occurrence of a contingency.
ARTICLE II
ISSUE, DESCRIPTION, TERMS, CONDITIONS
REGISTRATION AND EXCHANGE OF THE DEBENTURES
SECTION 2.1 DESIGNATION AND PRINCIPAL AMOUNT.
There is hereby authorized Debentures designated the "____% Junior Subordinated
Debentures due 2027," limited in aggregate principal amount to $_____________
million, which amount shall be as set forth in any written order of the Company
for the authentication and delivery of Debentures pursuant to Section 2.5.
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SECTION 2.2 MATURITY.
(a) The Maturity Date shall be either:
(i) the Scheduled Maturity Date; or
(ii) if the Company elects to accelerate the Maturity Date
to be a date prior to the Scheduled Maturity Date in
accordance with Section 2.2(b), the Accelerated
Maturity Date.
(b) The Company may at any time before the day which is 90 days
before the Scheduled Maturity Date and after ______________,
2002, elect to shorten the Maturity Date only once to the
Accelerated Maturity Date provided that the Company has
received the prior approval of the Federal Reserve if then
required under applicable capital guidelines or policies of
the Federal Reserve.
(c) If the Company elects to accelerate the Maturity Date in
accordance with Section 2.2(b), the Company shall give notice
to the registered holders of the Debentures, the Property
Trustee and the Trust of the acceleration of the Maturity Date
and the Accelerated Maturity Date at least 90 days and no more
than 180 days before the Accelerated Maturity Date.
SECTION 2.3 FORM AND PAYMENT.
The Debentures shall be issued in fully registered certificated form without
interest coupons. Principal and interest on the Debentures issued in
certificated form shall be payable, the transfer of such Debentures shall be
registrable and such Debentures shall be exchangeable for Debentures bearing
identical terms and provisions at the office or agency of the Trustee;
provided, however, that payment of interest may be made at the option of the
Company by check mailed to the holder at such address as shall appear in the
Debenture Register or by wire transfer to an account maintained by the holder
as specified in the Debenture Register, provided that the holder provides
proper transfer instructions by the regular record date. Notwithstanding the
foregoing, so long as the holder of any Debentures is the Property Trustee, the
payment of the principal of and interest (including Compounded Interest and
Additional Interest, if any) on such Debentures held by the Property Trustee
shall be made at such place and to such account as may be designated by the
Property Trustee.
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SECTION 2.4 INTEREST.
(a) Each Debenture shall bear interest at the rate of ____% per
annum (the "Coupon Rate") from the original date of issuance
until the principal thereof becomes due and payable, and on
any overdue principal and (to the extent that payment of such
interest is enforceable under applicable law) on any overdue
installment of interest at the Coupon Rate, compounded
quarterly, payable (subject to the provisions of Article IV)
quarterly in arrears on March 31, June 30, September 30, and
December 31 of each year (each, an "Interest Payment Date,"
commencing on __________, 1997), to the Person in whose name
such Debenture or any Predecessor Debenture is registered, at
the close of business on the regular record date for such
interest installment, which shall be the fifteenth day of the
last month of the calendar quarter.
(b) The amount of interest payable for any period shall be
computed on the basis of a 360-day year of twelve 30-day
months. Except as provided in the following sentence, the
amount of interest payable for any period shorter than a full
quarterly period for which interest is computed, shall be
computed on the basis of the actual number of days elapsed in
such a 30-day period. In the event that any date on which
interest is payable on the Debentures is not a Business Day,
then payment of interest payable on such date shall be made on
the next succeeding day which is a Business Day (and without
any interest or other payment in respect of any such delay),
except that, if such Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and
effect as if made on the date such payment was originally
payable.
(c) If, at any time while the Property Trustee is the holder of
any Debentures, the Trust or the Property Trustee is required
to pay any taxes, duties, assessments or governmental charges
of whatever nature (other than withholding taxes) imposed by
the United States, or any other taxing authority, then, in any
case, the Company shall pay as additional interest
("Additional Interest") on the Debentures held by the Property
Trustee, such additional amounts as shall be required so that
the net amounts received and retained by the Trust and the
Property Trustee after paying such taxes, duties, assessments
or other governmental charges shall be equal to the amounts
the Trust and the Property Trustee would
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have received had no such taxes, duties, assessments or other
governmental charges been imposed.
SECTION 2.5 EXECUTION AND AUTHENTICATIONS.
(a) The Debentures shall be signed on behalf of the Company by its
Chief Executive Officer, President or one of its Vice
Presidents, under its corporate seal attested by its Secretary
or one of its Assistant Secretaries. Signatures may be in the
form of a manual, imprinted or facsimile signature. The
Company may use the imprinted or facsimile signature of any
Person who shall have been a Chief Executive Officer,
President or Vice President thereof, or of any Person who
shall have been a Secretary or Assistant Secretary thereof,
notwithstanding the fact that at the time the Debentures shall
be authenticated and delivered or disposed of such Person
shall have ceased to be the Chief Executive Officer, President
or a Vice President, or the Secretary or an Assistant
Secretary, of the Company. The seal of the Company may be in
the form of a facsimile of such seal and may be impressed,
affixed, imprinted or otherwise reproduced on the Debentures.
The Debentures may contain such notations, legends or
endorsements required by law, stock exchange rule or usage.
Each Debenture shall be dated the date of its authentication
by the Trustee.
(b) A Debenture shall not be valid until authenticated manually by
an authorized signatory of the Trustee, or by an
Authenticating Agent. Such signature shall be conclusive
evidence that the Debenture so authenticated has been duly
authenticated and delivered hereunder and that the holder is
entitled to the benefits of this Indenture.
(c) At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Debentures
executed by the Company to the Trustee for authentication,
together with a written order of the Company for the
authentication and delivery of such Debentures signed by its
Chief Executive Officer, President or any Vice President and
its Secretary or any Assistant Secretary, and the Trustee in
accordance with such written order shall authenticate and
deliver such Debentures.
(d) In authenticating such Debentures and accepting the additional
responsibilities under this Indenture in relation to such
Debentures, the Trustee shall be
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entitled to receive, and (subject to Section 9.1) shall
be fully protected in relying upon, an Opinion of Counsel
stating that the form and terms thereof have been established
in conformity with the provisions of this Indenture.
(e) The Trustee shall not be required to authenticate such
Debentures if the issue of such Debentures pursuant to this
Indenture shall affect the Trustee's own rights, duties or
immunities under the Debentures and this Indenture or
otherwise in a manner that is not reasonably acceptable to the
Trustee.
(f) Debentures distributed to holders of Global Preferred
Securities (as defined in the Trust Agreement) upon the
dissolution of the Trust shall be distributed in the form of
one or more Global Debentures registered in the name of a
Depositary or its nominee, and deposited with the Debenture
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 Debentures
represented thereby (or such other accounts as they may
direct). Debentures distributed to holders of Preferred
Securities other than Global Preferred Securities upon the
dissolution of the Trust shall not be issued in the form of a
Global Debenture or any other form intended to facilitate
book-entry trading in beneficial interests in such Debentures.
SECTION 2.6 REGISTRATION OF TRANSFER AND EXCHANGE.
(a) Debentures may be exchanged upon presentation thereof at the
office or agency of the Company designated for such purpose,
for other Debentures and for a like aggregate principal
amount, upon payment of a sum sufficient to cover any tax or
other governmental charge in relation thereto, all as provided
in this Section 2.6. In respect of any Debentures so
surrendered for exchange, the Company shall execute, the
Trustee shall authenticate and such office or agency shall
deliver in exchange therefor the Debenture or Debentures that
the Debenture holder making the exchange shall be entitled to
receive, bearing numbers not contemporaneously outstanding.
(b) The Company shall keep, or cause to be kept, at its office or
agency designated for such purpose or such other location
designated by the Company a register or registers (herein
referred to as the "Debenture Register") in which, subject to
such reasonable
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regulations as it may prescribe, the Company shall register the
Debentures and the transfers of Debentures as in this Article
II provided and which at all reasonable times shall be open for
inspection by the Trustee. The registrar for the purpose of
registering Debentures and transfer of Debentures as herein
provided shall be appointed as authorized by Board Resolution
(the "Debenture Registrar"). Upon surrender for transfer of
any Debenture at the office or agency of the Company designated
for such purpose, the Company shall execute, the Trustee shall
authenticate and such office or agency shall deliver in the
name of the transferee or transferees a new Debenture or
Debentures for a like aggregate principal amount. All
Debentures presented or surrendered for exchange or
registration of transfer, as provided in this Section 2.6,
shall be accompanied (if so required by the Company or the
Debenture Registrar) by a written instrument or instruments of
transfer, in form satisfactory to the Company or the Debenture
Registrar, duly executed by the registered holder or by such
xxxxxx's duly authorized attorney in writing.
(c) No service charge shall be made for any exchange or
registration of transfer of Debentures, or issue of new
Debentures in case of partial redemption, but the Company may
require payment of a sum sufficient to cover any tax or other
governmental charge in relation thereto, other than exchanges
pursuant to Section 2.7, Section 3.5(b) and Section 11.4 not
involving any transfer.
(d) The Company shall not be required (i) to issue, exchange or
register the transfer of any Debentures during a period
beginning at the opening of business 15 days before the day of
the mailing of a notice of redemption of less than all the
Outstanding Debentures and ending at the close of business on
the day of such mailing; nor (ii) to register the transfer of
or exchange any Debentures or portions thereof called for
redemption.
SECTION 2.7 TEMPORARY DEBENTURES.
Pending the preparation of definitive Debentures, the Company may execute, and
the Trustee shall authenticate and deliver, temporary Debentures (printed,
lithographed, or typewritten). Such temporary Debentures shall be
substantially in the form of the definitive Debentures in lieu of which they
are issued, but with such omissions, insertions and variations as may be
appropriate for temporary Debentures, all as may be determined by the Company.
Every temporary Debenture shall be executed by the Company and be
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authenticated by the Trustee upon the same conditions and in substantially the
same manner, and with like effect, as the definitive Debentures. Without
unnecessary delay the Company shall execute and shall furnish definitive
Debentures and thereupon any or all temporary Debentures may be surrendered in
exchange therefor (without charge to the holders), at the office or agency of
the Company designated for such purpose, and the Trustee shall authenticate and
such office or agency shall deliver in exchange for such temporary Debentures an
equal aggregate principal amount of definitive Debentures, unless the Company
advises the Trustee to the effect that definitive Debentures need not be
executed and furnished until further notice from the Company. Until so
exchanged, the temporary Debentures shall be entitled to the same benefits under
this Indenture as definitive Debentures authenticated and delivered hereunder.
SECTION 2.8 MUTILATED, DESTROYED, LOST OR STOLEN DEBENTURES.
(a) In case any temporary or definitive Debenture shall become
mutilated or be destroyed, lost or stolen, the Company
(subject to the next succeeding sentence) shall execute, and
upon the Company's request the Trustee (subject as aforesaid)
shall authenticate and deliver, a new Debenture bearing a
number not contemporaneously outstanding, in exchange and
substitution for the mutilated Debenture, or in lieu of and in
substitution for the Debenture so destroyed, lost or stolen.
In every case the applicant for a substituted Debenture shall
furnish to the Company and the Trustee such security or
indemnity as may be required by them to save each of them
harmless, and, in every case of destruction, loss or theft,
the applicant shall also furnish to the Company and the
Trustee evidence to their satisfaction of the destruction,
loss or theft of the applicant's Debenture and of the
ownership thereof. The Trustee may authenticate any such
substituted Xxxxxxxxx and deliver the same upon the written
request or authorization of any officer of the Company. Upon
the issuance of any substituted Debenture, the Company may
require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith. In case any
Debenture that has matured or is about to mature shall become
mutilated or be destroyed, lost or stolen, the Company may,
instead of issuing a substitute Xxxxxxxxx, pay or authorize
the payment of the same (without surrender thereof except in
the case of a mutilated Debenture) if the applicant for such
payment
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shall furnish to the Company and the Trustee such security or
indemnity as they may require to save them harmless, and, in
case of destruction, loss or theft, evidence to the
satisfaction of the Company and the Trustee of the
destruction, loss or theft of such Debenture and of the
ownership thereof.
(b) Every replacement Debenture issued pursuant to the provisions
of this Section 2.8 shall constitute an additional contractual
obligation of the Company whether or not the mutilated,
destroyed, lost or stolen Debenture shall be found at any
time, or be enforceable by anyone, and shall be entitled to
all the benefits of this Indenture equally and proportionately
with any and all other Debentures duly issued hereunder. All
Debentures shall be held and owned upon the express condition
that the foregoing provisions are exclusive with respect to
the replacement or payment of mutilated, destroyed, lost or
stolen Debentures, and shall preclude (to the extent lawful)
any and all other rights or remedies, notwithstanding any law
or statute existing or hereafter enacted to the contrary with
respect to the replacement or payment of negotiable
instruments or other securities without their surrender.
SECTION 2.9 CANCELLATION.
All Debentures surrendered for the purpose of payment, redemption, exchange or
registration of transfer shall, if surrendered to the Company or any paying
agent, be delivered to the Trustee for cancellation, or, if surrendered to the
Trustee, shall be canceled by it, and no Debentures shall be issued in lieu
thereof except as expressly required or permitted by any of the provisions of
this Indenture. On request of the Company at the time of such surrender, the
Trustee shall deliver to the Company canceled Debentures held by the Trustee.
In the absence of such request the Trustee may dispose of canceled Debentures
in accordance with its standard procedures and deliver a certificate of
disposition to the Company. If the Company shall otherwise acquire any of the
Debentures, however, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Debentures unless and
until the same are delivered to the Trustee for cancellation.
SECTION 2.10 BENEFIT OF INDENTURE.
Nothing in this Indenture or in the Debentures, express or implied, shall give
or be construed to give to any Person, other than the parties hereto and the
holders of the Debentures (and, with respect
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to the provisions of Article XVI, the holders of Senior Indebtedness) any legal
or equitable right, remedy or claim under or in respect of this Indenture, or
under any covenant, condition or provision herein contained; all such covenants,
conditions, and provisions being for the sole benefit of the parties hereto and
of the holders of the Debentures (and, with respect to the provisions of Article
XVI, the holders of Senior Indebtedness).
SECTION 2.11 AUTHENTICATION AGENT.
(a) So long as any of the Debentures remain Outstanding there may
be an Authenticating Agent for any or all such Debentures,
which the Trustee shall have the right to appoint. Said
Authenticating Agent shall be authorized to act on behalf of
the Trustee to authenticate Debentures issued upon exchange,
transfer or partial redemption thereof, and Debentures so
authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes
as if authenticated by the Trustee hereunder. All references
in this Indenture to the authentication of Debentures by the
Trustee shall be deemed to include authentication by an
Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall be a corporation that has
a combined capital and surplus, as most recently reported or
determined by it, sufficient under the laws of any
jurisdiction under which it is organized or in which it is
doing business to conduct a trust business, and that is
otherwise authorized under such laws to conduct such business
and is subject to supervision or examination by federal or
state authorities. If at any time any Authenticating Agent
shall cease to be eligible in accordance with these
provisions, it shall resign immediately.
