Exhibit 4.12
COMMERCE BANCORP, INC.
______________________________
______________________________
INDENTURE
Dated as of [_______________ ___, 20__]
______________________________
THE BANK OF NEW YORK
as Trustee
______________________________
JUNIOR SUBORDINATED DEBENTURES
COMMERCE BANCORP, INC.
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939
AND INDENTURE, DATED AS OF [_______________]
TRUST INDENTURE INDENTURE
ACT SECTION SECTION
310(a)(1) 6.09
310(a)(2) 6.09; 6.10; 6.11
310(a)(3) N/A
310(a)(4) N/A
310(a)(5) 6.09
310(b) 6.08
310(c) N/A
311(a) 6.13
311(b) 6.13
311(c) N/A
312(a) 4.01(a); 4.02(a)
312(b) 4.02(b)
312(c) 4.02(d)
313(a) 4.04(a)
313(b) 4.04(a)
313(c) 4.04(a)
313(d) 4.04(b)
314(a) 3.05; 4.03
314(b) N/A
314(c)(1) 6.07; 9.05
314(c)(2) 6.07; 9.05
314(c)(3) N/A
314(d) N/A
314(e) 6.07; 9.05
314(f) N/A
315(a) 6.01
315(b) 5.09
315(c) 6.01
315(d) 6.01
315(e) 5.10
316(a) 1.01
316(a)(1) 5.08
316(a)(2) 5.08
316(b) 5.08
316(c) 7.01
317(a) 5.05
317(b) 6.05
318(a) 13.08
THIS RECONCILIATION AND TIE SHALL NOT, FOR ANY PURPOSE, BE DEEMED TO BE PART OF
THE INDENTURE.
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions......................................................................................1
SECTION 1.02 Rules of Construction...........................................................................11
ARTICLE II
DEBENTURES
SECTION 2.01 Forms Generally.................................................................................12
SECTION 2.02 Execution and Authentication....................................................................14
SECTION 2.03 Form and Payment................................................................................16
SECTION 2.04 Global Debenture................................................................................16
SECTION 2.05 Payment of Principal and Interest...............................................................18
SECTION 2.06 Transfer........................................................................................18
SECTION 2.07 Replacement Debentures..........................................................................19
SECTION 2.08 Temporary Debentures............................................................................19
SECTION 2.09 Cancellation....................................................................................20
SECTION 2.10 Defaulted Interest..............................................................................20
SECTION 2.11 CUSIP Numbers...................................................................................21
ARTICLE III
PARTICULAR COVENANTS OF THE COMPANY
SECTION 3.01 Payment of Principal and Interest...............................................................21
SECTION 3.02 Offices for Notices and Payments, etc...........................................................21
SECTION 3.03 Appointments to Fill Vacancies in Office of Trustee.............................................22
SECTION 3.04 Provision as to Paying Agent....................................................................22
SECTION 3.05 Certificate to Trustee..........................................................................23
SECTION 3.06 Compliance with Consolidation Provisions........................................................23
SECTION 3.07 Limitation on Dividends.........................................................................23
SECTION 3.08 Ownership of Common Securities..................................................................24
SECTION 3.09 Payment of Expenses.............................................................................25
SECTION 3.10 Payment Upon Resignation or Removal.............................................................25
ARTICLE IV
LIST OF DEBENTUREHOLDERS AND REPORTS BY THE COMPANY AND THE TRUSTEE
SECTION 4.01 List of Holders.................................................................................26
SECTION 4.02 Preservation and Disclosure of Lists............................................................26
SECTION 4.03 Reports by the Company..........................................................................27
SECTION 4.04 Reports by the Trustee..........................................................................28
ARTICLE V
REMEDIES OF THE TRUSTEE AND DEBENTUREHOLDERS UPON EVENT OF DEFAULT
SECTION 5.01 Events of Default...............................................................................29
SECTION 5.02 Payment of Securities on Default; Suit Therefor.................................................31
SECTION 5.03 Application of Moneys Collected by Trustee......................................................33
SECTION 5.04 Proceedings by Holders..........................................................................33
SECTION 5.05 Proceedings by Trustee..........................................................................34
SECTION 5.06 Remedies Cumulative and Continuing..............................................................35
SECTION 5.07 Restoration of Rights and Remedies..............................................................35
SECTION 5.08 Direction of Proceedings and Waiver of Defaults by Majority of Holders..........................35
SECTION 5.09 Notice of Defaults..............................................................................36
SECTION 5.10 Undertaking to Pay Costs........................................................................37
ARTICLE VI
CONCERNING THE TRUSTEE
SECTION 6.01 Duties and Responsibilities of Trustee..........................................................37
SECTION 6.02 Reliance on Documents, Opinions, etc............................................................38
SECTION 6.03 No Responsibility for Recitals, etc.............................................................40
SECTION 6.04 Trustee, Authenticating Agent, Paying Agents, Transfer Agents and Registrar May Own
Debentures....................................................................................................40
SECTION 6.05 Moneys to be Held in Trust......................................................................40
SECTION 6.06 Compensation and Expenses of Trustee............................................................41
SECTION 6.07 Officers' Certificate as Evidence...............................................................41
SECTION 6.08 Conflicting Interest of Trustee.................................................................42
SECTION 6.09 Eligibility of Trustee..........................................................................42
SECTION 6.10 Resignation or Removal of Trustee...............................................................42
SECTION 6.11 Acceptance by Successor Trustee.................................................................43
SECTION 6.12 Succession by Merger, etc.......................................................................44
SECTION 6.13 Limitation on Rights of Trustee as a Creditor...................................................44
SECTION 6.14 Authenticating Agents...........................................................................45
SECTION 6.15 Trustee Not Fiduciary for Holders of Senior Indebtedness........................................46
ARTICLE VII
CONCERNING THE DEBENTUREHOLDERS
SECTION 7.01 Action by Holders...............................................................................46
SECTION 7.02 Proof of Execution by Holders...................................................................47
SECTION 7.03 Who Are Deemed Absolute Owners..................................................................47
SECTION 7.04 Debentures Owned by Company Deemed Not Outstanding..............................................47
SECTION 7.05 Revocation of Consents; Future Holders Bound....................................................48
ARTICLE VIII
MEETINGS OF DEBENTUREHOLDERS
SECTION 8.01 Purposes of Meetings............................................................................48
SECTION 8.02 Call of Meetings by Trustee.....................................................................49
SECTION 8.03 Call of Meetings by Company or Holders..........................................................49
SECTION 8.04 Qualifications for Voting.......................................................................50
SECTION 8.05 Regulations.....................................................................................50
SECTION 8.06 Voting..........................................................................................51
ARTICLE IX
AMENDMENTS
SECTION 9.01 Without Consent of Holders......................................................................51
SECTION 9.02 With Consent of Holders.........................................................................53
SECTION 9.03 Compliance with Trust Indenture Act; Effect of Supplemental Indentures..........................55
SECTION 9.04 Notation on Debentures..........................................................................55
SECTION 9.05 Evidence of Compliance of Supplemental Indenture to be Furnished to Trustee.....................55
ARTICLE X
CONSOLIDATION, MERGER, SALE, CONVEYANCE, TRANSFER AND LEASE
SECTION 10.01 Company May Consolidate, etc., on Certain Terms................................................55
SECTION 10.02 Successor Person to be Substituted for Company.................................................56
SECTION 10.03 Opinion of Counsel to be Given Trustee.........................................................56
ARTICLE XI
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 11.01 Discharge of Indenture.........................................................................57
SECTION 11.02 Deposited Moneys and U.S. Government Obligations to be Held in Trust by Trustee................58
SECTION 11.03 Paying Agent to Repay Moneys Held..............................................................58
SECTION 11.04 Return of Unclaimed Moneys.....................................................................58
SECTION 11.05 Defeasance Upon Deposit of Moneys or U.S. Government Obligations...............................58
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 12.01 Indenture and Debentures Solely Corporate Obligations..........................................60
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01 Successors.....................................................................................60
SECTION 13.02 Official Acts by Successor Company.............................................................61
SECTION 13.03 Surrender of Company Powers....................................................................61
SECTION 13.04 Addresses for Notices, etc.....................................................................61
SECTION 13.05 Governing Law..................................................................................61
SECTION 13.06 Evidence of Compliance with Conditions Precedent...............................................61
SECTION 13.07 Business Days..................................................................................62
SECTION 13.08 Trust Indenture Act to Control.................................................................62
SECTION 13.09 Table of Contents, Headings, etc...............................................................62
SECTION 13.10 Execution in Counterparts......................................................................62
SECTION 13.11 Severability...................................................................................62
SECTION 13.12 Assignment.....................................................................................63
SECTION 13.13 Acknowledgment of Rights.......................................................................63
ARTICLE XIV
REDEMPTION OF DEBENTURES
SECTION 14.01 Special Event Redemption.......................................................................63
SECTION 14.02 Optional Redemption by Company.................................................................64
SECTION 14.03 Notice of Redemption; Selection of Debentures..................................................64
SECTION 14.04 Payment of Debentures Called for Redemption....................................................65
ARTICLE XV
SUBORDINATION OF DEBENTURES
SECTION 15.01 Agreement to Subordinate.......................................................................65
SECTION 15.02 Default on Senior Indebtedness.................................................................66
SECTION 15.03 Liquidation; Dissolution; Bankruptcy...........................................................67
SECTION 15.04 Subrogation....................................................................................68
SECTION 15.05 Trustee to Effectuate Subordination............................................................68
SECTION 15.06 Notice by the Company..........................................................................69
SECTION 15.07 Rights of the Trustee; Holders of Senior Indebtedness..........................................70
SECTION 15.08 Subordination May Not Be Impaired..............................................................70
SECTION 15.09 Payment Blockage Notice........................................................................71
ARTICLE XVI
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 16.01 Extension of Interest Payment Period...........................................................71
SECTION 16.02 Notice of Extension............................................................................72
ARTICLE XVII
[CONVERSION OF debentures]
SECTION 17.01 [Conversion Rights.............................................................................73
SECTION 17.02 Exercise of Conversion Privilege...............................................................73
SECTION 17.03 Fractional Shares..............................................................................74
SECTION 17.04 Adjustment of Conversion Price.................................................................75
SECTION 17.05 Notice of Adjustments of Conversion Price......................................................77
SECTION 17.06 Notice of Certain Corporate Action.............................................................77
SECTION 17.07 Company to Reserve Common Stock................................................................78
SECTION 17.08 Taxes on Conversions...........................................................................78
SECTION 17.09 Covenant as to Common Stock....................................................................78
SECTION 17.10 Cancellation of Converted Debentures...........................................................79
SECTION 17.11 Provisions in Case of Consolidation, Merger or Sale of Assets..................................79
INDENTURE, dated as of [________________], between Commerce Bancorp,
Inc., a New Jersey corporation (the "Company"), and The Bank of New York, a New
York banking corporation, as debenture trustee (the "Trustee").
WHEREAS, the Company may from time to time create or establish one or
more statutory trusts for the purpose of issuing undivided beneficial interests
in the assets of such trust or trusts (the "Trust Securities"), the proceeds
from the sale of which will be used by such statutory trust or trusts to acquire
the Company's Debentures (as hereinafter defined).
WHEREAS, all things necessary to make the Debentures, when duly issued
and executed by the Company and authenticated and delivered hereunder, the valid
obligations of the Company, and to make this Indenture a valid and binding
agreement of the Company, enforceable in accordance with its terms, have been
done.
NOW THEREFORE:
Each of the Company and the Trustee, intending to be legally bound
hereby, agrees as follows for the benefit of the other party and for the equal
and ratable benefit of the Holders (as hereinafter defined) of the securities
issued hereunder:
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions.
"Additional Sums" shall have the meaning set forth in Section 2.05(d).
"Affiliate" shall have the meaning given to that term in Rule 405 under
the Securities Act or any successor rule thereunder.
"Allocable Amounts", when used with respect to any Senior Indebtedness,
means all amounts due or to become due on such Senior Indebtedness less, if
applicable, any amount which would have been paid to, and retained by, the
holders of such Senior Indebtedness (whether as a result of the receipt of
payments by the holders of such Senior Indebtedness from the Company or any
other obligor thereon or from any holders of, or trustee in respect of, other
indebtedness that is subordinate and junior in right of payment to such Senior
Indebtedness pursuant to any provision of such indebtedness for the payment over
of amounts received on account of such indebtedness to the holders of such
Senior Indebtedness or otherwise) but for the fact that such Senior Indebtedness
is subordinate or junior in right of payment to (or subject to a requirement
that amounts received on such Senior Indebtedness be paid over to obligees on)
trade accounts payable or accrued liabilities arising in the ordinary course of
business.
