EXHIBIT (4)-2
HEALTHSOUTH CORPORATION
and
THE BANK OF NOVA SCOTIA TRUST COMPANY OF NEW YORK, as Trustee
--------------------
SUBORDINATED INDENTURE
Dated as of March 20, 1998
--------------------
CROSS REFERENCE SHEET*
Between
Provisions of Trust Indenture Act (as defined herein) and Indenture dated
as of March 20, 1998 between HEALTHSOUTH Corporation and The Bank of Nova Scotia
Trust Company of New York, Trustee:
SECTION OF THE ACT SECTION OF INDENTURE
310(a)(1) and (2)......................................................6.9
310(a)(3) and (4).............................................Inapplicable
310(b)........................................6.8 and 6.10(a), (b) and (d)
310(c)........................................................Inapplicable
311(a)................................................................6.14
311(b)................................................................6.14
311(c)........................................................Inapplicable
312(a).........................................................4.1 and 4.2
312(b).................................................................4.2
312(c).................................................................4.2
313(a).................................................................4.3
313(b)(1).....................................................Inapplicable
313(b)(2)..............................................................4.3
313(c).................................4.3, 5.11, 6.10, 6.11, 8.2 and 12.2
313(d).................................................................4.3
314(a).........................................................3.5 and 4.2
314(b)........................................................Inapplicable
314(c)(1) and (2).....................................................11.5
314(c)(3).....................................................Inapplicable
314(d)........................................................Inapplicable
314(e)................................................................11.5
314(f)........................................................Inapplicable
315(a), (c) and (d)....................................................6.1
315(b)................................................................5.11
315(e)................................................................5.12
316(a)(1).....................................................5.9 and 5.10
316(a)(2).....................................................Not required
316(a) (last sentence).................................................7.4
316(b).................................................................5.7
317(a).................................................................5.2
317(b)......................................................3.4(a) and (b)
318(a)................................................................11.7
*This Cross Reference Sheet is not part of the Indenture.
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS.........................................................1
SECTION 1.1 Certain Terms Defined..........................................1
"Affiliate"..................................................................2
"Authenticating Agent".......................................................2
"Authorized Newspaper".......................................................2
"Board of Directors".........................................................2
"Board Resolution"...........................................................2
"Business Day"...............................................................3
"Capital Stock"..............................................................3
"Commission".................................................................3
"Common Equity"..............................................................3
"Company"....................................................................3
"Company Order"..............................................................3
"Consolidated Tangible Assets"...............................................3
"Corporate Trust Office".....................................................4
"Coupon" ....................................................................4
"Covenant Defeasance"........................................................4
"Depositary".................................................................4
"Dollar" or "$"..............................................................4
"ECU" ....................................................................4
"Event of Default"...........................................................4
"Exchange Act"...............................................................4
"Fair Value".................................................................4
"Foreign Currency"...........................................................4
"Holder," "Holder of Subordinated Securities," "Securityholder"..............4
"IRS" ....................................................................5
"Judgment Currency"..........................................................5
"Maturity"...................................................................5
"Non-U.S. Person"............................................................5
"Officer's Certificate"......................................................5
"144A Global Subordinated Security"..........................................5
"Opinion of Counsel".........................................................5
"Original Issue Date"........................................................5
"Original Issue Discount Subordinated Security"..............................5
"Outstanding"................................................................6
"Paying Agent"...............................................................6
"Periodic Offering"..........................................................6
"Person" ....................................................................7
"PORTAL Market"..............................................................7
"Predecessor Subordinated Security"..........................................7
"principal"..................................................................7
"QIB" or "Qualified Institutional Buyer".....................................7
"Regular Record Date"........................................................7
"Registered Global Subordinated Security"....................................7
"Registered Subordinated Security"...........................................7
"Regulation S"...............................................................7
"Regulation S Global Subordinated Security"..................................8
"Required Currency"..........................................................8
"Responsible Officer"........................................................8
"Restricted Subordinated Security"...........................................8
"Rule 144"...................................................................8
"Rule 144A"..................................................................8
"Rule 144K"..................................................................8
"Securities Act".............................................................8
"Significant Subsidiary".....................................................8
"Special Record Date"........................................................8
"Stated Maturity"............................................................8
"Subsidiary".................................................................9
"Subordinated Indenture".....................................................9
"Transfer Restriction Termination Date"......................................9
"Trustee"....................................................................9
"Unregistered Subordinated Security".........................................9
"U.S. Government Obligations"................................................9
"Voting Stock"...............................................................9
"Yield to Maturity"........................................................ 10
ARTICLE 2 SUBORDINATED SECURITIES...................................10
SECTION 2.1 Forms Generally...........................................10
SECTION 2.2 Form of Trustee's Certificate
of Authentication.....................................10
SECTION 2.3 Amount Unlimited; Issuable in Series......................11
SECTION 2.4 Authentication and Delivery
of Subordinated Securities............................14
SECTION 2.5 Execution of Subordinated Securities......................18
SECTION 2.6 Certificate of Authentication.............................18
SECTION 2.7 Denomination and Date of Subordinated Securities;
Payments of Interest..................................... 19
SECTION 2.8 Registration, Transfer and Exchange.......................21
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and
Stolen Subordinated Securities..........................28
SECTION 2.10 Cancellation of Subordinated Securities;
Destruction Thereof.....................................30
SECTION 2.11 Temporary Subordinated Securities.........................30
ARTICLE 3 COVENANTS OF THE COMPANY ..........................................31
SECTION 3.1 Payment of Principal and Interest.........................31
SECTION 3.2 Offices for Payments, Etc.................................32
SECTION 3.3 Appointment to Fill a Vacancy in
Office of Trustee.......................................33
SECTION 3.4 Paying Agents.............................................33
SECTION 3.5 Compliance Certificates...................................35
SECTION 3.6 Corporate Existence.......................................35
SECTION 3.7 Maintenance of Properties................................35
SECTION 3.8 Payment of Taxes and Other Claims........................36
SECTION 3.9 Luxembourg Publications..................................36
SECTION 3.10 Usury Laws...............................................36
ARTICLE 4 SECURITYHOLDER LISTS AND REPORTS BY THE COMPANY AND THE
TRUSTEE...........................................................37
SECTION 4.1 Company to Furnish Trustee Information as
to Names and Addresses of Securityholders...............37
SECTION 4.2 Preservation of Information;
Communications to Holders...............................37
SECTION 4.3 Reports by Trustee........................................38
SECTION 4.4 Reports by Company........................................38
ARTICLE 5 REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF
DEFAULT...........................................................38
SECTION 5.1 Event of Default Defined, Acceleration of Maturity;
Waiver of Default.......................................38
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment........40
SECTION 5.3 Collection of Indebtedness by Trustee;
Trustee May Prove Debt..................................43
SECTION 5.5 Trustee May Enforce Claims Without
Possession of Subordinated Securities...................45
SECTION 5.6 Application of Proceeds...................................45
SECTION 5.7 Suits for Enforcement.....................................46
SECTION 5.8 Limitations on Suits by Subordinated
Security Holders........................................47
SECTION 5.9 Unconditional Right of Securityholders
to Institute Certain Suits..............................48
SECTION 5.10 Restoration of Rights on Abandonment
of Proceedings..........................................48
SECTION 5.11 Powers and Remedies Cumulative; Delay or
Omission Not Waiver of Default..........................48
SECTION 5.12 Delay or Omission Not Waiver..............................48
SECTION 5.13 Control by Holders of Subordinated Securities.............49
SECTION 5.14 Waiver of Past Defaults...................................49
SECTION 5.15 Trustee to Give Notice of Default, But
May Withhold in Certain Circumstances...................50
SECTION 5.16 Right of Court to Require Filing of
Undertaking to Pay Costs................................50
SECTION 5.17 Waiver of Stay or Extension Laws..........................51
ARTICLE 6 CONCERNING THE TRUSTEE............................................51
SECTION 6.1 Duties and Responsibilities of the Trustee;
During Default; Prior to Default........................51
SECTION 6.2 Certain Rights of the Trustee.............................53
SECTION 6.3 Trustee Not Responsible for Recitals,
Disposition of Subordinated Securities or
Application of Proceeds Thereof.........................54
SECTION 6.4 Trustee and Agents May Hold Subordinated
Securities or Coupons;Collections, Etc..................55
SECTION 6.5 Moneys Held by Trustee....................................55
SECTION 6.6 Compensation and Indemnification of
Trustee and Its Prior Claim.............................55
SECTION 6.7 Right of Trustee to Rely on
Officer's Certificate, Etc..............................56
SECTION 6.8 Subordinated Indentures Not Creating
Potential Conflicting Interests for
the Trustee.............................................56
SECTION 6.9 Qualification of Trustee:
Conflicting Interests...................................56
SECTION 6.10 Persons Eligible for Appointment as Trustee...............56
SECTION 6.11 Resignation and Removal;
Appointment of Successor Trustee........................57
SECTION 6.12 Acceptance of Appointment by Successor Trustee............59
SECTION 6.13 Merger, Conversion, Consolidation or
Succession to Business of Trustee...................... 60
SECTION 6.14 Preferential Collection of Claims
Against the Company.....................................61
SECTION 6.15 Appointment of Authenticating Agent.......................61
ARTICLE 7 CONCERNING THE SECURITYHOLDERS....................................63
SECTION 7.1 Evidence of Action Taken by Securityholders...............63
SECTION 7.2 Proof of Execution of Instruments and
of Holding of Subordinated Securities.....................63
SECTION 7.3 Holders to be Treated as Owners...........................64
SECTION 7.4 Subordinated Securities Owned by
Company Deemed NotOutstanding...........................64
SECTION 7.5 Right of Revocation of Action Taken.......................65
ARTICLE 8 SUPPLEMENTAL SUBORDINATED INDENTURES......................66
SECTION 8.1 Supplemental Subordinated Indentures
Without Consent of Securityholders......................66
SECTION 8.2 Supplemental Subordinated Indentures
with Consent of Securityholders.........................68
SECTION 8.4 Documents to be Given to Trustee..........................70
SECTION 8.5 Notation on Subordinated Securities in
Respect of Supplemental Subordinated
Indentures..............................................70
ARTICLE 9 CONSOLIDATION, MERGER, SALE OR CONVEYANCE.........................71
SECTION 9.1 Company May Consolidate, Etc..............................71
SECTION 9.2 Successor Corporation Substituted.........................72
ARTICLE 10 SATISFACTION AND DISCHARGE........................................72
SECTION 10.1 Satisfaction and Discharge of
Subordinated Indenture................................. 72
SECTION 10.2 Application by Trustee of Funds Deposited
for Payment of Subordinated Securities..................77
SECTION 10.3 Repayment of Moneys Held by Paying Agent..................77
SECTION 10.4 Return of Moneys Held by Trustee and
Paying Agent Unclaimed for Two Years....................78
SECTION 10.5 Indemnity for U.S. Government of Obligations..............78
ARTICLE 11 MISCELLANEOUS PROVISIONS..........................................78
SECTION 11.1 Incorporators, Stockholders, Officers and
Directors of Company Exempt from Individual
Liability............................................... 78
SECTION 11.2 Provisions of Subordinated Indenture for
the Sole Benefit of Parties and Holders
of Subordinated Securities and Coupons.....................79
SECTION 11.3 Successors and Assigns of Company Bound by
Subordinated Indenture..................................79
SECTION 11.4 Notices and Demands on Company, Trustee and
Holders of Subordinated Securities and Coupons..........79
SECTION 11.5 Officer's Certificates and Opinions of Counsel;
Statements to be Contained Therein......................80
SECTION 11.6 Payments Due on Saturdays, Sundays and Holidays...........81
SECTION 11.7 Conflict of Any Provision of Subordinated
Indenture with Trust Indenture Act......................82
SECTION 11.8 New York Law to Govern....................................82
SECTION 11.9 Counterparts..............................................82
SECTION 11.10 Effect of Headings....................................... 82
SECTION 11.11 Subordinated Securities in a Foreign
Currency or in ECU......................................82
SECTION 11.12 Judgment Currency.........................................83
ARTICLE 12 REDEMPTION OF SUBORDINATED SECURITIES AND SINKING FUNDS..........84
SECTION 12.1 Applicability of Article..................................84
SECTION 12.2 Notice of Redemption; Partial Redemptions.................84
SECTION 12.3 Payment of Subordinated Securities Called
for Redemption........................... 86
SECTION 12.4 Exclusion of Certain Subordinated Securities
from Eligibility forSelection for Redemption.............87
SECTION 12.5 Mandatory and Optional Sinking Funds......................87
THIS SUBORDINATED INDENTURE, dated as of March 20, 1998, by and between
HEALTHSOUTH Corporation, a Delaware corporation (the "Company"), and The Bank of
Nova Scotia Trust Company of New York, a New York trust company, as trustee (the
"Trustee"),
W I T N E S S E T H:
WHEREAS, the Company has duly authorized the issuance, sale, execution and
delivery, from time to time, of its unsecured evidences of subordinated
indebtedness (hereinafter referred to as the "Subordinated Securities"), without
limit as to principal amount, issuable in one or more series, the amount and
terms of each such series to be determined as hereinafter provided; and, to
provide the terms and conditions upon which the Subordinated Securities are to
be issued, authenticated and delivered, the Company has duly authorized the
execution of this Subordinated Indenture; and
WHEREAS, all acts and things necessary to make the Subordinated Securities,
when executed by the Company and authenticated and delivered by the Trustee as
in this Subordinated Indenture provided, the valid, binding and legal
subordinated obligations of the Company, and to constitute this Subordinated
Indenture a valid indenture and agreement according to its terms, have been done
and performed, and the execution of this Subordinated Indenture and the issuance
hereunder of the Subordinated Securities have in all respects been duly
authorized; and
WHEREAS, all things necessary to make this Subordinated Indenture a
valid indenture and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Subordinated
Securities by the holders thereof, the Company and the Trustee mutually covenant
and agree for the equal and proportionate benefit of the respective holders from
time to time of the Subordinated Securities and of the coupons, if any,
appertaining thereto as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.1 Certain Terms Defined.
The following terms (except as otherwise expressly provided or unless the
context otherwise clearly requires) for all purposes of this Subordinated
Indenture and of any indenture supplemental hereto shall have the respective
meanings specified in this Section. All other terms used in this Subordinated
Indenture that are defined in the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), or the definitions of which in the Securities Act of
1933, as amended (the "Securities Act"), are referred to in the Trust Indenture
Act, including terms defined therein by reference to the Securities Act (except
as herein otherwise expressly provided
or unless the context otherwise requires), shall have the meaning assigned to
such terms in the Trust Indenture Act and in the Securities Act as in effect
from time to time. All accounting terms used herein and not expressly defined
shall have the meanings assigned to such terms in accordance with generally
accepted accounting principles, and the term "generally accepted accounting
principles" means such accounting principles as are generally accepted at the
time of any computation unless a different time shall be specified with respect
to such series of Subordinated Securities as provided for in Section 2.3. The
words "herein," "hereof" and "hereunder" and other words of similar import refer
to this Subordinated Indenture as a whole and not to any particular Article,
Section or other subdivision. The terms defined in this Article have the
meanings assigned to them in this Article and include the plural as well as the
singular.
"Affiliate" has the same meaning as given to that term in Rule 405 of the
Securities Act or any successor provision.
"Authenticating Agent" shall have the meaning set forth in Section 6.15.
"Authorized Newspaper" means a newspaper (which, in the case of The City of
New York, will, if practicable, be The Wall Street Journal (Eastern Edition), in
the case of the United Kingdom of Great Britain and Northern Ireland (the
"United Kingdom"), will, if practicable, be The Financial Times (London Edition)
and, in the case of the Grand Duchy of Luxembourg ("Luxembourg"), will, if
practicable, be the Luxemburger Wort) published in an official or common
language of the county of publication customarily published at least once a day
for at least five days in each calendar week and of general circulation in The
City of New York, the United Kingdom or Luxembourg, as applicable. If it shall
be impractical in the opinion of the Trustee to make any publication of any
notice required hereby in an Authorized Newspaper, any publication or other
notice in lieu thereof which is made or given with the approval of the Trustee
shall constitute a sufficient publication of such notice.
"Board of Directors" means either the Board of Directors of the Company or
any committee of such Board duly authorized to act on its behalf.
"Board Resolution" means a copy of one or more resolutions, certified by
the secretary or an assistant secretary of the Company to have been duly adopted
or consented to by the Board of Directors and to be in full force and effect,
and delivered to the Trustee.
"Business Day" means, with respect to any Subordinated Security, a day
other than any day on which banking institutions in the city (or in any of the
cities, if more than one) in which amounts are payable, as specified in the form
of such Subordinated Security, are authorized or required by any applicable law
or regulation to be closed.
"Capital Stock" of any Person means any and all shares, rights to purchase,
warrants or options (whether or not currently exercisable); participation or
other equivalents of or interest in (however designated) the equity (including
without limitation common stock, preferred stock and partnership and joint
venture interests) of such Person (excluding any debt securities that are
convertible into, or exchangeable for, such equity).
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, or if at any time after the
execution and delivery of this Subordinated Indenture such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties on such date.
"Common Equity" of any Person means all Capital Stock of such Person that
is generally entitled to (a) vote in the election of directors of such Person or
(b) if such Person is not a corporation, vote or otherwise participate in the
selection of the governing body, partners, managers or others that will control
the management and policies of such Person.
"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor Person shall have become such pursuant to the
applicable provisions of this Subordinated Indenture, and thereafter "Company"
shall mean such successor Person.
"Company Order" means a written statement, request or order of the Company
signed in its name by the chairman of the Board of Directors, the president, any
vice president or the treasurer of the Company.
"Consolidated Tangible Assets" of any Person as of any date means the total
assets of such Person and its Subsidiaries (excluding any assets that would be
classified as "intangible assets" under generally accepted accounting principles
("GAAP")) on a consolidated basis at such date, as determined in accordance with
GAAP, less all write-ups subsequent to the date of initial issuance of the
Securities in the book value of any asset owned by such Person or any of its
Subsidiaries.
"Corporate Trust Office" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, as of the date of this Subordinated
Indenture, located at Xxx Xxxxxxx Xxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Corporate Trust Administration.
"Coupon" means any interest coupon appertaining to an Unregistered
Subordinated Security.
"Covenant Defeasance" shall have the meaning set forth in Section 10.1(C).
"Defaulted Interest" has the meaning specified in Section 2.7.
"Depositary" means, with respect to the Subordinated Securities of any
series issuable or issued in the form of one or more Registered Global
Subordinated Securities, the Person designated as Depositary by the Company
pursuant to Section 2.3 until a successor Depositary shall have become such
pursuant to the applicable provisions of this Subordinated Indenture, and
thereafter "Depositary" shall mean or include each Person who is then a
Depositary hereunder, and if at any time there is more than one such Person,
"Depositary" as used with respect to the Subordinated Securities of any such
series shall mean the Depositary with respect to the Registered Global
Subordinated Securities of that series.
"Dollar" or "$" means the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
"ECU" means the European Currency Unit as defined and revised from time to
time by the European Monetary System of the European Community.
"Event of Default" means any event or condition specified as such in
Section 5.1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Fair Value" when used with respect to any Voting Stock means the fair
value as determined in good faith by the Board of Directors of the Company.
"Foreign Currency" means a currency issued by the government of a country
other than the United States of America.
"Holder," "Holder of Subordinated Securities," "Securityholder" or other
similar terms mean (a) in the case of any Registered Subordinated Security, the
person in whose name such Subordinated Security is registered in the Security
Register kept by the Company for that purpose in accordance with the terms
hereof, and (b) in the case of any Unregistered Subordinated Security, the
bearer of such Subordinated Security, or any Coupon appertaining thereto, as the
case may be.
"Interest Payment Date," means the Stated Maturity of an installment of
interest on such Subordinated Security.
"IRS" means the Internal Revenue Service of the United States Department of
the Treasury, or any successor entity.
"Judgment Currency" has the meaning set forth in Section 11.12.
"Maturity", when used with respect to any Subordinated Security, means the
date on which the principal of such Subordinated Security becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Non-U.S. Person" means any person that is not a "U.S. person" as such term
is defined in Rule 902 of the Securities Act.
"Officer's Certificate" means a certificate signed by the chairman of the
Board of Directors, the president or any vice president or the treasurer of the
Company and delivered to the Trustee. Each such certificate shall comply with
Section 314 of the Trust Indenture Act and include the statements provided for
in Section 11.5.
"144A Global Subordinated Security" has the meaning set forth in Section
2.8(b)(i).
"Opinion of Counsel" means an opinion in writing signed by legal counsel
who may be an employee of the Company or other counsel satisfactory to the
Trustee. Each such opinion shall comply with Section 314 of the Trust Indenture
Act and include the statements provided for in Section 11.5.
"Original Issue Date" of any Subordinated Security (or portion thereof)
means the earlier of (a) the date of such Subordinated Security or (b) the date
of any Subordinated Security (or portion thereof) for which such Subordinated
Security was issued (directly or indirectly) on registration of transfer,
exchange or substitution.
"Original Issue Discount Subordinated Security" means any Subordinated
Security that provides for an amount less than the principal amount thereof to
be due and payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 5.2.
"Outstanding" (except as otherwise provided in Section 7.4), when used with
reference to Subordinated Securities, means, subject to the provisions of
Section 7.4, as of any particular time, all Subordinated Securities
authenticated and delivered by the Trustee under this Subordinated Indenture,
except
(a) Subordinated Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(b) Subordinated Securities, or portions thereof, for the payment or
redemption of which moneys or U.S. Government Obligations (as provided for in
Section 10.1) 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, segregated and held in trust by the Company for the Holders of such
Subordinated Securities (if the Company shall act as its own Paying Agent),
provided, that if such Subordinated Securities, or portions thereof, are to be
redeemed prior to the Maturity thereof, notice of such redemption shall have
been given as herein provided, or provisions satisfactory to the Trustee shall
have been made for giving such notice; and
(c) Subordinated Securities which shall have been paid or in substitution
for which other Subordinated Securities shall have been authenticated and
delivered pursuant to the terms of Section 2.9 (except with respect to any such
Subordinated Security as to which proof satisfactory to the Trustee is presented
that such Subordinated Security is held by a person in whose hands such
Subordinated Security is a legal, valid and binding obligation of the Company).