(b) Any Authenticating Agent may at any time resign by giving
written notice of resignation to the Trustee and to the
Company. The Trustee may at any time (and upon request by the
Company shall) terminate the agency of any Authenticating
Agent by giving written notice of termination to such
Authenticating Agent and to the Company. Upon resignation,
termination or cessation of eligibility of any Authenticating
Agent, the Trustee may appoint an eligible successor
Authenticating Agent acceptable to the Company. Any successor
Authenticating Agent, upon acceptance of its appointment
hereunder, shall become vested with all the rights, powers and
duties of its predecessor hereunder as if originally named as
an Authenticating Agent pursuant hereto.
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SECTION 2.12 RIGHT OF SET-OFF.
With respect to the Debentures initially issued to the 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 Debenture to the extent the Company has theretofore made, or is
concurrently on the date of such payment making, a payment under the Preferred
Securities Guarantee relating to such Debenture or to a holder of Preferred
Securities pursuant to an action undertaken under Section 15.13 of this
Indenture.
ARTICLE III
REDEMPTION OF DEBENTURES
SECTION 3.1 REDEMPTION.
Subject to the Company having received prior approval of the Federal Reserve,
if then required under applicable capital guidelines or policies of the Federal
Reserve, the Company may redeem the Debentures issued hereunder on and after
the dates set forth in and in accordance with the terms of this Article III.
SECTION 3.2 SPECIAL EVENT REDEMPTION.
Subject to the Company having received prior approval of the Federal Reserve,
if then required under applicable capital guidelines or policies of the Federal
Reserve, if a Special Event has occurred and is continuing, then,
notwithstanding Section 3.3(a), the Company shall have the right upon not less
than 30 days nor more than 60 days notice to the holders of the Debentures to
redeem the Debentures, in whole but not in part, for cash within 180 days
following the occurrence of such Special Event (the "180-Day Period") at a
redemption price equal to 100% of the principal amount to be redeemed plus any
accrued and unpaid interest thereon to the date of such redemption (the
"Redemption Price"), provided that if at the time there is available to the
Company the opportunity to eliminate, within the 180-Day Period, a Tax Event by
taking some ministerial action (a "Ministerial Action"), such as filing a form
or making an election, or pursuing some other similar reasonable measure which
has no adverse effect on the Company, the Trust or the holders of the Trust
Securities issued by the Trust, the Company shall pursue such Ministerial
Action in lieu of redemption, and, provided further, that the Company shall
have no right to redeem the Debentures while the Trust is pursuing any
Ministerial Action pursuant to its obligations under the Trust Agreement. The
Redemption Price shall be paid prior to 12:00 noon, New York time, on the date
of such redemption or such earlier time as the Company determines, provided
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that the Company shall deposit with the Trustee an amount sufficient to pay the
Redemption Price by 10:00 a.m., New York time, on the date such Redemption
Price is to be paid.
SECTION 3.3 OPTIONAL REDEMPTION BY COMPANY.
(a) Subject to the provisions of Section 3.3(b), except as
otherwise may be specified in this Indenture, the Company
shall have the right to redeem the Debentures, in whole or in
part, from time to time, on or after ____________, 2002, at a
Redemption Price equal to 100% of the principal amount to be
redeemed plus any accrued and unpaid interest thereon to the
date of such redemption. Any redemption pursuant to this
Section 3.3(a) shall be made upon not less than 30 days nor
more than 60 days notice to the holder of the Debentures, at
the Redemption Price. If the Debentures are only partially
redeemed pursuant to this Section 3.3, the Debentures shall be
redeemed pro rata or by lot or in such other manner as the
Trustee shall deem appropriate and fair in its discretion.
The Redemption Price shall be paid prior to 12:00 noon, New
York time, on the date of such redemption or at such earlier
time as the Company determines provided that the Company shall
deposit with the Trustee an amount sufficient to pay the
Redemption Price by 10:00 a.m., New York time, on the date
such Redemption Price is to be paid.
(b) If a partial redemption of the Debentures would result in the
delisting of the Preferred Securities issued by the Trust from
The Nasdaq Stock Market's National Market or any national
securities exchange or other organization on which the
Preferred Securities are then listed, the Company shall not be
permitted to effect such partial redemption and may only
redeem the Debentures in whole.
SECTION 3.4 NOTICE OF REDEMPTION.
(a) In case the Company shall desire to exercise such right to
redeem all or a portion of the Debentures in accordance with
the right reserved so to do, the Company shall, or shall cause
the Trustee to upon receipt of 45 days' written notice from
the Company, give notice of such redemption to holders of the
Debentures to be redeemed by mailing, first class postage
prepaid, a notice of such redemption not less than 30 days and
not more than 60 days before the date fixed for redemption to
such holders at their last addresses as they shall appear upon
the Debenture Register unless a shorter period is
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specified in the Debentures to be redeemed. Any notice that is
mailed in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the registered
holder receives the notice. In any case, failure duly to give
such notice to the holder of any Debenture designated for
redemption in whole or in part, or any defect in the notice,
shall not affect the validity of the proceedings for the
redemption of any other Debentures. In the case of any
redemption of Debentures prior to the expiration of any
restriction on such redemption provided in the terms of such
Debentures or elsewhere in this Indenture, the Company shall
furnish the Trustee with an Officers' Certificate evidencing
compliance with any such restriction. Each such notice of
redemption shall specify the date fixed for redemption and the
Redemption Price and shall state that payment of the Redemption
Price shall be made at the office or agency of the Company or
at the Corporate Trust Office, upon presentation and surrender
of such Debentures, that interest accrued to the date fixed for
redemption shall be paid as specified in said notice and that
from and after said date interest shall cease to accrue. If
less than all the Debentures are to be redeemed, the notice to
the holders of the Debentures shall specify the particular
Debentures to be redeemed. If the Debentures are to be
redeemed in part only, the notice shall state the portion of
the principal amount thereof to be redeemed and shall state
that on and after the redemption date, upon surrender of such
Debenture, a new Debenture or Debentures in principal amount
equal to the unredeemed portion thereof shall be issued.
(b) If less than all the Debentures are to be redeemed, the
Company shall give the Trustee at least 45 days' notice in
advance of the date fixed for redemption as to the aggregate
principal amount of Debentures to be redeemed, and thereupon
the Trustee shall select, by lot or in such other manner as it
shall deem appropriate and fair in its discretion, the portion
or portions (equal to $10 or any integral multiple thereof) of
the Debentures to be redeemed and shall thereafter promptly
notify the Company in writing of the numbers of the Debentures
to be redeemed, in whole or in part. The Company may, if and
whenever it shall so elect pursuant to the terms hereof, by
delivery of instructions signed on its behalf by its President
or any Vice President, instruct the Trustee or any paying
agent to call all or any part of the Debentures for redemption
and to give notice of redemption in the manner set forth in
this Section 3.4, such notice to be in the name of the Company
or its own
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name as the Trustee or such paying agent may deem advisable.
In any case in which notice of redemption is to be given by the
Trustee or any such paying agent, the Company shall deliver or
cause to be delivered to, or permit to remain with, the Trustee
or such paying agent, as the case may be, such Debenture
Register, transfer books or other records, or suitable copies
or extracts therefrom, sufficient to enable the Trustee or such
paying agent to give any notice by mail that may be required
under the provisions of this Section 3.4.
SECTION 3.5 PAYMENT UPON REDEMPTION.
(a) If the giving of notice of redemption shall have been
completed as above provided, the Debentures or portions of
Debentures to be redeemed specified in such notice shall
become due and payable on the date and at the place stated in
such notice at the applicable Redemption Price, and interest
on such Debentures or portions of Debentures shall cease to
accrue on and after the date fixed for redemption, unless the
Company shall default in the payment of such Redemption Price
with respect to any such Debenture or portion thereof. On
presentation and surrender of such Debentures on or after the
date fixed for redemption at the place of payment specified in
the notice, said Debentures shall be paid and redeemed at the
Redemption Price (but if the date fixed for redemption is an
interest payment date, the interest installment payable on
such date shall be payable to the registered holder at the
close of business on the applicable record date pursuant to
Section 2.4).
(b) Upon presentation of any Debenture that is to be redeemed in
part only, the Company shall execute and the Trustee shall
authenticate and the office or agency where the Debenture is
presented shall deliver to the holder thereof, at the expense
of the Company, a new Debenture of authorized denomination in
principal amount equal to the unredeemed portion of the
Debenture so presented.
SECTION 3.6 NO SINKING FUND.
The Debentures are not entitled to the benefit of any sinking fund.
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ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1 EXTENSION OF INTEREST PAYMENT PERIOD.
So long as no Event of Default has occurred and is continuing, the Company shall
have the right, at any time and from time to time during the term of the
Debentures, to defer payments of interest by extending the interest payment
period of such Debentures for a period not exceeding 20 consecutive quarters
(the "Extended Interest Payment Period"), during which Extended Interest Payment
Period no interest shall be due and payable; provided that no Extended Interest
Payment Period may extend beyond the Maturity Date. Interest, the payment of
which has been deferred because of the extension of the interest payment period
pursuant to this Section 4.1 , shall bear interest thereon at the Coupon Rate
compounded quarterly for each quarter of the Extended Interest Payment Period
("Compounded Interest"). At the end of the Extended Interest Payment Period,
the Company shall calculate (and deliver such calculation to the Trustee) and
pay all interest accrued and unpaid on the Debentures, including any Additional
Interest and Compounded Interest (together, "Deferred Interest") that shall be
payable to the holders of the Debentures in whose names the Debentures are
registered in the Debenture Register on the first record date after the end of
the Extended Interest Payment Period. Before the termination of any Extended
Interest Payment Period, the Company may further extend such period, provided
that such period together with all such further extensions thereof shall not
exceed 20 consecutive quarters, or extend beyond the Maturity Date of the
Debentures. Upon the termination of any Extended Interest Payment Period and
upon the payment of all Deferred Interest then due, the Company may commence a
new Extended Interest Payment Period, subject to the foregoing requirements. No
interest shall be due and payable during an Extended Interest Payment Period,
except at the end thereof, but the Company may prepay at any time all or any
portion of the interest accrued during an Extended Interest Payment Period.
SECTION 4.2 NOTICE OF EXTENSION.
(a) If the Property Trustee is the only registered holder of the
Debentures at the time the Company selects an Extended
Interest Payment Period, the Company shall give written notice
to the Administrative Trustees, the Property Trustee and the
Trustee of its selection of such Extended Interest Payment
Period one Business Day before the earlier of (i) the next
succeeding date on which Distributions on the Trust Securities
issued by the Trust are payable; or (ii) the date the Trust is
required to
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give notice of the record date or the date such Distributions
are payable, to The Nasdaq Stock Market's National Market
or other applicable self-regulatory organization or to holders
of the Preferred Securities issued by the Trust, but in any
event at least one Business Day before such record date.
(b) If the Property Trustee is not the only holder of the
Debentures at the time the Company selects an Extended
Interest Payment Period, the Company shall give the holders of
the Debentures and the Trustee written notice of its selection
of such Extended Interest Payment Period at least one Business
Day before the earlier of (i) the next succeeding Interest
Payment Date; or (ii) the date the Company is required to give
notice of the record or payment date of such interest payment
to The Nasdaq Stock Market's National Market or other
applicable self-regulatory organization or to holders of the
Debentures.
(c) The quarter in which any notice is given pursuant to
paragraphs (a) or (b) of this Section 4.2 shall be counted as
one of the 20 quarters permitted in the Extended Interest
Payment Period permitted under Section 4.1.
SECTION 4.3 LIMITATION ON TRANSACTIONS.
If (i) the Company shall exercise its right to defer payment of interest as
provided in Section 4.1; or (ii) there shall have occurred any Event of
Default, then (a) the Company shall not declare or pay any dividend on, make
any distributions with respect to, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of its capital stock (other than (1)
the reclassification of any class of its capital stock for another class of its
capital stock; (2) dividends or distributions payable in any class of the
Company's common stock, (3) any declaration of a dividend in connection with
the implementation of a shareholder rights plan, or the issuance of stock under
any such plan in the future, or the redemption or repurchase of any such rights
pursuant thereto and (4) purchases of the Company's common stock related to the
rights under any of the Company's benefit plans for its or its subsidiaries'
directors, officers or employees); (b) the Company shall not make any payment
of interest, principal or premium, if any, or repay, repurchase or redeem any
debt securities issued by the Company which rank pari passu with or junior to
the Debentures or make any guarantee payments with respect to any guarantee by
the Company of the debt securities of any Subsidiary of the Company if such
guarantee ranks pari passu with or junior to the Debentures;
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provided, however, that notwithstanding the foregoing the Company may make
payments pursuant to its obligations under the Preferred Securities Guarantee;
and (c) the Company shall not redeem, purchase or acquire less than all of the
outstanding Debentures or any of the Preferred Securities.
ARTICLE V
PARTICULAR COVENANTS OF THE COMPANY
SECTION 5.1 PAYMENT OF PRINCIPAL AND INTEREST.
The Company shall duly and punctually pay or cause to be paid the principal of
and interest on the Debentures at the time and place and in the manner provided
herein.
SECTION 5.2 MAINTENANCE OF AGENCY.
So long as any of the Debentures remain Outstanding, the Company shall maintain
an office or agency in the Place of Payment where (i) Debentures may be
presented for payment; (ii) Debentures may be presented as hereinabove
authorized for registration of transfer and exchange; and (iii) notices and
demands to or upon the Company in respect of the Debentures and this Indenture
may be given or served, such designation to continue with respect to such
office or agency until the Company shall, by written notice signed by its
President or a Vice President and delivered to the Trustee, designate some
other office or agency for such purposes or any of them. If at any time the
Company shall fail to maintain any such required office or agency or shall fail
to furnish the Trustee with the address thereof, such presentations, notices
and demands may be made or served at the Corporate Trust Office of the Trustee,
and the Company hereby appoints the Trustee as its agent to receive all such
presentations, notices and demands. In addition to any such office or agency,
the Company may from time to time designate one or more offices or agencies
where the Debentures may be presented for registration or transfer and for
exchange in the manner provided herein, and the Company may from time to time
rescind such designation as the Company may deem desirable or expedient;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain any such office or agency in
the Place of Payment for such purposes. The Company shall give the Trustee
prompt written notice of any such designation or rescission thereof.
SECTION 5.3 PAYING AGENTS.
(a) If the Company shall appoint one or more paying agents for the
Debentures, other than the Trustee, the Company
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shall cause each such paying agent to execute and deliver to
the Trustee an instrument in which such agent shall agree
with the Trustee, subject to the provisions of this
Section 5.3:
(i) that it shall hold all sums held by it as such agent
for the payment of the principal of or interest on
the Debentures (whether such sums have been paid to
it by the Company or by any other obligor of such
Debentures) in trust for the benefit of the Persons
entitled thereto;
(ii) that it shall give the Trustee notice of any failure
by the Company (or by any other obligor of such
Debentures) to make any payment of the principal of
or interest on the Debentures when the same shall be
due and payable;
(iii) that it shall, at any time during the continuance of
any failure referred to in the preceding paragraph
(a)(ii) above, upon the written request of the
Trustee, forthwith pay to the Trustee all sums so
held in trust by such paying agent; and
(iv) that it shall perform all other duties of paying
agent as set forth in this Indenture.