"Authenticating Agent" shall mean any agent or agents of the Trustee
which at the time shall be appointed and acting pursuant to Section 6.14.
"Bankruptcy Law" shall mean Title 11, U.S. Code, or any similar federal
or state law for the relief of debtors.
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"Board of Directors" shall mean either the Board of Directors of the
Company or any duly authorized committee of that board.
"Board Resolution" shall mean a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee or (ii) a certificate signed by the
authorized officer or officers to whom the Board of Directors has delegated
authority to make such certifications, and in each case, delivered to the
Trustee.
"Book-Entry Preferred Securities" shall have the meaning set forth in
Section 2.04(a)(i).
"Business Day" shall mean, with respect to any series of Debentures,
any day other than a Saturday, a Sunday or a day on which banking institutions
in the Borough of Manhattan in the City of New York are authorized or required
by law, regulation or executive order to close.
"Closing Price" with respect to any securities on any date means the
closing per share sale price (or, if no closing sale price is reported, the
average of the bid and ask prices or, if more than one in either case, the
average of the average bid and average ask prices) on such date as reported in
the composite transactions for the principal United States securities exchange
on which such security is traded (which is currently the New York Stock Exchange
with respect to the Common Stock) or, if the security is not listed on a United
States national or regional securities exchange, as reported by the National
Association of Securities Dealers Automated Quotation System or by the National
Quotation Bureau Incorporated, or if not so available, in such manner as
furnished by any New York Stock Exchange member firm selected from time to time
by the Board of Directors for that purpose, or a price determined in good faith
by the Board of Directors or, to the extent permitted by applicable law, a duly
authorized committee thereof, whose determination shall be conclusive.
"Commission" shall mean the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or if at any time
after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Securities" shall mean undivided beneficial interests in the
assets of a Trust which are designated as "Common Securities" and rank pari
passu with Preferred Securities issued by such Trust; provided, however, that if
an Event of Default has occurred and is continuing, no payments in respect of
distributions on, or payments upon liquidation, redemption or otherwise with
respect to, the Common Securities shall be made until the holders of the
Preferred Securities shall be paid in full the distributions and the
liquidation, redemption and other payments to which they are then entitled.
"Common Securities Guarantee" shall mean any guarantee that the Company
may enter into that operates directly or indirectly for the benefit of holders
of Common Securities.
"Common Stock" shall mean the Common Stock, $1.00 par value per share,
of the Company or any other class of stock resulting from changes or
reclassifications of such Common Stock consisting solely of changes in par
value, or from par value to no par value.
2
"Compounded Interest" shall have the meaning set forth in Section
16.01.
"Company" shall mean the person identified as "Company" in the preamble
to this Indenture and, subject to the provisions of Article X, shall also
include its successors and assigns.
"Company Request" or "Company Order" shall mean a written request or
order signed in the name of the Company by an Officer and delivered to the
Trustee.
["Conversion Price" shall mean the quotient obtained by dividing
$[_____] by the Conversion Ratio and rounding the result to four decimal
places.]
["Conversion Ratio" shall have the meaning set forth in Section 17.01.]
["Conversion Request" means (a) the irrevocable request to be delivered
by a Holder to the applicable agent for conversion directing such agent to
convert the Debentures into shares of Common Stock and (b) the irrevocable
request to be given by a holder of Preferred Securities to the applicable agent
for conversion directing such agent to exchange such stock on behalf of such
holder.]
"Corporate Trust Office of the Trustee", or other similar term, shall
mean the office of the Trustee, at which at any particular time its corporate
trust business shall be administered.
"Coupon Rate" when used with respect to the Debentures of any series
means the stated rate of interest of that series.
"Custodian" shall mean any receiver, trustee, assignee, liquidator, or
similar official under any Bankruptcy Law.
"Debentures" shall mean any of the junior subordinated debentures of
any series issued, authenticated and delivered under this Indenture.
"Debenture Register" shall mean (i) prior to a Dissolution Event, the
list of holders provided to the Trustee pursuant to Section 4.01, and (ii)
following a Dissolution Event, any Debenture register maintained by a Debenture
registrar for the Debentures appointed by the Company following the execution of
a supplemental indenture providing for transfer procedures as provided for in
Section 2.06(a).
"Declaration" shall mean the Amended and Restated Declaration of Trust
of a Trust among the Company, as sponsor, The Bank of New York, as Property
Trustee, The Bank of New York (Delaware) or other Delaware Trustee named therein
and the Administrative Trustees named therein, as the same may be amended from
time to time.
"Default" shall mean any event, act or condition that with notice or
lapse of time, or both, would constitute an Event of Default.
"Defaulted Interest" shall have the meaning set forth in Section 2.10.
3
"Deferred Interest" shall have the meaning set forth in Section 16.01.
"Definitive Debentures" shall mean those Debentures issued in fully
registered certificated form not otherwise in global form.
"Depositary" shall mean, with respect to the Debentures for which the
Company shall determine that such Debentures will be issued as a Global
Debenture, The Depository Trust Company, New York, New York, or another clearing
agency, or any successor registered as a clearing agency pursuant to Section 17A
of the Exchange Act or other applicable statute or regulation, which, in each
case, shall be designated by the Company pursuant to Section 2.04(d).
"Dissolution Event" shall mean any event resulting in the dissolution
of a Trust pursuant to a Declaration, and the distribution of the Debentures
held by the Property Trustee to the holders of the Trust Securities issued by
such Trust pro rata in accordance with the Declaration.
"Event of Default" shall mean any event specified in Section 5.01,
continued for the period of time, if any, and after the giving of the notice, if
any, therein designated.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Extended Period" shall have the meaning set forth in Section 16.01.
"Federal Reserve" shall mean the Board of Governors of the Federal
Reserve System.
"Global Debenture" shall mean, with respect to the Debentures of any
series, a Debenture of that series executed by the Company and delivered by the
Trustee to the Depositary or pursuant to the Depositary's instruction, or if no
instructions are received, then held by the Property Trustee as custodian on
behalf of the Depositary, all in accordance with this Indenture, which Debenture
shall be registered in the name of the Depositary or its nominee, Cede & Co.
"Holder", "holder of Debentures" or other similar terms, shall mean any
Person in whose name at the time a particular Debenture is registered in the
Debenture Register kept by the Company or the Trustee for that purpose in
accordance with the terms of this Indenture.
"Indebtedness" shall mean, whether recourse as to all or a portion of
the assets of the Company and whether or not contingent, (i) every obligation of
the Company for money borrowed; (ii) every obligation of the Company evidenced
by bonds, debentures, notes or other similar instruments, including obligations
incurred in connection with the acquisition of property, assets or businesses;
(iii) every reimbursement obligation of the Company with respect to letters of
credit, bankers' acceptances or similar facilities issued for the account of the
Company; (iv) every obligation of the Company issued, assumed as the deferred
purchase price of property or services (but excluding trade accounts payable or
accrued liabilities arising in the ordinary course of business); (v) every
capital lease obligation of the Company; (vi) all indebtedness of the Company,
whether incurred on or prior to the date of this Indenture or hereafter
incurred, for claims in respect of derivative products, including interest rate,
foreign exchange rate and commodity forward contracts, options and swaps and
similar arrangements; and (vii) every obligation of the type referred to in
clauses (i) through (vi) of another Person and
4
all dividends of another Person the payment of which, in either case, the
Company has guaranteed or is responsible or liable for directly or indirectly,
as obligor or otherwise.
"Indebtedness Ranking on a Parity with the Debentures" shall mean (i)
Indebtedness, whether outstanding on the date of execution of this Indenture or
thereafter created, assumed or incurred, to the extent such Indebtedness by its
terms ranks pari passu with and not prior or senior to or junior to the
Debentures (or Indebtedness on a parity with the Debentures) in the right of
payment upon the happening of the dissolution, winding-up, liquidation or
reorganization of the Company including, without limitation, all other debt
securities, and guarantees in respect of those debt securities, issued to any
trust or a trustee of such trust, partnership or other entity affiliated with
the Company, that is a financing vehicle of the Company (a "financing entity")
in connection with the issuance by such financing entity of equity securities or
other securities guaranteed by the Company pursuant to an instrument that ranks
pari passu to the Preferred Securities Guarantee. The securing of any
Indebtedness otherwise constituting Indebtedness Ranking on a Parity with the
Debentures shall not be deemed to prevent such Indebtedness from constituting
Indebtedness Ranking on a Parity with the Debentures with respect to any assets
of the Company not securing such Indebtedness.
"Indebtedness Ranking Junior to the Debentures" shall mean any
Indebtedness, whether outstanding on the date of execution of this Indenture or
hereafter created, assumed or incurred, to the extent such Indebtedness by its
terms ranks junior to and not pari passu with or prior or senior to the
Debentures (or Indebtedness on a parity with the Debentures) in right of payment
upon the happening of the dissolution or winding-up or liquidation or
reorganization of the Company. The securing of any Indebtedness otherwise
constituting Indebtedness Ranking Junior to the Debentures shall not be deemed
to prevent such Indebtedness from constituting Indebtedness Ranking Junior to
the Debentures with respect to any assets of the Company not securing such
Indebtedness.
"Indenture" shall mean this instrument as originally executed or, if
amended as herein provided, as so amended.
"Initial Optional Redemption Date" shall mean [______________________].
"Interest Payment Date" when used with respect to the Debenture of any
series, means the stated maturity of any installment of interest on the
Debentures of that series.
"Interest Payment Date" when used with respect to the Debentures of any
series, means the stated maturity of any installment of interest on the
Debentures of that series.
"Investment Company" shall mean an investment company as defined in the
Investment Company Act.
"Investment Company Act" shall mean the Investment Company Act of 1940,
as amended from time to time, or any successor legislation.
"Investment Company Event" shall mean the receipt by the Company and
the Trust of an opinion of independent securities counsel experienced in such
matters to the effect that as a result of
5
(a) any amendment to, or change (including any announced
prospective change) in, the laws or any regulations thereunder
of the United States or any rules, guidelines or policies of
any applicable regulatory authority for the Company or
(b) any official administrative pronouncement or judicial decision
interpreting or applying such laws or regulations, which
amendment or change is effective or which pronouncement or
decision is announced on or after the date of original
issuance of the Debentures, the Trust is, or within 90 days of
the date of such opinion will be, considered an investment
company that is required to be registered under the Investment
Company Act.
"Issue Date", with respect to Debentures, of any series, means the date
on which the Debentures of such series are originally issued.
"Like Amount" shall mean Debentures having a principal amount equal to
the liquidation amount of the Trust Securities of the holder to whom Debentures
are distributed pursuant to Section 2.04.
"Non Book-Entry Preferred Securities" shall have the meaning set forth
in Section 2.04(a)(2).
"Officers" shall mean any of the Chairman, the Chief Executive Officer,
the President, an Executive or Senior Vice President, a Vice President, the
Chief Financial Officer, the Secretary or an Assistant Secretary of the Company.
"Officers' Certificate" means a certificate signed by any two of the
Chairman, a Vice Chairman, the Chief Executive Officer, the Chief Financial
Officer, the President, the Treasurer, the Chief Accounting Officer, a Vice
President, the Secretary and an Assistant Secretary of the Company, that
complies with the requirements of Section 13.06 and is delivered to the Trustee.
"Opinion of Counsel" shall mean a written opinion of counsel, who may
be an employee of the Company, and who shall be reasonably acceptable to the
Trustee.
"Other Guarantees" shall mean all guarantees other than the Preferred
Securities Guarantee and the Common Securities Guarantee issued by the Company
with respect to preferred beneficial interests issued to trusts other than a
Trust, in each case similar to the Trust.
"Outstanding" when used with reference to the Debentures, shall mean,
subject to the provisions of Section 7.04, as of any particular time, all
Debentures authenticated and delivered by the Trustee or the Authenticating
Agent under this Indenture, except
(a) Debentures theretofore canceled by the Trustee or the
Authenticating Agent or delivered to the Trustee for
cancellation;
(b) Debentures, or portions thereof, for the payment or redemption
of which moneys in the necessary amount shall have been
deposited in trust with the Trustee or with any paying agent
(other than the Company) or shall have been set aside and
segregated in trust by the Company (if the Company shall act
as its own paying agent); provided that, if such Debentures,
6
or portions thereof, are to be redeemed prior to maturity
thereof, notice of such redemption shall have been given as
set forth in Article XIV or provision satisfactory to the
Trustee shall have been made for giving such notice;
(c) Debentures in lieu of or in substitution for which other
Debentures shall have been authenticated and delivered
pursuant to the terms of Section 2.07 unless proof
satisfactory to the Company and the Trustee is presented that
any such Debentures are held by bona fide holders in due
course and;
(d) Debentures held by the Company, the Trust or any Affiliate
thereof.