In determining whether the Holders of the requisite principal amount of
Outstanding Subordinated Securities of any or all series have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, the
principal amount of an Original Issue Discount Subordinated Security that shall
be deemed to be Outstanding for such purposes shall be the amount of the
principal thereof that would be due and payable as of the date of such
determination upon a declaration of acceleration of the Maturity thereof
pursuant to Section 5.2.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Company.
"Periodic Offering" means an offering of Subordinated Securities of a
series from time to time, the specific terms of which Subordinated Securities,
including, without limitation, the rate or rates of interest, if any, thereon,
the Stated Maturity or Maturities thereof and the redemption provisions, if any,
with respect thereto, are to be determined by the Company or its agents upon the
issuance of such Subordinated Securities.
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, association, joint stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"PORTAL Market" means Private Offerings, Resales and Trading through
Automatic Linkages Market.
"Predecessor Subordinated Security" of any particular Subordinated Security
means every previous Subordinated Security evidencing all or a portion of the
same debt as that evidenced by such particular Subordinated Security; and, for
the purposes of this definition, any Subordinated Security authenticated and
delivered under Section 2.4 in exchange for or in lieu of a mutilated,
destroyed, lost or stolen Subordinated Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Subordinated Security.
"principal" whenever used with reference to the Subordinated Securities or
any Subordinated Security or any portion thereof, shall be deemed to include
"and premium, if any," provided, however, that such inclusion of premium, if
any, shall under no circumstances result in the double counting of such premium
for the purpose of any calculation required hereunder.
"QIB" or "Qualified Institutional Buyer" means "Qualified Institutional
Buyer" as such term is defined in Rule 144A under the Securities Act.
"Regular Record Date" for the interest payable on any Interest Payment Date
on the securities of any series means the date specified for that purpose as
contemplated in Section 2.3.
"Registered Global Subordinated Security" means a Subordinated Security
evidencing all or a part of a series of Registered Subordinated Securities,
issued to the Depositary for such series in accordance with Section 2.4, and
bearing the legend prescribed in Section 2.4 and any other legend required by
the Depositary for such series.
"Registered Subordinated Security" means any Subordinated Security
registered on the Subordinated Security Register of the Company.
"Regulation S" means Regulation S under the Securities Act, or any
successor provision.
"Regulation S Global Subordinated Security" has the meaning set forth in
Section 2.8(b).
"Required Currency" shall have the meaning set forth in Section 11.12 .
"Responsible Officer" when used with respect to the Trustee means the
chairman of the board of directors, any vice chairman of the board of directors,
the chairman of the trust committee, the chairman of the executive committee,
any vice chairman of the executive committee, the president, any vice president
(whether or not designated by numbers or words added before or after the title
"Vice President"), the cashier, the secretary, the treasurer, any trust officer,
any assistant trust officer, any assistant vice president, any assistant
cashier, any assistant secretary, any assistant treasurer, 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.
"Restricted Subordinated Security" has the meaning set forth in Section
2.8(b).
"Rule 144" means Rule 144 under the Securities Act.
"Rule 144A" means Rule 144A under the Securities Act.
"Rule 144K" means Rule 144(k) under the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 2.9.
"Significant Subsidiary" means a Subsidiary of the Company which at the
time of determination either (i) had tangible assets which, as of the Company's
most recent quarterly consolidated balance sheet, constituted at least 5% of
Consolidated Tangible Assets as of such date, or (ii) had revenues for the
12-month period ending on the date of the Company's most recent quarterly
consolidated statement of income which constituted at least 5% of the Company's
total consolidated revenues for such period.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 2.7.
"Stated Maturity", when used with respect to any Subordinated Security or
any installment of interest thereon, means the date specified in such
Subordinated Security as the fixed date on which the principal of such
Subordinated Security or such installment of interest is due and payable.
"Subsidiary" of any Person means (a) any corporation of which Common Equity
having ordinary voting power to elect a majority of the directors of such
corporation is owned by such
Person directly or through one or more other subsidiaries of such Person and (b)
any entity other than a corporation in which such Person, directly or
indirectly, owns at least 50% of the Common Equity of such entity and has the
authority to manage such entity on a day-to-day basis.
"Subordinated Indenture" means this instrument as originally executed and
delivered or, if amended or supplemented as herein provided, as so amended or
supplemented or both, and shall include the forms and terms of particular series
of Subordinated Securities established as contemplated hereunder.
"Subordinated Security" or "Subordinated Securities" (except as otherwise
provided in Section 7.4) has the meaning stated in the first recital of this
Subordinated Indenture, or, as the case may be, Subordinated Securities that
have been authenticated and delivered under this Subordinated Indenture.
"Transfer Restriction Termination Date" means the earlier of the first date
on which (i) the Subordinated Securities of a series (other than such
Subordinated Securities acquired by the Company or any Affiliate thereof since
the issue date of such Subordinated Securities) may be sold pursuant to Rule
144K (or any successor provision) and (ii) all such Subordinated Securities have
been exchanged or sold pursuant to an effective registration statement.
"Trustee" means the Person identified as "Trustee" in the first paragraph
hereof and, subject to the provisions of Article 6, shall also include any
successor trustee. "Trustee" shall also mean or include each Person who is then
a trustee hereunder and if at any time there is more than one such Person,
"Trustee" as used with respect to the Subordinated Securities of any series
shall mean the trustee with respect to the Subordinated Securities of such
series.
"Unregistered Subordinated Security" means any Subordinated Security other
than a Registered Subordinated Security.
"U.S. Government Obligations" shall have the meaning set forth in Section
10.1(A).
"Voting Stock" means stock of any class or classes having general voting
power under ordinary circumstances to elect a majority of the board of
directors, managers or trustees of the corporation in question, provided, that,
for the purposes hereof, stock which carries only the right to vote
conditionally on the happening of an event shall not be considered voting stock
whether or not such event shall have happened.
"Yield to Maturity" means the yield to maturity on a series of securities,
calculated at the time of issuance of such series, or, if applicable, at the
most recent redetermination of interest on such series, and calculated in
accordance with accepted financial practice.
ARTICLE 2
SUBORDINATED SECURITIES
SECTION 2.1 Forms Generally.
The Subordinated Securities of each series and the Coupons, if any, to be
attached thereto shall be substantially in such form (not inconsistent with this
Subordinated Indenture) as shall be established by or pursuant to one or more
Board Resolutions (as set forth in a Board Resolution or, to the extent
established pursuant to but not set forth in a Board Resolution, an Officer's
Certificate detailing such establishment) or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Subordinated Indenture and may have imprinted or otherwise reproduced thereon
such legend or legends or endorsements, not inconsistent with the provisions of
this Subordinated Indenture, as may be required to comply with any law or with
any rules or regulations pursuant thereto, or with any rules of any securities
exchange or to conform to general usage, all as may be determined by the
officers executing such Subordinated Securities and Coupons, if any, as
evidenced by their execution of such Subordinated Securities and Coupons.
The definitive Subordinated Securities and Coupons, if any, shall be
printed, lithographed or engraved on steel engraved borders or may be produced
in any other manner, all as determined by the officers executing such
Subordinated Securities and Coupons, if any, as evidenced by their execution of
such Subordinated Securities and Coupons, if any.
SECTION 2.2 Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication on all Subordinated Securities
shall be in substantially the following form:
"This is one of the Subordinated Securities referred to in the
within-mentioned Subordinated Indenture.
[__________________________________]
as Trustee
By_________________________________
Authorized Signatory"
If at any time there shall be an Authenticating Agent appointed with
respect to any series of Subordinated Securities, then the Trustee's Certificate
of Authentication to be borne by the Subordinated Securities of each such series
shall be substantially as follows:
"This is one of the Subordinated Securities referred to in the
within-mentioned Subordinated Indenture.
[__________________________________]
as Authenticating Agent
By__________________________________
Authorized Signatory"
SECTION 2.3 Amount Unlimited; Issuable in Series.
The aggregate principal amount of Subordinated Securities which may be
authenticated and delivered under this Subordinated Indenture is unlimited.
The Subordinated Securities may be issued in one or more series and each
such series shall be established in or pursuant to one or more Board Resolutions
(and to the extent established pursuant to but not set forth in a Board
Resolution, in an Officer's Certificate detailing such establishment) or
established in one or more indentures supplemental hereto, prior to the initial
issuance of Subordinated Securities of any series,
(1) the designation of the Subordinated Securities of the series, which
shall distinguish the Subordinated Securities of the series from the
Subordinated Securities of all other series, and which may be part of a series
of Subordinated Securities previously issued;
(2) any limit upon the aggregate principal amount of the Subordinated
Securities of the series that may be authenticated and delivered under this
Subordinated Indenture (except for Subordinated Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in lieu of,
other Subordinated Securities of the series pursuant to Section 2.8, 2.9, 2.11,
8.5 or 12.3);
(3) if other than Dollars, the coin or currency in which the Subordinated
Securities of the series are denominated (including, but not limited to, any
Foreign Currency or ECU);
(4) the date or dates on which the principal of the Subordinated Securities
of the series is payable;
(5) the rate or rates at which the Subordinated Securities of the series
shall bear interest, if any, the date or dates from which such interest shall
accrue, on which such interest shall be payable and (in the case of Registered
Subordinated Securities) on which a
record shall be taken for the determination of Holders to whom interest is
payable and/or the method by which such rate or rates or date or dates shall be
determined;
(6) the place or places where the principal of and any interest on
Subordinated Securities of the series shall be payable, if other than as
provided in Section 3.2;
(7) the right, if any, of the Company to redeem Subordinated Securities, in
whole or in part, at its option and the period or periods within which, the
price or prices at which and any terms and conditions upon which Subordinated
Securities of the series may be so redeemed, pursuant to any sinking fund or
otherwise;
(8) the obligation, if any, of the Company to redeem, purchase or repay
Subordinated Securities of the series pursuant to any mandatory redemption,
sinking fund or analogous provisions or at the option of a Holder thereof and
the price or prices at which and the period or periods within which and any
terms and conditions upon which Subordinated Securities of the series shall be
redeemed, purchased or repaid, in whole or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral multiple thereof
in the case of Registered Subordinated Securities, or $1,000 and $5,000 in the
case of Unregistered Subordinated Securities, the denominations in which
Subordinated Securities of the series shall be issuable;
(10) if other than the principal amount thereof, the portion of the
principal amount of Subordinated Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof;
(11) if other than the coin or currency in which the Subordinated
Securities of the series are denominated, the coin or currency in which payment
of the principal of or interest on the Subordinated Securities of such series
shall be payable;
(12) if the principal of or interest on the Subordinated Securities of the
series are to be payable, at the election of the Company or a Holder thereof, in
a coin or currency other than that in which the Subordinated Securities are
denominated, the period or periods within which, and the terms and conditions
upon which, such election may be made;
(13) if the amount of payments of principal of and interest on the
Subordinated Securities of the series may be determined with reference to an
index based on a coin or currency other than that in which the Subordinated
Securities of the series are denominated, the manner in which such amounts shall
be determined;
(14) whether the Subordinated Securities of the series will be issuable as
Registered Subordinated Securities (and if so, whether such Subordinated
Securities will be issuable as Registered Global Subordinated Securities) or
Unregistered Subordinated Securities (with or without Coupons), or any
combination of the foregoing, any restrictions applicable to the offer, sale or
delivery of Unregistered Subordinated Securities or the payment of interest
thereon and, if other than as provided in Section 2.8, the terms upon which
Unregistered Subordinated Securities of any series may be exchanged for
Registered Subordinated Securities of such series and vice versa;
(15) whether and under what circumstances the Company will pay additional
amounts on the Subordinated Securities of the series held by a person who is not
a U.S. person in respect of any tax, assessment or governmental charge withheld
or deducted and, if so, whether the Company will have the option to redeem the
Subordinated Securities of the series rather than pay such additional amounts;
(16) if the Subordinated Securities of the series are to be issuable in
definitive form (whether upon original issue or upon exchange of a temporary
Subordinated Security of such series) only upon receipt of certain certificates
or other documents or satisfaction of other conditions, the form and terms of
such certificates, documents or conditions;
(17) any trustees, depositaries, authenticating or paying agents, transfer
agents or registrars of any other agents with respect to the Subordinated
Securities of such series;
(18) any other events of default or covenants with respect to the
Subordinated Securities of such series;
(19) the terms of subordination applicable to any series of the
Subordinated Securities;
(20) if the Subordinated Securities of the series are to be convertible
into or exchangeable for any other security; and
(21) any other terms of the series (which terms shall not be inconsistent
with the provisions of this Subordinated Indenture).
All Subordinated Securities of any one series and Coupons, if any,
appertaining thereto shall be substantially identical, except in the case of
Registered Subordinated Securities as to denomination and except as may
otherwise be provided by or pursuant to the Board Resolution or Officer's
Certificate referred to above or as set forth in any indenture supplemental
hereto. All Subordinated Securities of any one series need not be issued at the
same time and may be issued from time to time, consistent with the terms of this
Subordinated Indenture, if so provided by or pursuant to such Board Resolution,
such Officer's Certificate or in any indenture supplemental hereto.
SECTION 2.4 Authentication and Delivery of Subordinated Securities.
The Company may deliver Subordinated Securities of any series having
attached thereto appropriate Coupons, if any, executed by the Company to the
Trustee for authentication together with the applicable documents referred to
below in this Section 2.4, and the Trustee shall thereupon authenticate and
deliver such Subordinated Securities and Coupons, if any, to or upon the order
of the Company (contained in the Company Order referred to below in this
Section)
or pursuant to such procedures acceptable to the Trustee and to such recipients
as may be specified from time to time by a Company Order. The maturity date,
original issue date, interest rate and any other terms of the Subordinated
Securities of such series and Coupons, if any, appertaining thereto shall be
determined by or pursuant to such Company Order and procedures. If provided for
in such procedures, such Company Order may authorize authentication and delivery
pursuant to oral or electronic instructions from the Company or its duly
authorized agent or agents, which instructions, if oral, shall be promptly
confirmed in writing. In authenticating such Subordinated Securities and
accepting the additional responsibilities under this Subordinated Indenture in
relation to such Subordinated Securities, the Trustee shall be entitled to
receive (in the case of subparagraphs (2), (3) and (4) below only at or before
the time of the first request of the Company to the Trustee to authenticate
Subordinated Securities of such series) and (subject to Section 6.1) shall be
fully protected in relying upon, the following enumerated documents unless and
until such documents have been superseded or revoked:
(1) a Company Order requesting such authentication and setting forth
delivery instructions if the Subordinated Securities and Coupons, if any, are
not to be delivered to the Company, provided that, with respect to Subordinated
Securities of a series subject to a Periodic Offering, (a) such Company Order
may be delivered by the Company to the Trustee prior to the delivery to the
Trustee of such Subordinated Securities for authentication and delivery, (b) the
Trustee shall authenticate and deliver Subordinated Securities of such series
for original issue from time to time, in an aggregate principal amount not
exceeding the aggregate principal amount established for such series, pursuant
to a Company Order or pursuant to procedures acceptable to the Trustee as may be
specified from time to time by a Company Order, (c) the maturity date or dates,
original issue date or dates, interest rate or rates and any other terms of
Subordinated Securities of such series shall be determined by a Company Order or
pursuant to such procedures and (d) if provided for in such procedures, such
Company Order may authorize authentication and delivery pursuant to oral or
electronic instructions from the Company or its duly authorized agent or agents,
which instructions, if oral, shall be promptly confirmed in writing;
(2) any Board Resolution, Officer's Certificate and/or executed
supplemental indenture referred to in Section 2.1 and 2.3 by or pursuant to
which the forms and terms of the Subordinated Securities and Coupons, if any,
were established;
(3) an Officer's Certificate setting forth the form or forms and terms of
the Subordinated Securities and Coupons, if any, stating that the form or forms
and terms of the Subordinated Securities and Coupons, if any, have been
established pursuant to Sections 2.1 and 2.3 and comply with this Subordinated
Indenture, and covering such other matters as the Trustee may reasonably
request; and
(4) At the option of the Company, either one or more Opinions of Counsel,
or a letter addressed to the Trustee permitting it to rely on one or more
Opinions of Counsel, substantially to the effect that:
(a) the form or forms of the Subordinated Securities and Coupons, if
any, have been duly authorized and established in conformity with the
provisions of this Subordinated Indenture;
(b) in the case of an underwritten offering, the terms of the
Subordinated Securities have been duly authorized and established in
conformity with the provisions of this Subordinated Indenture, and, in the
case of an offering that is not underwritten, certain terms of the
Subordinated Securities have been established pursuant to a Board
Resolution, an Officer's Certificate or a supplemental indenture in
accordance with this Subordinated Indenture, and when such other terms as
are to be established pursuant to procedures set forth in a Company Order
shall have been established, all such terms will have been duly authorized
by the Company and will have been established in conformity with the
provisions of this Subordinated Indenture; and
(c) such Subordinated Securities and Coupons, if any, when executed by
the Company and authenticated by the Trustee in accordance with the
provisions of this Subordinated Indenture and delivered to and duly paid
for by the purchasers thereof, and subject to any conditions specified in
such Opinion of Counsel, will have been duly issued under this Subordinated
Indenture, will be entitled to the benefits of this Subordinated Indenture,
and will be valid and binding obligations of the Company, enforceable in
accordance with their respective terms except as the enforceability thereof
may be limited by (i) bankruptcy, insolvency or similar laws affecting
creditors' rights generally, (ii) rights of acceleration, if any, and (iii)
the availability of equitable remedies may be limited by equitable
principles of general applicability and such counsel need express no
opinion with regard to the enforceability of Section 6.6 or of a judgment
denominated in a currency other than Dollars.
In rendering such opinions, any counsel may qualify any opinions as to
enforceability by stating that such enforceability may be limited by bankruptcy,
insolvency, reorganization, liquidation, moratorium, fraudulent transfer and
other similar laws affecting the rights and remedies of creditors and is subject
to general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law). Such counsel may rely upon
opinions of other counsel (copies of which shall be delivered to the Trustee)
reasonably satisfactory to the Trustee, in which case the opinion shall state
that such counsel believes he and the Trustee are entitled so to rely. Such
counsel may also state that, insofar as such opinion involves factual matters,
he has relied, to the extent he deems proper, upon certificates of officers of
the Company and its subsidiaries and certificates of public officials.
The Trustee shall have the right to decline to authenticate and deliver any
Subordinated Securities under this section if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken by the Company or
if the Trustee in good faith by its board of directors or board of trustees,
executive committee or a trust committee of directors or trustees shall
determine that such action would expose the Trustee to personal liability to
existing Holders or would affect the Trustee's own rights, duties or immunities
under the Subordinated Securities, this Subordinated Indenture or otherwise.
If the Company shall establish pursuant to Section 2.3 that the
Subordinated Securities of a series are to be issued in the form of one or more
Registered Global Subordinated Securities, then the Company shall execute and
the Trustee shall, in accordance with this Section and the Company Order with
respect to such series, authenticate and deliver one or more Registered Global
Subordinated Securities that (i) shall represent and shall be denominated in an
amount equal to the aggregate principal amount of all of the Subordinated
Securities of such series issued and not yet canceled, (ii) shall be registered
in the name of the Depositary for such Registered Global Subordinated Security
or Subordinated Securities or the nominee of such Depositary, (iii) shall be
delivered by the Trustee to such Depositary or delivered or held pursuant to
such Depositary's instructions and (iv) shall bear a legend substantially to the
following effect: "Unless and until it is exchanged in whole or in part for
Subordinated Securities in definitive registered form, this Subordinated
Security may not be transferred except as a whole by the Depositary to the
nominee of the Depositary or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary."
Each Depositary designated pursuant to Section 2.3 must, at the time of its
designation and at all times while it serves as Depositary, be a clearing agency
registered under the Exchange Act and any other applicable statute or
regulation.
SECTION 2.5 Execution of Subordinated Securities.
The Subordinated Securities and each Coupon appertaining thereto, if any,
shall be signed on behalf of the Company by the chairman or vice chairman of its
Board of Directors or its president, or any executive (senior or other), a vice
president or its treasurer, under its corporate seal (except in the case of
Coupons) which may, but need not, be attested. Such signatures may be the manual
or facsimile signatures of the present or any future such officers. The seal of
the Company may be in the form of a facsimile thereof and may be impressed,
affixed, imprinted or otherwise reproduced on the Subordinated Securities.
Typographical and other minor errors or defects in any such reproduction of the
seal or any such signature shall not affect the validity or enforceability of
any Subordinated Security that has been duly authenticated and delivered by the
Trustee.
In case any officer of the Company who shall have signed any of the
Subordinated Securities or Coupons, if any, shall cease to be such officer
before the Subordinated Security or Coupon so signed (or the Subordinated
Security to which the Coupon so signed appertains) shall be authenticated and
delivered by the Trustee or disposed of by the Company, such Subordinated
Security or Coupon nevertheless may be authenticated and delivered or disposed
of as though the person who signed such Subordinated Security or Coupon had not
ceased to be such officer of the Company; and any Subordinated Security or
Coupon may be signed on behalf of the Company by such persons as, at the actual
date of the execution of such Subordinated Security or Coupon, shall be the
proper officers of the Company, although at the date of the execution and
delivery of this Subordinated Indenture any such person was not such an officer.
SECTION 2.6 Certificate of Authentication.
Only such Subordinated Securities as shall bear thereon a certificate of
authentication substantially in the form hereinbefore recited, executed by the
Trustee by the manual signature of one of its authorized officers, shall be
entitled to the benefits of this Subordinated Indenture or be valid or
obligatory for any purpose. No Coupon shall be entitled to the benefits of this
Subordinated Indenture or shall be valid and obligatory for any purpose until
the certificate of authentication on the Subordinated Security to which such
Coupon appertains shall have been duly executed by the Trustee. The execution of
such certificate by the Trustee upon any Subordinated Security executed by the
Company shall be conclusive evidence that the Subordinated Security so
authenticated has been duly authenticated and delivered hereunder and that the
Holder is entitled to the benefits of this Subordinated Indenture.
SECTION 2.7 Denomination and Date of Subordinated Securities; Payments of
Interest.