(b) If the Company shall act as its own paying agent with respect
to the Debentures, it shall on or before each due date of the
principal of or interest on such Debentures, set aside,
segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay such principal or
interest so becoming due on Debentures until such sums shall
be paid to such Persons or otherwise disposed of as herein
provided and shall promptly notify the Trustee of such action,
or any failure (by it or any other obligor on such Debentures)
to take such action. Whenever the Company shall have one or
more paying agents for the Debentures, it shall, prior to each
due date of the principal of or interest on any Debentures,
deposit with the paying agent a sum sufficient to pay the
principal or interest so becoming due, such sum to be held in
trust for the benefit of the Persons entitled to such
principal or interest, and (unless such paying agent is the
Trustee) the Company shall promptly notify the Trustee of this
action or failure so to act.
(c) Notwithstanding anything in this Section 5.3 to the contrary,
(i) the agreement to hold sums in trust as provided in this
Section 5.3 is subject to the provisions
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of Section 13.3 and 13.4; and (ii) the Company may at any time,
for the purpose of obtaining the satisfaction and discharge of
this Indenture or for any other purpose, pay, or direct any
paying agent to pay, to the Trustee all sums held in trust by
the Company or such paying agent, such sums to be held by the
Trustee upon the same terms and conditions as those upon
which such sums were held by the Company or such paying agent;
and, upon such payment by any paying agent to the Trustee, such
paying agent shall be released from all further liability with
respect to such money.
SECTION 5.4 APPOINTMENT TO FILL VACANCY IN OFFICE OF TRUSTEE.
The Company, whenever necessary to avoid or fill a vacancy in the office of
Trustee, shall appoint, in the manner provided in Section 9.10, a Trustee, so
that there shall at all times be a Trustee hereunder.
SECTION 5.5 COMPLIANCE WITH CONSOLIDATION PROVISIONS.
The Company shall not, while any of the Debentures remain outstanding,
consolidate with, or merge into, or merge into itself, or sell or convey all or
substantially all of its property to any other company unless the provisions of
Article XII hereof are complied with.
SECTION 5.6 LIMITATION ON TRANSACTIONS.
If Debentures are issued to the Trust or a trustee of the Trust in connection
with the issuance of Trust Securities by the Trust and (i) there shall have
occurred any event that would constitute an Event of Default; (ii) the Company
shall be in default with respect to its payment of any obligations under the
Preferred Securities Guarantee relating to the Trust; or (iii) the Company
shall have given notice of its election to defer payments of interest on such
Debentures by extending the interest payment period as provided in this
Indenture and such period, or any extension thereof, shall be continuing, then
(a) the Company shall not declare or pay any dividend on, make any
distributions with respect to, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of its capital stock (other than (1)
the reclassification of any class of the Company's capital stock into another
class of capital stock, (2) dividends or distributions payable in any class of
the Company's common stock, (3) any declaration of a dividend in connection
with the implementation of a shareholder rights plan, or the issuance of stock
under any such plan in the future, or the redemption or repurchase of any such
rights pursuant thereto and (4) purchases of the Company's common stock related
to the rights
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under any of the Company's benefit plans for its or its subsidiaries' directors,
officers or employees); (b) the Company shall not make any payment of interest,
principal or premium, if any, or repay, repurchase or redeem any debt securities
issued by the Company which rank pari passu with or junior to the Debentures;
provided, however, that the Company may make payments pursuant to its
obligations under the Preferred Securities Guarantee; and (c) the Company shall
not redeem, purchase or acquire less than all of the outstanding Debentures or
any of the Preferred Securities.
SECTION 5.7 COVENANTS AS TO THE TRUST.
For so long as such Trust Securities of the Trust remain outstanding, the
Company shall (i) maintain 100% direct or indirect ownership of the Common
Securities of the Trust; provided, however, that any permitted successor of the
Company under this Indenture may succeed to the Company's ownership of the
Common Securities; (ii) not voluntarily terminate, wind up or liquidate the
Trust, except upon prior regulatory approval if then so required under
applicable capital guidelines or regulatory policies and use its reasonable
efforts to cause the Trust (a) to remain a business trust, except in connection
with a distribution of Debentures, the redemption of all of the Trust
Securities of the Trust or certain mergers, consolidations or amalgamations,
each as permitted by the Trust Agreement; and (b) to otherwise continue not to
be treated as an association taxable as a corporation or partnership for United
States federal income tax purposes; and (iii) use its reasonable efforts to
cause each holder of Trust Securities to be treated as owning an individual
beneficial interest in the Debentures. In connection with the distribution of
the Debentures to the holders of the Preferred Securities issued by the Trust
upon a Dissolution Event, the Company shall use its best efforts to list such
Debentures on The Nasdaq Stock Market's National Market or on such other
exchange as the Preferred Securities are then listed.
SECTION 5.8 COVENANTS AS TO PURCHASES.
Prior to _________, 2002, the Company shall not purchase any Debentures, in
whole or in part, from the Trust.
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ARTICLE VI
DEBENTUREHOLDERS' LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
SECTION 6.1 COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
DEBENTUREHOLDERS
The Company shall furnish or cause to be furnished to the Trustee (a) on a
monthly basis on each regular record date (as described in Section 2.4) a list,
in such form as the Trustee may reasonably require, of the names and addresses
of the holders of the Debentures as of such regular record date, provided that
the Company shall not be obligated to furnish or cause to furnish such list at
any time that the list shall not differ in any respect from the most recent
list furnished to the Trustee by the Company; and (b) at such other times as
the Trustee may request in writing within 30 days after the receipt by the
Company of any such request, a list of similar form and content as of a date
not more than 15 days prior to the time such list is furnished; provided,
however, that, in either case, no such list need be furnished if the
Trustee shall be the Debenture Registrar.
SECTION 6.2 PRESERVATION OF INFORMATION; COMMUNICATIONS WITH
DEBENTUREHOLDERS.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, all information as to the names and
addresses of the holders of Debentures contained in the most
recent list furnished to it as provided in Section 6.1 and as
to the names and addresses of holders of Debentures received
by the Trustee in its capacity as registrar for the Debentures
(if acting in such capacity).
(b) The Trustee may destroy any list furnished to it as provided
in Section 6.1 upon receipt of a new list so furnished.
(c) Debentureholders may communicate as provided in Section 312(b)
of the Trust Indenture Act with other Debentureholders with
respect to their rights under this Indenture or under the
Debentures.
SECTION 6.3 REPORTS BY THE COMPANY.
(a) The Company covenants and agrees to file with the Trustee,
within 15 days after the Company is required to file the same
with the Commission, copies of the annual
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reports and of the information, documents and other reports
(or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations
prescribe) that the Company may be required to file with
the Commission pursuant to Section 13 or Section 15(d) of the
Exchange Act; or, if the Company is not required to file
information, documents or reports pursuant to either of such
sections, then to file with the Trustee and the Commission, in
accordance with the rules and regulations prescribed from time
to time by the Commission, such of the supplementary and
periodic information, documents and reports that may be
required pursuant to Section 13 of the Exchange Act in respect
of a security listed and registered on a national securities
exchange as may be prescribed from time to time in such rules
and regulations.
(b) The Company covenants and agrees to file with the Trustee and
the Commission, in accordance with the rules and regulations
prescribed from time to time by the Commission, such
additional information, documents and reports with respect to
compliance by the Company with the conditions and covenants
provided for in this Indenture as may be required from time to
time by such rules and regulations.
(c) The Company covenants and agrees to transmit by mail, first
class postage prepaid, or reputable over-night delivery
service that provides for evidence of receipt, to the
Debentureholders, as their names and addresses appear upon the
Debenture Register, within 30 days after the filing thereof
with the Trustee, such summaries of any information, documents
and reports required to be filed by the Company pursuant to
subsections (a) and (b) of this Section 6.3 as may be required
by rules and regulations prescribed from time to time by the
Commission.
(d) The Company shall deliver to the Trustee, within 120 days
after the end of each fiscal year of the Company ending after
the date hereof, an Officers' Certificate covering the
preceding calendar year, stating whether or not, to the best
knowledge of the signers thereof, the Company is in default
in the performance, observance or fulfillment of or compliance
with any of the terms, provisions, covenants and conditions of
this Indenture, and if the Company shall be in default,
specifying all such defaults and the nature and status thereof
of which they may have knowledge. For the purpose of this
Section 6.3(d), compliance shall be determined without regard
to
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any grace period or requirement of notice provided pursuant
to the terms of this Indenture.
SECTION 6.4 REPORTS BY THE TRUSTEE.
(a) On or before July 15 in each year in which any of the
Debentures are Outstanding, the Trustee shall transmit by
mail, first class postage prepaid, to the Debentureholders, as
their names and addresses appear upon the Debenture Register,
a brief report dated as of the preceding May 15, if and to the
extent required under Section 313(a) of the Trust Indenture
Act.
(b) The Trustee shall comply with Section 313(b) and 313(c) of
the Trust Indenture Act.
(c) A copy of each such report shall, at the time of such
transmission to Debentureholders, be filed by the Trustee with
the Company, with each stock exchange upon which any
Debentures are listed (if so listed) and also with the
Commission. The Company agrees to notify the Trustee when any
Debentures become listed on any stock exchange.
ARTICLE VII
REMEDIES OF THE TRUSTEE AND DEBENTUREHOLDERS
ON EVENT OF DEFAULT
SECTION 7.1 EVENTS OF DEFAULT.
(a) Whenever used herein with respect to the Debentures, "Event of
Default" means any one or more of the following events that
has occurred and is continuing:
(i) the Company defaults in the payment of any
installment of interest upon any of the Debentures,
as and when the same shall become due and payable,
and continuance of such default for a period of 30
days; provided, however, that a valid extension of an
interest payment period by the Company in accordance
with the terms of this Indenture shall not constitute
a default in the payment of interest for this
purpose;
(ii) the Company defaults in the payment of the principal
on the Debentures as and when the same shall become
due and payable whether at maturity, upon redemption,
by declaration or otherwise;
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(iii) the Company fails to observe or perform any other of
its covenants or agreements with respect to the
Debentures for a period of 90 days after the date on
which written notice of such failure, requiring the
same to be remedied and stating that such notice is a
"Notice of Default" hereunder, shall have been given
to the Company by the Trustee, by registered or
certified mail, or to the Company and the Trustee by
the holders of at least 25% in principal amount of
the Debentures at the time Outstanding;
(iv) the Company pursuant to or within the meaning of any
Bankruptcy Law (i) commences a voluntary case; (ii)
consents to the entry of an order for relief against
it in an involuntary case; (iii) consents to the
appointment of a Custodian of it or for all or
substantially all of its property; or (iv) makes a
general assignment for the benefit of its creditors;
(v) a court of competent jurisdiction enters an order
under any Bankruptcy Law that (i) is for relief
against the Company in an involuntary case;
(ii) appoints a Custodian of the Company for all or
substantially all of its property; or (iii) orders
the liquidation of the Company, and the order or
decree remains unstayed and in effect for 90 days; or
(vi) the Trust shall have voluntarily or involuntarily
dissolved, wound-up its business or otherwise
terminated its existence except in connection with
(i) the distribution of Debentures to holders of
Trust Securities in liquidation of their interests in
the Trust; (ii) the redemption of all of the
outstanding Trust Securities of the Trust; or (iii)
certain mergers, consolidations or amalgamations,
each as permitted by the Trust Agreement.
(b) In each and every such case, unless the principal of all the
Debentures shall have already become due and payable, either
the Trustee or the holders of not less than 25% in aggregate
principal amount of the Debentures then Outstanding hereunder,
by notice in writing to the Company (and to the Trustee if
given by such Debentureholders) may declare the principal of
all the Debentures to be due and payable immediately, and upon
any such declaration the same shall become and shall be
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immediately due and payable, notwithstanding anything
contained in this Indenture or in the Debentures.
(c) At any time after the principal of the Debentures shall have
been so declared due and payable, and before any judgment or
decree for the payment of the moneys due shall have been
obtained or entered as hereinafter provided, the holders of a
majority in aggregate principal amount of the Debentures then
Outstanding hereunder, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its
consequences if: (i) the Company has paid or deposited with
the Trustee a sum sufficient to pay all matured installments
of interest upon all the Debentures and the principal of any
and all Debentures that shall have become due otherwise than
by acceleration (with interest upon such principal, and upon
overdue installments of interest, at the rate per annum
expressed in the Debentures to the date of such payment or
deposit) and the amount payable to the Trustee under Section
9.6; and (ii) any and all Events of Default under this
Indenture, other than the nonpayment of principal on
Debentures that shall not have become due by their terms,
shall have been remedied or waived as provided in Section
7.6. No such rescission and annulment shall extend to or
shall affect any subsequent default or impair any right
consequent thereon.
(d) In case the Trustee shall have proceeded to enforce any right
with respect to Debentures under this Indenture and such
proceedings shall have been discontinued or abandoned because
of such rescission or annulment or for any other reason or
shall have been determined adversely to the Trustee, then and
in every such case the Company and the Trustee shall be
restored respectively to their former positions and rights
hereunder, and all rights, remedies and powers of the Company
and the Trustee shall continue as though no such proceedings
had been taken.
SECTION 7.2 COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
(a) The Company covenants that (1) in case it shall default in the
payment of any installment of interest on any of the
Debentures, and such default shall have continued for a period
of 90 Business Days; or (2) in case it shall default in the
payment of the principal of any of the Debentures when the
same shall have become due and payable, whether upon maturity
of the Debentures or upon
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redemption or upon declaration or otherwise, then, upon demand
of the Trustee, the Company shall pay to the Trustee, for the
benefit of the holders of the Debentures, the whole amount
that then shall have become due and payable on all such
Debentures for principal or interest, or both, as the case may
be, with interest upon the overdue principal and (if the
Debentures are held by the Trust or a trustee of the Trust,
without duplication of any other amounts paid by the Trust or
trustee in respect thereof) upon overdue installments of
interest at the rate per annum expressed in the Debentures;
and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, and
the amount payable to the Trustee under Section 9.7.
(b) If the Company shall fail to pay such amounts forthwith upon
such demand, the Trustee, in its own name and as trustee of an
express trust, shall be entitled and empowered to institute
any action or proceedings at law or in equity for the
collection of the sums so due and unpaid, and may prosecute
any such action or proceeding to judgment or final decree, and
may enforce any such judgment or final decree against the
Company or other obligor upon the Debentures and collect the
moneys adjudged or decreed to be payable in the manner
provided by law out of the property of the Company or other
obligor upon the Debentures, wherever situated.