"Person" shall mean any individual, Company, estate, partnership, joint
venture, national banking association, association, joint-stock company, limited
liability company, trust, unincorporated organization or government or any
agency or political subdivision thereof.
"Predecessor Debenture" of any particular Debenture shall mean every
previous Debenture evidencing all or a portion of the same debt as that
evidenced by such particular Debenture; and, for the purposes of this
definition, any Debenture authenticated and delivered under Section 2.07 in lieu
of a lost, destroyed or stolen Debenture shall be deemed to evidence the same
debt as the lost, destroyed or stolen Debenture.
"Preferred Securities" shall mean undivided beneficial interests in the
assets of a Trust which are designated as "Preferred Securities" and rank pari
passu with the Common Securities issued by a Trust; provided, however, that if
an Event of Default has occurred and is continuing, no payments in respect of
distributions on, or payments upon liquidation, redemption or otherwise with
respect to, the Common Securities shall be made until the holders of the
Preferred Securities shall be paid in full the distributions and the
liquidation, redemption and other payments to which they are entitled.
"Preferred Securities Guarantee" shall mean any guarantee agreement
that the Company may enter into with The Bank of New York or other Persons that
operates directly or indirectly for the benefit of holders of Preferred
Securities.
"Record Date" means, with respect to any series of the Debentures, the
Regular Record Date, the Special Record Date or any date set to determine the
Holders of Debentures of such series entitled to vote, consent, make a request
or exercise any other right associated with such Debentures.
"Redemption Date" with respect to the Debentures of any series to be
redeemed, means the date specified for redemption thereof in accordance with the
terms thereof and pursuant to Article XIV.
"Redemption Price" with respect to the Debentures of any series to be
redeemed, means the price at which such Debentures are to be redeemed in
accordance with the terms thereof and pursuant to Article XIV of this Indenture.
7
"Regular Record Date", with respect to an Interest Payment Date for the
Debentures of a series, means the date specified for such Debentures for the
determination of Holders entitled to receive the payment of interest on such
Interest Payment Date.
"Regulatory Capital Event" shall mean the receipt by the Company and
the applicable Trust of an opinion of independent bank regulatory counsel
experienced in such matters to the effect that as a result of
(a) any amendment to, or change (including any announced
prospective change) in, the laws (or any regulations
thereunder) of the United States or any rules, guidelines or
policies of an applicable regulatory authority for the Company
or
(b) any official administrative pronouncement or judicial decision
interpreting or applying such laws or regulations, which
amendment or change is effective or which pronouncement or
decision is announced on or after the date of original
issuance of the Debentures, the Preferred Securities do not
constitute, or within 90 days of the date of such opinion will
not constitute, Tier 1 Capital (or its then equivalent if the
Company were subject to such capital requirement); applied to
bank holding companies for purposes of capital adequacy
guidelines of the Federal Reserve Board (or any successor
regulatory authority with jurisdiction over bank holding
companies), or any capital adequacy guidelines as then in
effect and applicable to the Company; provided, however, that
the distribution of the Debentures in connection with the
liquidation of the Trust by the Company shall not in and of
itself constitute a Regulatory Capital Event.
"Responsible Officer" shall mean any officer within the Corporate Trust
Office of the Trustee with direct responsibility for the administration of the
Indenture and also means, with respect to a particular corporate trust matter,
any other officer of the Trustee to whom such matter is referred because of such
officer's knowledge of and familiarity with the particular subject.
"Securities Act" shall have the meaning set forth in Section 1.02.
"Security Exchange", when used with respect to the Debentures of any
series which are held as assets of a Trust pursuant to the Declaration of such
Trust, means the distribution of the Debentures of such series by such Trust to
the holders of the Trust Securities of such Trust in exchange for such Trust
Securities upon certain events described in the applicable Declaration of such
Trust.
"Senior Indebtedness" means:
(a) except as otherwise provided in paragraph (b) below, the
principal of, premium, if any, and interest (including all
interest accruing subsequent to the commencement of any
bankruptcy or similar proceeding, whether or not a claim for
post-petition interest is allowable as a claim in any such
proceeding) on:
(1) all indebtedness, obligations and other liabilities
(contingent or otherwise) of the Company for borrowed
money (including obligations of the Company in
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respect of overdrafts, foreign exchange contracts,
currency exchange agreements, interest rate
protection agreements, and any loans or advances from
banks, whether or not evidenced by notes or similar
instruments) or evidenced by bonds, debentures, notes
or other instruments for the payment of money, or
indebtedness incurred in connection with the
acquisition of any properties or assets (whether or
not the recourse of the lender is to the whole of the
assets of the Company or to only a portion thereof),
other than any account payable or other accrued
current liability or obligation to trade creditors
incurred in the ordinary course of business;
(2) all obligations and liabilities (contingent or
otherwise) in respect of leases of the Company
required or permitted, in conformity with generally
accepted accounting principles, to be accounted for
as capitalized lease obligations on the balance sheet
of the Company;
(3) all direct or indirect guaranties or similar
agreements by the Company in respect of, and
obligations or liabilities (contingent or otherwise)
of the Company to purchase or otherwise acquire or
otherwise assure a creditor against loss in respect
of, indebtedness, obligations or liabilities of
another Person of the kind described in clauses (1)
and (2);
(4) any and all amendments, renewals, extensions and
refundings of any indebtedness, obligation or
liability of the kind described in clauses (1)
through (3).
(b) Notwithstanding paragraph (a) above, Senior Indebtedness does not
include:
(1) any indebtedness in which the instrument or
instruments evidencing or securing the same or
pursuant to which the same is outstanding, or in any
amendment, renewal, extension or refunding of such
instrument or instruments, it is expressly provided
that such indebtedness shall not be senior in right
of payment to the Debentures (or Indebtedness on a
parity with the Debentures) or expressly provides
that such Indebtedness is pari passu or junior to the
Debentures;
(2) trade accounts payable in the ordinary course of
business; and
(3) any series of subordinated debt securities, and
guarantees in connection with those debt securities,
whether currently outstanding or created, assumed or
incurred at a later date, initially issued to any
trust or a trustee of such trust, partnerships or
other entities affiliated with the Company in
connection with an issuance of securities similar to
the Preferred Securities.
A "series" of Debentures means all Debentures denoted as part of the
same series authorized by or pursuant to a particular Board Resolution or a
supplemental indenture.
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"Special Event" shall mean an Investment Company Event, a Regulatory
Capital Event or a Tax Event, as the context requires.
"Special Event Redemption Price" shall mean, with respect to any
redemption of the Debentures following a Special Event, an amount in cash equal
to [100%] of the principal amount of the Debentures to be redeemed plus any
accrued and unpaid interest thereon (including Compounded Interest and
Additional Sums, if any) to the date of such redemption.
"Special Record Date" for the payment of any Defaulted Interest on the
Debentures of any series means the date determined pursuant to Section 2.10.
"Stated Maturity Date", with respect to the Debentures of any series,
means the date specified for such Debentures as the date on which the principal
of such Debentures is due and payable.
"Subsidiary" shall mean with respect to any Person: (i) any Company at
least a majority of the outstanding voting stock of which is owned, directly or
indirectly, by such Person or by one or more of its Subsidiaries, or by such
Person and one or more of its Subsidiaries; (ii) any general partnership, joint
venture, limited liability company or similar entity, at least a majority of
whose outstanding partnership, membership or similar interests shall at the time
be owned by such Person or by one or more of its Subsidiaries, or by such Person
and one or more of its Subsidiaries; and (iii) any limited partnership of which
such Person or any of its Subsidiaries is a general partner. For the purposes of
this definition, "voting stock" means shares, interests, participations or other
equivalents in the equity interest (however designated) in such Person having
ordinary voting power for the election of a majority of the directors (or the
equivalent) of such Person, other than shares, interests, participations or
other equivalents having such power only by reason of the occurrence of a
contingency.
"Tax Event" shall mean the receipt by a Trust and the Company of an
opinion of independent tax counsel experienced in such matters to the effect
that, as a result of any amendment to, or change (including any announced
prospective change) in, the laws or any regulations thereunder of the United
States or any political subdivision or taxing authority thereof or therein, or
as a result of any official administrative pronouncement or judicial decision
interpreting or applying such laws or regulations, which amendment or change is
effective or which pronouncement or decision is announced on or after the date
of original issuance of the Debentures, there is more than an insubstantial risk
that (i) such Trust is, or will be within 90 days of the date of such opinion,
subject to United States federal income tax with respect to income received or
accrued on the Debentures, (ii) the interest payable by the Company on the
Debentures is not, or within 90 days of the date of such opinion will not be,
deductible by the Company, in whole or in part, for United States federal income
tax purposes or (iii) such Trust is, or will be within 90 days of the date of
such opinion, subject to more than a de minimis amount of other taxes, duties or
other governmental charges.
"Trading Days" with respect to the Company's Common Stock means (a) if
the Company's Common Stock is listed or admitted for trading on any national
securities exchange, days on which such national securities exchange is open for
business or (b) if the Company's Common Stock is quoted on The Nasdaq Stock
Market or any similar system of automated dissemination of quotations of
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securities prices, days on which trades may be made on such system.
"Trust" shall mean any statutory trust created to issue Trust
Securities and to use the proceeds from the sale thereof to purchase Debentures.
"Trust Indenture Act" shall have the meaning set forth in Section 1.02.
"Trust Securities" shall mean, collectively, the Preferred Securities
and the Common Securities of a Trust.
"Trustee" shall mean the Person identified as "Trustee" in the preamble
to this Indenture and, subject to the provisions of Article VI hereof, shall
also include its successors and assigns.
"U.S. Government Obligations" shall mean securities that are: (i)
direct obligations of the United States of America for the payment of which its
full faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case under
clauses (i) or (ii), are not callable or redeemable at the option of the issuer
thereof, and shall also include a depositary receipt issued by a bank or trust
company as custodian with respect to any such U.S. Government Obligation or a
specific payment of interest on or principal of any such U.S. Government
Obligation held by such custodian for the account of the holder of a depositary
receipt, provided that (except as required by law) such custodian is not
authorized to make any deduction with respect to the amount payable to the
holder of such depositary receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or the specific payment of interest on
or principal of the U.S. Government Obligation evidenced by such depositary
receipt. The following terms have the meanings given to them in the Declaration:
(i) Clearing Agency; (ii) Delaware Trustee; (iii) Property Trustee; (iv)
Administrative Trustees; and (v) Distributions.
SECTION 1.02 Rules of Construction.
The terms defined in Section 1.01 (except as herein otherwise expressly
provided or unless the context otherwise requires) for all purposes of this
Indenture shall have the respective meanings specified in Section 1.01. All
other terms used in this Indenture which are defined in the Trust Indenture Act
of 1939, as amended (the "Trust Indenture Act"), or which are by reference
therein defined in the Securities Act of 1933, as amended (the "Securities
Act"), shall (except as herein otherwise expressly provided or unless the
context otherwise requires) have the meanings assigned to such terms in said
Trust Indenture Act and in said Securities Act as in force at the date of this
Indenture as originally executed. 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. The words "herein", "hereof" and
"hereunder" and other words of similar import refer to this Indenture as a whole
11
and not to any particular Article, Section or other subdivision. Headings are
used for convenience of reference only and do not affect interpretation. The
singular includes the plural and vice versa.
To the extent any provision in an indenture supplement hereto shall
conflict with a provision contained herein, the provision in such supplemental
indenture shall supercede such provision contained herein.
ARTICLE II
DEBENTURES
SECTION 2.01 Forms Generally.
The aggregate principal amount of Debentures which may be authenticated
and delivered under this Indenture is unlimited. The Debentures may be issued in
one or more series in an amount not to exceed the aggregate principal amount of
Debentures of that series from time to time authorized by or pursuant to a Board
Resolution or pursuant to one or more indentures supplemental hereto.