The Subordinated Securities of each series shall be issuable as Registered
Subordinated Securities or Unregistered Subordinated Securities in denominations
established as contemplated by Section 2.3 or, with respect to the Registered
Subordinated Securities of any series, if not so established, in denominations
of $1,000 and any integral multiple thereof. If denominations of Unregistered
Subordinated Securities of any series are not so established, such Subordinated
Securities shall be issuable in denominations of $1,000 and $5,000. The
Subordinated Securities of each series shall be numbered, lettered or otherwise
distinguished in such manner or in accordance with such plan as the officers of
the Company executing the same may determine with the approval of the Trustee,
as evidenced by the execution and authentication thereof.
Each Registered Subordinated Security shall be dated the date of its
authentication. Each Unregistered Subordinated Security shall be dated as
provided in the Board Resolution referred to in Section 2.3. The Subordinated
Securities of each series shall bear interest, if any, from the date, and such
interest shall be payable on the dates, established as contemplated by Section
2.3.
Interest on any Subordinated Security which is payable, and is punctually paid
or duly provided for, on any Interest Payment Date shall be paid to the Person
in whose name that Subordinated Security (or one or more Predecessor
Subordinated Securities) is registered at the close of business on the Regular
Record Date for such interest. At the option of the Company, interest on any
Subordinated Security may be paid by mailing a check to the address of the
Holder thereof as such address appears in the Subordinated Securities Register.
Any interest on any Subordinated Security which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to the
Persons in whose names the Subordinated Securities (or their respective
Predecessor
Subordinated Securities) are registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which shall be fixed in
the following manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Subordinated Security
and the date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this clause
provided. Thereupon the Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date and, in
the name and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder at his address as it appears
in the Subordinated Security Register, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the Subordinated Securities
(or their respective Predecessor Subordinated Securities) are registered at the
close of business on such Special Record Date and shall no longer be payable
pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Subordinated Securities may be listed, and upon such notice as may
be required by such exchange, if, after notice given by the Company to the
Trustee of the proposed payment pursuant to this clause, such manner of payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Subordinated Security
delivered under this Subordinated Indenture upon registration of transfer of or
in exchange for or in lieu of any other Subordinated Security shall carry the
rights to interest accrued and unpaid, and to accrue, which were carried by such
other Subordinated Security.
In the case of any Subordinated Security which is converted during the period
after any Regular Record Date and on or prior to the next succeeding Interest
Payment Date (other than any Subordinated Security whose Maturity is prior to
such Interest Payment Date), interest whose Stated Maturity is on such Interest
Payment Date shall be payable on such Interest Payment Date notwithstanding such
conversion, and such interest (whether or not punctually paid or duly provided
for) shall be paid to the Person in whose name that Subordinated Security (or
one or more Predecessor Subordinated Securities) is registered at the close of
business on such Regular Record Date; provided, however, that Subordinated
Securities so registered for conversion shall (except in the case of
Subordinated Securities or portions thereof which have been called for
redemption on a Redemption Date within such period) be accompanied by payment in
New York Clearing House Funds or other funds acceptable to the Company of an
amount equal to the interest payable on such Interest Payment Date on the
principal amount being surrendered for conversion. Except as otherwise expressly
provided in the immediately preceding sentence, in
the case of any Subordinated Security which is converted, interest whose Stated
Maturity is after the date of conversion of such Subordinated Security shall not
be payable.
SECTION 2.8 Registration, Transfer and Exchange.
(a) The Company will keep at each office or agency to be maintained for the
purpose as provided in Section 3.2 for each series of Subordinated Securities a
register or registers (the register maintained in such office and in any other
office or agency of the Company designated pursuant to Section 3.2 being herein
sometimes collectively referred to as the "Security Register") in which, subject
to such reasonable regulations as the Company may prescribe, it will provide for
the registration of Registered Subordinated Securities of such series and the
registration of transfer of Registered Subordinated Securities of such series.
Such Security Register shall be in written form in the English language or in
any other form capable of being converted into such form within a reasonable
time. At all reasonable times such Security Register or registers shall be open
for inspection by the Trustee.
Upon due presentation for registration of transfer of any Registered
Subordinated Security of any series at any such office or agency to be
maintained for the purpose as provided in Section 3.2, the Company shall execute
and the Trustee shall authenticate and deliver in the name of the transferee or
transferees a new Registered Subordinated Security or Registered Subordinated
Securities of the same series, maturity date, interest rate and original issue
date in authorized denominations for a like aggregate principal amount.
Unregistered Subordinated Securities (except for any temporary global
Unregistered Subordinated Securities) and Coupons (except for Coupons attached
to any temporary global Unregistered Subordinated Securities) shall be
transferable by delivery.
At the option of the Holder thereof, Registered Subordinated Securities of
any series (other than a Registered Global Subordinated Security, except as set
forth below) may be exchanged for a Registered Subordinated Security or
Registered Subordinated Securities of such series having authorized
denominations and an equal aggregate principal amount, upon surrender of such
Registered Subordinated Securities to be exchanged at the agency of the Company
that shall be maintained for such purpose in accordance with Section 3.2 and
upon payment, if the Company shall so require, of the charges hereinafter
provided. If the Subordinated Securities of any series are issued in both
registered and unregistered form, at the option of the Holder thereof, except as
otherwise specified pursuant to Section 2.3, Unregistered Subordinated
Securities of any series may be exchanged for Registered Subordinated Securities
of such series having authorized denominations and an equal aggregate principal
amount, upon surrender of such Unregistered Subordinated Securities to be
exchanged at the agency of the Company that shall be maintained for such purpose
in accordance with Section 3.2, with, in the case of Unregistered Subordinated
Securities that have Coupons attached, all unmatured Coupons and all matured
Coupons in default thereto appertaining, and upon payment, if the Company shall
so require, of the charges hereinafter provided. At the option of the Holder
thereof, if Unregistered Subordinated Securities of any series, maturity date,
interest rate and original issue date are issued in more than one authorized
denomination, except as otherwise specified pursuant to Section 2.3, such
Unregistered Subordinated Securities may be exchanged for Unregistered
Subordinated Securities of such series having authorized denominations and an
equal aggregate principal amount, upon surrender of such Unregistered
Subordinated Securities to be exchanged at the agency of the Company that shall
be maintained for such purpose in accordance with Section 3.2 or as specified
pursuant to Section 2.3, with, in the case of Unregistered Subordinated
Securities that have Coupons attached, all unmatured Coupons and all matured
Coupons in default thereto appertaining, and upon payment, if the Company shall
so require, of the charges hereinafter provided. Registered Subordinated
Securities of any series may not be exchanged for Unregistered Subordinated
Securities of such series unless (1) otherwise specified pursuant to Section 2.3
and (2) the Company has delivered to the Trustee an Opinion of Counsel that (x)
the Company has received from the IRS a ruling or (y) since the date hereof,
there has been a change in the applicable Federal income tax law, in either case
to the effect that the inclusion of terms permitting Registered Subordinated
Securities to be exchanged for Unregistered Subordinated Securities would result
in no Federal income tax effect adverse to the Company or to any Holder.
Whenever any Subordinated Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Subordinated Securities which the Holder making the exchange is entitled to
receive. All Subordinated Securities and Coupons, if any, surrendered upon any
exchange or transfer provided for in this Subordinated Indenture shall be
promptly canceled and disposed of by the Trustee, and the Trustee shall deliver
a certificate of disposition thereof to the Company.
All Registered Subordinated Securities presented for registration of
transfer, exchange, redemption or payment shall (if so required by the Company
or the Trustee) be duly endorsed, or be accompanied by a written instrument or
instruments of transfer in form satisfactory to the Company and the Trustee duly
executed, by the Holder or his attorney duly authorized in writing.
The Company may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any exchange or
registration of transfer of Subordinated Securities. No service charge shall be
made for any such transaction.
The Company shall not be required to exchange or register a transfer of (a)
any Subordinated Securities of any series for a period of 15 days preceding the
first mailing of notice of redemption of Subordinated Securities of such series
to be redeemed or (b) any Subordinated Securities selected, called or being
called for redemption, in whole or in part, except, in the case of any
Subordinated Security to be redeemed in part, the portion thereof not so to be
redeemed.
Notwithstanding any other provision of this Section 2.8, unless and until
it is exchanged in whole or in part for Subordinated Securities in definitive
registered form, a Registered Global Subordinated Security representing all or a
portion of the Subordinated Securities of a series may not be transferred except
as a whole by the Depositary for such series to a nominee of such Depositary or
by a nominee of such Depositary to such Depositary or another nominee of such
Depositary or by such Depositary or any such nominee to a successor Depositary
for such series or a nominee of such successor Depositary.
If at any time the Depositary for any Registered Subordinated Securities of
a series represented by one or more Registered Global Subordinated Securities
notifies the Company that
it is unwilling or unable to continue as Depositary for such Registered
Subordinated Securities or if at any time the Depositary for such Registered
Subordinated Securities shall no longer be eligible under Section 2.4, the
Company shall appoint a successor Depositary eligible under Section 2.4 with
respect to such Registered Subordinated Securities. If a successor Depositary
eligible under Section 2.4 for such Registered Subordinated Securities is not
appointed by the Company within 90 days after the Company receives such notice
or becomes aware of such ineligibility, the Company's election pursuant to
Section 2.3 that such Registered Subordinated Securities be represented by one
or more Registered Global Subordinated Securities shall no longer be effective
and the Company will execute, and the Trustee, upon receipt of an Officer's
Certificate for the authentication and delivery of definitive Subordinated
Securities of such series, will authenticate and deliver, Subordinated
Securities of such series in definitive registered form without coupons, in any
authorized denominations, in an aggregate principal amount equal to the
principal amount of the Registered Global Subordinated Security or Subordinated
Securities representing such Registered Subordinated Securities in exchange for
such Registered Global Subordinated Security or Subordinated Securities.
The Company may at any time and in its sole discretion determine that the
Registered Subordinated Securities of any series issued in the form of one or
more Registered Global Subordinated Securities shall no longer be represented by
a Registered Global Subordinated Security or Subordinated Securities. In such
event the Company will execute, and the Trustee, upon receipt of any Officer's
Certificate for the authentication and delivery of definitive Subordinated
Securities of such series, will authenticate and deliver, Subordinated
Securities of such series in definitive registered form without coupons, in any
authorized denominations, in an aggregate principal amount equal to the
principal amount of the Registered Global Subordinated Security or Subordinated
Securities representing such Registered Subordinated Securities, in exchange for
such Registered Global Subordinated Security or Subordinated Securities.
If specified by the Company pursuant to Section 2.3 with respect to
Subordinated Securities represented by a Registered Global Subordinated
Security, the Depositary for such Registered Global Subordinated Security may
surrender such Registered Global Subordinated Security in exchange in whole or
in part for Subordinated Securities of the same series in definitive registered
form on such terms as are acceptable to the Company and such Depositary.
Thereupon, the Company shall execute, and the Trustee shall authenticate and
deliver, without service charge,
(i) to the Person specified by such Depositary a new Registered
Subordinated Security or Subordinated Securities of the same series, of any
authorized denominations as requested by such Person, in an aggregate principal
amount equal to and in exchange for such Person's beneficial interest in the
Registered Global Subordinated Security; and
(ii) to such Depositary a new Registered Global Subordinated Security in a
denomination equal to the difference, if any, between the principal amount of
the surrendered Registered Global Subordinated Security and the aggregate
principal amount of Registered Subordinated Securities authenticated and
delivered pursuant to clause (i) above.
Upon the exchange of a Registered Global Subordinated Security for
Subordinated Securities in definitive registered form without coupons, in
authorized denominations, such Registered Global Subordinated Security shall be
canceled by the Trustee or an agent of the Company or the Trustee. Subordinated
Securities in definitive registered form without coupons issued in exchange for
a Registered Global Subordinated Security pursuant to this Section 2.8 shall be
registered in such names and in such authorized denominations as the Depositary
for such Registered Global Subordinated Security, pursuant to instructions from
its direct or indirect participants or otherwise, shall instruct the Trustee or
an agent of the Company or the Trustee. The Trustee or such agent shall deliver
such Subordinated Securities to or as directed by the Persons in whose names
such Subordinated Securities are so registered.
All Subordinated Securities issued upon any transfer or exchange of
Subordinated Securities shall be valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Subordinated
Indenture, as the Subordinated Securities surrendered upon such transfer or
exchange.
Notwithstanding anything herein or in the terms of any series of
Subordinated Securities to the contrary, none of the Company, the Trustee or any
agent of the Company or the Trustee (any of which, other than the Company, shall
rely on an Officer's Certificate and an Opinion of Counsel) shall be required to
exchange any Unregistered Subordinated Security for a Registered Subordinated
Security if such exchange would result in Federal income tax consequences
adverse to the Company (such as, for example, the inability of the Company to
deduct from its income, as computed for Federal income tax purposes, the
interest payable on the Unregistered Subordinated Securities) under then
applicable United States Federal income tax laws.
(b)(i) Subordinated Securities that are distributed to QIBs will be
represented by a global Subordinated Security (the "144A Global Subordinated
Security"). Subordinated Securities that are distributed to Non-U.S. Persons
will be represented by a global Subordinated Security (the "Regulation S Global
Subordinated Security"). Each of the 144A Global Subordinated Security and the
Regulation S Global Subordinated Security shall be referred to herein as a
"Global Subordinated Security." If Global Subordinated Securities are issued,
transfers of interests in the Subordinated Securities between the 144A Global
Subordinated Security and the Regulation S Global Subordinated Security will be
made in accordance with the standing instructions and procedures of the
Depositary and its participants and the Trustee shall make appropriate
endorsements to reflect increases or decreases in the principal amounts of such
Global Subordinated Securities to reflect any such transfers.
Except as provided below, beneficial owners of a Subordinated Security in
global form shall not be entitled to have certificates registered in their
names, will not receive or be entitled to receive physical delivery of
certificates in definitive form and will not be considered Holders of such
Subordinated Securities in global form.
(ii) So long as the Subordinated Securities are eligible for book-entry
settlement, and to the extent that Subordinated Securities are held by QIBs or
Non-U.S. Persons, as the case may be, in a Global Subordinated Security, or
unless otherwise required by law, upon any
transfer of a definitive Subordinated Security to a QIB in accordance with Rule
144A or to a Non-U.S. Person in accordance with Regulation S, unless otherwise
requested by the transferor, and upon receipt of the definitive Subordinated
Security or Subordinated Securities being so transferred, together with a
certification from the transferor that the transfer is being made in compliance
with Rule 144A or Regulation S, as the case may be (or other evidence
satisfactory to the Trustee), the Trustee shall make an endorsement on any 144A
Global Subordinated Security or any Regulation S Global Subordinated Security,
as the case may be, to reflect an increase in the aggregate principal amount of
the Subordinated Securities represented by such Global Subordinated Security,
and the Trustee shall cancel such definitive Subordinated Security or
Subordinated Securities in accordance with the standing instructions and
procedures of the Depositary, the aggregate principal amount of Subordinated
Securities represented by such Global Subordinated Security to be increased
accordingly; provided that no definitive Subordinated Security, or portion
thereof, in respect of which the Company or an Affiliate of the Company held any
beneficial interest shall be included in such Global Subordinated Security until
such definitive Subordinated Security is freely tradable in accordance with Rule
144K; provided further that the Trustee shall, at the written request of the
Company, issue Subordinated Securities in definitive form upon any transfer of a
beneficial interest in the Global Subordinated Security to the Company or any
Affiliate of the Company.
Any Global Subordinated Security may be endorsed with or have incorporated
in the text thereof such legends or recitals or changes not inconsistent with
the provisions of this Subordinated Indenture as may be required by the
Depositary, by the New York Stock Exchange or by the National Association of
Securities Dealers, Inc. in order for the Subordinated Securities to be tradable
on the PORTAL Market or as may be required for the Subordinated Securities to be
tradable on any other market developed for trading of securities pursuant to
Rule 144A or required to comply with any applicable law or any regulation
thereunder or with the rules and regulations of any securities exchange upon
which the Subordinated Securities may be listed or traded or to conform with any
usage with respect thereto, or to indicate any special limitations or
restrictions to which any particular Subordinated Securities are subject.
(iii) Each Subordinated Security that bears or is required to bear the
legend set forth in this Section 2.8(b) (a "Restricted Subordinated Security")
shall be subject to the restrictions on transfer provided in the legend set
forth in this Section 2.8(b), unless such restrictions on transfer shall be
waived by the written consent of the Company, and the Holder of each Restricted
Subordinated Security, by such Holder's acceptance thereof, agrees to be bound
by such restrictions on transfer. As used in this Section 2.8(b), the term
"transfer" encompasses any sale, pledge, transfer or other disposition of any
Restricted Subordinated Security.
Prior to the Transfer Restriction Termination Date, any certificate
evidencing a Subordinated Security shall bear a legend in substantially the
following form, unless otherwise agreed by the Company (with written notice
thereof to the Trustee):
THE SUBORDINATED SECURITY (THE "SECURITY") EVIDENCED HEREBY HAS NOT BEEN
REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR
TO, OR FOR THE ACCOUNT
OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY
ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B)
IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2),
(3) OR (7) UNDER THE SECURITIES ACT) ("INSTITUTIONAL ACCREDITED INVESTOR") OR
(C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THE SECURITY EVIDENCED HEREBY IN AN
OFFSHORE TRANSACTION, (2) AGREES THAT IT WILL NOT PRIOR TO THE EXPIRATION OF THE
HOLDING PERIOD APPLICABLE TO SALES OF THE SECURITY EVIDENCED HEREBY UNDER RULE
144(K) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION), RESELL OR
OTHERWISE TRANSFER THE SECURITY EVIDENCED HEREBY EXCEPT (A) TO HEALTHSOUTH
CORPORATION (THE "COMPANY") OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (C) TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (D)
TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES
TO THE TRUSTEE FOR THE SECURITIES A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THE
SECURITY EVIDENCED HEREBY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM SUCH
TRUSTEE), (E) OUTSIDE THE UNITED STATES IN COMPLIANCE WITH RULE 904 UNDER THE
SECURITIES ACT OR (F) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY
RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) AND (3) AGREES THAT IT WILL
DELIVER TO EACH PERSON TO WHOM THE SECURITY EVIDENCED HEREBY IS TRANSFERRED A
NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY
TRANSFER OF THE SECURITY EVIDENCED HEREBY PRIOR TO THE EXPIRATION OF THE HOLDING
PERIOD APPLICABLE TO SALES OF THE SECURITY EVIDENCED HEREBY UNDER RULE 144(K)
UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION), THE HOLDER MUST CHECK THE
APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH
TRANSFER AND SUBMIT THIS CERTIFICATE TO THE TRUSTEE FOR THE SECURITIES. IF THE
PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED INVESTOR OR A PURCHASER WHO
IS NOT A U.S. PERSON, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE
TRUSTEE FOR THE SECURITIES SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER
INFORMATION AS THE COMPANY OR THE TRUSTEE MAY REASONABLY REQUIRE TO CONFIRM THAT
SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION
NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THIS LEGEND
WILL BE REMOVED AFTER THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES
OF THE SECURITY EVIDENCED HEREBY UNDER RULE 144(K) UNDER THE SECURITIES ACT. AS
USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON"
HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
Following the Transfer Restriction Termination Date, any Subordinated
Security or security issued in exchange or substitution therefor (other than
Subordinated Securities acquired by the Company or any Affiliate thereof since
the issue date of the Subordinated Securities) may upon surrender of such
Subordinated Security for exchange to the Security Registrar in accordance with
the provisions of this Section 2.8, be exchanged for a new Subordinated Security
or Subordinated Securities, of like tenor and aggregate principal amount, which
shall not bear the restrictive legend required by this Section 2.8(b).
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Subordinated
Securities.
In case any temporary or definitive Subordinated Security or any Coupon
appertaining to any Subordinated Security shall be mutilated, defaced,
destroyed, lost or stolen, the Company in its discretion may execute and, upon
the written request of any officer of the Company, the Trustee shall
authenticate and deliver, a new Subordinated Security of the same series,
maturity date, interest rate and original issue date, bearing a number or other
distinguishing symbol not contemporaneously outstanding, in exchange and
substitution for the mutilated or defaced Subordinated Security, or in lieu of
and in substitution for the Subordinated Security so destroyed, lost or stolen
with Coupons corresponding to the Coupons appertaining to the Subordinated
Securities so mutilated, defaced, destroyed, lost or stolen, or in exchange or
substitution for the Subordinated Security to which such mutilated, defaced,
destroyed, lost or stolen Coupon appertained, with Coupons appertaining thereto
corresponding to the Coupons so mutilated, defaced, destroyed, lost or stolen.
In every case the applicant for a substitute Subordinated Security or Coupon
shall furnish to the Company and to the Trustee and any agent of the Company or
the Trustee such security or indemnity as may be required by them to indemnify
and defend and to save each of them harmless and, in every case of destruction,
loss or theft, evidence to their satisfaction of the destruction, loss or theft
of such Subordinated Security or Coupon and of the ownership thereof, and in the
case of mutilation or defacement shall surrender the Subordinated Security and
related Coupons to the Trustee or such agent.
Upon the issuance of any substitute Subordinated Security or Coupon, 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) or its agent connected
therewith. In case any Subordinated Security or Coupon which has matured or is
about to mature or has been called for redemption in full shall become mutilated
or defaced or be destroyed, lost or stolen, the Company may instead of issuing a
substitute Subordinated Security, pay or authorize the payment of the same or
the relevant Coupon (without surrender thereof except in the case of a mutilated
or defaced Subordinated Security or Coupon), if the applicant for such payment
shall furnish to the Company and to the Trustee and any agent of the Company or
the Trustee such security or indemnity as any of them may require 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 and any agent of the
Company or the Trustee evidence to their satisfaction of the destruction, loss
or theft of such Subordinated Security or Coupons and of the ownership thereof.
Every substitute Subordinated Security or Coupon of any series issued
pursuant to the provisions of this Section by virtue of the fact that any such
Subordinated Security or Coupon
is destroyed, lost or stolen shall constitute an additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen
Subordinated Security or Coupon shall be at any time enforceable by anyone and
shall be entitled to all the benefits of (but shall be subject to all the
limitations of rights set forth in) this Subordinated Indenture equally and
proportionately with any and all other Subordinated Securities or Coupons of
such series duly authenticated and delivered hereunder. All Subordinated
Securities and Coupons shall be held and owned upon the express condition that,
to the extent permitted by law, the foregoing provisions are exclusive with
respect to the replacement or payment of mutilated, defaced or destroyed, lost
or stolen Subordinated Securities and Coupons and shall preclude any and all
other rights or remedies notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement or payment of
negotiable instruments or other securities without their surrender.