(c) In case of any receivership, insolvency, liquidation,
bankruptcy, reorganization, readjustment, arrangement,
composition or judicial proceedings affecting the Company or
the creditors or property of either, the Trustee shall have
power to intervene in such proceedings and take any action
therein that may be permitted by the court and shall (except
as may be otherwise provided by law) be entitled to file such
proofs of claim and other papers and documents as may be
necessary or advisable in order to have the claims of the
Trustee and of the holders of the Debentures allowed for the
entire amount due and payable by the Company under this
Indenture at the date of institution of such proceedings and
for any additional amount that may become due and payable by
the Company after such date, and to collect and receive any
moneys or other property payable or deliverable on any such
claim, and to distribute the same after the deduction of the
amount payable to the Trustee under Section 9.7; and any
receiver, assignee or trustee in bankruptcy or reorganization
is hereby authorized by each of the holders of the Debentures
to make such payments to the Trustee, and, in the event that
the Trustee shall consent
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to the making of such payments directly to such
Debentureholders, to pay to the Trustee any amount due it
under Section 9.7.
(d) All rights of action and of asserting claims under this
Indenture, or under any of the terms established with respect
to Debentures, may be enforced by the Trustee without the
possession of any of such Debentures, or the production
thereof at any trial or other proceeding relating thereto, and
any such suit or proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and
any recovery of judgment shall, after provision for payment to
the Trustee of any amounts due under Section 9.7, be for the
ratable benefit of the holders of the Debentures. In case of
an Event of Default hereunder, the Trustee may in its
discretion proceed to protect and enforce the rights vested in
it by this Indenture by such appropriate judicial proceedings
as the Trustee shall deem most effectual to protect and
enforce any of such rights, either at law or in equity or in
bankruptcy or otherwise, whether for the specific enforcement
of any covenant or agreement contained in this Indenture or in
aid of the exercise of any power granted in this Indenture, or
to enforce any other legal or equitable right vested in the
Trustee by this Indenture or by law. Nothing contained herein
shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Debentureholder
any plan of reorganization, arrangement, adjustment or
composition affecting the Debentures or the rights of any
holder thereof or to authorize the Trustee to vote in respect
of the claim of any Debentureholder in any such proceeding.
SECTION 7.3 APPLICATION OF MONEYS COLLECTED.
Any moneys collected by the Trustee pursuant to this Article VII with respect
to the Debentures shall be applied in the following order, at the date or dates
fixed by the Trustee and, in case of the distribution of such moneys on account
of principal or interest, upon presentation of the Debentures, and notation
thereon the payment, if only partially paid, and upon surrender thereof if
fully paid:
FIRST: To the payment of costs and expenses of collection and of all
amounts payable to the Trustee under Section 9.7;
SECOND: To the payment of all Senior Indebtedness of the Company if
and to the extent required by Article XVI; and
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THIRD: To the payment of the amounts then due and unpaid upon the
Debentures for principal and interest, in respect of which or for the
benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts due and
payable on such Debentures for principal and interest, respectively.
SECTION 7.4 LIMITATION ON SUITS.
(a) No holder of any Debenture shall have any right by virtue or
by availing of any provision of this Indenture to institute
any suit, action or proceeding in equity or at law upon or
under or with respect to this Indenture or for the appointment
of a receiver or trustee, or for any other remedy hereunder,
unless (i) such holder previously shall have given to the
Trustee written notice of an Event of Default and of the
continuance thereof with respect to the Debentures specifying
such Event of Default, as hereinbefore provided; (ii) the
holders of not less than 25% in aggregate principal amount of
the Debentures then Outstanding shall have made written
request upon the Trustee to institute such action, suit or
proceeding in its own name as trustee hereunder; (iii) such
holder or holders shall have offered to the Trustee such
reasonable indemnity as it may require against the costs,
expenses and liabilities to be incurred therein or thereby;
(iv) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity, shall have failed to institute
any such action, suit or proceeding; and (v) during such 60
day period, the holders of a majority in principal amount of
the Debentures do not give the Trustee a direction
inconsistent with the request.
(b) Notwithstanding anything contained herein to the contrary or
any other provisions of this Indenture, the right of any
holder of the Debentures to receive payment of the principal
of and interest on the Debentures, as therein provided, on or
after the respective due dates expressed in such Debenture (or
in the case of redemption, on the redemption date), or to
institute suit for the enforcement of any such payment on or
after such respective dates or redemption date, shall not be
impaired or affected without the consent of such holder and by
accepting a Debenture hereunder it is expressly understood,
intended and covenanted by the taker and holder of every
Debenture with every other such taker and holder and the
Trustee, that no one or more holders of Debentures shall have
any right in any manner whatsoever
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by virtue or by availing of any provision of this Indenture to
affect, disturb or prejudice the rights of the holders of any
other of such Debentures, or to obtain or seek to obtain
priority over or preference to any other such holder, or
to enforce any right under this Indenture, except in the
manner herein provided and for the equal, ratable and common
benefit of all holders of Debentures. For the protection and
enforcement of the provisions of this Section 7.4, each and
every Debentureholder and the Trustee shall be entitled to
such relief as can be given either at law or in equity.
SECTION 7.5 RIGHTS AND REMEDIES CUMULATIVE; DELAY OR OMISSION NOT WAIVER.
(a) Except as otherwise provided in Section 2.8, all powers and
remedies given by this Article VII to the Trustee or to the
Debentureholders shall, to the extent permitted by law, be
deemed cumulative and not exclusive of any other powers and
remedies available to the Trustee or the holders of the
Debentures, by judicial proceedings or otherwise, to enforce
the performance or observance of the covenants and agreements
contained in this Indenture or otherwise established with
respect to such Debentures.
(b) No delay or omission of the Trustee or of any holder of any of
the Debentures to exercise any right or power accruing upon
any Event of Default occurring and continuing as aforesaid
shall impair any such right or power, or shall be construed to
be a waiver of any such default or an acquiescence therein;
and, subject to the provisions of Section 7.4, every power and
remedy given by this Article VII or by law to the Trustee or
the Debentureholders may be exercised from time to time, and
as often as shall be deemed expedient, by the Trustee or by
the Debentureholders.
SECTION 7.6 CONTROL BY DEBENTUREHOLDERS.
The holders of a majority in aggregate principal amount of the Debentures at
the time Outstanding, determined in accordance with Section 10.4, shall have
the right to direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust or power conferred
on the Trustee; provided, however, that such direction shall not be in conflict
with any rule of law or with this Indenture. Subject to the provisions of
Section 9.1, the Trustee shall have the right to decline to follow any such
direction if the Trustee in good faith shall, by a Responsible Officer or
Officers of the Trustee,
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determine that the proceeding so directed would involve the Trustee in personal
liability. The holders of a majority in aggregate principal amount of the
Debentures at the time Outstanding affected thereby, determined in accordance
with Section 10.4, may on behalf of the holders of all of the Debentures waive
any past default in the performance of any of the covenants contained herein
and its consequences, except (i) a default in the payment of the principal of
or interest on, any of the Debentures as and when the same shall become due by
the terms of such Debentures otherwise than by acceleration (unless such
default has been cured and a sum sufficient to pay all matured installments of
interest and principal has been deposited with the Trustee (in accordance with
Section 7.l(c))); (ii) a default in the covenants contained in Section 5.6; or
(iii) in respect of a covenant or provision hereof which cannot be modified or
amended without the consent of the holder of each Outstanding Debenture
affected; provided, however, that if the Debentures are held by the Trust or a
trustee of the Trust, such waiver or modification to such waiver shall not be
effective until the holders of a majority in liquidation preference of Trust
Securities of the Trust shall have consented to such waiver or modification to
such waiver; provided further, that if the consent of the holder of each
Outstanding Debenture is required, such waiver shall not be effective until
each holder of the Trust Securities of the Trust shall have consented to such
waiver. Upon any such waiver, the default covered thereby shall be deemed to
be cured for all purposes of this Indenture and the Company, the Trustee and
the holders of the Debentures shall be restored to their former positions and
rights hereunder, respectively; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 7.7 UNDERTAKING TO PAY COSTS.
All parties to this Indenture agree, and each holder of any Debentures by such
holder's acceptance thereof shall be deemed to have agreed, that any court may
in its discretion require, in any suit for the enforcement of any right or
remedy under this Indenture, or in any suit against the Trustee for any action
taken or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may
in its discretion assess reasonable costs, including reasonable attorneys'
fees, against any party litigant in such suit, having due regard to the merits
and good faith of the claims or defenses made by such party litigant; but the
provisions of this Section 7.7 shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Debentureholder, or group of
Debentureholders holding more than 10% in aggregate principal amount of the
Outstanding Debentures, or to any suit instituted by any Debentureholder for
the enforcement of the payment of the
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principal of or interest on the Debentures, on or after the respective due
dates expressed in such Debenture or established pursuant to this Indenture.
ARTICLE VIII
FORM OF DEBENTURE AND ORIGINAL ISSUE
SECTION 8.1 FORM OF DEBENTURE.
The Debenture and the Trustee's Certificate of Authentication to be endorsed
thereon are to be substantially in the forms contained as Exhibit A attached
hereto and incorporated herein by reference.
SECTION 8.2 ORIGINAL ISSUE OF DEBENTURES.
Debentures in the aggregate principal amount of $_______________ may, upon
execution of this Indenture, be executed by the Company and delivered to the
Trustee for authentication, and the Trustee shall thereupon authenticate and
deliver said Debentures to or upon the written order of the Company, signed by
its Chairman, its Vice Chairman, its President, or any Vice President and its
Secretary or an Assistant Secretary, without any further action by the Company.
SECTION 8.3 GLOBAL DEBENTURES.
(a) Each Global Debenture issued under this Indenture shall be
registered in the name of the Depositary designated by the
Company for such Global Debenture or a nominee thereof and
delivered to such Depositary or a nominee thereof or custodian
thereof, and each such Global Debenture shall constitute a
single Debenture for all purposes of this Indenture.
(b) Notwithstanding any other provision in this Indenture, no
Global Debenture may be exchanged in whole or in part for
Debentures registered, and no transfer of a Global Debenture
in whole or in part may be registered, in the name of any
Person other than the Depositary for such Global Debenture or
a nominee thereof unless (i) such Depositary advises the
Trustee in writing that such Depositary is no longer willing
or able to properly discharge its responsibilities as
Depositary with respect to such Global Debenture, and the
Company is unable to locate a qualified successor, (ii) the
Company executes and delivers to the Trustee an Officers'
Certificate stating that the Company elects to terminate the
book-entry system through the Depositary, or (iii) there
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shall have occurred and be continuing an Event of Default.
(c) If any Global Debenture is to be exchanged for other
Debentures or cancelled in whole, it shall be surrendered by
or on behalf of the Depositary or its nominee to the Debenture
Registrar for exchange or cancellation as provided in this
Indenture. If any Global Debenture is to be exchanged for
other Debentures or cancelled in part, or if another Debenture
is to be exchanged in whole or in part for a beneficial
interest in any Global Debenture, then either (i) such Global
Debenture shall be so surrendered for exchange or cancellation
as provided in this Indenture or (ii) the principal amount
thereof shall be reduced or increased by an amount equal to
the portion thereof to be so exchanged or cancelled, or equal
to the principal amount of such other Debenture to be so
exchanged for a beneficial interest therein, as the case may
be, by means of an appropriate adjustment made on the records
of the Debenture Registrar, whereupon the Trustee, in
accordance with the Applicable Procedures, shall instruct the
Depositary or its authorized representative to make a
corresponding adjustment to its records. Upon any such
surrender or adjustment of a Global Debenture by the
Depositary, accompanied by registration instructions, the
Trustee shall, subject to the other provisions of this
Indenture, authenticate and deliver any Debentures issuable in
exchange for such Global Debenture (or any portion thereof) in
accordance with the instructions of the Depositary.
The Trustee shall not be liable for any delay in delivery of
such instructions and may conclusively rely on, and shall be
fully protected in relying on, such instructions.
(d) Every Debenture authenticated and delivered upon registration
of transfer of, or in exchange for or in lieu of, a Global
Debenture or any portion thereof, whether pursuant to this
Article VIII, Sections 2.5, 3.5 or 11.4 or otherwise, shall be
authenticated and delivered in the form of, and shall be, a
Global Debenture, unless such Debenture is registered in the
name of a Person other than the Depositary for such Global
Debenture or a nominee thereof.
(e) The Depositary or its nominee, as the registered owner of a
Global Debenture, shall be the Holder of such Global Debenture
for all purposes under this Indenture and the Debentures, and
owners of beneficial interests in a Global Debenture shall
hold such interests pursuant to the Applicable Procedures.
Accordingly, any such owner's
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beneficial interest in a Global Debenture shall be shown only
on, and the transfer of such interest shall be effected only
through, records maintained by the Depositary or its nominee
or agent. Neither the Trustee nor the Debenture Registrar
shall have any liability in respect of any transfers effected
by the Depositary.
(f) The rights of owners of beneficial interests in a Global
Debenture shall be exercised only through the Depositary and
shall be limited to those established by law and agreements
between such owners and the Depositary and/or its Agent
Members.
ARTICLE IX
CONCERNING THE TRUSTEE
SECTION 9.1 CERTAIN DUTIES AND RESPONSIBILITIES.
(a) The Trustee, prior to the occurrence of an Event of Default
and after the curing of all Events of Default that may have
occurred, shall undertake to perform with respect to the
Debentures such duties and only such duties as are
specifically set forth in this Indenture, and no implied
covenants shall be read into this Indenture against the
Trustee. In case an Event of Default has occurred that has
not been cured or waived, the Trustee shall exercise such of
the rights and powers vested in it by this Indenture, and use
the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in
the conduct of his own affairs.
(b) No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its
own negligent failure to act, or its own willful misconduct,
except that:
(1) prior to the occurrence of an Event of Default and after the
curing or waiving of all Events of Default that may have
occurred:
(i) the duties and obligations of the Trustee shall, with
respect to the Debentures, be determined solely by
the express provisions of this Indenture, and the
Trustee shall not be liable with respect to the
Debentures except for the performance of such duties
and obligations as are specifically set forth in this
Indenture, and no implied covenants
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or obligations shall be read into this Indenture
against the Trustee; and
(ii) in the absence of bad faith on the part of the
Trustee, the Trustee may with respect to the
Debentures conclusively rely, as to the truth of the
statements and the correctness of the opinions
expressed therein, upon any certificates or opinions
furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of
any such certificates or opinions that by any
provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under
a duty to examine the same to determine whether or
not they conform to the requirements of this
Indenture;
(2) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer or Responsible Officers
of the Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance
with the direction of the holders of not less than a majority
in principal amount of the Debentures at the time outstanding
relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee
under this Indenture with respect to the Debentures; and
(4) none of the provisions contained in this Indenture shall
require the Trustee to expend or risk its own funds or
otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any of
its rights or powers, if there is reasonable ground for
believing that the repayment of such funds or liability is not
reasonably assured to it under the terms of this Indenture or
adequate indemnity against such risk is not reasonably assured
to it.
SECTION 9.2 NOTICE OF DEFAULTS.
Within 90 days after actual knowledge by a Responsible Officer of the Trustee
of the occurrence of any default hereunder with respect to the Debentures, the
Trustee shall transmit by mail to all holders of the Debentures, as their names
and addresses appear in
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the Debenture Register, notice of such default, unless such default shall have
been cured or waived; provided, however, that, except in the case of any
default in the payment of the principal or interest (including any Additional
Interest) on any Debenture, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee or a
trust committee of the directors and/or Responsible Officers of the Trustee
determines in good faith that the withholding of such notice is in the
interests of the holders of such Debentures; and provided, further, that in the
case of any default of the character specified in section 7.l(a)(iii), no such
notice to holders of Debentures need be sent until at least 30 days after the
occurrence thereof. For the purposes of this Section 9.2, the term "default"
means any event which is, or after notice or lapse of time or both, would
become, an Event of Default with respect to the Debentures.