With respect to any Debentures of each series to be authenticated and
delivered hereunder, there shall be established in or pursuant to a Board
Resolution and set forth in an Officers' Certificate, or established in one or
more indentures supplemental hereto:
(a) the title of the Debentures of the series (which shall
distinguish the Debentures of the series from all other
Debentures);
(b) the aggregate principal amount of the Debentures of that series
which may be authenticated and delivered under this Indenture
(except for Debentures authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of,
other Debentures of that series) and any limit thereon;
(c) Stated Maturity Date or Dates, which may be serial and the
Company's option, if any, to change the Stated Maturity Date or
Dates;
(d) the rate or rates (which may be fixed or variable) at which the
Debentures of the series shall bear interest or the manner of
calculation of such rate or rates, if any (including the
adjustment that would occur upon any remarketing of Trust
Securities);
(e) the percentage of principal amount at which the Debentures shall
be issued;
(f) the basis upon which interest shall be computed if other than a
360-day year composed of twelve 30-day months;
(g) the date or dates from which such interest shall accrue, the
Dates on which such interest will be payable or the manner of
determination and frequency of such Dates and the Regular Record
Dates therefor;
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(h) the right, if any, to extend the periods and the duration of any
such Extended Period, including the maximum consecutive period
during which periods may be extended;
(i) Issue Date or Dates;
(j) authorized denominations;
(k) the place or places for the payment of principal and premium, if
any, and interest;
(l) the date or dates on which or the period or periods within which,
the price or prices at which, and the terms and conditions upon
which, Debentures of the series may be redeemed, in whole or in
part, at the option of the Company;
(m) the obligation, if any, of the Company to redeem or purchase
Debentures of the series pursuant to any sinking fund or
analogous provisions (including payments made in cash in
anticipation of future sinking fund obligations) or at the option
of a Holder and the date or dates on which or the period or
periods within which, the price or prices at which, and the terms
and conditions upon which, Debentures of the series shall be
redeemed or purchased, in whole or in part, pursuant to such
obligation;
(n) the form of the Debentures of the series, including the form of
the Certificate of Authentication for such series;
(o) the right or obligation of any Holder or the Company or the
applicable Trust to convert or exchange any Debenture into other
securities of the Company or such Trust and the terms and
conditions of any such conversion or exchange and, if so
provided, the terms and conditions upon which such conversion or
exchange will be effected, including, the conversion or exchange
price, the conversion or exchange date(s) or period(s),
provisions as to whether conversion or exchange will be at the
option of the Holder or the Company or such Trust, the events
requiring adjustment of the conversion or exchange price and
provisions affecting conversion or exchange in the event of
redemption of the Debenture of any series and any deletions from
or modifications or additions to this Indenture to permit or to
facilitate the issuance of such convertible or exchangeable
Debentures or the administration thereof;
(p) whether the Debentures are issuable as a Global Debenture and, in
such case, the identity of the Depositary for such series;
(q) the terms and conditions, if any, pursuant to which the
Debentures of a series are secured;
(r) the name of the applicable Trust (which shall distinguish such
statutory trust from all other Trusts) to which the Debentures of
such series are to be deposited as assets and the date of its
Declaration of Trust; and
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(s) any and all other terms with respect to such series (which terms
shall not be inconsistent with the terms of this Indenture).
The Debentures of any series and the Trustee's Certificate of
Authentication to be borne by such Debentures shall be substantially as is set
forth in one or more indentures supplemental hereto, or as provided in a Board
Resolution and as set forth in an Officers' Certificate, and may have such
letters, numbers or other marks of identification or designation and such
legends or endorsements printed, lithographed or engraved thereon as the Company
may deem appropriate and as are not inconsistent with the provisions of this
Indenture, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any stock
exchange on which Debentures of that series may be listed, or to conform to
usage.
All Debentures of any one series shall be substantially identical
except as may otherwise be provided by the Company in or pursuant to the Board
Resolution and set forth in the Officers' Certificate, or in any indenture or
indentures supplemental hereto, pertaining to such series of Debentures. The
terms of the Debentures of any series may provide, without limitation, that the
Debentures shall be authenticated and delivered by the Trustee on original issue
from time to time upon telephonic or written order of persons designated in the
Officers' Certificate or supplemental indenture (telephonic instructions to be
promptly confirmed in writing by such person) and that such persons are
authorized to determine, consistent with such Officers' Certificate or any
applicable supplemental indenture, such terms and conditions of the Debentures
of such series as are specified in such Officers' Certificate or supplemental
indenture. All Debentures of any one series need not be issued at the same time
and, unless otherwise so provided by the Company, a series may be reopened for
issuances of additional Debentures of such series or to establish additional
terms of such series of Debentures.
If any of the terms of the Debentures of any series shall be
established by action taken by or pursuant to a Board Resolution, the Board
Resolution shall be delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of such series.
SECTION 2.02 Execution and Authentication.
(a) The Debentures shall be executed on behalf of the Company by at
least one of the Chief Executive Officer, the Chief Financial
Officer, the President or a Vice President. The signature of any
such Officer on the Debentures may be manual or facsimile.
(b) Debentures bearing the manual or facsimile signature of an
individual who was at any time a proper Officer of the Company
shall bind the Company, notwithstanding that any such individual
shall have ceased to hold such office prior to the authentication
and delivery of such Debentures or did not hold such office at
the date of such Debentures.
(c) No Debenture shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there
appears on such Debenture a Certificate of Authentication duly
executed by the Trustee by manual signature of an authorized
signatory of the Trustee, and such Certificate of Authentication
upon any Debenture shall be conclusive evidence, and the only
14
evidence, that such Debenture has been duly authenticated and
made available for delivery hereunder.
(d) The Trustee shall be authorized to and shall authenticate and
deliver Debentures of a series, for original issue, at one time
or from time to time in accordance with the Company Order
referred to below, upon receipt by the Trustee of:
(1) a Board Resolution as required by Section 2.01;
(2) a Company Order requesting the authentication and delivery
of such Debentures and stating the identity of the
applicable Trust and the aggregate liquidation amount of the
Trust Securities to be issued by such Trust concurrently
with such Debentures;
(3) an Officers' Certificate or, unless previously delivered, a
supplemental indenture hereto setting forth the form of such
Debentures and, except as set forth in a Board Resolution,
establishing the terms thereof;
(4) such Debentures, executed on behalf of the Company in
accordance with clause (a) of this Section; and
(5) an Opinion of Counsel that complies with the provisions of
Section 13.06.
(e) The Trustee shall act as the initial authenticating agent.
Thereafter, the Trustee may appoint an authenticating agent. Each
authenticating agent shall be acceptable to the Company and,
except as provided in or pursuant to this Indenture, shall at all
times be a corporation that would be permitted by the Trust
Indenture Act to act as trustee under an indenture qualified
under the Trust Indenture Act, is authorized under applicable law
and by its charter to act as an authenticating agent and has a
combined capital and surplus (computed in accordance with Section
310(a)(2) of the Trust Indenture Act) of at least $50,000,000. If
at any time an authenticating agent shall cease to be eligible in
accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect specified in this
Section.
An authenticating agent may authenticate Debentures whenever the Trustee may do
so. Each reference in this Indenture to authentication by the Trustee includes
authentication by an authenticating agent. The Trustee shall pay any
authenticating agent appointed by the Trustee reasonable compensation for its
services and the Trustee shall be reimbursed for such payment by the Company
pursuant to Section 6.06. The provisions set forth in Sections 6.02, 6.03 and
6.06 shall be applicable to any authenticating agent.
(f) If all the Debentures of any series are not to be issued at one
time, it shall not be necessary to deliver an Opinion of Counsel
and an Officers' Certificate at the time of issuance of each
Debenture, but such opinion and certificate, with appropriate
modifications, shall be delivered at or before the time of
issuance of the first Debenture of such series. After any such
first delivery, any separate request by the Company that the
Trustee authenticate Debentures of such series for original issue
will be deemed to be a certification by the Company that all
15
conditions precedent provided for in this Indenture relating to
authentication and delivery of such Debentures continue to have
been complied with.
SECTION 2.03 Form and Payment.
Except as provided in Section 2.04, the Debentures shall be issued in
fully registered certificated form without interest coupons. Principal of and
interest on the Debentures issued in certificated form will be payable, the
transfer of such Debentures will be registrable and such Debentures will be
exchangeable for Debentures bearing identical terms and provisions, at the
office or agency of the Company maintained for such purpose under Section 3.02;
provided, however, that payments of interest may be made at the option of the
Company: (i) by check mailed to the holder at such address as shall appear in
the Debenture Register; or (ii) by transfer to an account maintained by the
Person entitled thereto, provided that proper transfer instructions have been
received in writing by the relevant record date. Notwithstanding the foregoing,
so long as the holder of any Debentures is the Property Trustee, the payment of
the principal of and interest (including Compounded Interest and Additional
Sums, if any) on such Debentures held by the Property Trustee will be made at
such place and to such account as may be designated by the Property Trustee.
SECTION 2.04 Global Debenture.
(a) In connection with a Dissolution Event:
(1) if any Preferred Securities are held in book-entry form
("Book-Entry Preferred Securities"), a Like Amount of
Definitive Debentures shall be presented to the Trustee (if
an arrangement with the Depositary has been maintained) by
the Property Trustee in exchange for one or more Global
Debentures (as may be required pursuant to Section 2.06), to
be registered in the name of the Depositary, or its nominee,
and delivered by the Trustee to the Depositary for crediting
to the accounts of its participants pursuant to the
instructions of the Administrative Trustees; the Company
upon any such presentation shall execute one or more Global
Debentures in such aggregate principal amount and deliver
the same to the Trustee for authentication and delivery in
accordance with this Indenture; and payments on the
Debentures issued as a Global Debenture will be made to the
Depositary; and
(2) if any Preferred Securities are held in certificated form,
the related Definitive Debentures may be presented to the
Trustee, by the Property Trustee and any Preferred Security
certificates which represent Preferred Securities other than
Book-Entry Preferred Securities ("Non Book-Entry Preferred
Securities") will be deemed to represent beneficial
interests in Debentures presented to the Trustee by the
Property Trustee having an aggregate principal amount equal
to the aggregate liquidation amount of the Non Book-Entry
Preferred Securities until such Preferred Security
certificates are presented to the Debenture registrar for
the Debentures for transfer or reissuance, at which time
such Preferred Security certificates will be canceled, and a
Debenture in a Like Amount, registered in the name of the
16
holder of the Preferred Security certificate or the
transferee of the holder of such Preferred Security
certificate, as the case may be, will be executed by the
Company and delivered to the Trustee for authentication and
delivery in accordance with this Indenture; and upon the
issuance of such Debentures, Preferred Security certificates
with an equivalent aggregate principal amount that were
presented by the Property Trustee to the Trustee will be
canceled.
(b) The Global Debentures shall respectively represent the aggregate
amount of outstanding Debentures of a series from time to time
endorsed thereon; provided, however, that the aggregate principal
amount of outstanding Debentures represented thereby may from
time to time be reduced or increased, as appropriate, to reflect
exchanges and redemptions. Any endorsement of a Global Debenture
to reflect the amount of any increase or decrease in the
aggregate principal amount of outstanding Debentures of a series
represented thereby shall be made by the Trustee, in accordance
with instructions given by the Company as required by this
Section 2.04.
(c) The Global Debentures may be transferred, in whole but not in
part, only to the Depositary, to another nominee of the
Depositary, or to a successor Depositary selected or approved by
the Company or to a nominee of such successor Depositary.
(d) If at any time the Depositary notifies the Company that it is
unwilling or unable to continue as Depositary or the Depositary
has ceased to be a clearing agency registered under the Exchange
Act, and, in each case, a successor Depositary is not appointed
by the Company within 90 days after the Company receives such
notice or becomes aware of such condition, as the case may be,
the Company will execute, and the Trustee, upon receipt of a
Company Order, will authenticate and make available for delivery
the Definitive Debentures, in authorized denominations, and in an
aggregate principal amount equal to the principal amount of the
Global Debenture, in exchange for such Global Debenture. If there
is a Default or an Event of Default, the Depositary shall have
the right to exchange the Global Debentures for Definitive
Debentures. In addition, the Company may at any time determine
that the Debentures of a series shall no longer be represented by
a Global Debenture. In the event of such an Event of Default or
such a determination, the Company shall execute, and subject to
Section 2.06, the Trustee, upon receipt of an Officers'
Certificate evidencing such determination by the Company and a
Company Order, will authenticate and make available for delivery
the Definitive Debentures, in authorized denominations, and in an
aggregate principal amount equal to the principal amount of the
Global Debenture, in exchange for such Global Debenture. Upon the
exchange of the Global Debenture for such Definitive Debentures,
in authorized denominations, the Global Debenture shall be
canceled by the Trustee. Such Definitive Debentures issued in
exchange for the Global Debenture shall be registered in such
names and in such authorized denominations as the Depositary,
pursuant to instructions from its direct or indirect participants
or otherwise, shall instruct the Trustee. The Trustee shall
deliver such Definitive Debentures to the Depositary for delivery
to the Persons in whose names such Definitive Debentures are so
registered.