SECTION 2.10 Cancellation of Subordinated Securities; Destruction Thereof.
All Subordinated Securities and Coupons surrendered for payment,
redemption, registration of transfer or exchange, or for credit against any
payment in respect of a sinking or analogous fund, if any, if surrendered to the
Company or any agent of the Company or the Trustee or any agent of the Trustee,
shall be delivered to the Trustee or its agent for cancellation or, if
surrendered to the Trustee, shall be canceled by it; and no Subordinated
Securities or Coupons shall be issued in lieu thereof except as expressly
permitted by any of the provisions of this Subordinated Indenture. The Trustee
or its agent shall dispose of canceled Subordinated Securities and Coupons held
by it and deliver a certificate of disposition to the Company. If the Company or
its agent shall acquire any of the Subordinated Securities or Coupons, such
acquisition shall not operate as a redemption or satisfaction of the
indebtedness represented by such Subordinated Securities or Coupons unless and
until the same are delivered to the Trustee or its agent for cancellation.
SECTION 2.11 Temporary Subordinated Securities.
Pending the preparation of definitive Subordinated Securities for any
series, the Company may execute and the Trustee shall authenticate and deliver
temporary Subordinated Securities for such series (printed, lithographed,
typewritten or otherwise reproduced, in each case in form satisfactory to the
Trustee). Temporary Subordinated Securities of any series shall be issuable as
Registered Subordinated Securities without coupons, or as Unregistered
Subordinated Securities with or without coupons attached thereto, of any
authorized denomination, and substantially in the form of the definitive
Subordinated Securities of such series but with such omissions, insertions and
variations as may be appropriate for temporary Subordinated Securities, all as
may be determined by the Company with the concurrence of the Trustee as
evidenced by the execution and authentication thereof. Temporary Subordinated
Securities may contain such references to any provisions of this Subordinated
Indenture as may be appropriate. Every temporary Subordinated Security shall be
executed by the Company and be authenticated by the Trustee upon the same
conditions and in substantially the same manner, and with like effect, as the
definitive Subordinated Securities. Without unreasonable delay the Company shall
execute and shall furnish definitive Subordinated Securities of such series and
thereupon temporary Registered Subordinated Securities of such series may be
surrendered in exchange therefor without charge at each office or agency to be
maintained by the Company for
that purpose pursuant to Section 3.2 and, in the case of Unregistered
Subordinated Securities, at any agency maintained by the Company for such
purpose as specified pursuant to Section 2.4, and the Trustee shall authenticate
and deliver in exchange for such temporary Subordinated Securities of such
series an equal aggregate principal amount of definitive Subordinated Securities
of the same series having authorized denominations and, in the case of
Unregistered Subordinated Securities, having attached thereto any appropriate
Coupons. Until so exchanged, the temporary Subordinated Securities of any series
shall be entitled to the same benefits under this Subordinated Indenture as
definitive Subordinated Securities of such series, unless otherwise established
pursuant to Section 2.3. The provisions of this Section are subject to any
restrictions or limitations on the issue and delivery of temporary Unregistered
Subordinated Securities of any series that may be established pursuant to
Section 2.4 (including any provision that Unregistered Subordinated Securities
of such series initially be issued in the form of a single global Unregistered
Subordinated Security to be delivered to a depositary or agency located outside
the United States and the procedures pursuant to which definitive or global
Unregistered Subordinated Securities of such series would be issued in exchange
for such temporary global Unregistered Subordinated Security).
ARTICLE 3
COVENANTS OF THE COMPANY
SECTION 3.1 Payment of Principal and Interest.
The Company covenants and agrees for the benefit of each series of
Subordinated Securities that it will duly and punctually pay or cause to be paid
the principal of, and interest on, if any, each of the Subordinated Securities
of such series (together with any additional amounts payable pursuant to the
terms of such Subordinated Securities) at the place or places, at the respective
time or times and in the manner provided in such Subordinated Securities and in
the Coupons, if any, appertaining thereto and in this Subordinated Indenture.
The interest on Subordinated Securities with Coupons attached (together with any
additional amounts payable pursuant to the terms of such Subordinated
Securities) shall be payable only upon presentation and surrender of the several
Coupons for such interest installments as are evidenced thereby as they
severally mature. If any temporary Unregistered Subordinated Security provides
that interest thereon may be paid while such Subordinated Security is in
temporary form, the interest on any such temporary Unregistered Subordinated
Security (together with any additional amounts payable pursuant to the terms of
such Subordinated Security) shall be paid, as to the installments of interest
evidenced by Coupons attached thereto, if any, only upon presentation and
surrender thereof, and, as to the other installments of interest, if any, only
upon presentation of such Subordinated Securities for notation thereon of the
payment of such interest, in each case subject to any restrictions that may be
established pursuant to Section 2.4. The interest, if any, on Registered
Subordinated Securities (together with any additional amounts payable pursuant
to the terms of such Subordinated Securities) shall be payable only to or upon
the written order of the Holders thereof and, at the option of the Company, may
be paid by wire transfer or by mailing checks for such interest payable to or
upon the written order of such Holders at their last addresses as they appear on
the Security Register of the Company.
SECTION 3.2 Offices for Payments, Etc.
So long as any Registered Subordinated Securities are authorized for
issuance pursuant to this Subordinated Indenture or are outstanding hereunder,
the Company will maintain in the Borough of Manhattan, The City of New York, an
office or agency where the Registered Subordinated Securities of each series may
be presented for payment, where the Subordinated Securities of each series may
be presented for exchange as is provided in this Subordinated Indenture, where
the Subordinated Securities of each series may be surrendered for conversion
and, if applicable, pursuant to Section 2.4 and where the Registered
Subordinated Securities of each series may be presented for registration of
transfer as in this Subordinated Indenture provided.
The Company will maintain one or more offices or agencies in a city or
cities located outside the United States (including any city in which such an
agency is required to be maintained under the rules of any stock exchange on
which the Subordinated Securities of such series are listed) where the
Unregistered Subordinated Securities, if any, of each series and Coupons, if
any, appertaining thereto may be presented for payment. No payment on any
Unregistered Subordinated Security or Coupon will be made upon presentation of
such Unregistered Subordinated Security or Coupon at an agency of the Company
within the United States nor will any payment be made by transfer to an account
in, or by mail to an address in, the United States unless pursuant to applicable
United States laws and regulations then in effect such payment can be made
without tax consequences adverse to the Company. Notwithstanding the foregoing,
payments in Dollars of Unregistered Subordinated Securities of any series and
Coupons appertaining thereto which are payable in Dollars may be made at an
agency of the Company maintained in the Borough of Manhattan, The City of New
York if such payment in Dollars at each agency maintained by the Company outside
the United States for payment on such Unregistered Subordinated Securities is
illegal or effectively precluded by exchange controls or other similar
restrictions.
The Company will maintain in the Borough of Manhattan, The City of New
York, an office or agency where notices and demands to or upon the Company in
respect of the Subordinated Securities of any series, the Coupons appertaining
thereto or this Subordinated Indenture may be served.
The Company will give to the Trustee written notice of the location of each
such office or agency and of any change of location thereof. In case the Company
shall fail to maintain any agency required by this Section to be located in the
Borough of Manhattan, The City of New York, or shall fail to give such notice of
the location or for any change in the location of any of the above agencies,
presentations and demands may be made and notices may be served at the Corporate
Trust Office of the Trustee.
The Company may from time to time designate one or more additional offices
or agencies where the Subordinated Securities of a series and any Coupons
appertaining thereto may be presented for payment, where the Subordinated
Securities of that series may be presented for exchange as provided in this
Subordinated Indenture and pursuant to Section 2.4 and where the Registered
Subordinated Securities of that series may be presented for registration of
transfer
as in this Subordinated Indenture provided, and the Company may from time to
time rescind any such designation, as the Company may deem desirable or
expedient; provided, that no such designation or rescission shall in any manner
relieve the Company of its obligations to maintain the agencies provided for in
this Section. The Company shall give to the Trustee prompt written notice of any
such designation or rescission thereof.
SECTION 3.3 Appointment to Fill a Vacancy in Office of Trustee.
The Company, whenever necessary to avoid or fill a vacancy in the office of
Trustee, will appoint, in the manner provided in Section 6.10, a Trustee, so
that there shall at all times be a Trustee with respect to each series of
Subordinated Securities hereunder.
SECTION 3.4 Paying Agents.
Whenever the Company shall appoint a Paying Agent other than the Trustee
with respect to the Subordinated Securities of any series, it will cause 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,
(a) that it will hold all sums received by it as such agent for the payment
of the principal of or interest on the Subordinated Securities of such series
(whether such sums have been paid to it by the Company or by any other obligor
on the Subordinated Securities of such series) in trust for the benefit of the
Holders of the Subordinated Securities of such series, or Coupons appertaining
thereto, if any, or of the Trustee;
(b) that it will give the Trustee notice of any failure by the Company (or
by any other obligor on the Subordinated Securities of such series) to make any
payment of the principal of or interest on the Subordinated Securities of such
series when the same shall be due and payable; and
(c) that it will pay any such sums so held in trust by it to the Trustee
upon the Trustee's written request at any time during the continuance of the
failure referred to in the foregoing clause (b).
The Company will, on or prior to each due date of the principal of or
interest on the Subordinated Securities of such series, deposit with the Paying
Agent a sum sufficient to pay such principal or interest so becoming due, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of any failure to take such action.
If the Company shall act as its own Paying Agent with respect to the
Subordinated Securities of any series, it will, on or before each due date of
the principal of or interest on the Subordinated Securities of such series, set
aside, segregate and hold in trust for the benefit of the Holders of the
Subordinated Securities of such series or the Coupons appertaining thereto a sum
sufficient to pay such principal or interest so becoming due. The Company will
promptly notify the Trustee of any failure to take such action.
Anything in this Section to the contrary notwithstanding, but subject to
Section 10.1, the Company may at any time, for the purpose of obtaining a
satisfaction and discharge with respect to one or more or all series of
Subordinated Securities hereunder, or for any other reason, pay or cause to be
paid to the Trustee all sums held in trust for any such series by the Company or
any Paying Agent hereunder, as required by this Section, such sums to be held by
the Trustee upon the trusts herein contained.
Anything in this Section to the contrary notwithstanding, the agreement to
hold sums in trust as provided in this Section is subject to the provisions of
Sections 10.3 and 10.4.
SECTION 3.5 Compliance Certificates.
The Company will furnish to the Trustee on or before January 31 in each
year (beginning with January 31, 1999) a brief certificate (which need not
comply with Section 11.5) from the principal executive, financial or accounting
officer of the Company stating that in the course of the performance by the
signer of his or her duties as an officer of the Company he or she would
normally have knowledge of any default or non-compliance by the Company in the
performance of any covenants or conditions contained in this Subordinated
Indenture, stating whether or not he or she has knowledge of any such default or
non-compliance and, if so, describing each such default or non- compliance of
which the signer has knowledge and the nature thereof.
SECTION 3.6 Corporate Existence.
Subject to Article 9, the Company will do or cause to be done all things
necessary to preserve and keep in full force and effect its corporate existence
and the rights (charter and statutory), licenses and franchises of the Company
and its Subsidiaries; provided, that the Company shall not be required to
preserve any such right, license or franchise, if, in the judgment of the
Company, the preservation thereof is no longer desirable in the conduct of the
business of the Company and its Subsidiaries taken as a whole and the loss
thereof is not disadvantageous in any material respect to the Securityholders.
SECTION 3.7 Maintenance of Properties.
The Company will cause all properties used in or useful in the conduct of
its business or the business of any Subsidiary to be maintained and kept in good
condition, repair, and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Company may
be necessary, so that the business carried on in connection therewith may be
properly and advantageously conducted at all time except to the extent that the
Company may be prevented from so doing by circumstances beyond its control;
provided, that nothing in this Section shall prevent the Company from
discontinuing the operation or maintenance of any of such properties, or
disposing of any of them, if such discontinuance or disposal is, in the judgment
of the Company desirable in the conduct of the business of the Company or any
Subsidiary and not disadvantageous in any material respect to the
Securityholders.
SECTION 3.8 Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged, before
the same shall become delinquent: (a) all taxes, assessments and governmental
charges levied or imposed upon the Company or any Subsidiary or upon the income,
profits or property of the Company or any Subsidiary; and (b) all lawful claims
for labor, materials, and supplies, which, if unpaid, might by law become a lien
upon the property of the Company or any Subsidiary; provided, that the Company
shall not be required to pay or discharge or cause to be paid or discharged any
such tax, assessment, charge or claim whose amount, applicability or validity is
being contested in good faith by appropriate proceedings; and provided further
that the Company shall not be required to cause to be paid or discharged any
such tax, assessment, charge or claim if the Company shall determine that such
payment is not advantageous to the conduct of the business of the Company and
its Subsidiaries taken as a whole and that the failure so to pay or discharge is
not disadvantageous in any material respect to the Securityholders.
SECTION 3.9 Luxembourg Publications.
In the event of the publication of any notice pursuant to Section 5.15,
6.11(a), 6.12, 8.2, 10.4 or 13.2, the party making such publication in the
Borough of Manhattan, The City of New York and London shall also, to the extent
that notice is required to be given to Holders of Subordinated Securities of any
series by applicable Luxembourg law or stock exchange regulation, as evidenced
by an Officer's Certificate delivered to such party, make a similar publication
in Luxembourg.
SECTION 3.10 Usury Laws.
The Company covenants and agrees: (a) not to insist upon, or plead, or in any
manner whatsoever claim the benefit or the advantage of the usury law of any
jurisdiction against the Trustee or the Holders in connection with any claim,
action or proceeding which may be brought by the Trustee or the Holders in order
to enforce any right or remedy under this Subordinated Indenture; and (b) to
resist any and all efforts to compel the Company to claim the benefit or the
advantage of the usury law of any jurisdiction against the Trustee or the
Holders in connection with any claim, action or proceeding which may be brought
by the Trustee or the Holders in order to enforce any right or remedy under this
Indenture.
ARTICLE 4
SECURITYHOLDER LISTS AND REPORTS BY THE
COMPANY AND THE TRUSTEE
SECTION 4.1 Company to Furnish Trustee Information as to Names and Addresses of
Securityholders.
If and so long as the Trustee shall not be the Security Registrar for the
Subordinated Securities of any series, the Company and any other obligor on the
Subordinated Securities will
furnish or cause to be furnished to the Trustee a list in such form as the
Trustee may reasonably require of the names and addresses of the Holders of the
Registered Subordinated Securities of such series pursuant to Section 312 of the
Trust Indenture Act:
(a) semi-annually not more than 15 days after each Regular Record Date for
the payment of interest on such Registered Subordinated Securities, as
hereinabove specified, as of such record date and on dates to be determined
pursuant to Section 2.4 for non-interest bearing Registered Subordinated
Securities in each year; and
(b) at such other times as the Trustee may reasonably request in writing,
within thirty days after receipt by the Company of any such request as of a date
not more than 15 days prior to the time such information is furnished.
SECTION 4.2 Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 4.1 and the names and
addresses of Holders received by the Trustee in its capacity as Subordinated
Security Registrar. The Trustee may destroy any list furnished to it as provided
in Section 4.1 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with respect to
their rights under this Subordinated Indenture or under the Subordinated
Securities, and the corresponding rights and duties of the Trustee, shall be as
provided by the Trust Indenture Act.
(c) Every Holder of Subordinated Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason of
any disclosure of information as to names and addresses of Holders made pursuant
to the Trust Indenture Act.
SECTION 4.3 Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Subordinated Indenture as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided
pursuant thereto.
(b) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which the
Subordinated Securities are listed, with the Commission and with the Company.
The Company will notify the Trustee when the Subordinated Securities are listed
on any stock exchange.
SECTION 4.4 Reports by Company.
The Company shall file with the Trustee and the Commission, and transmit to
Holders, such information, documents and other reports, and such summaries
thereof, as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided
pursuant to such Act; provided that any such information, documents or reports
required to be filed with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act, shall be filed with the Trustee within 15 days after the same is
so required to be filed with the Commission.
ARTICLE 5
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 5.1 Event of Default Defined, Acceleration of Maturity; Waiver of
Default.
"Event of Default" with respect to Subordinated Securities of any series,
wherever used herein, means each one of the following events which shall have
occurred and be continuing (whatever the reason for such Event of Default and
whether it shall be occasioned by the subordination provisions of any series of
Subordinated Securities or be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(a) default in the payment of any installment of interest upon any of the
Subordinated Securities of such series as and when the same shall become due and
payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of all or any part of the principal, or any
premium, on any of the Subordinated Securities of such series as and when the
same shall become due and payable either at Maturity, upon any redemption, by
declaration or otherwise; or
(c) default in the payment of any sinking fund installment as and when the
same shall become due and payable by the terms of the Subordinated Securities of
such series; or
(d) failure on the part of the Company duly to observe or perform any other
of the covenants or agreements on the part of the Company in the Subordinated
Securities of such series or contained in this Subordinated Indenture (other
than a covenant or agreement included in this Subordinated Indenture solely for
the benefit of a series of Subordinated Securities other than such series) for a
period of 60 days after the date on which written notice specifying such
failure, stating that such notice is a "Notice of Default" hereunder and
demanding that the Company remedy the same, shall have been given by registered
or certified mail, return receipt requested, to the Company by the Trustee, or
to the Company and the Trustee by the holders of at least 25% in aggregate
principal amount of the Outstanding Subordinated Securities of the series to
which such covenant or agreement relates; or
(e) default under any bond, debenture, note or other evidence of
indebtedness for money borrowed by the Company or any Subsidiary or under any
mortgage, indenture or instrument under which there may be issued or by which
there may be secured or evidenced
any indebtedness for money borrowed by the Company or any Subsidiary, whether
such indebtedness now exists or shall hereafter be created, which default shall
constitute a failure to pay the principal of indebtedness in excess of
$25,000,000 when due and payable after the expiration of any applicable grace
period with respect thereto or shall have resulted in indebtedness in excess of
$25,000,000 becoming or being declared due and payable prior to the date on
which it would otherwise have become due and payable, without such indebtedness
having been discharged, or such acceleration having been rescinded or annulled,
within a period of 10 days after there shall have been given to the Company by
the Trustee or to the Company and the Trustee by the Holders of at 25% in
aggregate principal amount of the Subordinated Securities of each such affected
series then Outstanding hereunder a written notice specifying such default and
requiring the Company to cause such indebtedness to be discharged or cause such
acceleration to be rescinded or annulled; or
(f) a court having jurisdiction in the premises shall enter a decree or
order for relief in respect of the Company or any Significant Subsidiary in an
involuntary case under any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect, or appointing a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or similar official) of the Company or any
Significant Subsidiary for any substantial part of its or their property or
ordering the winding up or liquidation of its or their affairs, and such decree
or order shall remain unstayed and in effect for a period of 60 consecutive
days; or
(g) the Company or any Significant Subsidiary shall commence a voluntary
case under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or consent to the entry of an order for relief in an
involuntary case under any such law, or consent to the appointment or taking
possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator
(or similar official) of the Company or any Significant Subsidiary or for any
substantial part of its or their property, or make any general assignment for
the benefit of creditors; or
(h) any other Event of Default provided in the supplemental indenture,
Board Resolution or Officer's Certificate under which such series of
Subordinated Securities is issued or in the form of Subordinated Security for
such series.
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment.
If an Event of Default described in clause (a), (b), (c), (d), (e) or (h)
of Section 5.1 (if the Event of Default under clause (d) or (h), as the case may
be, is with respect to less than all series of Subordinated Securities then
Outstanding) occurs and is continuing, then, and in each and every such case,
except for any series of Subordinated Securities the principal of which shall
have already become due and payable, either the Trustee or the Holders of not
less than 25% in aggregate principal amount of the Subordinated Securities of
each such affected series then Outstanding hereunder (each such series voting as
a separate class) by notice in writing to the Company (and to the Trustee if
given by Securityholders), may declare the entire principal (or, if the
Subordinated Securities of any such affected series are Original Issue Discount
Subordinated Securities, such portion of the principal amount as may be
specified in the terms of such series) of all Subordinated Securities of all
such affected series, and the interest accrued
thereon, if any, to be due and payable immediately, and upon any such
declaration, the same shall become immediately due and payable.
If an Event of Default described in clause (d) or (h) of Section 5.1 with
respect to all series of Subordinated Securities then Outstanding, occurs and is
continuing, then, and in each and every such case, unless the principal of all
of the Subordinated Securities shall have already become due and payable, either
the Trustee or the Holders of not less than 25% in aggregate principal amount of
all of the Subordinated Securities then Outstanding hereunder (treated as one
class) by notice in writing to the Company (and to the Trustee if given by
Securityholders), may declare the entire principal (or, if the Subordinated
Securities of any series are Original Issue Discount Subordinated Securities,
such portion of the principal amount as may be specified in the terms of such
series) of all of the Subordinated Securities then Outstanding, and the interest
accrued thereon, if any, to be due and payable immediately, and upon such
declaration, the same shall become immediately due and payable. If an Event of
Default described in clause (f) or (g) of Section 5.1 shall occur, the principal
amount of all outstanding Subordinated Securities shall ipso facto become and be
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holder.
The foregoing provisions are subject to the condition that if, at any time
after the principal (or, if the Subordinated Securities are Original Issue
Discount Subordinated Securities, such portion of the principal as may be
specified in the terms thereof) of the Subordinated Securities of any series (or
of all the Subordinated Securities, as the case may be) 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,
(A) the Company shall pay or shall deposit with the Trustee a sum
sufficient to pay
(i) all matured installments of interest upon all the Subordinated
Securities of each such series (or all the Subordinated Securities, as the
case may be); and
(ii) the principal of any and all Subordinated Securities of each such
series (or of all the Subordinated Securities, as the case may be) which
shall have become due otherwise than by acceleration; and
(iii) interest upon such principal and, to the extent that payment of
such interest is enforceable under applicable law, on overdue installments
of interest, at the same rate as the rate of interest or Yield to Maturity
(in the case of Original Issue Discount Subordinated Securities) specified
in the Subordinated Securities of each such series (or at the respective
rates of interest or Yields to Maturity of all the Subordinated Securities,
as the case may be) to the date of such payment or deposit; and
(iv) all amounts payable to the Trustee pursuant to Section 6.6; and
(B) all Events of Default under the Subordinated Indenture, other than the
non-payment of the principal of Subordinated Securities which shall have become
due by acceleration, shall have been cured, waived or otherwise remedied as
provided herein,
then and in every such case the Holders of a majority in aggregate principal
amount of all the Subordinated Securities of each such series, each such series
voting as a separate class (or of all the Subordinated Securities, as the case
may be, voting as a single class), then Outstanding, by written notice to the
Company and to the Trustee, may waive all defaults with respect to each such
series (or with respect to all the Subordinated Securities, as the case may be)
and rescind and annul such declaration and its consequences, but no such waiver
or rescission and annulment shall extend to or shall affect any subsequent
default or shall impair any right consequent thereon.