SECTION 9.3 CERTAIN RIGHTS OF TRUSTEE.
Except as otherwise provided in Section 9.1:
(a) The Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request,
consent, order, approval, bond, security or other paper or
document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(b) Any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by a Board
Resolution or an instrument signed in the name of the Company
by the President or any Vice President and by the
Secretary or an Assistant Secretary or the Treasurer or an
Assistant Treasurer thereof (unless other evidence in respect
thereof is specifically prescribed herein);
(c) The Trustee shall not be deemed to have knowledge of a default
or an Event of Default, other than an Event of Default
specified in Section 7.1(a)(i) or (ii), unless and until it
receives notification of such Event of Default from the
Company or by holders of at least 25% of the aggregate
principal amount of the Debentures at the time Outstanding;
(d) The Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action
taken or suffered or omitted hereunder in good faith and in
reliance thereon;
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(e) The Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the
request, order or direction of any of the Debentureholders,
pursuant to the provisions of this Indenture, unless such
Debentureholders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and
liabilities that may be incurred therein or thereby; nothing
contained herein shall, however, relieve the Trustee of the
obligation, upon the occurrence of an Event of Default (that
has not been cured or waived) to exercise with respect to the
Debentures such of the rights and powers vested in it by this
Indenture, and to use the same degree of care and skill in
their exercise, as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs;
(f) The Trustee shall not be liable for any action taken or
omitted to be taken by it in good faith and believed by it to
be authorized or within the discretion or rights or powers
conferred upon it by this Indenture;
(g) The Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request,
consent, order, approval, bond, security, or other papers or
documents, but the Trustee in its discretion may make such
inquiry or investigation into such facts or matters as it may
see fit, and, if the Trustee shall determine to make such
inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by
agent or attorney; and
(h) The Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of
any agent or attorney appointed with due care by it hereunder.
SECTION 9.4 TRUSTEE NOT RESPONSIBLE FOR RECITALS, ETC.
(a) The Recitals contained herein and in the Debentures, except
the certificates of authentication, shall be taken as the
statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same.
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(b) The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Debentures.
(c) The Trustee shall not be accountable for the use or
application by the Company of any of the Debentures or of the
proceeds of such Debentures, or for the use or application of
any moneys paid over by the Trustee in accordance with any
provision of this Indenture, or for the use or application of
any moneys received by any paying agent other than the
Trustee.
SECTION 9.5 MAY HOLD DEBENTURES.
The Trustee or any paying agent or registrar for the Debentures, in its
individual or any other capacity, may become the owner or pledgee of Debentures
and, subject to Sections 9.9 and 9.14, may otherwise deal with the Company with
the same rights it would have if it were not Trustee, paying agent or Debenture
Registrar.
SECTION 9.6 MONEYS HELD IN TRUST.
Subject to the provisions of Section 13.5, all moneys received by the Trustee
shall, until used or applied as herein provided, be held in trust for the
purposes for which they were received, but need not be segregated from other
funds except to the extent required by law. The Trustee shall be under no
liability for interest on any moneys received by it hereunder except such as it
may agree with the Company to pay thereon.
SECTION 9.7 COMPENSATION AND REIMBURSEMENT.
The Company covenants and agrees to pay to the Trustee, and the Trustee shall
be entitled to, such reasonable compensation (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust), as the Company and the Trustee may from time to time agree in writing,
for all services rendered by it in the execution of the trusts hereby created
and in the exercise and performance of any of the powers and duties hereunder
of the Trustee, and, except as otherwise expressly provided herein, the Company
shall pay or reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements of its counsel and
of all Persons not regularly in its employ) except any such expense,
disbursement or advance as may arise from its negligence or bad faith. The
Company also covenants to indemnify the Trustee (and its officers, agents,
directors and employees) for, and to hold it harmless against, any loss,
liability or expense incurred
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without negligence or bad faith on the part of the Trustee and arising out of
or in connection with the acceptance or administration of this trust, including
the costs and expenses of defending itself against any claim of liability in
the premises.
SECTION 9.8 RELIANCE ON OFFICERS' CERTIFICATE.
Except as otherwise provided in Section 9.1, whenever in the administration of
the provisions of this Indenture the Trustee shall deem it necessary or
desirable that a matter be proved or established prior to taking or suffering
or omitting to take any action hereunder, such matter (unless other evidence in
respect thereof be herein specifically prescribed) may, in the absence of
negligence or bad faith on the part of the Trustee, be deemed to be
conclusively proved and established by an Officers' Certificate delivered to
the Trustee and such certificate, in the absence of negligence or bad faith on
the part of the Trustee, shall be full warrant to the Trustee for any action
taken, suffered or omitted to be taken by it under the provisions of this
Indenture upon the faith thereof.
SECTION 9.9 DISQUALIFICATION: CONFLICTING INTERESTS.
If the Trustee has or shall acquire any "conflicting interest" within the
meaning of Section 310(b) of the Trust Indenture Act, the Trustee and the
Company shall in all respects comply with the provisions of Section 310(b) of
the Trust Indenture Act.
SECTION 9.10 CORPORATE TRUSTEE REQUIRED; ELIGIBILITY
There shall at all times be a Trustee with respect to the Debentures issued
hereunder which shall at all times be a corporation organized and doing
business under the laws of the United States of America or any State or
Territory thereof or of the District of Columbia or a corporation or other
Person permitted to act as trustee by the Commission, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least $50,000,000, and subject to supervision or examination by federal,
state, territorial, or District of Columbia authority. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section 9.10, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. The Company may not, nor
may any Person directly or indirectly controlling, controlled by, or under
common control with the Company, serve as Trustee. In case at any time the
Trustee shall cease to be eligible in accordance with the provisions of this
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Section 9.10, the Trustee shall resign immediately in the manner and with the
effect specified in Section 9.11.
SECTION 9.11 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) The Trustee or any successor hereafter appointed, may at any
time resign by giving written notice thereof to the Company
and by transmitting notice of resignation by mail, first class
postage prepaid, to the Debentureholders, as their names and
addresses appear upon the Debenture Register. Upon receiving
such notice of resignation, the Company shall promptly appoint
a successor trustee with respect to Debentures by written
instrument, in duplicate, executed by order of the Board of
Directors, one copy of which instrument shall be delivered to
the resigning Trustee and one copy to the successor trustee.
If no successor trustee shall have been so appointed and have
accepted appointment within 30 days after the mailing of such
notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a
successor trustee with respect to Debentures, or any
Debentureholder who has been a bona fide holder of a Debenture
or Debentures for at least six months may, subject to the
provisions of Section 9.9, on behalf of himself and all others
similarly situated, petition any such court for the
appointment of a successor trustee. Such court may thereupon
after such notice, if any, as it may deem proper and
prescribe, appoint a successor trustee.
(b) In case at any time any one of the following shall occur:
(i) the Trustee shall fail to comply with the provisions
of Section 9.9 after written request therefor by the
Company or by any Debentureholder who has been a
bona fide holder of a Debenture or Debentures for at
least six months; or
(ii) the Trustee shall cease to be eligible in accordance
with the provisions of Section 9.10 and shall fail to
resign after written request therefor by the Company
or by any such Debentureholder; or
(iii) the Trustee shall become incapable of acting, or
shall be adjudged a bankrupt or insolvent, or
commence a voluntary bankruptcy proceeding, or a
receiver of the Trustee or of
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its property shall be appointed or consented to, or
any public officer shall take charge or control of
the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or
liquidation, then, in any such case, the Company may
remove the Trustee with respect to all Debentures and
appoint a successor trustee by written instrument, in
duplicate, executed by order of the Board of
Directors, one copy of which instrument shall be
delivered to the Trustee so removed and one copy to
the successor trustee, or, subject to the provisions
of Section 9.9, unless the Trustee's duty to resign
is stayed as provided herein, any Debentureholder who
has been a bona fide holder of a Debenture or
Debentures for at least six months may, on behalf of
that holder and all others similarly situated,
petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a
successor trustee. Such court may thereupon after
such notice, if any, as it may deem proper and
prescribe, remove the Trustee and appoint a successor
trustee.
(c) The holders of a majority in aggregate principal amount of the
Debentures at the time Outstanding may at any time remove the
Trustee by so notifying the Trustee and the Company and may
appoint a successor Trustee with the consent of the Company.
(d) No resignation or removal of the Trustee and no appointment of
a successor trustee with respect to the Debentures pursuant to
any of the provisions of this Section 9.11 shall become
effective until acceptance of appointment by the successor
trustee as provided in Section 9.12.
SECTION 9.12 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor
trustee with respect to the Debentures, every successor
trustee so appointed shall execute, acknowledge and deliver to
the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective and
such successor trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor trustee, such retiring Trustee
shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor trustee all the
rights,
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xxxxxx, and trusts of the retiring Trustee and shall
duly assign, transfer and deliver to such successor trustee
all property and money held by such retiring Trustee
hereunder.
(b) Upon request of any successor trustee, the Company shall
execute any and all instruments for more fully and certainly
vesting in and confirming to such successor trustee all such
rights, powers and trusts referred to in paragraph (a) of this
Section 9.12.
(c) No successor trustee shall accept its appointment unless at
the time of such acceptance such successor trustee shall be
qualified and eligible under this Article IX.
(d) Upon acceptance of appointment by a successor trustee as
provided in this Section 9.12, the Company shall transmit
notice of the succession of such trustee hereunder by mail,
first class postage prepaid, to the Debentureholders, as their
names and addresses appear upon the Debenture Register. If
the Company fails to transmit such notice within ten days
after acceptance of appointment by the successor trustee, the
successor trustee shall cause such notice to be transmitted at
the expense of the Company.
SECTION 9.13 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or converted or with which
it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to the corporate trust business of the Trustee, shall be
the successor of the Trustee hereunder, provided that such corporation shall be
qualified under the provisions of Section 9.9 and eligible under the provisions
of Section 9.10, without the execution or filing of any paper or any further
act on the part of any of the parties hereto, anything herein to the contrary
notwithstanding. In case any Debentures shall have been authenticated, but not
delivered, by the Trustee then in office, any successor by merger, conversion
or consolidation to such authenticating Trustee may adopt such authentication
and deliver the Debentures so authenticated with the same effect as if such
successor Trustee had itself authenticated such Debentures.
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SECTION 9.14 PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE COMPANY.
The Trustee shall comply with Section 311(a) of the Trust Indenture Act,
excluding any creditor relationship described in Section 311(b) of the Trust
Indenture Act. A Trustee who has resigned or been removed shall be subject to
Section 311(a) of the Trust Indenture Act to the extent included therein.
ARTICLE X
CONCERNING THE DEBENTUREHOLDERS
SECTION 10.1 EVIDENCE OF ACTION BY HOLDERS.
(a) Whenever in this Indenture it is provided that the holders of
a majority or specified percentage in aggregate principal
amount of the Debentures may take any action (including the
making of any demand or request, the giving of any notice,
consent or waiver or the taking of any other action), the fact
that at the time of taking any such action the holders of such
majority or specified percentage have joined therein may be
evidenced by any instrument or any number of instruments of
similar tenor executed by such holders of Debentures in Person
or by agent or proxy appointed in writing.
(b) If the Company shall solicit from the Debentureholders any
request, demand, authorization, direction, notice, consent,
waiver or other action, the Company may, at its option, as
evidenced by an Officers' Certificate, fix in advance a record
date for the determination of Debentureholders entitled to
give such request, demand, authorization, direction, notice,
consent, waiver or other action, but the Company shall have no
obligation to do so. If such a record date is fixed, such
request, demand, authorization, direction, notice, consent,
waiver or other action may be given before or after the record
date, but only the Debentureholders of record at the close of
business on the record date shall be computed to be
Debentureholders for the purposes of determining whether
Debentureholders of the requisite proportion of Outstanding
Debentures have authorized or agreed or consented to such
request, demand, authorization, direction, notice, consent,
waiver or other action, and for that purpose the Outstanding
Debentures shall be computed as of the record date; provided,
however, that no such authorization, agreement or consent by
such Debentureholders on the record date shall be deemed
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effective unless it shall become effective pursuant to the
provisions of this Indenture not later than six months after
the record date.
SECTION 10.2 PROOF OF EXECUTION BY DEBENTUREHOLDERS.
Subject to the provisions of Section 9.1, proof of the execution of any
instrument by a Debentureholder (such proof shall not require notarization) or
his agent or proxy and proof of the holding by any Person of any of the
Debentures shall be sufficient if made in the following manner:
(a) The fact and date of the execution by any such Person of any
instrument may be proved in any reasonable manner acceptable
to the Trustee.
(b) The ownership of Debentures shall be proved by the Debenture
Register of such Debentures or by a certificate of the
Debenture Registrar thereof.
(c) The Trustee may require such additional proof of any matter
referred to in this Section 10.2 as it shall deem necessary.
SECTION 10.3 WHO MAY BE DEEMED OWNERS.
Prior to the due presentment for registration of transfer of any Debenture, the
Company, the Trustee, any paying agent, any Authenticating Agent and any
Debenture Registrar may deem and treat the Person in whose name such Debenture
shall be registered upon the books of the Company as the absolute owner of such
Debenture (whether or not such Debenture shall be overdue and notwithstanding
any notice of ownership or writing thereon made by anyone other than the
Debenture Registrar) for the purpose of receiving payment of or on account of
the principal of and interest on such Debenture (subject to Section 2.3) and
for all other purposes; and neither the Company nor the Trustee nor any paying
agent nor any Authenticating Agent nor any Debenture Registrar shall be
affected by any notice to the contrary.
No holder of any beneficial interest in any Global Debenture held on its behalf
by a Depositary shall have any rights under this Indenture with respect to such
Global Debenture, and such Depositary may be treated by the Company, the
Trustee and any agent of the Company or the Trustee as the owner of such Global
Debenture for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Company, the Trustee or any agent of the Company or
the Trustee from giving effect to any written certification, proxy or other
authorization furnished by a
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Depositary or impair, as between a Depositary and such holders of beneficial
interests, the operation of customary practices governing the exercise of the
rights of the Depositary (or its nominee) as holder of any Debenture.
SECTION 10.4 CERTAIN DEBENTURES OWNED BY COMPANY DISREGARDED.
In determining whether the holders of the requisite aggregate principal amount
of Debentures have concurred in any direction, consent or waiver under this
Indenture, the Debentures that are owned by the Company or any other obligor on
the Debentures or by any Person directly or indirectly controlling or
controlled by, or under common control with the Company or any other obligor on
the Debentures shall be disregarded and deemed not to be Outstanding for the
purpose of any such determination, except that for the purpose of determining
whether the Trustee shall be protected in relying on any such direction,
consent or waiver, only Debentures that the Trustee actually knows are so owned
shall be so disregarded. The Debentures so owned that have been pledged in
good faith may be regarded as Outstanding for the purposes of this Section
10.4, if the pledgee shall establish to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Debentures and that the pledgee
is not a Person directly or indirectly, controlling or controlled by, or under
direct or indirect common control with the Company or any such other obligor.