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SECTION 2.05 Payment of Principal and Interest.
Unless otherwise provided with respect to a series of Debentures:
(a) The principal and Redemption Price or Special Event Redemption
Price of and interest on each Debenture shall be payable in such
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;
(b) The principal and Redemption Price or Special Event Redemption
Price of any Debenture and interest payable on the Stated
Maturity Date (if other than an Interest Payment Date) or
Redemption Date shall be payable upon surrender of such Debenture
at the office or agency of any paying agent therefor; and
(c) Interest on any Debenture shall be paid on each Interest Payment
Date therefor to the Holder thereof at the close of business on
the Record Date therefor, such interest to be payable by check
mailed to the address of the Person entitled thereto as such
address appears on the Debenture register; provided, however,
that payments made in respect of Global Debentures shall be made
in immediately available funds to the Depositary;
(d) During such time as a Property Trustee is the holder of any
Debentures, the Company shall pay any additional amounts on the
Debentures as may be necessary in order that the amount of
Distributions then due and payable by the Trust on the
outstanding Trust Securities shall not be reduced as a result of
any additional taxes, duties and other governmental charges to
which the Trust has become subject as a result of a Tax Event
("Additional Sums"); and
(e) Subject to the foregoing provisions of this Section, each
Debenture delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Debenture
shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Debenture.
SECTION 2.06 Transfer.
(a) To permit registrations of transfers, the Company shall execute
and the Trustee shall authenticate Definitive Debentures and
Global Debentures at the request of the Debenture registrar for
the Debentures. All Definitive Debentures and Global Debentures
issued upon any registration of transfer or exchange of
Definitive Debentures or Global Debentures shall be the valid
obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the
Definitive Debentures or Global Debentures surrendered upon such
registration of transfer or exchange.
(b) No service charge shall be made to a holder for any registration
of transfer or exchange, but the Company may require payment of a
sum sufficient to cover any transfer tax or similar governmental
charge payable in connection therewith.
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(c) The Company shall not be required to: (i) issue or register the
transfer or exchange of Debentures during a period beginning at
the opening of business 15 days before the day of mailing of a
notice of redemption or any notice of selection of Debentures for
redemption under Article XIV hereof and ending at the close of
business on the day of such mailing; or (ii) register the
transfer or exchange of any Debenture so selected for redemption
in whole or in part, except the nonredeemed portion of any
Debenture being redeemed in part.
(d) Prior to due presentment for the registration of a transfer of
any Debenture, the Trustee, the Company and any agent of the
Trustee or the Company may deem and treat the Person in whose
name any Debenture is registered as the absolute owner of such
Debenture for the purpose of receiving payment of principal of
and premium, if any, and interest on such Debentures, and none of
the Trustee, the Company or any agents of the Trustee or the
Company shall be affected by notice to the contrary.
SECTION 2.07 Replacement Debentures.
If any mutilated Debenture is surrendered to the Trustee, or the
Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Debenture, the Company shall issue and the
Trustee shall authenticate a replacement Debenture if the Trustee's requirements
for replacements of Debentures are met. An indemnity bond must be supplied by
the holder that is sufficient in the judgment of the Trustee and the Company to
protect the Company, the Trustee, any agent thereof or any Authenticating Agent
from any loss that any of them may suffer if a Debenture is replaced. The
Company and the Trustee may charge for its expenses in replacing a Debenture.
Every replacement Debenture is an obligation of the Company and shall
be entitled to all of the benefits of this Indenture equally and proportionately
with all other Debentures duly issued hereunder.
SECTION 2.08 Temporary Debentures.
Pending the preparation of Definitive Debentures, the Company may
execute, and upon receipt of a Company Order the Trustee shall authenticate and
make available for delivery, temporary Debentures that are printed,
lithographed, typewritten, mimeographed or otherwise reproduced, in any
authorized denomination, substantially of the tenor of the Definitive Debentures
in lieu of which they are issued and with such appropriate insertions,
omissions, substitutions and other variations as the Officers executing such
Debentures may determine, as conclusively evidenced by their execution of such
Debentures.
If temporary Debentures are issued, the Company shall cause Definitive
Debentures to be prepared without unreasonable delay. The Definitive Debentures
shall be printed, lithographed or engraved, or provided by any combination
thereof, or in any other manner permitted by the rules and regulations of any
applicable Debentures exchange, all as determined by the Officers executing such
Definitive Debentures. After the preparation of Definitive Debentures, the
temporary Debentures shall be exchangeable for Definitive Debentures upon
surrender of the temporary Debentures at the office or agency maintained by the
Company for such purpose pursuant to Section 3.02 hereof, without charge to the
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holder thereof. Upon surrender for cancellation of any one or more temporary
Debentures, the Company shall execute, and the Trustee, upon receipt of a
Company Order, shall authenticate and make available for delivery, in exchange
therefor the same aggregate principal amount of Definitive Debentures of
authorized denominations. Until so exchanged, the temporary Debentures shall in
all respects be entitled to the same benefits under this Indenture as Definitive
Debentures.
SECTION 2.09 Cancellation.
The Company or its designated agent may at any time deliver Debentures
to the Trustee for cancellation. The Trustee and no one else shall cancel all
Debentures surrendered for registration of transfer, exchange, conversion,
payment, replacement or cancellation and shall return such canceled Debentures
to the Company. The Company may not issue new Debentures to replace Debentures
that have been redeemed or paid or that have been delivered to the Trustee for
cancellation.
SECTION 2.10 Defaulted Interest.
Any interest on any Debenture that 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 shall be paid by the Company, at its election, as provided in
clause (a) or clause (b) below:
(a) The Company may make payment of any Defaulted Interest on
Debentures to the Persons in whose names such Debentures (or
their respective Predecessor Debentures) are registered at the
close of business on the 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 such
Debenture 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 the Special Record Date for the payment of such Defaulted
Interest which shall not be more than 15 nor 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 to each Holder at his or her address as it appears in
the Debenture Register, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having
been mailed as aforesaid, such Defaulted Interest shall be paid
to the Persons in whose names such Debentures (or their
respective Predecessor Debentures) are registered on such Special
20
Record Date and shall be no longer payable pursuant to the
following clause (b).
(b) The Company may make payment of any Defaulted Interest on any
Debentures in any other lawful manner not inconsistent with the
requirements of any Debentures exchange on which such Debentures
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.
SECTION 2.11 CUSIP Numbers.
The Company in issuing the Debentures may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided, however, that any such
notice may state that no representation is made as to the correctness of such
numbers either as printed on the Debentures or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Debentures, and any such redemption shall not be affected
by any defect in or omission of such numbers. The Company will promptly notify
the Trustee of any change in the CUSIP numbers.
ARTICLE III
PARTICULAR COVENANTS OF THE COMPANY
SECTION 3.01 Payment of Principal and Interest.
The Company covenants and agrees for the benefit of the holders of the
Debentures that it will duly and punctually pay or cause to be paid the
principal of and interest on the Debentures at the place, at the respective
times and in the manner provided herein. The Company further covenants to pay
any and all amounts due in respect of the Debentures, including, without
limitation, Additional Sums, as may be required pursuant to Section 2.05(d) and
Compounded Interest, as may be required pursuant to Section 16.01.
SECTION 3.02 Offices for Notices and Payments, etc.
So long as any of the Debentures remain outstanding, the Company will
maintain in New York, New York an office or agency where the Debentures may be
presented or surrendered for payment, an office or agency where the Debentures
may be presented for registration of transfer or exchange, where the Debentures
may be surrendered for purchase, redemption or conversion as in this Indenture
provided and an office or agency where notices and demands to or upon the
Company in respect of the Debentures or this Indenture may be served. The
Company will give to the Trustee written notice of the location of any such
office or agency and of any change of location thereof. Until otherwise
designated from time to time by the Company in a notice to the Trustee, any such
office or agency for all of the above purposes shall be the Corporate Trust
Office of the Trustee. In case the Company shall fail to maintain any such
office or agency in New York, New York or shall fail to give such notice of the
location or of any change in the location thereof, presentations and demands may
be made and notices may be served at the Corporate Trust Office of the Trustee.
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In addition to any such office or agency, the Company may from time to
time designate one or more offices or agencies outside New York, New York where
the Debentures may be presented for payment, for registration of transfer and
where notices and demands to or upon the Company in respect of the Debentures or
this Indenture may be served in the manner provided in this Indenture, and the
Company may from time to time rescind such designation, as the Company may deem
desirable or expedient; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain
any such office or agency in New York, New York for the purposes above
mentioned. The Company will give to the Trustee prompt written notice of any
such designation or rescission thereof.
SECTION 3.03 Appointments to Fill Vacancies 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 hereunder.
SECTION 3.04 Provision as to Paying Agent.
(a) If the Company shall appoint a paying agent other than the
Trustee with respect to the Debentures, 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 3.04,
(1) that it will hold all sums held by it as such agent for the
payment of the principal of or interest on the Debentures
(whether such sums have been paid to it by the Company or by
any other obligor on the Debentures) in trust for the
benefit of the holders of the Debentures; and
(2) that it will give the Trustee notice of any failure by the
Company (or by any other obligor on the Debentures) to make
any payment of the principal of or interest (including
Additional Sums and Compounded Interest, if any) on the
Debentures when the same shall be due and payable.
(b) If the Company shall act as its own paying agent, it will, on or
before each due date of the principal of or interest on the
Debentures, set aside, segregate and hold in trust for the
benefit of the holders of the Debentures a sum sufficient to pay
such principal or interest so becoming due and will notify the
Trustee of any failure to take such action and of any failure by
the Company (or by any other obligor under the Debentures) to
make any payment of the principal of or interest on the
Debentures when the same shall become due and payable.
(c) Anything in this Section 3.04 to the contrary notwithstanding,
the Company may, at any time, for the purpose of obtaining a
satisfaction and discharge with respect to the Debentures
hereunder, or for any other reason, pay or cause to be paid to
the Trustee all sums payable with respect to the Debentures, such
sums to be held by the Trustee upon the trusts herein contained.
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(d) Anything in this Section 3.04 to the contrary notwithstanding,
the agreement to hold sums in trust as provided in this Section
3.04 is subject to Sections 11.03 and 11.04.
SECTION 3.05 Certificate to Trustee.
The Company will deliver to the Trustee on or before 120 days after the
end of each fiscal year of the Company, commencing with the first fiscal year
ending after the date hereof, so long as Debentures are outstanding hereunder,
an Officers' Certificate, one of the signers of which shall be the principal
executive, principal financial or principal accounting officer of the Company,
stating that in the course of the performance by the signers of their duties as
officers of the Company they would normally have knowledge of any Default by the
Company in the performance of any covenants contained herein, stating whether or
not they have knowledge of any such Default and, if so, specifying each such
Default of which the signers have knowledge, the nature thereof and the action,
if any, the Company intends to undertake as a result of such Default.
SECTION 3.06 Compliance with Consolidation Provisions.
The Company will not, while any of the Debentures remain outstanding,
consolidate with, or merge into, or merge into itself, or sell or convey all or
substantially all of its property to any other Person unless the provisions of
Article X hereof are complied with.
SECTION 3.07 Limitation on Dividends.
The Company will not:
(a) declare or pay any dividends or distributions on, or redeem,
purchase, acquire, or make a liquidation payment with respect to,
any of the Company's capital stock;
(b) make any payment of principal of or interest on, or repay,
repurchase or redeem any debt securities of the Company that rank
pari passu with or junior in right of payment to the Debentures;
or
(c) make any guarantee payments with respect to any guarantee by the
Company of the debt securities of any Subsidiary of the Company
(including Other Guarantees) if such guarantee ranks pari passu
with or junior in right of payment to the Debentures;
other than (a) dividends or distributions in shares of, or options, warrants or
rights to subscribe for or purchase shares of, Common Stock, (b) any declaration
of a dividend in connection with the implementation of a stockholders' rights
plan, or the issuance of stock under any such plan in the future, or the
redemption or repurchase of any such rights pursuant thereto, (c) payments under
a Preferred Securities Guarantee, as defined in the Indenture, (d) as a result
of a reclassification of the Company's capital stock or the exchange or
conversion of one class or series of the Company's capital stock for another
class or series of the Company's capital stock, (e) the purchase of fractional
interests in shares of the Company's capital stock pursuant to the conversion or
exchange provisions of such capital stock or the security being converted or
exchanged and (f) purchases of Common Stock related to the issuance of Common
23
Stock or rights under any of the Company's benefit or compensation plans for its
directors, officers or employees or any of the Company's dividend reinvestment
plans), if at such time, there shall have occurred any event of which the
Company has actual knowledge that:
(i) is a Default or an Event of Default and
(ii) in respect of which the Company shall not have taken
reasonable steps to cure;
(iii)such Debentures are held by the Property Trustee of a Trust
and the Company shall be in default with respect to its
payment of any obligations under a Preferred Securities
Guarantee; or
(iv) the Company shall have given notice of its election to
exercise its right to commence an Extended Period and shall
not have rescinded such notice, and such Extended Period or
any extension thereof shall have commenced and be
continuing.