For all purposes under this Subordinated Indenture, if a portion of the
principal of any Original Issue Discount Subordinated Securities shall have been
accelerated and declared due and payable pursuant to the provisions hereof,
then, from and after such declaration, unless such declaration has been
rescinded and annulled, the principal amount of such Original Issue Discount
Subordinated Securities shall be deemed, for all purposes hereunder, to be such
portion of the principal thereof as shall be due and payable as a result of such
acceleration, and payment of such portion of the principal thereof as shall be
due and payable as a result of such acceleration, together with interest, if
any, thereon and all other amounts owing thereunder, shall constitute payment in
full of such Original Issue Discount Subordinated Securities.
SECTION 5.3 Collection of Indebtedness by Trustee; Trustee May Prove Debt.
The Company covenants that (a) in case default shall be made in the payment
of any installment of interest on any of the Subordinated Securities of any
series when such interest shall have become due and payable, and such default
shall have continued for a period of 30 days, or (b) in case default shall be
made in the payment of all or any part of the principal of any of the
Subordinated Securities of any series when the same shall have become due and
payable, whether upon Maturity of the Subordinated Securities of such series or
upon any redemption or by declaration or otherwise, then upon demand of the
Trustee, the Company will pay to the Trustee for the benefit of the Holders of
the Subordinated Securities of such series the whole amount that then shall have
become due and payable on all Subordinated Securities of such series, and such
Coupons, for principal and interest, as the case may be (with interest to the
date of such payment upon the overdue principal and, to the extent that payment
of such interest is enforceable under applicable law, on overdue installments of
interest at the same rate as the rate of interest or Yield to Maturity (in the
case of Original Issue Discount Subordinated Securities) specified in the
Subordinated Securities of such series); and in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection, and
such other amount due the Trustee under Section 6.6 in respect of Subordinated
Securities of such series.
Until such demand is made by the Trustee, the Company may pay the principal
of and interest on the Subordinated Securities of any series to the registered
Holders, whether or not the Subordinated Securities of such series be overdue.
SECTION 5.4 Trustee May File Proofs of Claims.
In case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name 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 proceedings to judgment or final decree, and may enforce any such
judgment or final decree against the Company or other obligor upon the
Subordinated Securities and collect in the manner provided by law out of the
property of the Company or other obligor upon the Subordinated Securities,
wherever situated, all the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings relative to the Company or any
other obligor upon the Subordinated Securities under Title 11 of the United
States Code or any other applicable Federal or state bankruptcy, insolvency or
other similar law, or in case a receiver, assignee or trustee in bankruptcy or
reorganization, liquidator, sequestrator or similar official shall have been
appointed for or taken possession of the Company or its property or such other
obligor, or in case of any other comparable judicial proceedings relative to the
Company or other obligor upon the Subordinated Securities, or to the creditors
or property of the Company or such other obligor, the Trustee, irrespective of
whether the principal of the Subordinated Securities shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand pursuant to the provisions of
this Section, shall be entitled and empowered, by intervention in such
proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount of principal
and interest (or, if the Subordinated Securities of any series are Original
Issue Discount Subordinated Securities, such portion of the principal amount as
may be specified in the terms of such series) owing and unpaid in respect of the
Subordinated Securities of any series, and to file such other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for amounts payable to the Trustee under Section
6.6) and of the Securityholders allowed in any judicial proceedings relative to
the Company or other obligor upon the Subordinated Securities, or to the
creditors or property of the Company or such other obligor; and
(b) unless prohibited by applicable law and regulations, to vote on behalf
of the holders of the Subordinated Securities of any series in any election of a
receiver, assignee, trustee or a standby trustee in arrangement, reorganization,
liquidation or other bankruptcy or insolvency proceedings, custodian or other
person performing similar functions in respect of any such proceedings; and
(c) to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute all amounts received with
respect to the claims of the Securityholders and of the Trustee on their behalf;
and any trustee, receiver, or liquidator, custodian or other similar official
performing similar functions in respect of any such proceedings is hereby
authorized by each of the Securityholders to make payments to the Trustee, and,
in the event that the Trustee shall consent to the making of payments directly
to the Securityholders, to pay to the Trustee its costs and expenses of
collection and all other amounts due to it pursuant to Section 6.6.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or vote for or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Subordinated Securities of any series or the rights of
any Holder thereof, or to authorize the Trustee to vote in respect of the claim
of any Securityholder in any such proceeding, except as aforesaid in clause (b).
SECTION 5.5 Trustee May Enforce Claims Without Possession of Subordinated
Securities.
All rights of action and of asserting claims under this Subordinated
Indenture, or under any of the Subordinated Securities of any series or Coupons
appertaining to such Subordinated Securities, may be enforced by the Trustee
without the possession of any of the Subordinated Securities of such series or
Coupons appertaining to such Subordinated Securities or the production thereof
in any trial or other proceedings relative thereto, and any such action or
proceedings instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall awarded to the
Trustee for ratable distribution to the Holders of the Subordinated Securities
or Coupons appertaining to such Subordinated Securities in respect of which such
action was taken, after payment of all sums due to the Trustee under Section 6.6
in respect of such Subordinated Securities.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Subordinated Indenture to
which the Trustee shall be a party) the Trustee shall be held to represent all
the Holders of the Subordinated Securities or Coupons appertaining to such
Subordinated Securities in respect to which such action was taken, and it shall
not be necessary to make any Holders of such Subordinated Securities or Coupons
appertaining to such Subordinated Securities parties to any such proceedings.
SECTION 5.6 Application of Proceeds.
Any moneys collected by the Trustee pursuant to this Article in respect of
any series 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 several Subordinated Securities
and Coupons appertaining to such Subordinated Securities in respect of which
monies have been collected and stamping (or otherwise noting) thereon the
payment, or issuing Subordinated Securities of such series in reduced principal
amounts in exchange for the presented Subordinated Securities of like series if
only partially paid, or upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses applicable to such series of
Subordinated Securities in respect of which monies have been collected,
including all amounts due to the Trustee and each predecessor Trustee pursuant
to Section 6.6 in respect to such series of Subordinated Securities;
SECOND: In case the principal of the Subordinated Securities of such series
in respect of which moneys have been collected shall not have become and be then
due and payable, to the payment of interest on the Subordinated Securities of
such series in default in the order of the Maturity of the installments on such
interest, with interest (to the extent that such interest has been collected by
the Trustee and is permitted by applicable law) upon the overdue installments of
interest at the same rate as the rate of interest or Yield to Maturity (in the
case of Original Issue Discount Subordinated Securities) specified in such
Subordinated Securities, such payments to be made ratably to the persons
entitled thereto, without discrimination or preference;
THIRD: In case the principal of the Subordinated Securities of such series
in respect of which moneys have been collected shall have become and shall be
then due and payable, to the payment of the whole amount then owing and unpaid
upon all the Subordinated Securities of such series for principal and interest,
with interest upon the overdue principal, and (to the extent that such interest
has been collected by the Trustee and is permitted by applicable law) upon the
overdue installations of interest at the same rate as the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Subordinated
Securities) specified in the Subordinated Securities of such series; and in case
such moneys shall be insufficient to pay in full the whole amount so due and
unpaid upon the Subordinated Securities of such series, then to the payment of
such principal and interest or Yield to Maturity, without preference or priority
of principal over interest or Yield to Maturity, or of interest or Yield to
Maturity over principal, or of any installment of interest over any other
installment of interest or of any Subordinated Security of such series over any
other Subordinated Security of such series, ratably to the aggregate of such
principal and accrued and unpaid interest or Yield to Maturity; and
FOURTH: To the payment of the remainder, if any, to the Company or any
other person lawfully entitled thereto.
SECTION 5.7 Suits for Enforcement.
In case an Event of Default has occurred, has not been waived and is
continuing, the Trustee may in its discretion proceed to protect and enforce the
rights vested in it by this Subordinated 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 Subordinated Indenture or in aid of the exercise of any power granted in
this Subordinated Indenture or to enforce any other legal or equitable right
vested in the Trustee by this Subordinated Indenture or by law.
SECTION 5.8 Limitations on Suits by Subordinated Security Holders.
No Holder of any Subordinated Security of any series or of any Coupon
appertaining thereto shall have any right by virtue or by availing of any
provision of this Subordinated Indenture to institute any action or proceeding
at law or in equity or in bankruptcy or otherwise upon or under or with respect
to this Subordinated Indenture or such Subordinated Security, or
for the appointment of a trustee, receiver, liquidator, custodian or other
similar official or for any other remedy hereunder or thereunder, unless (a)
such Holder previously shall have given to the Trustee written notice of an
Event of Default with respect to Subordinated Securities of such series and of
the continuance thereof, as hereinbefore provided, and (b) the Holders of not
less than 25% in aggregate principal amount of the Subordinated Securities of
such affected series then Outstanding (treated as a single class) shall have
made written request upon the Trustee to institute such action or proceedings in
its own name as Trustee hereunder and shall have offered to the Trustee such
reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby, and (c) the Trustee for 60 days
after its receipt of such notice, request and offer of indemnity shall have
failed to institute any such action or proceeding, and (d) no direction
inconsistent with such written request shall have been given to the Trustee
pursuant to Section 5.13; it being understood and intended, and being expressly
covenanted by the taker and Holder of every Subordinated Security or Coupon with
every other taker and Holder and the Trustee, that no one or more Holders of
Subordinated Securities of any series or Coupons appertaining to such
Subordinated Securities shall have any right in any manner whatever by virtue or
by availing of any provision of this Subordinated Indenture or any Subordinated
Security to affect, disturb or prejudice the rights of any other such taker or
Holder of Subordinated Securities or Coupons appertaining to such Subordinated
Securities, or to obtain or seek to obtain priority over or preference to any
other such taker or Holder or to enforce any right under this Subordinated
Indenture or any Subordinated Security, except in the manner herein provided and
for the equal, ratable and common benefit of all Holders of Subordinated
Securities of the applicable series and Coupons appertaining to such
Subordinated Securities. For the protection and enforcement of the provisions of
this Section, each and every Securityholder and the Trustee shall be entitled to
such relief as can be given either at law or in equity.
SECTION 5.9 Unconditional Right of Securityholders to Institute Certain Suits.
Notwithstanding any other provision in this Subordinated Indenture and any
provision of any Subordinated Security, the right of any Holder of any
Subordinated Security or Coupon to receive payment of the principal of and
interest on such Subordinated Security or Coupon on or after the respective due
dates expressed in such Subordinated Security or Coupon or the applicable
redemption dates provided for in such Subordinated Security, to convert such
Subordinated Securities of any series in accordance with terms that may be
established pursuant to Section 2.3, or to institute suit for the enforcement of
any such payment on or after such respective dates, shall not be impaired or
affected without the consent of such Holder.
SECTION 5.10 Restoration of Rights on Abandonment of Proceedings.
In case the Trustee shall have proceeded to enforce any right under this
Subordinated Indenture and such proceedings shall have been discontinued or
abandoned for any 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, the Trustee and the Securityholders
shall continue as though no such proceedings had been taken.
SECTION 5.11 Powers and Remedies Cumulative; Delay or Omission Not Waiver of
Default.
Except as provided in Section 5.8, no right or remedy herein conferred upon
or reserved to the Trustee or to the Holders of Subordinated Securities or
Coupons is intended to be exclusive of any other right or remedy and every right
and remedy shall, to the extent permitted by law, be cumulative and in addition
to every other right and remedy given hereunder or now or hereafter existing at
law or in equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 5.12 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of Subordinated
Securities or Coupons 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 Event of Default or an
acquiescence therein. Every power and remedy given by this Subordinated
Indenture, any Subordinated Security or law to the Trustee or to the Holders of
Subordinated Securities or Coupons may be exercised from time to time, and as
often as shall be deemed expedient, by the Trustee or, subject to Section 5.8,
by the Holders of Subordinated Securities or Coupons.
SECTION 5.13 Control by Holders of Subordinated Securities.
The Holders of a majority in aggregate principal amount of the Subordinated
Securities of each series affected (with each such series voting as a separate
class) at the time Outstanding shall have the right to direct the time, method,
and place of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred on the Trustee with respect to the
Subordinated Securities of such series by this Subordinated Indenture; provided,
that such direction shall not be otherwise than in accordance with law and the
provisions of this Subordinated Indenture and provided, further, that (subject
to the provisions of Section 6.1) the Trustee shall have the right to decline to
follow any such direction if (a) the Trustee, being advised by counsel, shall
determine that the action or proceeding so directed may not lawfully be taken;
or (b) if the Trustee by its board of directors, the executive committee, or a
trust committee of directors or Responsible Officers of the Trustee shall
determine in good faith that the action or proceedings so directed would involve
the Trustee in personal liability; or (c) if the Trustee in good faith shall so
determine that the actions or forbearances specified in or pursuant to such
direction would be unduly prejudicial to the interests of Holders of the
Subordinated Securities of all affected series not joining in the giving of said
direction, it being understood that (subject to Section 6.1) the Trustee shall
have no duty to ascertain whether or not such actions or forbearances are unduly
prejudicial to such Holders.
Nothing in this Subordinated Indenture shall impair the right of the
Trustee in its discretion to take any action deemed proper by the Trustee and
which is not inconsistent with such direction or directions by Securityholders.
SECTION 5.14 Waiver of Past Defaults.
Prior to the declaration of acceleration of the Maturity of any
Subordinated Securities as provided in Section 5.2, the Holders of a majority in
aggregate principal amount of the Subordinated Securities of such series (each
series voting as a separate class) at the time Outstanding with respect to which
an Event of Default shall have occurred and be continuing (voting as a single
class) may on behalf of the Holders of all such Subordinated Securities waive
any past default or Event of Default described in Section 5.1 and its
consequences, except a default in respect of a covenant or provision hereof
which cannot be modified or amended without the consent of the Holder of each
Subordinated Security affected. In the case of any such waiver, the Company, the
Trustee and the Holders of all such Subordinated Securities shall be restored to
their former positions and rights hereunder, respectively, and such default
shall cease to exist and be deemed to have been cured and not to have occurred
for purposes of this Subordinated Indenture; but no such waiver shall extend to
any subsequent or other default or impair any right consequent thereon.
SECTION 5.15 Trustee to Give Notice of Default, But May Withhold in Certain
Circumstances.
The Trustee shall, within 90 days after the occurrence of a default with
respect to the Subordinated Securities of any series, give notice of all
defaults with respect to that series known to the Trustee (i) if any
Unregistered Subordinated Securities of that series are then Outstanding, to the
Holders thereof, by publication at least once in an Authorized Newspaper in the
Borough of Manhattan, The City of New York and at least once in an Authorized
Newspaper in London (and, if required by Section 3.9, at least once in an
Authorized Newspaper in Luxembourg) and (ii) to all Holders of Subordinated
Securities of such series in the manner and to the extent provided in Section
313(c) of the Trust Indenture Act, unless in each case such defaults shall have
been cured before the mailing or publication of such notice (the term "default"
for the purpose of this Section being hereby defined to mean any event or
condition which is, or with notice or lapse of time or both would become, an
Event of Default); provided, that, except in the case of default in the payment
of the principal of or interest on any of the Subordinated Securities of such
series, or in the payment of any sinking fund installment on such series, the
Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee, or a trust committee of directors
or trustees and/or Responsible Officers of the Trustee in good faith determines
that the withholding of such notice is in the interests of the Securityholders
of such series.
SECTION 5.16 Right of Court to Require Filing of Undertaking to Pay Costs.
All parties to this Subordinated Indenture agree, and each Holder of any
Subordinated Security or Coupon by his acceptance thereof shall be deemed to
have agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Subordinated Indenture or in any
suit against the Trustee for any action taken, suffered or omitted by it as
Trustee, the filing by any party litigant in such suit of an undertaking to pay
the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits
and good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Securityholder or group of
Securityholders of any series holding in the aggregate more than 10% in
aggregate principal amount of the Subordinated Securities of such series, or, in
the case of any suit relating to or arising under clause (d) or (h) of Section
5.1 (if the suit relates to Subordinated Securities of more than one but less
than all series), 10% in aggregate principal amount of Subordinated Securities
then Outstanding and affected thereby, or in the case of any suit relating to or
arising under clause (d) or (h) (if the suit under clause (d) or (h) relates to
all the Subordinated Securities then Outstanding), (f) or (g) of Section 5.1,
10% in aggregate principal amount of all Subordinated Securities then
Outstanding, or to any suit instituted by any Securityholder for the enforcement
of the payment of the principal of or interest on any Subordinated Security on
or after the due date expressed in such Subordinated Security or any date fixed
for redemption.
SECTION 5.17 Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it will
not at any time insist upon, or plead, or in any manner whatsoever claim or take
the benefit or advantage of, any stay or extension law wherever enacted, now or
at any time hereafter in force, which may affect the covenants or the
performance of this Subordinated Indenture; and the Company (to the extent that
it may lawfully do so) hereby expressly waives all benefit or advantage of any
such law and covenants that it will not hinder, delay or impede the execution of
any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
ARTICLE 6
CONCERNING THE TRUSTEE
SECTION 6.1 Duties and Responsibilities of the Trustee; During Default; Prior to
Default.
Prior to the occurrence of an Event of Default with respect to the
Subordinated Securities of a particular series and after the curing or waiving
of all Events of Default which may have occurred with respect to such series,
the Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Subordinated Indenture with respect to such
series of Subordinated Securities. In case an Event of Default with respect to
the Subordinated Securities of a series has occurred and has not been cured or
waived, the Trustee shall exercise with respect to such series of Subordinated
Securities such of the rights and powers vested in it by this Subordinated
Indenture with respect to such series of Subordinated Securities, 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.
No provision of this Subordinated 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
(a) prior to the occurrence of an Event of Default with respect to the
Subordinated Securities of any series and after the curing or waiving of all
such Events of Default with respect to such series which may have occurred:
(i) the duties and obligations of the Trustee with respect to the
Subordinated Securities of any series shall be determined solely by the
express provisions of this Subordinated Indenture, and the Trustee shall
not be liable except for the performance of such duties and obligations as
are specifically set forth in this Subordinated Indenture, and no implied
covenants or obligations shall be read into this Subordinated Indenture
against the Trustee; and
(ii) in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any statements,
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Subordinated Indenture; but in the case of any such
statements, certificates or opinions which 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 Subordinated Indenture;
(b) 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; and
(c) 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 pursuant to Section 5.13 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 Subordinated
Indenture.
None of the provisions contained in this Subordinated 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 shall be reasonable ground for
believing that the repayment of such funds or adequate indemnity against such
liability is not reasonably assured to it.
The provisions of this Section 6.1 are in furtherance of and subject to
Section 315 of the Trust Indenture Act.
SECTION 6.2 Certain Rights of the Trustee.
In furtherance of and subject to the Trust Indenture Act, and subject to
Section 6.1:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, Officer's Certificate or any other certificate,
statement, instrument, opinion, report, notice, request, consent, order, bond,
debenture, note, coupon, 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 an Officer's Certificate (unless other
evidence in respect thereof is specifically prescribed herein or in the terms
established in respect of any series); and any resolution of the Board of
Directors may be evidenced to the Trustee by a copy thereof certified by the
secretary or an assistant secretary of the Company;
(c) the Trustee may consult with counsel and any written advice or any
Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted to be taken by it hereunder in
good faith and in reliance thereon in accordance with such advice or Opinion of
Counsel;
(d) the Trustee shall be under no obligation to exercise any of the trusts
or powers vested in it by this Subordinated Indenture at the request, order or
direction of any of the Securityholders pursuant to the provisions of this
Subordinated Indenture, unless such Securityholders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken or omitted by it
in good faith and believed by it to be authorized or within the discretion,
rights or powers conferred upon it by this Subordinated Indenture;
(f) prior to the occurrence of an Event of Default hereunder and after the
curing or waiving of all Events of Default, 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, appraisal, bond, debenture, note, coupon, security, or other
paper or document unless requested in writing so to do by the Holders of not
less than a majority in aggregate principal amount of the Subordinated
Securities of all series affected then Outstanding; provided, that, if the
payment within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation is,
in the opinion of the Trustee, not reasonably assured to the Trustee by the
security afforded to it by the terms of this Subordinated Indenture, the Trustee
may require reasonable indemnity against such expenses or liabilities as a
condition to proceeding; the reasonable expenses of every such investigation
shall be paid by the Company or, if paid by the Trustee or any predecessor
trustee, shall be repaid by the Company upon demand; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys not regularly in its employ and the Trustee shall not be responsible
for any misconduct or negligence on the part of any such agent or attorney
appointed with due care by it hereunder.
SECTION 6.3 Trustee Not Responsible for Recitals, Disposition of Subordinated
Securities or Application of Proceeds Thereof.
The recitals contained herein and in the Subordinated Securities, except
the Trustee's certificates of authentication, shall be taken as the statements
of the Company, and the Trustee assumes no responsibility for the correctness of
the same. The Trustee makes no representation as to the validity or sufficiency
of this Subordinated Indenture or of the Subordinated Securities or Coupons. The
Trustee shall not be accountable for the use or application by the Company of
any of the Subordinated Securities or of the proceeds thereof.
SECTION 6.4 Trustee and Agents May Hold Subordinated Securities or Coupons;
Collections, Etc.
The Trustee or any agent of the Company or of the Trustee, in its
individual or any other capacity, may become the owner or pledgee of
Subordinated Securities or Coupons with the same rights it would have if it were
not the Trustee or such agent and may otherwise deal with the Company and
receive, collect, hold and retain collections from the Company with the same
rights it would have if it were not the Trustee or such agent.