In case of a dispute as to such right, any decision by the Trustee taken upon
the advice of counsel shall be full protection to the Trustee.
SECTION 10.5 ACTIONS BINDING ON FUTURE DEBENTUREHOLDERS.
At any time prior to (but not after) the evidencing to the Trustee, as provided
in Section 10.1, of the taking of any action by the holders of the majority or
percentage in aggregate principal amount of the Debentures specified in this
Indenture in connection with such action, any holder of a Debenture that is
shown by the evidence to be included in the Debentures the holders of which
have consented to such action may, by filing written notice with the Trustee,
and upon proof of holding as provided in Section 10.2, revoke such action so
far as concerns such Debenture. Except as aforesaid any such action taken by
the holder of any Debenture shall be conclusive and binding upon such holder
and upon all future holders and owners of such Debenture, and of any Debenture
issued in exchange therefor, on registration of transfer thereof or in place
thereof, irrespective of whether or not any notation in regard thereto is made
upon such Debenture. Any action taken by the holders of the majority or
percentage in aggregate principal amount of the Debentures specified in this
Indenture in connection
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with such action shall be conclusively binding upon the Company, the Trustee
and the holders of all the Debentures.
ARTICLE XI
SUPPLEMENTAL INDENTURES
SECTION 11.1 SUPPLEMENTAL INDENTURES WITHOUT THE CONSENT OF
DEBENTUREHOLDERS.
In addition to any supplemental indenture otherwise authorized by this
Indenture, the Company and the Trustee may from time to time and at any time
enter into an indenture or indentures supplemental hereto (which shall conform
to the provisions of the Trust Indenture Act as then in effect), without the
consent of the Debentureholders, for one or more of the following purposes:
(a) to cure any ambiguity, defect, or inconsistency herein, or in
the Debentures;
(b) to comply with Article X;
(c) to provide for uncertificated Debentures in addition to or in
place of certificated Debentures;
(d) to add to the covenants of the Company for the benefit of the
holders of all or any of the Debentures or to surrender any
right or power herein conferred upon the Company;
(e) to evidence the succession of another corporation to the
Company, and the assumption by any such successor of the
covenants of the Company herein and in the Debentures
contained;
(f) to convey, transfer, assign, mortgage or pledge to or with the
Trustee any property or assets which the Company may desire to
convey, transfer, assign, mortgage or pledge;
(g) to add to, delete from, or revise the conditions, limitations,
and restrictions on the authorized amount, terms, or purposes
of issue, authentication, and delivery of Debentures, as
herein set forth;
(h) to make any change that does not adversely affect the rights
of any Debentureholder in any material respect;
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(i) to provide for the issuance of and establish the form and
terms and conditions of the Debentures, to establish the form
of any certifications required to be furnished pursuant to the
terms of this Indenture or of the Debentures, or to add to the
rights of the holders of the Debentures; or
(j) to qualify or maintain the qualification of this Indenture
under the Trust Indenture Act.
The Trustee is hereby authorized to join with the Company in the execution of
any such supplemental indenture, and to make any further appropriate agreements
and stipulations that may be therein contained, but the Trustee shall not be
obligated to enter into any such supplemental indenture that affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section 11.1
may be executed by the Company and the Trustee without the consent of the
holders of any of the Debentures at the time Outstanding, notwithstanding any
of the provisions of Section 11.2.
SECTION 11.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF DEBENTUREHOLDERS.
With the consent (evidenced as provided in Section 10.1) of the holders of not
less than a majority in aggregate principal amount of the Debentures at the
time Outstanding, the Company, when authorized by Board Resolutions, and the
Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act as then in effect) for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this
Indenture or of any supplemental indenture or of modifying in any manner not
covered by Section 11.1 the rights of the holders of the Debentures under this
Indenture; provided, however, that no such supplemental indenture shall without
the consent of the holders of each Debenture then Outstanding and affected
thereby, (i) extend the fixed maturity of any Debentures, reduce the principal
amount thereof, or reduce the rate or extend the time of payment of interest
thereon (other than the Company's right to defer interest pursuant to this
Indenture), without the consent of the holder of each Debenture so affected; or
(ii) reduce the aforesaid percentage of Debentures, the holders of which are
required to consent to any such supplemental indenture; provided further, that
if the Debentures are held by the Trust or a trustee of the Trust, such
supplemental indenture shall not be effective until the holders of a majority
in liquidation preference of Trust Securities of the Trust shall have consented
to such supplemental indenture; provided further, that if the consent of
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the holder of each Outstanding Debenture is required, such supplemental
indenture shall not be effective until each holder of the Trust Securities of
the Trust shall have consented to such supplemental indenture. It shall not be
necessary for the consent of the Debentureholders affected thereby under this
Section 11.2 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
SECTION 11.3 EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture pursuant to the provisions of
this Article XI, this Indenture shall be and be deemed to be modified and
amended in accordance therewith and the respective rights, limitations of
rights, obligations, duties and immunities under this Indenture of the Trustee,
the Company and the holders of Debentures shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such modifications
and amendments, and all the terms and conditions of any such supplemental
indenture shall be and be deemed to be part of the terms and conditions of this
Indenture for any and all purposes.
SECTION 11.4 DEBENTURES AFFECTED BY SUPPLEMENTAL INDENTURES.
Debentures affected by a supplemental indenture, authenticated and delivered
after the execution of such supplemental indenture pursuant to the provisions
of this Article XI, may bear a notation in form approved by the Company,
provided such form meets the requirements of any exchange upon which the
Debentures may be listed, as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Debentures so modified as to
conform, in the opinion of the Board of Directors of the Company, to any
modification of this Indenture contained in any such supplemental indenture may
be prepared by the Company, authenticated by the Trustee and delivered in
exchange for the Debentures then Outstanding.
SECTION 11.5 EXECUTION OF SUPPLEMENTAL INDENTURES.
(a) Upon the request of the Company, accompanied by their Board
Resolutions authorizing the execution of any such supplemental
indenture, and upon the filing with the Trustee of evidence of
the consent of Debentureholders required to consent thereto as
aforesaid, the Trustee shall join with the Company in the
execution of such supplemental indenture unless such
supplemental indenture affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise, in
which case the Trustee may in its discretion but shall not be
obligated
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to enter into such supplemental indenture. The Trustee,
subject to the provisions of Section 9.1, may receive an
Opinion of Counsel as conclusive evidence that any
supplemental indenture executed pursuant to this Article XI is
authorized or permitted by, and conforms to, the terms of this
Article XI and that it is proper for the Trustee under the
provisions of this Article XI to join in the execution
thereof.
(b) Promptly after the execution by the Company and the Trustee of
any supplemental indenture pursuant to the provisions of this
Section 11.5, the Trustee shall transmit by mail, first class
postage prepaid, a notice, setting forth in general terms the
substance of such supplemental indenture, to the
Debentureholders as their names and addresses appear upon the
Debenture Register. Any failure of the Trustee to mail such
notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental
indenture.
ARTICLE XII
SUCCESSOR CORPORATION
SECTION 12.1 COMPANY MAY CONSOLIDATE, ETC.
Nothing contained in this Indenture or in any of the Debentures shall prevent
any consolidation or merger of the Company with or into any other corporation
or corporations (whether or not affiliated with the Company, as the case may
be), or successive consolidations or mergers in which the Company, as the case
may be, or its successor or successors shall be a party or parties, or shall
prevent any sale, conveyance, transfer or other disposition of the property of
the Company, as the case may be, or its successor or successors as an entirety,
or substantially as an entirety, to any other corporation (whether or not
affiliated with the Company, as the case may be, or its successor or
successors) authorized to acquire and operate the same; provided, however, the
Company hereby covenants and agrees that, (i) upon any such consolidation,
merger, sale, conveyance, transfer or other disposition, the due and punctual
payment, in the case of the Company, of the principal of and interest on all of
the Debentures, according to their tenor and the due and punctual performance
and observance of all the covenants and conditions of this Indenture to be kept
or performed by the Company as the case may be, shall be expressly assumed, by
supplemental indenture (which shall conform to the provisions of the Trust
Indenture Act, as then in effect) satisfactory in form to the Trustee executed
and delivered to the Trustee by the entity formed by such consolidation, or
into which
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the Company, as the case may be, shall have been merged, or by the entity which
shall have acquired such property; (ii) in case the Company consolidates with
or merges into another Person or conveys or transfers its properties and assets
substantially then as an entirety to any Person, the successor Person is
organized under the laws of the United States or any state or the District of
Columbia; and (iii) immediately after giving effect thereto, no Event of
Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have occurred and be continuing.
SECTION 12.2 SUCCESSOR CORPORATION SUBSTITUTED.
(a) In case of any such consolidation, merger, sale, conveyance,
transfer or other disposition and upon the assumption by the
successor corporation, by supplemental indenture, executed and
delivered to the Trustee and satisfactory in form to the
Trustee, of, in the case of the Company, the due and punctual
payment of the principal of and interest on all of the
Debentures Outstanding and the due and punctual performance of
all of the covenants and conditions of this Indenture to be
performed by the Company, as the case may be, such successor
corporation shall succeed to and be substituted for the
Company, with the same effect as if it had been named as the
Company herein, and thereupon the predecessor corporation
shall be relieved of all obligations and covenants under this
Indenture and the Debentures.
(b) In case of any such consolidation, merger, sale, conveyance,
transfer or other disposition such changes in phraseology and
form (but not in substance) may be made in the Debentures
thereafter to be issued as may be appropriate.
(c) Nothing contained in this Indenture or in any of the
Debentures shall prevent the Company from acquiring by
purchase or otherwise all or any part of the property of any
other Person (whether or not affiliated with the Company).
SECTION 12.3 EVIDENCE OF CONSOLIDATION, ETC. TO TRUSTEE.
The Trustee, subject to the provisions of Section 9.1 , may receive an Opinion
of Counsel as conclusive evidence that any such consolidation, merger, sale,
conveyance, transfer or other disposition, and any such assumption, comply with
the provisions of this Article XII.
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ARTICLE XIII
SATISFACTION AND DISCHARGE
SECTION 13.1 SATISFACTION AND DISCHARGE OF INDENTURE.
If at any time: (a) the Company shall have delivered to the Trustee for
cancellation all Debentures theretofore authenticated (other than any
Debentures that shall have been destroyed, lost or stolen and that shall have
been replaced or paid as provided in Section 2.8) and Debentures for whose
payment money or Governmental Obligations have theretofore been deposited in
trust or segregated and held in trust by the Company (and thereupon repaid to
the Company or discharged from such trust, as provided in Section 13.5); or (b)
all such Debentures not theretofore delivered to the Trustee for cancellation
shall have become due and payable, or are by their terms to become due and
payable within one year or are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving of notice of
redemption, and the Company shall deposit or cause to be deposited with the
Trustee as trust funds the entire amount in moneys or Governmental Obligations
sufficient or a combination thereof, sufficient in the opinion of a nationally
recognized firm of independent public accountants expressed in written
certification thereof delivered to the Trustee, to pay at maturity or upon
redemption all Debentures not theretofore delivered to the Trustee for
cancellation, including principal and interest due or to become due to such
date of maturity or date fixed for redemption, as the case may be, and if the
Company shall also pay or cause to be paid all other sums payable hereunder by
the Company; then this Indenture shall thereupon cease to be of further effect
except for the provisions of Sections 2.3, 2.6, 2.8, 5.1, 5.2, 5.3 and 9.10,
that shall survive until the date of maturity or redemption date, as the case
may be, and Sections 9.6 and 13.5, that shall survive to such date and
thereafter, and the Trustee, on demand of the Company and at the cost and
expense of the Company, shall execute proper instruments acknowledging
satisfaction of and discharging this Indenture.
SECTION 13.2 DISCHARGE OF OBLIGATIONS.
If at any time all Debentures not heretofore delivered to the Trustee for
cancellation or that have not become due and payable as described in Section
13.1 shall have been paid by the Company by depositing irrevocably with the
Trustee as trust funds moneys or an amount of Governmental Obligations
sufficient to pay at maturity or upon redemption all Debentures not theretofore
delivered to the Trustee for cancellation, including principal and interest due
or
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to become due to such date of maturity or date fixed for redemption, as the
case may be, and if the Company shall also pay or cause to be paid all other
sums payable hereunder by the Company, then after the date such moneys or
Governmental Obligations, as the case may be, are deposited with the Trustee,
the obligations of the Company under this Indenture shall cease to be of
further effect except for the provisions of Sections 2.3, 2.6, 2.8, 5.1, 5.2,
5.3, 9.6, 9.10 and 13.5 hereof that shall survive until such Debentures shall
mature and be paid. Thereafter, Sections 9.6 and 13.5 shall survive.
SECTION 13.3 DEPOSITED MONEYS TO BE HELD IN TRUST.
All monies or Governmental Obligations deposited with the Trustee pursuant to
Sections 13.1 or 13.2 shall be held in trust and shall be available for payment
as due, either directly or through any paying agent (including the Company
acting as its own paying agent), to the holders of the Debentures for the
payment or redemption of which such moneys or Governmental Obligations have
been deposited with the Trustee.
SECTION 13.4 PAYMENT OF MONIES HELD BY PAYING AGENTS.
In connection with the satisfaction and discharge of this Indenture, all moneys
or Governmental Obligations then held by any paying agent under the provisions
of this Indenture shall, upon demand of the Company, be paid to the Trustee and
thereupon such paying agent shall be released from all further liability with
respect to such moneys or Governmental Obligations.
SECTION 13.5 REPAYMENT TO COMPANY.
Any monies or Governmental Obligations deposited with any paying agent or the
Trustee, or then held by the Company in trust, for payment of principal of or
interest on the Debentures that are not applied but remain unclaimed by the
holders of such Debentures for at least two years after the date upon which the
principal of or interest on such Debentures shall have respectively become due
and payable, shall be repaid to the Company, as the case may be, on May 31 of
each year or (if then held by the Company) shall be discharged from such trust;
and thereupon the paying agent and the Trustee shall be released from all
further liability, with respect to such money's or Governmental Obligations,
and the holder of any of the Debentures entitled to receive such payment shall
thereafter, as an unsecured general creditor, look only to the Company for the
payment thereof.
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ARTICLE XIV
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS
AND DIRECTORS
SECTION 14.1 NO RECOURSE.
No recourse under or upon any obligation, covenant or agreement of this
Indenture, or of the Debentures, or for any claim based thereon or otherwise in
respect thereof, shall be had against any incorporator, stockholder, officer or
director, past, present or future as such, of the Company or of any predecessor
or successor corporation, either directly or through the Company or any such
predecessor or successor corporation, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise; it being expressly understood that this Indenture and the
obligations issued hereunder are solely corporate obligations, and that no such
personal liability whatever shall attach to, or is or shall be incurred by, the
incorporators, stockholders, officers or directors as such, of the Company or
of any predecessor or successor corporation, or any of them, because of the
creation of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any of
the Debentures or implied therefrom; and that any and all such personal
liability of every name and nature, either at common law or in equity or by
constitution or statute, of, and any and all such rights and claims against,
every such incorporator, stockholder, officer or director as such, because of
the creation of the indebtedness hereby authorized, or under or by reason of
the obligations, covenants or agreements contained in this Indenture or in any
of the Debentures or implied therefrom, are hereby expressly waived and
released as a condition of, and as a consideration for, the execution of this
Indenture and the issuance of such Debentures.