SECTION 3.08 Ownership of Common Securities.
In the event Debentures are issued to a Trust or a trustee of such
Trust in connection with the issuance of Trust Securities by such Trust, for so
long as such Trust Securities remain outstanding, the Company:
(a) will maintain 100% direct or indirect ownership of the Common
Securities of such Trust; provided, however, that any successor
of the Company, permitted pursuant to Article X, may succeed to
the Company's ownership of such Common Securities;
(b) will use commercially reasonable efforts to cause such Trust:
(1) to remain a statutory trust, except in connection with a
distribution of Debentures to the holders of Trust
Securities in liquidation of such Trust, the redemption of
all of the Trust Securities of such Trust, or certain
mergers, consolidations or amalgamations, each as permitted
by the Declaration, and
(2) to otherwise continue to be classified as a grantor trust
and not an association taxable as a Company for United
States federal income tax purposes;
(c) will use commercially reasonable efforts to cause each holder of
such Trust's Trust Securities to be treated as owning an
undivided beneficial interest in the Debentures; and
(d) will not cause, as sponsor of such Trust, or permit, as holder of
the Common Securities, the dissolution, winding-up or liquidation
of such Trust, except as provided in the Declaration.
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SECTION 3.09 Payment of Expenses.
In connection with the offering, sale and issuance of any series of
Debentures to a Trust and in connection with the sale of the Trust Securities by
such Trust, the Company, in its capacity as borrower with respect to the
Debentures, shall:
(a) Pay all costs and expenses relating to the offering, sale and
issuance of each series of Debentures, and compensation of the
Trustee in accordance with the provisions of Section 6.06;
(b) Pay all costs and expenses of each Trust, including, but not
limited to, costs and expenses relating to the organization of
each Trust, the offering, sale and issuance of the Trust
Securities, the fees and expenses of the Property Trustee and the
Delaware Trustee, the costs and expenses relating to the
operation of each Trust, including without limitation, costs and
expenses of accountants, attorneys, statistical or bookkeeping
services, expenses for printing and engraving and computing or
accounting equipment, paying agent(s), registrar(s), transfer
agent(s), duplicating, travel and telephone and other
telecommunications expenses and costs and expenses incurred in
connection with the acquisition, financing, and disposition of
assets of each Trust;
(c) Be primarily and fully liable for any indemnification obligations
arising with respect to the Declaration;
(d) Pay any and all taxes (other than United States withholding taxes
attributable to the Trust or its assets) and all liabilities,
costs and expenses with respect to such taxes of each Trust; and
(e) Pay all other fees, expenses, debts and obligations (other than
in respect of the Trust Securities) related to each Trust.
SECTION 3.10 Payment Upon Resignation or Removal.
Upon termination of this Indenture or the removal or resignation of the
Trustee, unless otherwise stated, the Company shall pay to the Trustee all
amounts accrued and owing to the Trustee to the date of such termination,
removal or resignation. Upon termination of the Declaration or the removal or
resignation of the Delaware Trustee or the Property Trustee, as the case may be,
pursuant to Section 5.6 of the Declaration, the Company shall pay to the
Delaware Trustee or the Property Trustee, as the case may be, all amounts
accrued and owing to such trustee(s) to the date of such termination, removal or
resignation.
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ARTICLE IV
LIST OF DEBENTUREHOLDERS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
SECTION 4.01 List of Holders.
The Company covenants and agrees that it will furnish or cause to be
furnished to the Trustee:
(a) On a semi-annual basis on each regular record date for each
series of Debentures issued under this Indenture, a list, in such
form as the Trustee may reasonably require, of the names and
addresses of the Holders of each such series as of such record
date; and
(b) At such other times as the Trustee may request in writing, within
30 days after the receipt by the Company, of any such request, a
list of similar form and content as of a date not more than 15
days prior to the time such list is furnished, except that, no
such lists need be furnished so long as the Trustee is in
possession thereof by reason of its acting as security registrar
for the Debentures.
SECTION 4.02 Preservation and Disclosure of Lists.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the
holders of each series of Debentures issued under this Indenture
(i) contained in the most recent list furnished to it as provided
in Section 4.01; or (ii) received by it in the capacity of
security registrar (if so acting) hereunder. The Trustee may
destroy any list furnished to it as provided in Section 4.01 upon
receipt of a new list so furnished.
(b) In case three or more holders of Debentures (hereinafter referred
to as "applicants") apply in writing to the Trustee and furnish
to the Trustee reasonable proof that each such applicant has
owned a Debenture for a period of at least six months preceding
the date of such application, and such application states that
the applicants desire to communicate with other holders of
Debentures or with holders of all Debentures with respect to
their rights under this Indenture and is accompanied by a copy of
the form of proxy or other communication which such applicants
propose to transmit, then the Trustee shall, within five Business
Days after the receipt of such application, at its election,
either:
(i) Afford such applicants access to the information preserved
at the time by the Trustee in accordance with the provisions
of subsection (a) of this Section 4.02, or
(ii) Inform such applicants as to the approximate number of
holders of all Debentures whose names and addresses appear
in the information preserved at the time by the Trustee in
accordance with the provisions of subsection (a) of this
Section 4.02, and as to the approximate cost of mailing to
26
such Holders the form of proxy or other communication, if
any, specified in such application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Holder whose name and address appear in the information preserved
at the time by the Trustee in accordance with the provisions of subsection (a)
of this Section 4.02 a copy of the form of proxy or other communication which is
specified in such request with reasonable promptness after a tender to the
Trustee of the material to be mailed and of payment, or provision for the
payment, of the reasonable expenses of mailing, unless within five Business Days
after such tender, the Trustee shall mail to such applicants and file with the
Commission, together with a copy of the material to be mailed, a written
statement to the effect that, in the opinion of the Trustee, such mailing would
be contrary to the best interests of the holders of Debentures or would be in
violation of applicable law. Such written statement shall specify the basis of
such opinion. If the Commission, after opportunity for a hearing upon the
objections specified in the written statement so filed, shall enter an order
refusing to sustain any of such objections or if, after the entry of an order
sustaining one or more of such objections, the Commission shall find, after
notice and opportunity for hearing, that all the objections so sustained have
been met and shall enter an order so declaring, the Trustee shall mail copies of
such material to all such Holders with reasonable promptness after the entry of
such order and the renewal of such tender; otherwise the Trustee shall be
relieved of any obligation or duty to such applicants respecting their
application.
(c) The Trustee, if it is acting in the capacity of security
registrar hereunder, shall preserve in as current a form as is
reasonably practicable the most recent list available to it of
the names and addresses of Holders. If the Trustee is not acting
in the capacity of security registrar hereunder, the Company
shall cause to be furnished to the Trustee on or before the
Record Date for each Interest Payment Date and at such other
times as the Trustee may request in writing, within five Business
Days of such request, a list, in such form as the Trustee may
reasonably require of the names and addresses of Holders.
(d) Each and every holder of Debentures, by receiving and holding the
same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any paying agent shall be held
accountable by reason of the disclosure of any such information
as to the names and addresses of the holders of Debentures in
accordance with the provisions of subsection (b) of this Section
4.02, regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under
said subsection (b).
SECTION 4.03 Reports by the Company.
(a) The Company covenants and agrees to file with the Trustee, within
15 days after the date on which the Company is required to file
the same with the Commission, copies of the annual reports and of
the information, documents and other reports (or copies of such
portions of any of the foregoing as said Commission may from time
to time by rules and regulations prescribe) which the Company may
27
be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Exchange Act; or, if the Company is not
required to file information, documents or reports pursuant to
either of such sections, then to provide to the Trustee, such of
the supplementary and periodic information, documents and reports
which would have been required pursuant to Section 13 of the
Exchange Act in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to
time in such rules and regulations. The Company also covenants
and agrees to comply with the provisions of Section 314(a) of the
Trust Indenture Act.
(b) The Company covenants and agrees to file with the Trustee and the
Commission, in accordance with the rules and regulations
prescribed from time to time by said Commission, such additional
information, documents and reports with respect to compliance by
the Company with the conditions and covenants provided for in
this Indenture as may be required from time to time by such rules
and regulations.
(c) The Company covenants and agrees to transmit by mail to all
holders of Debentures, as the names and addresses of such holders
appear upon the Debenture Register, within 30 days after the
filing thereof with the Trustee, such summaries of any
information, documents and reports required to be filed by the
Company pursuant to subsections (a) and (b) of this Section 4.03
as may be required by rules and regulations prescribed from time
to time by the Commission.
(d) Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's
receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information
contained therein, including the Company's compliance with any of
its covenants hereunder (as to which the Trustee is entitled to
rely exclusively on Officers' Certificates).
SECTION 4.04 Reports by the Trustee.
(a) The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required
pursuant to the Trust Indenture Act at the times and in the
manner provided pursuant thereto. If required by Section 313(a)
of the Trust Indenture Act, the Trustee shall, within 60 days
after the date hereof, and no later than the anniversary date
hereof in each succeeding year, deliver to Holders a brief
report, dated as of each such date which complies with the
provisions of such Section 313(a).
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock
exchange, if any, upon which the Debentures are listed, with the
Commission and with the Company. The Company will promptly notify
the Trustee when the Debentures are listed on any stock exchange.
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ARTICLE V
REMEDIES OF THE TRUSTEE AND DEBENTUREHOLDERS
UPON EVENT OF DEFAULT
SECTION 5.01 Events of Default.
One or more of the following events of default with respect to
Debentures of any series shall constitute an Event of Default hereunder with
respect to such series (whatever the reason for such Event of Default and
whether it shall be voluntary or involuntary or be effected by operation of law
or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body) unless, with respect to
Debentures of such series, such event is specifically deleted or modified by or
pursuant to a supplemental indenture, Board Resolution or Officer's Certificate
establishing the terms of such series pursuant to this Indenture:
(a) Default in the payment of any interest (including Compounded
Interest and Additional Sums, if any) on any Debentures of that
series when due, and continuance of such default for a period of
30 days; provided, however, that a valid extension of an interest
payment period by the Company in accordance with the terms of any
particular series of Debentures established as contemplated in
this Indenture shall not constitute a default in the payment of
interest with respect to Debentures of that series for this
purpose; or
(b) Default in the payment of any principal of or premium, if any, on
any Debentures of that series when due, whether at maturity, upon
redemption, by declaration of acceleration of maturity or
otherwise; or
(c) Default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture with respect to the
Debentures of that series (other than a covenant or warranty a
default in whose performance or whose breach is elsewhere in this
Section specifically dealt with), and continuance of such default
or breach for a period of 90 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to
the Company and the Trustee by the holders of at least 25% in
aggregate principal amount of the outstanding Debentures of that
series a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder; or
(d) A court having jurisdiction in the premises shall enter a decree
or order for relief in respect of the Company 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 for any substantial part of
its property, or ordering the winding-up or liquidation of its
affairs and such decree or order shall remain unstayed and in
effect for a period of 90 consecutive days; or
(e) The Company shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in
effect, shall consent to the entry of an order for relief in an
29
involuntary case under any such law, or shall consent to the
appointment of or taking possession by a receiver, liquidator,
assignee, trustee, custodian, sequestrator (or other similar
official) of the Company or of any substantial part of its
property, or shall make any general assignment for the benefit of
creditors, or shall fail generally to pay its debts as they
become due.