SECTION 6.5 Moneys Held by Trustee.
Subject to the provisions of Section 10.4 hereof, 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 mandatory provisions of law.
Neither the Trustee nor any agent of the Company or the Trustee shall be under
any liability for interest on any moneys received by it hereunder.
SECTION 6.6 Compensation and Indemnification of Trustee and Its Prior Claim.
The Company covenants and agrees to pay to the Trustee from time to time,
and the Trustee shall be entitled to reasonable compensation (which shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust) and the Company covenants and agrees to pay or reimburse the
Trustee and each predecessor trustee upon its request for all reasonable
expense, disbursements and advances incurred or made by or on behalf of it in
accordance with any of the provisions of this Subordinated Indenture (including
the reasonable compensation and the expenses and disbursements of its counsel
and of all agents and other 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 each predecessor trustee
for, and to hold it harmless against, any loss, liability or expense incurred
without negligence or bad faith on its part, arising out of or in connection
with the acceptance or administration of this Subordinated Indenture or the
trusts hereunder and its duties hereunder, including the costs and expenses of
defending itself against or investigating any claim of liability in the
premises. The obligations of the Company under this Section to compensate and
indemnify the Trustee and each predecessor trustee and to pay or reimburse the
Trustee and each predecessor trustee for expenses, disbursements and advances
shall constitute additional indebtedness hereunder and shall survive the
satisfaction and discharge of this Subordinated
Indenture. Such additional indebtedness shall be a senior claim to that of the
Subordinated Securities upon all property and funds held or collected by the
Trustee as such, except funds held in trust for the benefit of the Holders of
particular Subordinated Securities or Coupons, and the Subordinated Securities
are hereby subordinated to such senior claim.
SECTION 6.7 Right of Trustee to Rely on Officer's Certificate, Etc.
Subject to Sections 6.1 and 6.2, whenever in the administration of the
trusts of this Subordinated Indenture the Trustee shall deem it necessary or
desirable that a matter be proved or established prior to taking or suffering or
omitting 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 Officer's 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 by it under the provisions of this Subordinated Indenture upon the faith
thereof.
SECTION 6.8 Subordinated Indentures Not Creating Potential Conflicting Interests
for the Trustee.
The following indentures are hereby specifically described for the purposes
of Section 310(b)(1) of the Trust Indenture Act: this Subordinated Indenture
with respect to the Subordinated Securities of any other series.
SECTION 6.9 Qualification of Trustee: Conflicting Interests.
The Trustee shall comply with Section 310(b) of the Trust Indenture Act.
SECTION 6.10 Persons Eligible for Appointment as Trustee.
The Trustee for each series of Subordinated Securities hereunder shall at
all times be a corporation or banking association organized and doing business
under the laws of the United States of America, any State thereof or the
District of Columbia, that has (or, in the case of a corporation or banking
association included in a bank holding company system, whose related bank
holding company has) a combined capital and surplus of at least $50,000,000, and
which is authorized under such laws to exercise corporate trust powers and is
subject to supervision or examination by Federal, state 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, 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. In
case at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Trustee shall resign immediately in the manner
and with the effect specified in Section 6.11.
The provisions of this Section 6.10 are in furtherance of and subject to
Section 310(a) of the Trust Indenture Act.
SECTION 6.11 Resignation and Removal; Appointment of Successor Trustee.
(a) The Trustee, or any trustee or trustees hereafter appointed, may at any
time resign with respect to one or more or all series of Subordinated Securities
by giving written notice of resignation to the Company and (i) if any
Unregistered Subordinated Securities of a series affected are then Outstanding,
by giving notice of such resignation to the Holders thereof, by publication at
least once in an Authorized Newspaper in the Borough of Manhattan, The City of
New York, and at least once in an Authorized Newspaper in London (and, if
required by Section 3.9, at least once in an Authorized Newspaper in
Luxembourg), (ii) if any Unregistered Subordinated Securities of a series
affected are then Outstanding, by mailing notice of such resignation to the
Holders thereof who have filed their names and addresses with the Trustee
pursuant to Section 313(c)(2) of the Trust Indenture Act at such addresses as
were so furnished to the Trustee and (iii) by mailing notice of such resignation
to the Holders of then Outstanding Registered Subordinated Securities of each
series affected at their addresses as they shall appear on the registry books.
Upon receiving such notice of resignation, the Company shall promptly appoint a
successor trustee or trustees with respect to the applicable series by written
instrument in duplicate, executed by authority of the Board of Directors, one
copy of which instrument shall be delivered to the resigning Trustee and one
copy to the successor trustee or trustees. If no successor trustee shall have
been so appointed with respect to any series 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, or any Securityholder who has been a bona fide Holder of a
Subordinated Security or Subordinated Securities of the applicable series for at
least six months may, subject to the provisions of Section 5.12, 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 of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of Section
310(b) of the Trust Indenture Act with respect to any series of
Subordinated Securities after written request therefor by the Company or by
any Securityholder who has been a bona fide Holder of a Subordinated
Security or Subordinated Securities of such series for at least six months;
or
(ii) the Trustee shall cease to be eligible in accordance with the
provisions of Section 6.10 and Section 310(a) of the Trust Indenture Act
and shall fail to resign after written request therefor by the Company or
by any Securityholder; or
(iii) the Trustee shall become incapable of acting with respect to any
series of Subordinated Securities, or shall be adjudged a bankrupt or
insolvent, or a receiver or liquidator of the Trustee or of its property
shall be appointed, or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation;
then, in any such case, the Company may remove the Trustee with respect to the
applicable series of Subordinated Securities and appoint a successor trustee for
such series by written instrument, in duplicate, executed by order of the Board
of Directors of the Company, 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 315(e) of the Trust Indenture Act, any Securityholder who
has been a bona fide Holder of a Subordinated Security or Subordinated
Securities of such series for at least six months may on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor trustee with
respect to such series. 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
Subordinated Securities of each series at the time outstanding may at any time
remove the Trustee with respect to Subordinated Securities of such series and
appoint a successor trustee with respect to the Subordinated Securities of such
series by delivering to the Trustee so removed, to the successor trustee so
appointed and to the Company the evidence provided for in Section 7.1 of the
action in that regard taken by the Securityholders.
(d) Any resignation or removal of the Trustee with respect to any series
and any appointment of a successor trustee with respect to such series pursuant
to any of the provisions of this Section 6.11 shall become effective upon
acceptance of appointment by the successor trustee as provided in Section 6.12.
SECTION 6.12 Acceptance of Appointment by Successor Trustee.
Any successor trustee appointed as provided in Section 6.11 shall execute
and deliver to the Company and to its predecessor trustee an instrument
accepting such appointment hereunder, and thereupon the resignation or removal
of the predecessor trustee with respect to all or any applicable series shall
become effective and such successor trustee, without any further act, deed or
conveyance, shall become vested with all rights, powers, duties and obligations
with respect to such series of its predecessor hereunder, with like effect as if
originally named as trustee for such series hereunder; but, nevertheless, on the
written request of the Company or of the successor trustee, upon payment of its
charges then unpaid, the trustee ceasing to act shall, subject to Section 10.4,
pay over to the successor trustee all moneys at the time held by it hereunder
and shall execute and deliver an instrument transferring to such successor
trustee all such rights, powers, duties and obligations. Upon request of any
such successor trustee, the Company shall execute any and all instruments in
writing for more fully and certainly vesting in and confirming to such successor
trustee all such rights and powers. Any trustee ceasing to act shall,
nevertheless, retain a prior claim upon all property or funds held or collected
by such trustee to secure any amounts then due it pursuant to the provisions of
Section 6.6.
If a successor trustee is appointed with respect to the Subordinated
Securities of one or more (but not all) series, the Company, the predecessor
trustee and each successor trustee with respect to the Subordinated Securities
of any applicable series shall execute and deliver an indenture supplemental
hereto which shall contain such provisions as shall be deemed necessary
or desirable to confirm that all the rights, powers, trusts and duties of the
predecessor trustee with respect to the Subordinated Securities of any series as
to which the predecessor trustee is not retiring shall continue to be vested in
the predecessor trustee, and shall add to or change any of the provisions of
this Subordinated Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such trustees co-trustees of the same trust and that each such
trustee shall be trustee of a trust or trusts under separate indentures.
No successor trustee with respect to any series of Subordinated Securities
shall accept appointment as provided in this Section 6.12 unless at the time of
such acceptance such successor trustee shall be qualified under Section 310(b)
of the Trust Indenture Act and eligible under the provisions of Section 6.10.
Upon acceptance of appointment by any successor trustee as provided in this
Section 6.12, the Company shall give notice thereof (a) if any Unregistered
Subordinated Securities of a series affected are then Outstanding, to the
Holders thereof, by publication of such notice at least once in an Authorized
Newspaper in the Borough of Manhattan, The City of New York and at least once in
an Authorized Newspaper in London (and, if required by Section 3.9, at least
once in an Authorized Newspaper in Luxembourg), (b) if any Unregistered
Subordinated Securities of a series affected are then Outstanding, to the
Holders thereof who have filed their names and addresses with the Trustee
pursuant to Section 313(c)(2) of the Trust Indenture Act, by mailing such notice
to such Holders at such addresses as were so furnished to the Trustee (and the
Trustee shall make such information available to the Company for such purpose)
and (c) to the Holders of Registered Subordinated Securities of each series
affected, by mailing such notice to such Holders at their addresses as they
shall appear on the registry books. If the acceptance of appointment is
substantially contemporaneous with the resignation, then the notice called for
by the preceding sentence may be combined with the notice called for by Section
6.11. If the Company fails to give such notice within ten days after acceptance
of appointment by the successor trustee, the successor trustee shall cause such
notice to be given at the expense of the Company.
SECTION 6.13 Merger, Conversion, Consolidation or Succession to Business of
Trustee.
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 Section 310(b) of the Trust Indenture Act and eligible under the
provisions of Section 6.10, 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 at the time such successor to the Trustee shall succeed to the
trusts created by this Subordinated Indenture any of the Subordinated Securities
of any series shall have been authenticated but not delivered, any such
successor to the Trustee may adopt the certificate of authentication of any
predecessor trustee and deliver such Subordinated Securities so
authenticated; and, in case at that time any of the Subordinated Securities of
any series shall not have been authenticated, any successor to the Trustee may
authenticate such Subordinated Securities either in the name of any predecessor
hereunder or in the name of the successor Trustee; and in all such cases such
certificate shall have the full force which it is anywhere in the Subordinated
Securities of such series or in this Subordinated Indenture provided that the
certificate of the Trustee shall have; provided, that the right to adopt the
certificate of authentication of any predecessor trustee or to authenticate
Subordinated Securities of any series in the name of any predecessor trustee
shall apply only to its successor or successors by merger, conversion or
consolidation.
SECTION 6.14 Preferential Collection of Claims Against the Company.
If this Subordinated Indenture is qualified under the Trust Indenture Act,
the Trustee shall comply with Section 311(a) of the Trust Indenture Act,
excluding any creditor relationship listed 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 indicated.
SECTION 6.15 Appointment of Authenticating Agent.
As long as any Subordinated Securities of a series remain Outstanding, the
Trustee may, by an instrument in writing, appoint with the approval of the
Company an authenticating agent (the "Authenticating Agent") which shall be
authorized to act on behalf of the Trustee to authenticate Subordinated
Securities, including Subordinated Securities issued upon exchange, registration
of transfer, partial redemption or pursuant to Section 2.9. Subordinated
Securities of each such series authenticated by such Authenticating Agent shall
be entitled to the benefits of this Subordinated Indenture and shall be valid
and obligatory for all purposes as if authenticated by the Trustee. Whenever
reference is made in this Subordinated Indenture to the authentication and
delivery of Subordinated Securities of any series by the Trustee or to the
Trustee's Certificate of Authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent for such series and a Certificate of Authentication
executed on behalf of the Trustee by such Authenticating Agent. Such
Authenticating Agent shall at all times be a corporation organized and doing
business under the laws of the United States of America or of any State,
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $45,000,000 (determined as provided in Section
6.10 with respect to the Trustee) and subject to supervision or examination by
Federal or State authority.
Any corporation into which any Authenticating Agent may be merged or
converted, or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency business
of any Authenticating Agent, shall continue to be the authenticating Agent with
respect to all series of Subordinated Securities for which it served as
Authenticating Agent without the execution or filing of any paper or any further
act on the part of the Trustee or such Authenticating Agent. Any Authenticating
Agent may at any time, and if it shall cease to be eligible shall, resign by
giving written notice of resignation to the Trustee and to the Company.
Upon receiving such a notice of resignation or upon such a termination, or
in case at any time any Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section 6.15 with respect to one or more
series of Subordinated Securities, the Trustee shall upon receipt of a Company
Order appoint a successor Authenticating Agent and the Company shall provide
notice of such appointment to all Holders of Subordinated Securities of such
series in the manner and to the extent provided in Section 11.4. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all rights, powers, duties and responsibilities of its predecessor
hereunder, with like effect as if originally named as Authenticating Agent. The
Company agrees to pay to the Authenticating Agent for such series from time to
time reasonable compensation. The Authenticating Agent for the Subordinated
Securities of any series shall have no responsibility or liability for any
action taken by it as such at the direction of the Trustee.
If an appointment is made with respect to one or more series pursuant to this
Section, the Subordinated Securities of such series may have endorsed thereon,
in addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Subordinated Securities described in the within-mentioned
Subordinated Indenture.
----------------------------,
As Trustee
By
--------------------------,
As Authenticating Agent
By
--------------------------,
Authorized Officer
Sections 6.2, 6.3, 6.4, 6.6 and 7.3 shall be applicable to any
Authenticating Agent.
ARTICLE 7
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by Securityholders.
Any request, demand, authorization, direction, notice, consent, waiver or
other action provided by this Subordinated Indenture to be given or taken by a
specified percentage in principal amount of the Securityholders of any or all
series may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such specified percentage of
Securityholders in person or by agent duly appointed in writing; and, except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments are delivered to the Trustee. Proof of execution
of any instrument or of a writing appointing any such agent shall be sufficient
for any purpose of this Subordinated Indenture and (subject to Sections 6.1 and
6.2) conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Article.
SECTION 7.2 Proof of Execution of Instruments and of Holding of Subordinated
Securities.
Subject to Sections 6.1 and 6.2, the execution of any instrument by a
Securityholder or his agent or proxy may be proved in accordance with such
reasonable rules and regulations as may be prescribed by the Trustee or in such
manner as shall be satisfactory to the Trustee. The holding or Subordinated
Securities shall be proved by the Security Register or by a certificate of the
registrar thereof.
SECTION 7.3 Holders to be Treated as Owners.
The Company, the Trustee and any agent of the Company or the Trustee may
deem and treat the person in whose name any Subordinated Security shall be
registered upon the Security Register for such series as the absolute owner of
such Subordinated Security (whether or not such Subordinated Security shall be
overdue and notwithstanding any notation of ownership or other writing thereon)
for the purpose of receiving payment of or on account of the principal of and,
subject to the provisions of this Subordinated Indenture, interest on such
Subordinated Security and for all other purposes; and neither the Company nor
the Trustee nor any agent of the Company or the Trustee shall be affected by any
notice to the contrary. The Company, the Trustee and any agent of the Company or
the Trustee may treat the Holder of any Unregistered Subordinated Security and
the Holder of any Coupon as the absolute owner of such Unregistered Subordinated
Security or Coupon (whether or not such Unregistered Subordinated Security or
Coupon shall be overdue) for the purpose of receiving payment thereof or on
account thereof and for all other purposes and neither the Company, the Trustee,
nor any agent of the Company or the Trustee shall be affected by any notice to
the contrary. All such payments so made to any such person, or upon his order,
shall be valid, and, to the extent of the sum or sums so paid, effectual to
satisfy and discharge the liability for moneys payable upon any such
Unregistered Subordinated Security or Coupon.
If the Subordinated Securities of any series are issued in the form of one or
more Global Subordinated Securities, the Depository therefor may grant proxies
to Persons having a beneficial ownership in such Global Subordinated Security or
Subordinated Securities for purposes of voting or otherwise responding to any
request for consent, waiver or other action which the Holder of such
Subordinated Security is entitled to grant or take under this
Subordinated Indenture and the Trustee shall accept such proxies for the
purposes granted; provided that neither the Trustee nor the Company shall have
any obligation with respect to the grant of or solicitation by the Depository of
such proxies.
SECTION 7.4 Subordinated Securities Owned by Company Deemed Not Outstanding.
In determining whether the Holders of the requisite aggregate principal
amount of Outstanding Subordinated Securities of any or all series have
concurred in any request, demand, authorization, direction, notice, consent,
waiver or other action by Securityholders under this Subordinated Indenture,
Subordinated Securities which are owned by the Company or any other obligor on
the Subordinated Securities with respect to which such determination is being
made or by any person directly or indirectly controlling or controlled by or
under direct or indirect common control with the Company or any other obligor on
the Subordinated Securities with respect to which such determination is being
made 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 action only Subordinated
Securities which the Trustee knows are so owned shall be so disregarded.
Subordinated Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Subordinated
Securities and that the pledgee is not the Company or any other obligor upon the
Subordinated Securities or any person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company or any
other obligor on the Subordinated Securities. In case of a dispute as to such
right, the advice of counsel shall be full protection in respect of any decision
made by the Trustee in accordance with such advice. Upon request of the Trustee,
the Company shall furnish to the Trustee promptly an Officer's Certificate
listing and identifying all Subordinated Securities, if any, known by the
Company to be owned or held by or for the account of any of the above-described
persons; and, subject to Sections 6.1 and 6.2, the Trustee shall be entitled to
accept such Officer's Certificate as conclusive evidence of the facts therein
set forth and of the fact that all Subordinated Securities not listed therein
are Outstanding for the purpose of any such determination.
SECTION 7.5 Right of Revocation of Action Taken.
At any time prior to (but not after) the evidencing to the Trustee, as
provided in Section 7.1, of the taking of any action by the Holders of the
percentage in aggregate principal amount of the Subordinated Securities of any
or all series, as the case may be, specified in this Subordinated Indenture in
connection with such action, any Holder of a Subordinated Security the serial
number of which is shown by the evidence to be included among the serial numbers
of the Subordinated Securities the Holders of which have consented to such
action may, by filing written notice at the Corporate Trust Office and upon
proof of holding as provided in this Article, revoke such action so far as
concerns such Subordinated Security. Except as aforesaid any such action taken
by the Holder of any Subordinated Security shall be conclusive and binding upon
such Holder and upon all future Holders and owners of such Subordinated Security
and of any Subordinated Securities issued in exchange or substitution therefor
or on registration
of transfer thereof, irrespective of whether or not any notation in regard
thereto is made upon any such Subordinated Security. Any action taken by the
Holders of the percentage in aggregate principal amount of the Subordinated
Securities of any or all series, as the case may be, specified in this
Subordinated Indenture in connection with such action shall be conclusively
binding upon the Company, the Trustee and the Holders of all the Subordinated
Securities affected by such action.
ARTICLE 8
SUPPLEMENTAL SUBORDINATED INDENTURES
SECTION 8.1 Supplemental Subordinated Indentures Without Consent of
Securityholders.
The Company, when authorized by a resolution of its Board of Directors
(which resolution may provide general terms or parameters for such action and
may provide that the specific terms of such action may be determined in
accordance with or pursuant to a Company Order), and the Trustee may from time
to time and at any time enter into an indenture or indentures supplemental
hereto for one or more of the following purposes:
(a) to cause the Subordinated Indenture to be qualified under the Trust
Indenture Act; or
(b) to evidence the succession of another Person to the Company and the
assumption by any such successor of the covenants of the Company herein and in
the Subordinated Securities; or
(c) to add to the covenants of the Company for the benefit of the Holders
of all or any series of Subordinated Securities (and if such covenants are to be
for the benefit of less than all series of Subordinated Securities, stating that
such covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the Company; or
(d) to add any additional Events of Default for the benefit of the Holders
of all or any series of Subordinated Securities (and if such additional Events
of Default are to be for the benefit of less than all series of Subordinated
Securities, stating that such additional Events of Default are expressly being
included solely for the benefit of such series); or
(e) to add to or change any of the provisions of this Subordinated
Indenture to such extent as shall be necessary to permit or facilitate the
issuance of Subordinated Securities in bearer form, registrable or not
registrable as to principal, and with or without interest coupons, or to permit
or facilitate the issuance of Subordinated Securities in uncertificated form; or
(f) to add to, change or eliminate any of the provisions of this
Subordinated Indenture in respect of one or more series of Subordinated
Securities, provided that any such addition, change or elimination (A) shall
neither (i) apply to any Subordinated Security of any
series created prior to the execution of such supplemental indenture and
entitled to the benefit of such provision nor (ii) modify the rights of the
Holder of any such Subordinated Security with respect to such provision or (B)
shall become effective only when there is no such Subordinated Security
Outstanding; or
(g) to secure the Subordinated Securities; or
(h) to establish the form or terms of Subordinated Securities of any series
as permitted by Sections 2.1 and 2.3; or
(i) to evidence and provide for the acceptance of appointment hereunder by
a successor Trustee with respect to the Subordinated Securities of one or more
series and to add to or change any of the provisions of this Subordinated
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 6.11; or
(j) to cure any ambiguity, to correct or supplement any provision herein
which may be defective or inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising under
this Subordinated Indenture, provided that such action pursuant to this Clause
(j) shall not adversely affect the interests of the Holders of Subordinated
Securities of any series in any material respect; or
(k) to make provision with respect to the conversion rights of Holders in
the event of a consolidation, merger or sale of assets involving the Company, as
required in this Subordinated Indenture; or
(l) to supplement any of the provisions of the Subordinated Indenture to
such extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Subordinated Securities pursuant to Article 10,
provided that any such action shall not adversely affect the interests of the
Holders of Subordinated Securities of such series or any other series of
Subordinated Securities in any material respect.
SECTION 8.2 Supplemental Subordinated Indentures with Consent of
Securityholders.