ARTICLE XV
MISCELLANEOUS PROVISIONS
SECTION 15.1 EFFECT ON SUCCESSORS AND ASSIGNS.
All the covenants, stipulations, promises and agreements in this Indenture
contained by or on behalf of the Company shall bind their respective successors
and assigns, whether so expressed or not.
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SECTION 15.2 ACTIONS BY SUCCESSOR.
Any act or proceeding by any provision of this Indenture authorized or required
to be done or performed by any board, committee or officer of the Company shall
and may be done and performed with like force and effect by the corresponding
board, committee or officer of any corporation that shall at the time be the
lawful sole successor of the Company.
SECTION 15.3 SURRENDER OF COMPANY POWERS.
The Company by instrument in writing executed by appropriate authority of its
Board of Directors and delivered to the Trustee may surrender any of the powers
reserved to the Company, and thereupon such power so surrendered shall
terminate both as to the Company, as the case may be, and as to any successor
corporation.
SECTION 15.4 NOTICES.
Except as otherwise expressly provided herein any notice or demand that by any
provision of this Indenture is required or permitted to be given or served by
the Trustee or by the holders of Debentures to or on the Company may be given
or served by being deposited first class postage prepaid in a post-office
letter box addressed(until another address is filed in writing by the Company
with the Trustee), as follows: Republic Bancshares, Inc., 000 Xxxxxx Xxxxxx,
X.X., Xxxxx Xxxxxxxxxx, Xxxxxxx 00000, Attention: Secretary. Any notice,
election, request or demand by the Company or any Debentureholder to or upon
the Trustee shall be deemed to have been sufficiently given or made, for all
purposes, if given or made in writing at the Corporate Trust Office of the
Trustee.
SECTION 15.5 GOVERNING LAW.
This Indenture and each Debenture shall be deemed to be a contract made under
the internal laws of the State of Florida and for all purposes shall be
construed in accordance with the laws of said State.
SECTION 15.6 TREATMENT OF DEBENTURES AS DEBT.
It is intended that the Debentures shall be treated as indebtedness and not as
equity for federal income tax purposes. The provisions of this Indenture shall
be interpreted to further this intention.
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SECTION 15.7 COMPLIANCE CERTIFICATES AND OPINIONS.
(a) Upon any application or demand by the Company to the Trustee
to take any action under any of the provisions of this
Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent
provided for in this Indenture relating to the proposed action
have been complied with and an Opinion of Counsel stating that
in the opinion of such counsel all such conditions precedent
have been complied with, except that in the case of any such
application or demand as to which the furnishing of such
documents is specifically required by any provision of this
Indenture relating to such particular application or demand,
no additional certificate or opinion need be furnished.
(b) Each certificate or opinion of the Company provided for in
this Indenture and delivered to the Trustee with respect to
compliance with a condition or covenant in this Indenture
shall include (1) a statement that the Person making such
certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he has
made such examination or investigation as, in the opinion of
such Person, is necessary to enable him to express an informed
opinion as to whether or not such covenant or condition has
been complied with; and (4) a statement as to whether or not,
in the opinion of such Person, such condition or covenant has
been complied with.
SECTION 15.8 PAYMENTS ON BUSINESS DAYS.
In any case where the date of maturity of interest or principal of any
Debenture or the date of redemption of any Debenture shall not be a Business
Day, then payment of interest or principal may (subject to Section 2.4) be made
on the next succeeding Business Day with the same force and effect as if made
on the nominal date of maturity or redemption, and no interest shall accrue for
the period after such nominal date.
SECTION 15.9 CONFLICT WITH TRUST INDENTURE ACT.
If and to the extent that any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by Sections 310 to 317, inclusive, of the
Trust Indenture Act, such imposed duties shall control.
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SECTION 15.10 COUNTERPARTS.
This Indenture may be executed in any number of counterparts, each of which
shall be an original, but such counterparts shall together constitute but one
and the same instrument.
SECTION 15.11 SEPARABILITY.
In case any one or more of the provisions contained in this Indenture or in the
Debentures shall for any reason be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not
affect any other provisions of this Indenture or of the Debentures, but this
Indenture and the Debentures shall be construed as if such invalid or illegal
or unenforceable provision had never been contained herein or therein.
SECTION 15.12 ASSIGNMENT.
The Company shall have the right at all times to assign any of its respective
rights or obligations under this Indenture to a direct or indirect wholly owned
Subsidiary of the Company, provided that, in the event of any such assignment,
the Company shall remain liable for all such obligations. Subject to the
foregoing, this Indenture is binding upon and inures to the benefit of the
parties hereto and their respective successors and assigns. This Indenture may
not otherwise be assigned by the parties hereto.
SECTION 15.13 ACKNOWLEDGMENT OF RIGHTS.
The Company acknowledges that, with respect to any Debentures held by the Trust
or a trustee of the Trust, if the Property Trustee fails to enforce its rights
under this Indenture as the holder of the Debentures held as the assets of the
Trust, any holder of Preferred Securities may institute legal proceedings
directly against the Company to enforce such Property Trustee's rights under
this Indenture without first instituting any legal proceedings against such
Property Trustee or any other person or entity. Notwithstanding the foregoing,
if an Event of Default has occurred and is continuing and such event is
attributable to the failure of the Company to pay interest or principal on the
Debentures on the date such interest or principal is otherwise payable (or in
the case of redemption, on the redemption date), the Company acknowledges that
a holder of Preferred Securities may directly institute a proceeding for
enforcement of payment to such holder of the principal of or interest on the
Debentures having a principal amount equal to the aggregate liquidation amount
of the Preferred Securities of such holder on or after the respective due date
specified in the Debentures.
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ARTICLE XVI
SUBORDINATION OF DEBENTURES
SECTION 16.1 AGREEMENT TO SUBORDINATE.
The Company covenants and agrees, and each holder of Debentures issued
hereunder by such holder's acceptance thereof likewise covenants and agrees,
that all Debentures shall be issued subject to the provisions of this Article
XVI; and each holder of a Debenture, whether upon original issue or upon
transfer or assignment thereof, accepts and agrees to be bound by such
provisions. The payment by the Company of the principal of and interest on all
Debentures issued hereunder shall, to the extent and in the manner hereinafter
set forth, be subordinated and junior in right of payment to the prior payment
in full of all Senior Debt and Subordinated Debt (collectively, "Senior
Indebtedness") to the extent provided herein, whether outstanding at the date
of this Indenture or thereafter incurred. No provision of this Article XVI
shall prevent the occurrence of any default or Event of Default hereunder.
SECTION 16.2 DEFAULT ON SENIOR DEBT OR SUBORDINATED DEBT.
In the event and during the continuation of any default by the Company in the
payment of principal, premium, interest or any other payment due on any Senior
Indebtedness of the Company, or in the event that the maturity of any Senior
Indebtedness of the Company has been accelerated because of a default, then, in
either case, no payment shall be made by the Company with respect to the
principal (including redemption payments) of or interest on the Debentures. In
the event that, notwithstanding the foregoing, any payment shall be received by
the Trustee when such payment is prohibited by the preceding sentence of this
Section 16.2, such payment shall be held in trust for the benefit of, and shall
be paid over or delivered to, the holders of Senior Indebtedness or their
respective representatives, or to the trustee or trustees under any indenture
pursuant to which any of such Senior Indebtedness may have been issued, as
their respective interests may appear, but only to the extent that the holders
of the Senior Indebtedness (or their representative or representatives or a
trustee) notify the Trustee in writing within 90 days of such payment of the
amounts then due and owing on the Senior Indebtedness and only the amounts
specified in such notice to the Trustee shall be paid to the holders of Senior
Indebtedness.
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SECTION 16.3 LIQUIDATION; DISSOLUTION; BANKRUPTCY.
(a) Upon any payment by the Company or distribution of assets of
the Company of any kind or character, whether in cash,
property or securities, to creditors upon any dissolution or
winding-up or liquidation or reorganization of the Company,
whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other proceedings, all amounts due upon all
Senior Indebtedness of the Company shall first be paid in
full, or payment thereof provided for in money in accordance
with its terms, before any payment is made by the Company on
account of the principal or interest on the Debentures; and
upon any such dissolution or winding-up or liquidation or
reorganization, any payment by the Company, or distribution of
assets of the Company of any kind or character, whether
in cash, property or securities, to which the holders of the
Debentures or the Trustee would be entitled to receive from
the Company, except for the provisions of this Article XVI,
shall be paid by the Company or by any receiver, trustee in
bankruptcy, liquidating trustee, agent or other Person making
such payment or distribution, or by the holders of the
Debentures or by the Trustee under this Indenture if received
by them or it, directly to the holders of Senior Indebtedness
of the Company (pro rata to such holders on the basis of the
respective amounts of Senior Indebtedness held by such
holders, as calculated by the Company) or their representative
or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing such
Senior Indebtedness may have been issued, as their respective
interests may appear, to the extent necessary to pay such
Senior Indebtedness in full, in money or money's worth, after
giving effect to any concurrent payment or distribution to or
for the holders of such Senior Indebtedness, before any
payment or distribution is made to the holders of Debentures
or to the Trustee.
(b) In the event that, notwithstanding the foregoing, any payment
or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, prohibited
by the foregoing, shall be received by the Trustee before all
Senior Indebtedness of the Company is paid in full, or
provision is made for such payment in money in accordance with
its terms, such payment or distribution shall be held in trust
for the benefit of and shall be paid over or delivered to the
holders of such Senior Indebtedness or their
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representative or representatives, or to the trustee or
trustees under any indenture pursuant to which any instruments
evidencing such Senior Indebtedness may have been issued, as
their respective interests may appear, as calculated by the
Company, for application to the payment of all Senior
Indebtedness of the Company, as the case may be, remaining
unpaid to the extent necessary to pay such Senior Indebtedness
in full in money in accordance with its terms, after giving
effect to any concurrent payment or distribution to or for the
benefit of the holders of such Senior Indebtedness.
(c) For purposes of this Article XVI, the words "cash, property or
securities" shall not be deemed to include shares of stock of
the Company as reorganized or readjusted, or securities of the
Company or any other corporation provided for by a plan of
reorganization or readjustment, the payment of which is
subordinated at least to the extent provided in this Article
XVI with respect to the Debentures to the payment of all
Senior Indebtedness of the Company, as the case may be, that
may at the time be outstanding, provided that (i) such Senior
Indebtedness is assumed by the new corporation, if any,
resulting from any such reorganization or readjustment; and
(ii) the rights of the holders of such Senior Indebtedness are
not, without the consent of such holders, altered by such
reorganization or readjustment. The consolidation of the
Company with, or the merger of the Company into, another
corporation or the liquidation or dissolution of the Company
following the conveyance or transfer of its property as an
entirety, or substantially as an entirety, to another
corporation upon the terms and conditions provided for in
Article XII shall not be deemed a dissolution, winding-up,
liquidation or reorganization for the purposes of this Section
16.3 if such other corporation shall, as a part of such
consolidation, merger, conveyance or transfer, comply with the
conditions stated in Article XII. Nothing in Section 16.2 or
in this Section 16.3 shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 9.7.
SECTION 16.4 SUBROGATION.
(a) Subject to the payment in full of all Senior Indebtedness of
the Company, the rights of the holders of the Debentures shall
be subrogated to the rights of the holders of such Senior
Indebtedness to receive payments or distributions of cash,
property or securities of the
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Company, as the case may be, applicable to such Senior
Indebtedness until the principal of and interest on the
Debentures shall be paid in full; and for the purposes of such
subrogation, no payments or distributions to the holders of
such Senior Indebtedness of any cash, property or securities
to which the holders of the Debentures or the Trustee would be
entitled except for the provisions of this Article XVI, and
no payment over pursuant to the provisions of this Article XVI
to or for the benefit of the holders of such Senior
Indebtedness by holders of the Debentures or the Trustee,
shall, as between the Company, its creditors other than
holders of Senior Indebtedness of the Company, and the holders
of the Debentures, be deemed to be a payment by the Company to
or on account of such Senior Indebtedness. It is understood
that the provisions of this Article XVI are and are intended
solely for the purposes of defining the relative rights of the
holders of the Debentures, on the one hand, and the
holders of such Senior Indebtedness on the other hand.
(b) Nothing contained in this Article XVI or elsewhere in this
Indenture or in the Debentures is intended to or shall impair,
as between the Company, its creditors (other than the holders
of Senior Indebtedness of the Company), and the holders of the
Debentures, the obligation of the Company, which is absolute
and unconditional, to pay to the holders of the Debentures the
principal of and interest on the Debentures as and when the
same shall become due and payable in accordance with their
terms, or is intended to or shall affect the relative rights
of the holders of the Debentures and creditors of the Company,
as the case may be, other than the holders of Senior
Indebtedness of the Company, nor shall anything herein or
therein prevent the Trustee or the holder of any Debenture
from exercising all remedies otherwise permitted by applicable
law upon default under this Indenture, subject to the rights,
if any, under this Article XVI of the holders of such Senior
Indebtedness in respect of cash, property or securities of the
Company, as the case may be, received upon the exercise of any
such remedy.
(c) Upon any payment or distribution of assets of the Company
referred to in this Article XVI, the Trustee, subject to the
provisions of Article IX, and the holders of the Debentures
shall be entitled to conclusively rely upon any order or
decree made by any court of competent jurisdiction in which
such dissolution, winding-up, liquidation or reorganization
proceedings are pending, or
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a certificate of the receiver, trustee in bankruptcy,
liquidation trustee, agent or other Person making such payment
or distribution, delivered to the Trustee or to the holders of
the Debentures, for the purposes of ascertaining the Persons
entitled to participate in such distribution, the
holders of Senior Indebtedness and other indebtedness of the
Company, as the case may be, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and
all other facts pertinent thereto or to this Article XVI.
SECTION 16.5 TRUSTEE TO EFFECTUATE SUBORDINATION.
Each holder of Debentures by such holder's acceptance thereof authorizes and
directs the Trustee on such holder's behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article XVI and appoints the Trustee such holder's attorney-in-fact for any and
all such purposes.
SECTION 16.6 NOTICE BY THE COMPANY.