If an Event of Default with respect to Debentures of any series other
than an Event of Default under clauses (d) or (e) of Section 5.01 occurs and is
continuing, then in every such case the Trustee or the holders of not less than
25% in aggregate principal amount of the Debentures of such series then
outstanding may declare the principal amount of all Debentures of such series to
be due and payable immediately, by a notice in writing to the Company (and to
the Trustee if given by the holders of the outstanding Debentures), and upon any
such declaration the same shall become immediately due and payable; provided
that in the case of a series of Debentures then held by a Trust, if upon an
Event of Default with respect to the Debentures of that series the Trustee has,
or the Holders of at least 25% in aggregate principal amount of the Debentures
of that series then outstanding have, failed to declare the principal of, and
any accrued interest on, the Debentures of that series to be immediately due and
payable, the holders of at least 25% in aggregate liquidation amount of the
outstanding Preferred Securities of that Trust shall have the right to declare
the principal of, and any accrued interest on, the Debentures of that series to
be immediately due and payable by delivering a notice in writing to the Company
and the Trustee. If an Event of Default specified in clause (d) or (e) of
Section 5.01 occurs, the principal of, and any accrued interest on, all the
Debentures shall ipso facto become and be immediately due and payable without
any declaration or other act on the part of the Trustee or any Holders. The
foregoing provisions, however, are subject to the condition that if, at any time
after the principal of the Debentures of any series 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:
(1) the Company shall pay or shall deposit with the Trustee a sum sufficient to
pay
(i) All matured installments of interest (including Compounded Interest
and Additional Sums, if any) on all the Debentures of that series and
the principal of and premium, if any, on all Debentures of that series
which shall have become due otherwise than by acceleration (with
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 specified in the
Debentures of that series to the date of such payment or deposit) and
(ii) Such amount as shall be sufficient to cover compensation due to the
Trustee and each predecessor Trustee, their respective agents,
attorneys and counsel, pursuant to Section 6.06, and
(2) Any and all Events of Default under the Indenture, other than the
non-payment of the principal of the Debentures of that series which shall
30
have become due solely by such declaration of acceleration, shall have been
cured, waived or otherwise remedied as provided herein,
then, in every such case, the holders of a majority in aggregate principal
amount of the Debentures of that series then outstanding (subject to, in the
case of any series of Debentures held as assets of a Trust and with respect to
which a Security Exchange has not theretofore occurred, such consent of the
holders of the Preferred Securities and the Common Securities of such Trust as
may be required under the Declaration of such Trust), by written notice to the
Company and to the Trustee, may 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.
In case the Trustee shall have proceeded to enforce any right under
this Indenture and such proceedings shall have been discontinued or abandoned
because of such rescission or annulment or for any other reason or shall have
been determined adversely to the Trustee, then and in every such case the
Company, the Trustee and the holders of the Debentures of that series shall be
restored respectively to their several positions and rights hereunder, and all
rights, remedies and powers of the Company, the Trustee and the holders of the
Debentures of that series shall continue as though no such proceeding had been
taken.
SECTION 5.02 Payment of Securities on Default; Suit Therefor.
The Company covenants that:
(1) In case default shall be made in the payment of any installment
of interest (including Compounded Interest and Additional Sums,
if any) on any of the Debentures of a series as and when the same
shall become due and payable, and such default shall have
continued for a period of 30 days; or
(2) In case default shall be made in the payment of the principal of
any of the Debentures of that series as and when the same shall
have become due and payable, whether at maturity of the
Debentures of that series or upon 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 Debentures
of that series, the whole amount that then shall have become due
and payable on all such Debentures for principal or interest
(including Compounded Interest and Additional Sums, if any) or
both, as the case may be, with interest upon the overdue
principal and (to the extent that payment of such interest is
enforceable under applicable law and, if the Debentures of that
series are held by a Trust or a trustee of such Trust, without
duplication of any other amounts paid by the Trust or a trustee
in respect thereof) upon the overdue installments of interest
(including Compounded Interest and Additional Sums, if any) at
the rate borne by such Debentures; and, in addition thereto, such
further amount as shall be sufficient to cover the costs and
expenses of collection, including reasonable compensation to the
Trustee, its agents, attorneys and counsel, and any other amount
due to the Trustee pursuant to Section 6.06.
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In case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any actions or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Company or any other obligor on such
Debentures and collect in the manner provided by law out of the property of the
Company or any other obligor on the Debentures, wherever situated, the moneys
adjudged or decreed to be payable.
In case there shall be pending proceedings for the bankruptcy or for
the reorganization of the Company or any other obligor on the Debentures of a
series under Title 11, United States Code, or any other applicable law, or in
case a receiver or trustee shall have been appointed for the property of the
Company or such other obligor of a series or in the case of any other similar
judicial proceedings relative to the Company or other obligor of a series upon
the Debentures of that series, or to the creditors or property of the Company or
such other obligor, the Trustee, irrespective of whether the principal of the
Debentures of that series 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 5.02, shall be
entitled and empowered, by intervention in such proceedings or otherwise, to
file and prove a claim or claims for the whole amount of principal and interest
owing and unpaid in respect of the Debentures of that series and, in case of any
judicial proceedings, to file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have the claims of the Trustee
(including any claim for amounts due to the Trustee pursuant to Section 6.06)
and of the Holders of that series allowed in such judicial proceedings relative
to the Company or any other obligor on the Debentures of that series, or to the
creditors or property of the Company or such other obligor, unless prohibited by
applicable law and regulations, to vote on behalf of the holders of the
Debentures of that series in any election of a trustee or a standby trustee in
arrangement, reorganization, liquidation or other bankruptcy or insolvency
proceedings or person performing similar functions in comparable proceedings,
and to collect and receive any moneys or other property payable or deliverable
on any such claims, and to distribute the same after the deduction of its
charges and expenses; and any receiver, assignee or trustee in bankruptcy or
reorganization is hereby authorized by each of the Holders of that series to
make such payments to the Trustee, and, in the event that the Trustee shall
consent to the making of such payments directly to the Holders of that series,
to pay to the Trustee such amounts as shall be sufficient to cover reasonable
compensation to, and expenses of, the Trustee, each predecessor Trustee and
their respective agents, attorneys and counsel, and all other amounts due to the
Trustee pursuant to Section 6.06.
Nothing herein contained shall be construed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Debentures
of a series or the rights of any holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
All rights of action and of asserting claims under this Indenture, or
under any of the Debentures of a series, may be enforced by the Trustee without
the possession of any of the Debentures of that series, or the production
thereof on any trial or other proceeding relative thereto, and any such suit or
proceeding instituted by the Trustee shall be brought in its own name as trustee
32
of an express trust, and any recovery of judgment shall, subject to the terms of
this Indenture, be for the ratable benefit of the holders of the Debentures of
that series.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party), the Trustee shall be held to represent all the
holders of the Debentures, and it shall not be necessary to make any holders of
the Debentures parties to any such proceedings.
SECTION 5.03 Application of Moneys Collected by Trustee.
Any moneys collected by the Trustee shall be applied in the following
order, at the date or dates fixed by the Trustee for the distribution of such
moneys, upon presentation of the Debentures in respect of which moneys have been
collected, and stamping thereon the payment, if only partially paid, and upon
surrender thereof if fully paid:
First: To the payment of costs and expenses of collection applicable to
the Debentures and all other amounts due to the Trustee under Section 6.06;
Second: To the payment of all Senior Indebtedness of the Company, if
and to the extent required by Article XV;
Third: To the payment of the amounts then due and unpaid upon
Debentures for principal of and interest (including Compounded Interest and
Additional Sums, if any) on the Debentures, in respect of which or for the
benefit of which money has been collected, ratably, without preference of
priority of any kind, according to the amounts due on such Debentures for
principal and interest, respectively; and
Fourth: To the Company.
SECTION 5.04 Proceedings by Holders.
No holder of any Debenture of a series shall have any right by virtue
of or by availing of any provision of this Indenture to institute any suit,
action or proceeding in equity or at law upon or under or with respect to this
Indenture or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless such holder previously shall have given to the Trustee
written notice of an Event of Default and of the continuance thereof with
respect to the Debentures of that series specifying such Event of Default, as
hereinbefore provided, and unless also the holders of not less than 25% in
aggregate principal amount of the Debentures of that series or (so long as the
Debentures of that series are held by a Trust) the holders of at least 25% in
aggregate liquidation amount of the Preferred Securities of the applicable Trust
then outstanding shall have made written request upon the Trustee to institute
such action, suit or proceeding 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 the
Trustee for 60 days after its receipt of such notice, request and offer of
indemnity shall have failed to institute any such action, suit or proceeding, it
being understood and intended, and being expressly covenanted by the taker and
holder of every Debenture of that series with every other taker and holder and
the Trustee, that no one or more holders of Debentures of that series shall have
any right in any manner whatever by virtue of or by availing itself of any
33
provision of this Indenture to affect, disturb or prejudice the rights of any
other holder of Debentures of that series, or to obtain or seek to obtain
priority over or preference to any other such holder, or to enforce any right
under this Indenture, except in the manner herein provided and for the equal,
ratable and common benefit of all holders of Debentures of that series.
Notwithstanding any other provisions in this Indenture, however, the
right of any holder of any Debenture of a series to receive payment of the
principal of and interest on (including Compounded Interest and Additional Sums,
if any) on such Debenture, on or after the same shall have become due and
payable, or to institute suit for the enforcement of any such payment, shall not
be impaired or affected without the consent of such holder, and by accepting a
Debenture of that series hereunder it is expressly understood, intended and
covenanted by the taker and holder of every Debenture of that series with every
other such taker and holder and the Trustee, that no one or more holders of
Debentures of that series shall have any right in any manner whatsoever by
virtue or by availing itself of any provision of this Indenture to affect,
disturb or prejudice the rights of the holders of any other Debentures of that
series, or to obtain or seek to obtain priority over or preference to any other
such holder, or to enforce any right under this Indenture, except in the manner
herein provided and for the equal, ratable and common benefit of all holders of
Debentures of that series. For the protection and enforcement of the provisions
of this Section, each and every Holder and the Trustee shall be entitled to such
relief as can be given either at law or in equity.
If an Event of Default has occurred and is continuing and is
attributable to the failure of the Company to pay the principal of or premium,
if any, or interest on the Debentures of a series on the due date therefor and
an event of default has occurred and is continuing under the applicable
Declaration, a holder of the related Preferred Securities, in lieu of any action
that may otherwise be taken hereunder as a Holder of Debentures of a series, may
institute a legal proceeding directly against the Company for enforcement of
payment to such holder of the principal of or premium, if any, or interest on
such Debentures having a principal amount equal to the liquidation amount of the
Preferred Securities held by such holder or for enforcement of such conversion
or exchange rights, as the case may be (a "Direct Action"). Notwithstanding
anything contained herein to the contrary, the Company may not amend this
Indenture to remove the foregoing right to bring a Direct Action without the
prior written consent of the holders of all of the Preferred Securities of a
Trust outstanding. Notwithstanding any payments made to a holder of Preferred
Securities by the Company in connection with a Direct Action, the Company shall
remain obligated to pay the principal and premium, if any, or interest on the
related Debentures, and the Company shall be subrogated to the rights of the
holder of such Preferred Securities with respect to payments on the Preferred
Securities to the extent of any payments made by the Company to such holder in
any Direct Action.
SECTION 5.05 Proceedings by Trustee.
In case an Event of Default occurs with respect to Debentures of a
series and is continuing, the Trustee may in its discretion proceed to protect
and enforce the rights vested in it by this Indenture by such appropriate
judicial proceedings as the Trustee shall deem most effectual to protect and
enforce any of such rights, either by suit in equity or by action at law or by
proceeding in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid of the exercise
34
of any power granted in this Indenture, or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law.
SECTION 5.06 Remedies Cumulative and Continuing.
All powers and remedies given by this Article V to the Trustee or to
the Holders shall, to the extent permitted by law, be deemed cumulative and not
exclusive of any other powers and remedies available to the Trustee or the
holders of the Holders, as applicable, by judicial proceedings or otherwise, to
enforce the performance or observance of the covenants and agreements contained
in this Indenture or otherwise established with respect to the Debentures of a
series, and no delay or omission of the Trustee or of any holder of any of the
Debentures of that series to exercise any right or power accruing upon any Event
of Default occurring and continuing as aforesaid shall impair any such right or
power, or shall be construed to be a waiver of any such default or an
acquiescence therein; and, subject to the provisions of Section 5.04, every
power and remedy given by this Article V or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as shall be deemed
expedient, by the Trustee or by the Holders, as applicable.
SECTION 5.07 Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case the Company, the
Trustee and the Holders shall, subject to any determination in such proceeding,
be restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 5.08 Direction of Proceedings and Xxxxxx of Defaults by Majority of
Holders.