With the consent of the Holders of a majority in principal amount of the
Outstanding Subordinated Securities of each series affected by such supplemental
indenture, by act of said Holders delivered to the Company and the Trustee, the
Company, when authorized by a Board Resolution, and the Trustee may enter into
an indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner eliminating any of the provisions of
this Subordinated Indenture or of modifying in any manner the rights of the
Holders of Subordinated Securities of such series under this Subordinated
Indenture; provided, however, that no such supplemental indenture shall, without
the consent of the Holder of each Outstanding Subordinated Security affected
thereby,
(a) change the Stated Maturity of the principal of, or any installment of
principal of or interest on, any Subordinated Security, or reduce the principal
amount thereof or the rate of interest thereon or any premium payable upon the
redemption thereof, or reduce the amount of the principal of an Original Issue
Discount Subordinated Security or any other Subordinated Security which would be
due and payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 5.2, or change any place of payment where, or the coin or
currency in which, any Subordinated Security or any premium or interest thereon
is payable, or impair the right to institute suit for the enforcement of any
such payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date), or modify the provisions of this
Subordinated Indenture with respect to the subordination of the Subordinated
Securities in a manner adverse to the Holders, or
(b) reduce the percentage in principal amount of the Outstanding
Subordinated Securities of any series, the consent of whose Holders is required
for any such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Subordinated
Indenture or certain defaults hereunder and their consequences) provided for in
this Subordinated Indenture, or
(c) modify any of the provisions of this Section 8.2 or Section 5.14,
except to increase any such percentage or to provide that certain other
provisions of this Subordinated Indenture cannot be modified or waived without
the consent of the Holder of each Outstanding Subordinated Security affected
thereby; provided, however, that this clause shall not be deemed to require the
consent of any Holder with respect to changes in the references to "the Trustee"
and concomitant changes in this Section 8.2, or the deletion of this proviso, in
accordance with the requirements of Sections 6.11 and 8.1(i).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Subordinated Indenture which has expressly been included
solely for the benefit of one or more particular series of Subordinated
Securities, or which modifies the rights of Holders of Subordinated Securities
of such series, or of Coupons appertaining to such Subordinated Securities, with
respect to such covenant or provision, shall be deemed not to affect the rights
under this Subordinated Indenture of the Holders of Subordinated Securities of
any other series or of the Coupons appertaining to such Subordinated Securities.
Upon the request of the Company, accompanied by a copy of a resolution of
the Board of Directors (which resolution may provide general terms or parameters
for such action and may provide that the specific terms of such action may be
determined in accordance with or pursuant to a Company Order) certified by the
secretary or an assistant secretary of the Company authorizing the execution of
any such supplemental indenture, and upon the filing with the Trustee of
evidence of the consent of the Holders of the Subordinated Securities as
aforesaid and other documents, if any, required by Section 7.1, 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 Subordinated Indenture or otherwise, in which case the
Trustee may in its discretion, but shall not be obligated to, enter into such
supplemental indenture.
It shall not be necessary for the consent of the Securityholders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such consent shall approve the substance thereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Trustee
shall give notice thereof (i) to the Holders of then Outstanding Registered
Subordinated Securities of each series affected thereby, by mailing a notice
thereof by first-class mail to such Holders at their addresses as they shall
appear on the Security Register, (ii) if any Unregistered Subordinated
Securities of a series affected thereby are then Outstanding, to the Holders
thereof who have filed their names and addresses with the Trustee pursuant to
Section 313(c)(2) of the Trust Indenture Act, by mailing a notice thereof by
first-class mail to such Holders at such addresses as were so furnished to the
Trustee and (iii) if any Unregistered Subordinated Securities of a series
affected thereby are then Outstanding, to all Holders thereof, by publication of
a notice thereof at least once in an Authorized Newspaper in the Borough of
Manhattan, The City of New York and at least once in an Authorized Newspaper in
London (and, if required by Section 3.9, at least once in an Authorized
Newspaper in Luxembourg), and in each case such notice shall set forth in
general terms the substance of such supplemental indenture. Any failure of the
Company to give such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture.
SECTION 8.3 Effect of Supplemental Subordinated Indenture.
Upon the execution of any supplemental indenture pursuant to the provisions
hereof, this Subordinated 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 Subordinated Indenture of
the Trustee, the Company and the Holders of Subordinated Securities of each
series affected thereby 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 Subordinated Indenture for
any and all purposes.
SECTION 8.4 Documents to be Given to Trustee.
The Trustee, subject to the provisions of Sections 6.1 and 6.2, may receive
an Officer's Certificate and an Opinion of Counsel as conclusive evidence that
any supplemental indenture executed pursuant to this Article 8 complies with the
applicable provisions of this Subordinated Indenture.
SECTION 8.5 Notation on Subordinated Securities in Respect of Supplemental
Subordinated Indentures.
Subordinated Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this
Article may bear a notation in form approved by the Trustee for such series as
to any matter provided for by such supplemental indenture or as to any action
taken by Securityholders. If the Company or the Trustee shall so
determine, new Subordinated Securities of any series so modified as to conform,
in the opinion of the Trustee and the Board of Directors, to any modification of
this Subordinated Indenture contained in any such supplemental indenture may be
prepared by the Company, authenticated by the Trustee and delivered in exchange
for the Subordinated Securities of such series then Outstanding.
ARTICLE 9
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1 Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person, or
convey, transfer or lease its properties and assets substantially as an entirety
to any other Person, and the Company shall not permit any other Person to
consolidate with or merge into the Company or convey, transfer or lease its
properties and assets substantially as an entirety to the Company, unless:
(a) in case the Company shall consolidate with or merge into another Person
or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, the Person formed by such consolidation or into which
the Company is merged or the Person which acquires by conveyance or transfer, or
which leases, the properties and assets of the Company substantially as an
entirety shall be a corporation, partnership or trust, shall be organized and
validly existing under the laws of the United States of America, any State
thereof or the District of Columbia and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form satisfactory
to the Trustee, the due and punctual payment of the principal of and any premium
and interest on all the Subordinated Securities and the performance or
observance of every covenant of this Subordinated Indenture on the part of the
Company to be performed or observed and any conversion rights shall be provided
for in accordance with the terms that may be established pursuant to Section
2.3, if applicable, or as otherwise specified pursuant to Section 2.3, by
supplemental indenture satisfactory in form to the Trustee, executed and
delivered to the Trustee, by the Person (if other than the Company) formed by
such consolidation or into which the Company shall have been merged or by the
Person which shall have acquired the Company's assets;
(b) immediately after giving effect to such consolidation, merger,
conveyance, transfer or lease, no Event of Default, and no event which, after
notice or lapse of time or both, would become an Event of Default, shall have
happened and be continuing;
(c) such consolidation, merger, conveyance, transfer or lease does not
adversely affect the validity or enforceability of the Subordinated Securities;
and
(d) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger, conveyance, transfer or lease and, if a supplemental indenture is
required in connection with such transaction, such
supplemental indenture (if any), comply with this Subordinated Indenture and the
Subordinated Securities and that all conditions precedent herein provided for
relating to such transaction have been satisfied.
SECTION 9.2 Successor Corporation Substituted.
The successor corporation formed by such consolidation or into which the
Company is merged or to which such conveyance, transfer or lease is made shall
succeed to and be substituted for, and may exercise every right and power of,
the Company under this Subordinated Indenture with the same effect as if such
successor corporation had been named as the Company herein, and thereafter
(except in the case of a lease to another Person) the predecessor corporation
shall be relieved of all obligations and covenants under the Subordinated
Indenture and the Subordinated Securities and, in the event of such conveyance
or transfer, any such predecessor corporation may be dissolved and liquidated.
ARTICLE 10
SATISFACTION AND DISCHARGE
SECTION 10.1 Satisfaction and Discharge of Subordinated Indenture.
(A) If at any time (i) the Company shall have paid or caused to be paid the
principal of and interest on all the Subordinated Securities of any series
Outstanding hereunder and all unmatured Coupons appertaining thereto (other than
Subordinated Securities of such series and Coupons appertaining thereto which
have been destroyed, lost or stolen and which have been replaced or paid as
provided in Section 2.9) as and when the same shall have become due and payable,
or (ii) the Company shall have delivered to the Trustee for cancellation all
Subordinated Securities of any series theretofore authenticated and all
unmatured Coupons appertaining thereto (other than any Subordinated Securities
of such series and Coupons appertaining thereto which shall have been destroyed,
lost or stolen and which shall have been replaced or paid as provided in Section
2.9) or (iii) in the case of any series of Subordinated Securities where the
exact amount (including the currency of payment) of principal of and interest
due on which can be determined at the time of making the deposit referred to in
clause (b) below, (a) all the Subordinated Securities of such series and all
unmatured Coupons appertaining thereto 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 (b) the Company shall have irrevocably deposited or caused to
be deposited with the Trustee as trust funds in trust the entire amount in (i)
cash (other than moneys repaid by the Trustee or any Paying Agent to the Company
in accordance with Section 10.4), (ii) in the case of any series of Subordinated
Securities the payments on which may only be made in Dollars, direct obligations
of the United States of America, backed by its full faith and credit ("U.S.
Government Obligations"), maturing as to principal and interest at such times
and in such amounts as will insure the availability of cash sufficient to pay at
such Maturity or upon such redemption, as the case may be, or (iii) a
combination thereof, sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay (a) the principal
and interest on all Subordinated Securities of such series and Coupons
appertaining thereto on each date that such principal or interest is due and
payable and (b) any mandatory sinking fund payments on the dates on which such
payments are due and payable in accordance with the terms of the Subordinated
Indenture and the Subordinated Securities of such series; (x) the principal and
interest on all Subordinated Securities of such series and Coupons appertaining
thereto on each date that such principal or interest is due and payable and (y)
any mandatory sinking fund payments on the dates on which such payments are due
and payable in accordance with the terms of the Subordinated Indenture and the
Subordinated Securities of such series; and if, in any such case, the Company
shall also pay or cause to be paid all other sums payable hereunder by the
Company, then this Subordinated Indenture shall cease to be of further effect
(except as to (i) rights of registration of transfer and exchange of
Subordinated Securities of such Series and of Coupons appertaining thereto and
the Company's right of optional redemption, if any, (ii) substitution of
mutilated, defaced, destroyed, lost or stolen Subordinated Securities or
Coupons, (iii) rights of holders of Subordinated Securities and Coupons
appertaining thereto to receive payments of principal thereof and interest
thereon, upon the original stated due dates therefor (but not upon
acceleration), and remaining rights of the Holders to receive mandatory sinking
fund payments, if any, (iv) any optional redemption rights of such series of
Subordinated Securities to the extent to be exercised to make such call for
redemption within one year, (v) the rights, obligations, duties and immunities
of the Trustee hereunder, including those under Section 6.6, (vi) the rights of
the Holders of securities of such series and Coupons appertaining thereto as
beneficiaries hereof with respect to the property so deposited with the Trustee
payable to all or any of them, and (vii) the obligations of the Company under
Section 3.2 and the Trustee, on demand of the Company accompanied by an
Officer's Certificate and an Opinion of Counsel and at the cost and expense of
the Company, shall execute proper instruments acknowledging such satisfaction of
and discharging this Subordinated Indenture; provided, that the rights of
Holders of the Subordinated Securities and Coupons to receive amounts in respect
of principal of and interest on the Subordinated Securities and Coupons held by
them shall not be delayed longer than required by then applicable mandatory
rules or policies of any securities exchange upon which the Subordinated
Securities are listed. The Company agrees to reimburse the Trustee for any costs
or expenses thereafter reasonably and properly incurred and to compensate the
Trustee for any services thereafter reasonably and properly rendered by the
Trustee in connection with this Subordinated Indenture or the Subordinated
Securities of such series.
(B) The following provisions shall apply to the Subordinated Securities of
each series unless specifically otherwise provided in a Board Resolution,
Officer's Certificate or indenture supplemental hereto provided pursuant to
Section 2.3. In addition to discharge of the Subordinated Indenture pursuant to
the next preceding paragraph, in the case of any series of Subordinated
Securities the exact amounts (including the currency of payment) of principal of
and interest due on which can be determined at the time of making the deposit
referred to in clause (a) below, the Company shall be deemed to have paid and
discharged the entire indebtedness on all the Subordinated Securities of such a
series and the Coupons appertaining thereto on the date of the deposit referred
to in subparagraph (a) below, and the provisions of this Subordinated Indenture
with respect to the Subordinated Securities of such series and Coupons
appertaining thereto shall no longer be in effect (except as to (i) rights of
registration
of transfer and exchange of Subordinated Securities of such series and of
Coupons appertaining thereto and the Company's right of optional redemption, if
any, (ii) substitution of mutilated, defaced, destroyed, lost or stolen
Subordinated Securities or Coupons, (iii) rights of Holders of Subordinated
Securities and Coupons appertaining thereto to receive payments of principal
thereof and interest thereon, upon the original stated due dates therefor (but
not upon acceleration), and remaining rights of the Holders to receive mandatory
sinking fund payments, if any, (iv) any optional redemption rights of such
series of Subordinated Securities to the extent to be exercised to make such
call for redemption within one year, (v) the rights, obligations, duties and
immunities of the Trustee hereunder, (vi) the rights of the Holders of
Subordinated Securities of such series and Coupons appertaining thereto as
beneficiaries hereof with respect to the property so deposited with the Trustee
payable to all or any of them and (vii) the obligations of the Company under
Section 3.2 and the Trustee, at the expense of the Company, shall at the
Company's request, execute proper instruments acknowledging the same, if
(a) with reference to this provision the Company has irrevocably deposited
or caused to be irrevocably deposited with the Trustee as trust funds in trust,
specifically pledged as security for, and dedicated solely to, the benefit of
the Holders of the Subordinated Securities of such series and Coupons
appertaining thereto (i) cash in an amount, or (ii) in the case of any series of
Subordinated Securities the payments on which may only be made in Dollars, U.S.
Government Obligations, maturing as to principal and interest at such times and
in such amounts as will insure the availability of cash or (iii) a combination
thereof, sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay (a) the principal and interest on all
Subordinated Securities of such series and Coupons appertaining thereto on each
date that such principal or interest is due and payable and (b) any mandatory
sinking fund payments on the dates on which such payments are due and payable in
accordance with the terms of the Subordinated Indenture and the Subordinated
Securities of such series;
(b) such deposit will not result in a breach or violation of, or constitute
a default under, any agreement or instrument to which the Company is a party or
by which it is bound;
(c) the Company has delivered to the Trustee an Opinion of Counsel based on
the fact that (x) the Company has received from, or there has been published by,
the IRS a ruling or (y) since the date hereof, there has been a change in the
applicable Federal income tax law, in either case to the effect that, and such
opinion shall confirm that, the Holders of the Subordinated Securities of such
series and Coupons appertaining thereto will not recognize income, gain or loss
for United States Federal income tax purposes as a result of such deposit,
defeasance and discharge and will be subject to United States Federal income tax
on the same amount and in the same manner and at the same times, as would have
been the case if such deposit, defeasance and discharge had not occurred; and
(d) the Company has delivered to the Trustee an Officer's Certificate and
an Opinion of Counsel, each stating that all conditions precedent provided for
relating to the defeasance contemplated by this provision have been complied
with.
(C) The Company shall be released from its obligations under Sections 3.6
and 9.1 and unless otherwise provided for in the Board Resolution, Officer's
Certificate or Subordinated Indenture supplemental hereto establishing such
series of Subordinated Securities, from all covenants and other obligations
referred to in Section 2.3(18) or 2.3(20) with respect to such series of
Subordinated Securities, and any Coupons appertaining thereto, outstanding on
and after the date the conditions set forth below are satisfied (hereinafter,
"covenant defeasance"). For this purpose, such covenant defeasance means that,
with respect to the Outstanding Subordinated Securities of any series, the
Company may omit to comply with and shall have no liability in respect of any
term, condition or limitation set forth in such Section, whether directly or
indirectly by reason of any reference elsewhere herein to such Section or by
reason of any reference in such Section to any other provision herein or in any
other document and such omission to comply shall not constitute an Event of
Default under Section 5.1, but the remainder of this Subordinated Indenture and
such Subordinated Securities and Coupons shall be unaffected thereby. The
following shall be the conditions to application of this subsection C of this
Section 10.1:
(a) The Company has irrevocably deposited or caused to be deposited with
the Trustee as trust funds in trust for the purpose of making the following
payments, specifically pledged as security for, and dedicated solely to, the
benefit of the holders of the Subordinated Securities of such series and coupons
appertaining thereto, (i) cash in an amount, or (ii) in the case of any series
of Subordinated Securities the payments on which may only be made in Dollars,
U.S. Government Obligations maturing as to principal and interest at such times
and in such amounts as will insure the availability of cash or (iii) a
combination thereof, sufficient, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay (a) the principal and interest on all
Subordinated Securities of such series and Coupons appertaining thereof and (b)
any mandatory sinking fund payments on the day on which such payments are due
and payable in accordance with the terms of the Subordinated Indenture and the
Subordinated Securities of such series;
(b) No Event of Default or event which with notice or lapse of time or both
would become an Event of Default with respect to the Subordinated Securities
shall have occurred and be continuing on the date of such deposit;
(c) Such covenant defeasance shall not cause the Trustee to have a
conflicting interest as defined in Section 6.9 and for purposes of the Trust
Indenture Act with respect to any securities of the Company;
(d) Such covenant defeasance shall not result in a breach or violation of,
or constitute a default under, this Subordinated Indenture or any other
agreement or instrument to which the Company is a party or by which it is bound;
(e) Such covenant defeasance shall not cause any Subordinated Securities
then listed on any registered national securities exchange under the Exchange
Act to be delisted;
(f) The Company shall have delivered to the Trustee an Officer's
Certificate and Opinion of Counsel to the effect that the Holders of the
Subordinated Securities of such series and Coupons appertaining thereto will not
recognize income, gain or loss for United States Federal income tax purposes as
a result of such covenant defeasance and will be subject to United States
Federal income tax on the same amounts, in the same manner and at the same times
as would have been the case if such covenant defeasance had not occurred; and
(g) The Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to the covenant defeasance contemplated by this
provision have been complied with.
SECTION 10.2 Application by Trustee of Funds Deposited for Payment of
Subordinated Securities.
Subject to Section 10.4, all moneys deposited with the Trustee (for other
trustee) pursuant to Section 10.1 shall be held in trust and applied by it to
the payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent), to the Holders of the particular Subordinated
Securities of such series and of Coupons appertaining thereto for the payment or
redemption of which such moneys have been deposited with the Trustee, of all
sums due and to become due thereon for principal and interest; but such money
need not be segregated from other funds except to the extent required by law.
SECTION 10.3 Repayment of Moneys Held by Paying Agent.
In connection with the satisfaction and discharge of this Subordinated
Indenture with respect to Subordinated Securities of any series, all moneys then
held by any Paying Agent under the provisions of this Subordinated Indenture
with respect to such series of Subordinated Securities shall, upon demand of the
Company, be repaid to it or paid to the Trustee and thereupon such Paying Agent
shall be released from all further liability with respect to such moneys.
SECTION 10.4 Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two
Years.
Any moneys deposited with or paid to the Trustee or any Paying Agent for
the payment of the principal of and any premium and interest on any Subordinated
Security and any series of Coupons attached thereto and not so applied but
remaining unclaimed under applicable law shall be transferred by the Trustee to
the appropriate Persons in accordance with applicable laws, and the Holder of
such Subordinated Security of such series and of any Coupons appertaining
thereto shall thereafter look only to such Persons for any payment which such
Holder may be entitled to collect and all liability of the Trustee and such
Paying Agent with respect to such moneys shall thereupon cease.
SECTION 10.5 Indemnity for U.S. Government of Obligations.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 10.1 or the principal or interest received in
respect of such obligations.
ARTICLE 11
MISCELLANEOUS PROVISIONS
SECTION 11.1 Incorporators, Stockholders, Officers and Directors of Company
Exempt from Individual Liability.
No recourse under or upon any obligation, covenant or agreement contained
in this Subordinated Indenture, or in any Subordinated Security, or because of
any indebtedness evidenced thereby, shall be had against any incorporator, as
such or against any past, present or future stockholder, officer or director, as
such, of the Company or of any successor, either directly or through the Company
or any successor, under any rule of law, statute or constitutional provision or
by the enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being expressly waived and released by the
acceptance of the Subordinated Securities and the Coupons, if any, appertaining
thereto by the Holders thereof and as part of the consideration for the issue of
the Subordinated Securities and the Coupons appertaining thereto.
SECTION 11.2 Provisions of Subordinated Indenture for the Sole Benefit of
Parties and Holders of Subordinated Securities and Coupons.
Nothing in this Subordinated Indenture, in the Subordinated Securities or
in the Coupons appertaining thereto, expressed or implied, shall give or be
construed to give to any person, firm or corporation, other than the parties
thereto and their successors and the Holders of the Subordinated Securities or
Coupons, if any, any legal or equitable right, remedy or claim under this
Subordinated Indenture or under any covenant or provision herein contained, all
such covenants and provisions being for the sole benefit of the parties hereto
and their successors and of the Holders of the Subordinated Securities or
Coupons, if any.
SECTION 11.3 Successors and Assigns of Company Bound by Subordinated Indenture.
All the covenants, stipulations, promises and agreements in this
Subordinated Indenture contained by or in behalf of the Company shall bind its
successors and assigns, whether so expressed or not.
SECTION 11.4 Notices and Demands on Company, Trustee and Holders of Subordinated
Securities and Coupons.
Any notice or demand which by any provision of this Subordinated Indenture
is required or permitted to be given or served by the Trustee or by the Holders
of Subordinated Securities or Coupons, if any, to or on the Company may be given
or served by being deposited postage prepaid, first-class mail (except as
otherwise specifically provided herein) addressed (until another address of the
Company is filed by the Company with the Trustee) to HEALTHSOUTH Corporation,
Xxx XxxxxxXxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxx 00000, Attention: Secretary. Any
notice, direction, request or demand by the Company or any Holder of
Subordinated Securities or Coupons, if any, to or upon the Trustee shall be
deemed to have been sufficiently given or served by being deposited postage
prepaid, first-class mail (except as otherwise specifically provided herein)
addressed (until another address of the Trustee is filed by the Trustee with the
Company) to Xxx Xxxxxxx Xxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xx. Xxxxxx X. Xxxxxx.