(a) The Company shall give prompt written notice to a Responsible
Officer of the Trustee of any fact known to the Company that
would prohibit the making of any payment of monies to or by
the Trustee in respect of the Debentures pursuant to the
provisions of this Article XVI. Notwithstanding the
provisions of this Article XVI or any other provisions of this
Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts that would prohibit the making of
any payment of monies to or by the Trustee in respect of the
Debentures pursuant to the provisions of this Article XVI,
unless and until a Responsible Office of the Trustee shall
have received written notice thereof from the Company or a
holder or holders of Senior Indebtedness or from any trustee
therefor, and before the receipt of any such written notice,
the Trustee, subject to the provisions of Section 9.1, shall
be entitled in all respects to assume that no such facts
exist; provided, however, that if the Trustee shall not have
received the notice provided for in this Section 16.6 at least
two Business Days prior to the date upon which by the terms
hereof any money may become payable for any purpose
(including, without limitation, the payment of the principal
of or interest on any Debenture), then, anything herein
contained to the contrary notwithstanding, the Trustee shall
have full power and authority to receive such money and to
apply the same to the purposes for which they were received,
and shall not
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be affected by any notice to the contrary that may be
received by it within two Business Days prior to such date.
(b) The Trustee, subject to the provisions of Section 9.1, shall
be entitled to conclusively rely on the delivery to it of a
written notice by a Person representing himself to be a holder
of Senior Indebtedness of the Company (or a trustee on behalf
of such holder) to establish that such notice has been given
by a holder of such Senior Indebtedness or a trustee on behalf
of any such holder or holders. In the event that the Trustee
determines in good faith that further evidence is required
with respect to the right of any Person as a holder of such
Senior Indebtedness to participate in any payment or
distribution pursuant to this Article XVI, the Trustee may
request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of such Senior
Indebtedness held by such Person, the extent to which such
Person is entitled to participate in such payment or
distribution and any other facts pertinent to the rights of
such Person under this Article XVI, and, if such evidence is
not furnished, the Trustee may defer any payment to such
Person pending judicial determination as to the right of such
Person to receive such payment.
SECTION 16.7 RIGHTS OF THE TRUSTEE; HOLDERS OF SENIOR INDEBTEDNESS.
(a) The Trustee in its individual capacity shall be entitled to
all the rights set forth in this Article XVI in respect of any
Senior Indebtedness at any time held by it, to the same extent
as any other holder of Senior Indebtedness, and nothing in
this Indenture shall deprive the Trustee of any of its rights
as such holder. The Trustee's right to compensation and
reimbursement of expenses as set forth in Section 9.7 shall
not be subject to the subordination provisions of the Article
XVI.
(b) With respect to the holders of Senior Indebtedness of the
Company, the Trustee undertakes to perform or to observe only
such of its covenants and obligations as are specifically set
forth in this Article XVI, and no implied covenants or
obligations with respect to the holders of such Senior
Indebtedness shall be read into this Indenture against the
Trustee. The Trustee shall not be deemed to have any
fiduciary duty to the holders of such Senior Indebtedness and,
subject to the
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provisions of Section 9.1, the Trustee shall not be liable to any holder of
such Senior Indebtedness if it shall in good faith mistakenly pay over or
deliver to holders of Debentures, the Company or any other Person money or
assets to which any holder of such Senior Indebtedness shall be entitled by
virtue of this Article XVI or otherwise.
SECTION 16.8 SUBORDINATION MAY NOT BE IMPAIRED.
(a) No right of any present or future holder of any Senior
Indebtedness of the Company to enforce subordination as herein
provided shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the
Company or by any act or failure to act, in good faith, by any
such holder, or by any noncompliance by the Company with the
terms, provisions and covenants of this Indenture, regardless
of any knowledge thereof that any such holder may have or
otherwise be charged with.
(b) Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Indebtedness of the Company
may, at any time and from time to time, without the consent of
or notice to the Trustee or the holders of the Debentures,
without incurring responsibility to the holders of the
Debentures and without impairing or releasing the
subordination provided in this Article XVI or the obligations
hereunder of the holders of the Debentures to the holders of
such Senior Indebtedness, do any one or more of the following:
(i) change the manner, place or terms of payment or extend the
time of payment of, or renew or alter, such Senior
Indebtedness, or otherwise amend or supplement in any manner
such Senior Indebtedness or any instrument evidencing the same
or any agreement under which such Senior Indebtedness is
outstanding; (ii) sell, exchange, release or otherwise deal
with any property pledged, mortgaged or otherwise securing
such Senior Indebtedness; (iii) release any Person liable in
any manner for the collection of such Senior Indebtedness; and
(iv) exercise or refrain from exercising any rights against
the Company and any other Person.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
REPUBLIC BANCSHARES, INC.
By:_____________________________________
Name:___________________________________
Title:__________________________________
Attest: _____________________
WILMINGTON TRUST COMPANY, as trustee
By:_____________________________________
Name:___________________________________
Title:__________________________________
Attest: _____________________
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EXHIBIT A
(FORM OF FACE OF DEBENTURE)
No. _______________ $________________
CUSIP No. ------------------------
REPUBLIC BANCSHARES, INC.
___ % JUNIOR SUBORDINATED DEBENTURE
DUE ____________, 2027
Republic Bancshares, Inc., a Florida corporation (the "Company," which term
includes any successor corporation under the Indenture hereinafter referred
to), for value received, hereby promises to pay to, __________ or registered
assigns, the principal sum of _____________________ Dollars ($__________) on
_____________, 2027 (the "Stated Maturity"), and to pay interest on said
principal sum from ______________, 1997, or from the most recent interest
payment date (each such date, an "Interest Payment Date") to which interest has
been paid or duly provided for, quarterly (subject to deferral as set forth
herein) in arrears on March 31, June 30, September 30 and December 31 of each
year commencing _______________, 1997, at the rate of ___% per annum until the
principal hereof shall have become due and payable, and on any overdue
principal and (without duplication) on any overdue installment of interest at
the same rate per annum compounded quarterly. The amount of interest payable
on any Interest Payment Date shall be computed on the basis of a 360-day year
of twelve 30-day months. In the event that any date on which interest is
payable on this Debenture is not a business day, then payment of interest
payable on such date shall be made on the next succeeding day that is a
business day (and without any interest or other payment in respect of any such
delay), except that, if such business day is in the next succeeding calendar
year, such payment shall be made on the preceding business day, in each case
with the same force and effect as if made on such date. The interest
installment so payable, and punctually, paid or duly provided for, on any
Interest Payment Date shall, as provided in the Indenture, be paid to the
person in whose name this Debenture (or one or more Predecessor Debentures, as
defined in said Indenture) is registered at the close of business on the
regular record date for such interest installment, which shall be the close of
business on the business day next preceding such Interest Payment Date unless
otherwise provided in the Indenture. Any such interest installment not
punctually paid or duly provided for shall forthwith cease to be payable to the
registered holders on such regular record date and may be paid to the Person in
whose name this Debenture (or one or more Predecessor Debentures) is registered
at the close of business on a special record date to be
Exhibit A-1
80
fixed by the Trustee for the payment of such defaulted interest, notice whereof
shall be given to the registered holders of the Debentures not less than 10
days prior to such special record date, or may be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Debentures may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in the Indenture. The principal
of and the interest on this Debenture shall be payable at the office or agency
of the Trustee maintained for that purpose in any coin or currency of the
United States of America that at the time of payment is legal tender for
payment of public and private debts; provided, however, that payment of
interest may be made at the option of the Company by check mailed to the
registered holder at such address as shall appear in the Debenture Register.
Notwithstanding the foregoing, so long as the holder of this Debenture is the
Property Trustee, the payment of the principal of and interest on this
Debenture shall be made at such place and to such account as may be designated
by the Trustee.
The Stated Maturity may be shortened at any time by the Company to any date not
earlier than ____________________, 2002, subject to the Company having received
prior approval of the Federal Reserve if then required under applicable capital
guidelines or policies of the Federal Reserve.
The indebtedness evidenced by this Debenture is, to the extent provided in the
Indenture, subordinate and junior in right of payment to the prior payment in
full of all Senior Indebtedness, and this Debenture is issued subject to the
provisions of the Indenture with respect thereto. Each holder of this
Debenture, by accepting the same, (a) agrees to and shall be bound by such
provisions; (b) authorizes and directs the Trustee on his or her behalf to take
such action as may be necessary or appropriate to acknowledge or effectuate the
subordination so provided; and (c) appoints the Trustee his or her
attorney-in-fact for any and all such purposes. Each holder hereof, by his or
her acceptance hereof, hereby waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by each holder
of Senior Indebtedness, whether now outstanding or hereafter incurred, and
waives reliance by each such holder upon said provisions.
This Debenture shall not be entitled to any benefit under the Indenture
hereinafter referred to, be valid or become obligatory for any purpose until
the Certificate of Authentication hereon shall have been signed by or on behalf
of the Trustee.
The provisions of this Debenture are continued on the reverse side hereof and
such continued provisions shall for all purposes have the same effect as though
fully set forth at this place.
Exhibit A-2
81
IN WITNESS WHEREOF, the Company has caused this instrument to be executed.
REPUBLIC BANCSHARES, INC.
By:_____________________________________
Name:___________________________________
Title:__________________________________
Attest:
By:_________________________
Name:_______________________
Title:______________________
Exhibit A-3
82
[FORM OF CERTIFICATE OF AUTHENTICATION]
CERTIFICATE OF AUTHENTICATION
This is one of the Debentures described in the within-mentioned Indenture.
Dated:
WILMINGTON TRUST COMPANY, ______________________________
as Trustee or Authentication Agent
By_______________________ By______________________________
Authorized Signatory
Exhibit A-4
83
[FORM OF REVERSE OF DEBENTURE]
_____% JUNIOR SUBORDINATED DEBENTURE
(CONTINUED)
This Debenture is one of the junior subordinated debentures of the Company
(herein sometimes referred to as the "Debentures"), specified in the Indenture,
all issued or to be issued under and pursuant to an Indenture dated as of
_________, 1997 (the "Indenture") duly executed and delivered between the
Company and Wilmington Trust Company, as Trustee (the "Trustee"), to which
Indenture reference is hereby made for a description of the rights, limitations
of rights, obligations, duties and immunities thereunder of the Trustee, the
Company and the holders of the Debentures. The Debentures are limited in
aggregate principal amount as specified in the Indenture.
The Company has the right to redeem this Debenture at the option of the
Company, without premium or penalty (i) at any time on or after _____, 2002 in
whole or in part, or (ii) at any time in certain circumstances in whole (but
not in part) upon the occurrence of a Special Event, in each case at a
Redemption Price equal to 100% of the principal amount plus any accrued but
unpaid interest, to the date of such redemption (the "Redemption Price"). The
Redemption Price shall be paid prior to 12:00 noon, Eastern Standard Time,
time, on the date of such redemption or at such earlier time as the Company
determines. Any redemption pursuant to this paragraph shall be made upon not
less than 30 days nor more than 60 days notice, at the Redemption Price. If
the Debentures are only partially redeemed by the Company, the Debentures shall
be redeemed pro rata or by lot or by any other method utilized by the Trustee.
In the event of redemption of this Debenture in part only, a new Debenture or
Debentures for the unredeemed portion hereof shall be issued in the name of the
holder hereof upon the cancellation hereof.
In case an Event of Default, as defined in the Indenture, shall have occurred
and be continuing, the principal of all of the Debentures may be declared, and
upon such declaration shall become, due and payable, in the manner, with the
effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and the Trustee, with
the consent of the holders of not less than a majority in aggregate principal
amount of the Debentures at the time outstanding, as defined in the Indenture,
to execute supplemental indentures for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of the Indenture
or of any supplemental indenture or of modifying in any manner the rights of
the holders of the Debentures; provided,
Exhibit A-5
84
however, that no such supplemental indenture shall (i) extend the fixed
maturity of the Debentures except as provided in the Indenture, or reduce the
principal amount thereof, or reduce the rate or extend the time of payment of
interest thereon (except for deferrals of interest as described below), without
the consent of the holder of each Debenture so affected; or (ii) reduce the
aforesaid percentage of Debentures, the holders of which are required to
consent to any such supplemental indenture, without the consent of the holders
of each Debenture then outstanding and affected thereby. The Indenture also
contains provisions permitting the holders of a majority in aggregate principal
amount of the Debentures at the time outstanding, on behalf of all of the
holders of the Debentures, to waive any past default in the performance of any
of the covenants contained in the Indenture, or established pursuant to the
Indenture, and its consequences, except a default in the payment of the
principal of or interest on any of the Debentures. Any such consent or waiver
by the registered holder of this Debenture (unless revoked as provided in the
Indenture) shall be conclusive and binding upon such holder and upon all future
holders and owners of this Debenture and of any Debenture issued in exchange
herefor or in place hereof (whether by registration of transfer or otherwise or
whether any notation of such consent or waiver is made upon this Debenture).
No reference herein to the Indenture and no provision of this Debenture or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal and interest on this Debenture
at the time and place and at the rate and in the money herein prescribed.
The Company shall have the right at any time during the term of the Debentures
and from time to time to extend the interest payment period of such Debentures
for up to 20 consecutive quarters (each, an "Extended Interest Payment
Period"), at the end of which period the Company shall pay all interest then
accrued and unpaid (together with interest thereon at the rate specified for
the Debentures to the extent that payment of such interest is enforceable under
applicable law). Before the termination of any such Extended Interest Payment
Period, the Company may further extend such Extended Interest Payment Period,
provided that such Extended Interest Payment Period together with all such
further extensions thereof shall not exceed 20 consecutive quarters. At the
termination of any such Extended Interest Payment Period and upon the payment
of all accrued and unpaid interest and any additional amounts then due, the
Company may commence a new Extended Interest Payment Period.
As provided in the Indenture and subject to certain limitations therein set
forth, this Debenture is transferable by the registered holder hereof on the
Debenture Register of the Company, upon surrender of this Debenture for
registration of transfer at the office or agency of the Trustee accompanied by
a written instrument
Exhibit A-6
85
or instruments of transfer in form satisfactory to the Company or the Trustee
duly executed by the registered holder hereof or his attorney duly authorized
in writing, and thereupon one or more new Debentures of authorized
denominations and for the same aggregate principal amount shall be issued to
the designated transferee or transferees. No service charge shall be made for
any such transfer, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of this Debenture, the
Company, the Trustee, any paying agent and the Debenture Registrar may deem and
treat the registered holder hereof as the absolute owner hereof (whether or not
this Debenture shall be overdue and notwithstanding any notice of ownership or
writing hereon made by anyone other than the Debenture Registrar) for the
purpose of receiving payment of or on account of the principal hereof and
interest due hereon and for all other purposes, and neither the Company nor the
Trustee nor any paying agent nor any Debenture Registrar shall be affected by
any notice to the contrary.
No recourse shall be had for the payment of the principal of or the interest on
this Debenture, or for any claim based hereon, or otherwise in respect of the
Indenture, against any incorporator, stockholder, officer or director, past,
present or future, as such, of the Company or any predecessor or successor
corporation, whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as part of the consideration for
the issuance hereof, expressly waived and released.
The Debentures are issuable only in registered form without coupons in
denominations of $10 and any integral multiple thereof.
All terms used in this Debenture that are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
[Additional Provisions to be Included if a Global Debenture, substantially in
the following form:
THIS DEBENTURE IS A GLOBAL DEBENTURE WITHIN THE MEANING OF THE INDENTURE
REFERRED TO HEREIN AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE
OF A DEPOSITARY. THIS DEBENTURE IS EXCHANGEABLE FOR DEBENTURES REGISTERED IN
THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.]
Exhibit A-7