Where this Subordinated Indenture provides for notice to Holders of
Registered Subordinated Securities, such notice shall be sufficiently given
(unless otherwise herein expressly provided) if in writing and mailed,
first-class mail, postage prepaid, to each Holder entitled thereto, at his last
address as it appears in the Security Register. In any case where notice to such
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Where this
Subordinated Indenture provides for notice in any manner, such notice may be
waived in writing by the person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
In case, by reason of the suspension of or irregularities in regular mail
service, it shall be impracticable to mail notice to the Company when such
notice is required to the given pursuant to any provision of this Subordinated
Indenture, then any manner of giving such notice as shall be reasonably
satisfactory to the Trustee shall be deemed to be a sufficient giving of such
notice.
SECTION 11.5 Officer's Certificates and Opinions of Counsel; Statements to be
Contained Therein.
Upon any application or demand by the Company to the Trustee to take any
action under any of the provisions of this Subordinated Indenture, the Company
shall furnish to the Trustee an Officer's Certificate stating that all
conditions precedent provided for in this Subordinated 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
Subordinated Indenture relating to such particular application or demand, no
additional certificate or opinion need be furnished.
Each certificate or opinion provided for in this Subordinated Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Subordinated Indenture shall include (a) a statement that
the person making such certificate or opinion has read such covenant or
condition, (b) 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, (c) a statement that, in the opinion of such
person, he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant or
condition has been complied with and (d) a statement as to whether or not, in
the opinion of such person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of
or representations by counsel, unless such officer knows that the certificate or
opinion or representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous, or in
the exercise of reasonable care should know that the same are erroneous. Any
certificate, statement or opinion of counsel may be based, insofar as it relates
to factual matters or information with respect to which is in the possession of
the Company, upon the certificate, statement or opinion of or representations by
an officer of officers of the Company, unless such counsel knows that the
certificate, statement or opinion or representations with respect to the matters
upon which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous.
Any certificate, statement or opinion of an officer of the Company or of
counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Company, unless such officer or counsel, as the
case may be, knows that the certificate or opinion of or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public accountants
filed with and directed to the Trustee shall contain a statement that such firm
is independent.
SECTION 11.6 Payments Due on Saturdays, Sundays and Holidays.
If the date of Maturity of interest on or principal of the Subordinated
Securities of any series or any Coupons appertaining thereto or the date fixed
for redemption or repayment of any such Subordinated Security or Coupon shall
not be a Business Day, then payment of interest or principal need not be made on
such date, but may be made on the next succeeding Business Day with the same
force and effect as if made on the date of Maturity or the date fixed for
redemption, and no interest shall accrue for the period after such date.
SECTION 11.7 Conflict of Any Provision of Subordinated Indenture with Trust
Indenture Act.
If and to the extent that any provision of this Subordinated Indenture
limits, qualifies or conflicts with duties imposed by, or with another provision
(an "incorporated provision") included in this Subordinated Indenture by
operation of Sections 310 to 318, inclusive, of the Trust Indenture Act, such
imposed duties or incorporated provision shall control.
SECTION 11.8 New York Law to Govern.
THIS SUBORDINATED INDENTURE AND EACH SUBORDINATED SECURITY AND COUPON SHALL
BE DEEMED TO BE A CONTRACT UNDER THE LAWS OF THE STATE OF NEW YORK, AND FOR ALL
PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF SUCH STATE, WITHOUT
REGARD TO THE CONFLICTS OF LAW PRINCIPLES THEREOF.
SECTION 11.9 Counterparts.
This Subordinated 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 11.10 Effect of Headings.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 11.11 Subordinated Securities in a Foreign Currency or in ECU.
Unless otherwise specified in an Officer's Certificate delivered pursuant
to Section 2.3 of this Subordinated Indenture with respect to a particular
series of Subordinated Securities, whenever for purposes of this Subordinated
Indenture any action may be taken by the Holders of a specified percentage in
aggregate principal amount of Subordinated Securities of all series or all
series affected by a particular action at the time Outstanding and, at such
time, there are Outstanding Subordinated Securities of any series which are
denominated in a coin or currency other than Dollars (including ECUs), then the
principal amount of Subordinated Securities of such series which shall be deemed
to be Outstanding for the purpose of taking such action shall be that amount of
Dollars that could be obtained for such amount at the Market Exchange Rate. For
purposes of this Section 11.11, Market Exchange Rate shall mean the noon Dollar
buying rate in The New York City for cable transfers of that currency as
published by the Federal Reserve Bank of New York; provided, in the case of
ECUs, Market Exchange Rate shall mean the rate of exchange determined by the
Commission of the European Communities (or any successor thereto) as published
in the Official Journal of the European Communities (such publication or any
successor publication, the "Journal"). If such Market Exchange Rate is not
available for any reason with respect to such currency, the Trustee shall use,
in its sole discretion and without liability on its part, such quotation of the
Federal Reserve Bank of New
York or, in the case of ECUs, the rate of exchange as published in the Journal,
as of the most recent available date, or quotations or, in the case of ECUs,
rates of exchange from one or more major banks in The City of New York or in the
country of issue of the currency in question, which for purposes of the ECU
shall be Brussels, Belgium, or such other quotations or, in the case of ECU,
rates of exchange as the Trustee shall deem appropriate. The provisions of this
paragraph shall apply in determining the equivalent principal amount in respect
of Subordinated Securities of a series denominated in a currency other than
Dollars in connection with any action taken by Holders of Subordinated
Securities pursuant to the terms of this Subordinated Indenture.
All decisions and determinations of the Trustee regarding the Market
Exchange Rate or any alternative determination provided for in the preceding
paragraph shall be in its sole discretion and shall, in the absence of manifest
error, be conclusive to the extent permitted by law for all purposes and
irrevocably binding upon the Company and all Holders.
SECTION 11.12 Judgment Currency.
The Company agrees, to the fullest extent that it may effectively do so
under applicable law, that (a) if for the purpose of obtaining judgment in any
court it is necessary to convert the sum due in respect of the principal of or
interest on the Subordinated Securities of any series (the "Required Currency")
into a currency in which a judgment will be rendered (the "Judgment Currency"),
the rate of exchange used shall be the rate at which in accordance with normal
banking procedures the Trustee could purchase in The City of New York the
Required Currency with the Judgment Currency on the day on which final
unappealable judgment is entered, unless such day is not a New York Banking Day,
then, to the extent permitted by applicable law, the rate of exchange used shall
be the rate at which in accordance with normal banking procedures the Trustee
could purchase in The City of New York the Required Currency with the Judgment
Currency on the New York Banking Day preceding the day on which final
unappealable judgment is entered and (b) its obligations under this Subordinated
Indenture to make payments in the Required Currency (i) shall not be discharged
or satisfied by any tender, or any recovery pursuant to any judgment (whether or
not entered in accordance with subsection (a)), in any currency other than the
Required Currency, except to the extent that such tender or recovery shall
result in the actual receipt, by the payee, of the full amount of the Required
Currency expressed to be payable in respect of such payments, (ii) shall be
enforceable as an alternative or additional cause of action for the purpose of
recovering in the Required Currency the amount, if any, by which such actual
receipt shall fall short of the full amount of the Required Currency so
expressed to be payable and (iii) shall not be affected by judgment being
obtained for any other sum due under this Subordinated Indenture. For purposes
of the foregoing, "New York Banking Day" means any day except a Saturday, Sunday
or a legal holiday in The City of New York or a day on which banking
institutions in The City of New York are authorized or required by law or
executive order to close.
ARTICLE 12
REDEMPTION OF SUBORDINATED SECURITIES AND SINKING FUNDS
SECTION 12.1 Applicability of Article.
The provisions of this Article shall be applicable to the Subordinated
Securities of any series which are redeemable before their Maturity or to any
sinking fund for the retirement of Subordinated Securities of a series except as
otherwise specified as contemplated by Section 2.3 for Subordinated Securities
of such series.
SECTION 12.2 Notice of Redemption; Partial Redemptions.
Notice of redemption to the Holders of Registered Subordinated Securities
of any series to be redeemed as a whole or in part at the option of the Company
shall be given by mailing notice of such redemption by first class mail, postage
prepaid, at least 30 days and not more than 60 days prior to the date fixed for
redemption to such Holders of Subordinated Securities of such series at their
last addresses as they shall appear upon the registry books. Notice of
redemption to the Holders of Unregistered Subordinated Securities to be redeemed
as a whole or in part, who have filed their names and addresses with the Trustee
pursuant to Section 313(c)(2) of the Trust Indenture Act shall be given by
mailing notice of such redemption, by first class mail, postage prepaid, at
least 30 days and not more than 60 prior to the date fixed for redemption, to
such Holders at such addresses as were so furnished to the Trustee (and, in the
case of any such notice given by the Company, the Trustee shall make such
information available to the Company for such purpose). Notice of redemption to
all other Holders of Unregistered Subordinated Securities shall be published in
an Authorized Newspaper in the Borough of Manhattan, The City of New York and in
an Authorized Newspaper in London (and, if required by Section 3.9, in an
Authorized Newspaper in Luxembourg), in each case, once in each of three
successive calendar weeks, the first publication to be not less than 30 nor more
than 60 days prior to the date fixed for redemption. Any notice which is mailed
in the manner herein provided shall be conclusively presumed to have been duly
given, whether or not the Holder receives the notice. Failure to give notice by
mail, or any defect in the notice to the Holder of any Subordinated Security of
a series designated for redemption as a whole or in part shall not affect the
validity of the proceedings for the redemption of such Subordinated Security of
such series.
The notice of redemption to each such Holder shall specify the principal
amount of each Subordinated Security of such series held by such Holder to be
redeemed, the date fixed for redemption, the redemption price, the place or
places of payment, that payment will be made upon presentation and surrender of
such Subordinated Securities and, in the case of Subordinated Securities with
Coupons attached thereto, of all Coupons appertaining thereto maturing after the
date fixed for redemption, that such redemption is pursuant to the mandatory or
optional sinking fund, or both, if such be the case, that interest accrued to
the date fixed for redemption will be paid as specified in such notice and that
on and after said date interest thereon or on the portions thereof to be
redeemed will cease to accrue. In case any Subordinated Security of a series is
to be redeemed in part only the notice of redemption shall state the portion of
the principal
amount thereof to be redeemed and shall state that on and after the date fixed
for redemption, upon surrender of such Subordinated Security, a new Subordinated
Security or Subordinated Securities of such series in principal amount equal to
the unredeemed portion thereof will be issued.
The notice of redemption of Subordinated Securities of any series to be
redeemed at the option of the Company shall be given by the Company or, at the
Company's request, by the Trustee in the name and at the expense of the Company.
On or before the redemption date specified in the notice of redemption
given as provided in this Section, the Company will deposit with the Trustee or
with one or more Paying Agents (or, if the Company is acting as its own Paying
Agent, set aside, segregate and holder in trust as provided in Section 3.4) an
amount of money sufficient to redeem on the redemption date all the Subordinated
Securities of such series so called for redemption at the appropriate redemption
price, together with accrued interest to the date fixed for redemption. The
Company will deliver to the Trustee at least 70 days prior to the date fixed for
redemption, or such shorter period as shall be acceptable to the Trustee, an
Officer's Certificate stating the aggregate principal amount of Subordinated
Securities to be redeemed. In case of a redemption at the election of the
Company prior to the expiration of any restriction on such redemption, the
Company shall deliver to the Trustee, prior to the giving of any notice of
redemption to Holders pursuant to this Section, an Officer's Certificate stating
that such restriction has been complied with.
If less than all the Subordinated Securities of a series are to be
redeemed, the Trustee shall select, in such manner as it shall deemed
appropriate and fair, in its sole discretion, Subordinated Securities of such
series to be redeemed in whole or in part. Subordinated Securities may be
redeemed in part in multiples equal to the minimum authorized denomination for
Subordinated Securities of such series or any multiple thereof. The Trustee
shall promptly notify the Company in writing of the Subordinated Securities of
such series selected for redemption and, in the case of any Subordinated
Securities of such series selected for partial redemption, the principal amount
thereof to be redeemed. For all purposes of this Subordinated Indenture, unless
the context otherwise requires, all provisions relating to the redemption of
Subordinated Securities of any series shall relate, in the case of any
Subordinated Security redeemed or to be redeemed only in part, to the portion of
the principal amount of such Subordinated Security which has been or is to be
redeemed.
SECTION 12.3 Payment of Subordinated Securities Called for Redemption.
If notice of redemption has been given as above provided, the Subordinated
Securities or portions of Subordinated Securities 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, together with interest accrued to the date fixed
for redemption, and on and after said date (unless the Company shall default in
the payment of such Subordinated Securities at the redemption price, together
with interest accrued to said date) interest on the Subordinated Securities or
portions of Subordinated Securities so called for redemption shall cease to
accrue, and the unmatured Coupons, if any, appertaining thereto shall be void,
and, except as provided in Sections 6.5 and
10.4, such Subordinated Securities shall cease from and after the date fixed for
redemption to be entitled to any benefit or security under this Subordinated
Indenture, and the Holders thereof shall have no right in respect of such
Subordinated Securities except the right to receive the redemption price thereof
and unpaid interest to the date fixed for redemption. On presentation and
surrender of such Subordinated Securities at a place of payment specified in
said notice, together with all Coupons, if any, appertaining thereto maturing
after the date fixed for redemption, said Subordinated Securities or the
specified portions thereof shall be paid and redeemed by the Company at the
applicable redemption price, together with interest accrued thereon to the date
fixed for redemption; provided, that payment of interest becoming due on or
prior to the date fixed for redemption shall be payable in the case of
Subordinated Securities with Coupons attached thereto, to the Holders of the
Coupons for such interest upon surrender thereof, and in the case of Registered
Subordinated Securities, to the Holder of such Registered Subordinated
Securities registered as such on the relevant record date, subject to the terms
and provisions of Section 2.3 and 2.7 hereof.
If any Subordinated Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest or Yield to Maturity (in the case of an Original Issue Discount
Subordinated Security) borne by such Subordinated Security.
If any Subordinated Security with Coupons attached thereto is surrendered
for redemption and is not accompanied by all appurtenant Coupons maturing after
the date fixed for redemption, the surrender of such missing Coupon or Coupons
may be waived by the Company and the Trustee, if there be furnished to each of
them such security or indemnity as they may require to save each of them
harmless.
Upon presentation of any Subordinated Security redeemed in part only, the
Company shall execute and the Trustee shall authenticate and deliver to or on
the order of the Holder thereof, at the expense of the Company, a new
Subordinated Security or Subordinated Securities of such series, of authorized
denominations, in principal amount equal to the unredeemed portion of the
Subordinated Security so presented.
SECTION 12.4 Exclusion of Certain Subordinated Securities from Eligibility for
Selection for Redemption.
Subordinated Securities shall be excluded from eligibility for selection
for redemption if they are identified by registration and certificate number in
an Officer's Certificate delivered to the Trustee at least 40 days prior to the
last date on which notice of redemption may be given as being owned of record
and beneficially by, and not pledged or hypothecated by, either (a) the Company
or (b) an entity specifically identified in such written statement as directly
or indirectly controlling or controlled by or under direct or indirect common
control with the Company.
SECTION 12.5 Mandatory and Optional Sinking Funds.
The minimum amount of any sinking fund payment provided for by the terms of
the Subordinated Securities of any series is herein referred to as a "mandatory
sinking fund
payment," and any payment in excess of such minimum amount provided for by the
terms of the Subordinated Securities of any series is herein referred to as an
"optional sinking fund payment." The date on which a sinking fund payment is to
be made is herein referred to as the "sinking fund payment date."
In lieu of making all or any part of any mandatory sinking fund payment
with respect to any series of Subordinated Securities in cash, the Company may
at its option (a) deliver to the Trustee Subordinated Securities of such series
theretofore purchased or otherwise acquired (except upon redemption pursuant to
the mandatory sinking fund) by the Company or receive credit for Subordinated
Securities of such series (not previously so credited) theretofore purchased or
otherwise acquired (except as aforesaid) by the Company and delivered to the
Trustee for cancellation pursuant to Section 2.10, (b) receive credit for
optional sinking fund payments (not previously so credited) made pursuant to
this Section, or (c) receive credit for Subordinated Securities of such series
(not previously so credited) redeemed by the Company through any optional
redemption provision contained in the terms of such series. Subordinated
Securities so delivered or credited shall be received or credited by the Trustee
at the sinking fund redemption price specified in such Subordinated Securities.
On or before the 60th day next preceding each sinking fund payment date for
any series, the Company will deliver to the Trustee an Officer's Certificate
(which need not contain the statements required by Section 11.5) (a) specifying
the portion of the mandatory sinking fund payment to be satisfied by payment of
cash and the portion to be satisfied by credit of Subordinated Securities of
such series and the basis for such credit, (b) stating that none of the
Subordinated Securities of such series has theretofore been so credited, (c)
stating that no defaults in the payment of interest or Events of Default with
respect to such series have occurred (which have not been waived or cured) and
are continuing and (d) stating whether or not the Company intends to exercise
its right to make an optional sinking fund payment with respect to such series
and, if so, specifying the amount of such optional sinking fund payment which
the Company intends to pay on or before the next succeeding sinking fund payment
date. Any Subordinated Securities of such series to be credited and required to
be delivered to the Trustee in order for the Company to be entitled to credit
therefor as aforesaid which have not theretofore been delivered to the Trustee
shall be delivered for cancellation pursuant to Section 2.10 to the Trustee with
such Officer's Certificate (or reasonably promptly thereafter if acceptable to
the Trustee). Such Officer's Certificate shall be irrevocable and upon its
receipt by the Trustee the Company shall become unconditionally obligated to
make all the cash payments or payments therein referred to, if any, on or before
the next succeeding sinking fund payment date. Failure of the Company, on or
before any such 60th day, to deliver such Officer's Certificate and Subordinated
Securities specified in this paragraph, if any, shall not constitute a default
but shall constitute, on and as of such date, the irrevocable election of the
Company (i) that the mandatory sinking fund payment for such series due on the
next succeeding sinking fund payment date shall be paid entirely in cash without
the option to deliver or credit Subordinated Securities of such series in
respect thereof and (ii) that the Company will make no optional sinking fund
payment with respect to such series as provided in this Section.
If the sinking fund payment or payments (mandatory or optional or both) to
be made in cash on the next succeeding sinking fund payment date plus any unused
balance of any
preceding sinking fund payments made in cash shall exceed $50,000 (or the
equivalent thereof in any Foreign Currency or ECU) or a lesser sum in Dollars
(or the equivalent thereof in any Foreign Currency or ECU) if the Company shall
so request with respect to the Subordinated Securities of any particular series,
such cash shall be applied on the next succeeding sinking fund payment date to
the redemption of Subordinated Securities of such series at the sinking fund
redemption price together with accrued interest to the date fixed for
redemption. If such amount shall be $50,000 (or the equivalent thereof in any
Foreign Currency or ECU) or less and the Company makes no such request then it
shall be carried over until a sum in excess of $50,000 (or the equivalent
thereof in any Foreign Currency or ECU) is available. The Trustee shall select,
in the manner provided in Section 12.2, for redemption on such sinking fund
payment date a sufficient principal amount of Subordinated Securities of such
series to absorb said cash, as nearly as may be, and shall (if requested in
writing by the Company) inform the Company of the serial numbers of the
Subordinated Securities of such series (or portions thereof) so selected.
Subordinated Securities shall be excluded from eligibility for redemption under
this Section if they are identified by registration and certificate number in an
Officer's Certificate delivered to the Trustee at least 60 days prior to the
sinking fund payment date as being owned of record and beneficially by, and not
pledged or hypothecated by, either (a) the Company or (b) an entity specifically
identified in such Officer's Certificate as directly or indirectly controlling
or controlled by or under direct or indirect common control with the Company.
The Trustee, in the name and at the expense of the Company (or the Company, if
it shall so request the Trustee in writing) shall cause notice of redemption of
the Subordinated Securities of such series to be given in substantially the
manner provided in Section 12.2 (and with the effect provided in Section 12.3)
for the redemption of Subordinated Securities of such series in part at the
option of the Company. The amount of any sinking fund payments not so applied or
allocated to the redemption of Subordinated Securities of such series shall be
added to the next cash sinking fund payment for such series and, together with
such payment, shall be applied in accordance with the provisions of this
Section. Any and all sinking fund moneys held on the Stated Maturity date of the
Subordinated Securities of any particular series (or earlier, if such maturity
is accelerated), which are not held for the payment or redemption of particular
Subordinated Securities of such series shall be applied, together with other
moneys, if necessary, sufficient for the purpose, to the payment of the
principal of, and interest on, the Subordinated Securities of such series at
Maturity.
On or before each sinking fund payment date, the Company shall pay to the
Trustee in cash or shall otherwise provide for the payment of all interest
accrued to the date fixed for redemption on Subordinated Securities to be
redeemed on the next following sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Subordinated
Securities of a series with sinking fund moneys or give any notice of redemption
of Subordinated Securities for such series by operation of the sinking fund
during the continuance of a default in payment of interest on such Subordinated
Securities or of any Event of Default except that, where the giving of notice of
redemption of any Subordinated Securities shall theretofore have been made, the
Trustee shall redeem or cause to be redeemed such Subordinated Securities,
provided that it shall have received from the Company a sum sufficient for such
redemption. Except as aforesaid, any moneys in the sinking fund for such series
at the time when any such default or
Event of Default shall occur, and any moneys thereafter paid into the sinking
fund, shall, during the continuance of such default or Event of Default be
deemed to have been collected under Article 5 and held for the payment of all
such Subordinated Securities. In case such Event of Default shall have been
waived as provided in Section 5.14 or the default cured on or before the
sixtieth day preceding the sinking fund payment date in any year, such moneys
shall thereafter be applied on the next succeeding sinking fund payment date in
accordance with this Section to the redemption of such Subordinated Securities.
[Signature page follows]
IN WITNESS WHEREOF, the parties hereto have caused this Subordinated
Indenture to be duly executed and attested as of the date first written above.
HEALTHSOUTH CORPORATION
By: /s/XXXXXXX X. XXXXXX
_______________________________
Name: Xxxxxxx X. Xxxxxx
Title: Chief Financial Officer
Attest:
By: /s/XXXXXXX X. XXXXXX
__________________________
THE BANK OF NOVA SCOTIA TRUST
COMPANY OF NEW YORK, as Trustee
By: /s/Xxxxxx Xxxxxx
_______________________________
Name: Xxxxxx Xxxxxx
Title: Vice President
Attest:
By: /s/XXXXXX XXXXXXX
_________________________