The holders of a majority in aggregate principal amount of the
Debentures of any and all series affected (voting as one 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; provided, however, that (subject to
the provisions of Section 6.01) the Trustee shall have the right to decline to
follow any such direction if the Trustee shall determine that the action so
directed would be unjustly prejudicial to the holders not taking part in such
direction or if the Trustee being advised by counsel determines that the action
or proceeding so directed may not lawfully be taken or if the Trustee in good
faith by one of its Responsible Officers shall determine that the action or
proceedings so directed would involve the Trustee in personal liability. Prior
to any declaration accelerating the maturity of a series of Debentures of a
series, the holders of a majority in aggregate principal amount of that series
of Debentures, at the time outstanding may on behalf of the holders of all of
that series of Debentures waive any past Default or Event of Default and its
consequences except a Default:
35
(a) In the payment of principal of or interest on (including
Compounded Interest and Additional Sums, if any) on any
Debentures of that series (unless such default has been cured and
a sum sufficient to pay all matured installments of interest
(including Compounded Interest and Additional Sums, if any) and
principal, due otherwise than by acceleration has been deposited
with the Trustee); or
(b) In respect of covenants or provisions hereof which cannot be
modified or amended without the consent of the holder of each
Debenture of that series affected; provided, however, that if the
Debentures of a series are held by a Trust, such waiver or
modification to such waiver shall not be effective until the
holders of a majority in aggregate liquidation amount of the
Preferred Securities of that Trust shall have consented to such
waiver or modification to such waiver; provided, further, that if
the consent of the Holder of each outstanding Debenture of that
series is required, such waiver shall not be effective until each
holder of the Preferred Securities of that Trust shall have
consented to such waiver. Upon any such waiver, the Default
covered thereby shall be deemed to be cured for all purposes of
this Indenture and the Company, the Trustee and the Holders of
the Debentures of that series shall be restored to their former
positions and rights hereunder, respectively; but no such waiver
shall extend to any subsequent or other Default or impair any
right consequent thereon. Whenever any Default or Event of
Default hereunder shall have been waived as permitted by this
Section 5.08, said Default or Event of Default shall for all
purposes of the Debentures of that series and this Indenture be
deemed to have been cured and to be not continuing.
SECTION 5.09 Notice of Defaults.
(a) The Trustee shall, within 90 days after the occurrence of a
Default with respect to a series of Debentures actually known to
a Responsible Officer of the Trustee, mail to all Holders of that
series, as the names and addresses of such holders appear upon
the Debenture Register, notice of all such Defaults, unless such
Default shall have been cured before the giving of such notice
(the term "Default" for the purpose of this Section 5.09 being
hereby defined to be any of the events specified in clauses (a),
(b), (c), (d) and (e) of Section 5.01, not including periods of
grace, if any, provided for therein, and irrespective of the
giving of written notice specified in clause (c) of Section
5.01); provided, however, that, except in the case of Default in
the payment of the principal of or interest (including Compounded
Interest or Additional Sums, if any) on any of the Debentures of
such series, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive
committee, or a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determines that the
withholding of such notice is in the interests of the Holders of
that series; provided, further, that in the case of any Default
of the character specified in Section 5.01(c), no such notice to
Holders shall be given until at least 60 days after the
occurrence thereof, but shall be given within 90 days after such
occurrence.
(b) Within ten Business Days after the occurrence of any Event of
Default actually known to a Responsible Officer of the Trustee,
the Trustee shall transmit notice of such Event of Default to all
36
Holders of that series as their names and addresses appear on the
Debenture Register, unless such Event of Default shall have been
cured or waived.
SECTION 5.10 Undertaking to Pay Costs.
All parties to this Indenture agree, and each holder of any Debenture
by its acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees and
expenses, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party litigant; but
the provisions of this Section 5.10 shall not apply to any suit instituted by
the Trustee, to any suit instituted by any Holder, or group of Holders, holding
in the aggregate more than 10% in aggregate principal amount of the Debentures
of a series outstanding with respect to that series, or to any suit instituted
by any Holder for the enforcement of the payment of the principal of or interest
(including Compounded Interest and Additional Sums, if any) on any Debenture
against the Company on or after the same shall have become due and payable.
ARTICLE VI
CONCERNING THE TRUSTEE
SECTION 6.01 Duties and Responsibilities of Trustee.
With respect to the holders of any series of Debentures issued
hereunder, the Trustee, prior to the occurrence of an Event of Default with
respect to Debentures of that series (which, other than in the case of Sections
5.01(a) and 5.01(b) hereof, is known to the Trustee) and after the curing or
waiving of all such Events of Default which may have occurred with respect to
Debentures of that series, undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture. In case an Event of
Default (which, other than in the case of Sections 5.01(a) and 5.01(b) hereof,
is known to the Trustee) has occurred (which has not been cured or waived), the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise as a
prudent person would exercise or use under the circumstances in the conduct of
his or her own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct, except that:
(a) Prior to the occurrence of an Event of Default (which, other than
in the case of Sections 5.01(a) and 5.01(b) hereof, is known to
the Trustee) and after the curing or waiving of all such Events
of Default which may have occurred,
(1) The duties and obligations of the Trustee shall be
determined solely by the express provisions of this
Indenture, and the Trustee shall not be liable except for
37
the performance of such duties and obligations as are
specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) 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 certificate or opinion furnished to the
Trustee and conforming to the requirements of this
Indenture; but, in the case of any such certificate or
opinion which by any provision hereof is specifically
required to be furnished to the Trustee, the Trustee shall
be under a duty to examine the same to determine whether or
not it conforms on its face to the requirements of this
Indenture;
(b) The Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer or Responsible Officers,
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 5.08, relating to
the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Indenture.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if it reasonably believes that the repayment of such funds
or liability is not reasonably assured to it under the terms of this Indenture
or adequate indemnity against such risk is not reasonably assured to it.
SECTION 6.02 Reliance on Documents, Opinions, etc.
Except as otherwise provided in Section 6.01:
(a) The Trustee may conclusively rely and shall be protected in
acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice,
request, consent, order, bond, note, debenture 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 may be sufficiently evidenced by an Officers' Certificate
(unless other evidence in respect thereof be herein specifically
prescribed); and any Board Resolution 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 of its selection and any
advice or Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or
suffered or omitted by it hereunder in good faith and in
accordance with such advice or Opinion of Counsel;
38
(d) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request,
order or direction of any of the Holders, pursuant to the
provisions of this Indenture, unless such Holders shall have
offered to the Trustee reasonable and sufficient security or
indemnity against the costs, expenses and liabilities which may
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 or rights or powers conferred upon it by this
Indenture; nothing contained herein shall, however, relieve the
Trustee of the obligation, upon the occurrence of an Event of
Default (which, other than in the case of Sections 5.01(a) and
5.01(b) hereof, is known to the Trustee) (that has not been cured
or waived), to exercise such of the rights and powers vested in
it by this Indenture, and to use the same degree of care and
skill in its exercise as a prudent person would exercise or use
under the circumstances in the conduct of his or her own affairs;
(f) The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent,
order, approval, bond, debenture, coupon or other paper or
document, unless requested in writing to do so by the holders of
a majority in aggregate principal amount of the outstanding
Debentures; provided, however, that if the payment within a
reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably
assured to the Trustee by the security afforded to it by the
terms of this Indenture, the Trustee may require reasonable
indemnity against such expense or liability as a condition to so
proceeding;
(g) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through
agents (including any Authenticating Agent) or attorneys, and the
Trustee shall not be responsible for any misconduct or negligence
on the part of any such agent or attorney appointed by it with
due care;
(h) The Trustee shall not be charged with knowledge of any Default or
Event of Default unless:
(1) Such Default or Event of Default falls within Section
5.01(a) (other than a default with respect to the payment or
nonpayment of Compounded Interest, or Additional Sums) or
Section 5.01(b) of the Indenture,
(2) A Responsible Officer shall have actual knowledge of such
Default or Event of Default; or
(3) Written notice of such Default or Event of Default shall
have been given to the Trustee by the Company or any other
obligor on the Debentures or by any holder of the
Debentures;
39
(i) The Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith, without negligence or willful
misconduct and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this
Indenture; and
(j) In the event that the Trustee is unable to decide between
alternative courses of action permitted or required under this
Indenture or any other document, or is unsure as to the
application of any provision of this Indenture or any other
document, or any such provision may be ambiguous as to its
application or in conflict with any other applicable provision,
permits any determination by the Trustee, or is silent or
incomplete as to the course of action that the Trustee is
required to take with respect to a particular set of facts, the
Trustee may give notice (in such form as shall be appropriate
under the circumstances) to the Company and/or to the Holders
requesting instruction from any of them, and to the extent that
the Trustee acts or refrains from acting in good faith in
accordance with any such instruction received, the Trustee shall
not be personally liable, on account of such action or inaction,
to any Person, and if the Trustee shall not have received
appropriate instruction within 10 days of such notice (or within
such shorter period of time as reasonably may be specified in
such notice or may be necessary under the circumstances) it may,
but shall be under no duty to, take or refrain from taking
action, and shall have no personal liability to any Person for
such action or inaction.
SECTION 6.03 No Responsibility for Recitals, etc.
The recitals contained herein and in the Debentures (except in the
certificate of authentication of the Trustee or the Authenticating Agent) shall
be taken as the statements of the Company, and the Trustee and the
Authenticating Agent assume no responsibility for the correctness of the same.
The Trustee and the Authenticating Agent make no representations as to the
validity or sufficiency of this Indenture or of the Debentures. The Trustee and
the Authenticating Agent shall not be accountable for the use or application by
the Company of any Debentures or the proceeds of any Debentures authenticated
and delivered by the Trustee or the Authenticating Agent in conformity with the
provisions of this Indenture.
SECTION 6.04 Trustee, Authenticating Agent, Paying Agents, Transfer Agents
and Registrar May Own Debentures.
The Trustee or any Authenticating Agent or any paying agent or any
transfer agent or any security registrar for the Debentures, in its individual
or any other capacity, may become the owner or pledgee of Debentures with the
same rights it would have if it were not Trustee, Authenticating Agent, paying
agent, transfer agent or security registrar for the Debentures.
SECTION 6.05 Moneys to be Held in Trust.
Subject to the provisions of Section 11.04, all moneys received by the
Trustee or any paying agent shall, until used or applied as herein provided, be
held in trust for the purpose for which they were received, but need not be
segregated from other funds except to the extent required by law. The Trustee
and any paying agent shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed in writing with the Company.
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So long as no Event of Default shall have occurred and be continuing,
all interest allowed on any such moneys shall be paid from time to time upon the
written order of the Company, signed by an Officer thereof.
SECTION 6.06 Compensation and Expenses of Trustee.
The Company, as issuer of Debentures under this Indenture, covenants
and agrees to pay to the Trustee from time to time, and the Trustee shall be
entitled to, such compensation as shall be agreed to in writing between the
Company and the Trustee (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
will pay or reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any of the provisions of this Indenture (including the reasonable compensation
and the expenses and disbursements of its counsel and of all persons not
regularly in its employ), except any such expense, disbursement or advance as
may arise from its negligence or bad faith. The Company also covenants to
indemnify each of the Trustee (including in its individual capacity) and any
predecessor Trustee (and its officers, agents, directors and employees) for, and
to hold it harmless against, any and all loss, damage, claim, action, suit,
liability or expense including taxes (other than taxes based on the income of
the Trustee) incurred without negligence or bad faith on the part of the Trustee
and arising out of or in connection with the acceptance or administration of
this trust, including the costs and expenses of defending itself against any
claim of liability.
The Company covenants and agrees to advance expenses (including legal
fees) incurred by the Trustee (including in its individual capacity) in
defending any claim, demand, action, suit or proceeding, from time to time,
prior to the final disposition of such claim, demand, action, suit or
proceeding, upon receipt by the Company of an undertaking by or on behalf of the
Trustee to repay such amount if it shall be determined that the Trustee is not
entitled to be indemnified as authorized in this Section.
When the Trustee incurs expenses or renders services in connection with
an Event of Default as specified in Section 5.01(d) or Section 5.01(e), the
expenses (including the reasonable charges and expenses of its counsel) and the
compensation for its services are intended to constitute expenses of
administration under any applicable federal or state bankruptcy, insolvency or
other similar law.
The provisions of this Section shall survive the resignation or removal
of the Trustee and the defeasance or other termination of this Indenture.
SECTION 6.07 Officers' Certificate as Evidence.
Except as otherwise provided in Sections 6.01 and 6.02, whenever in the
administration of the provisions of this Indenture, the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking or
omitting any action hereunder, such matter (unless other evidence in respect
thereof is herein specifically prescribed) may, in the absence of negligence or
bad faith on the part of the Trustee, be deemed to be conclusively proved and
established by an Officers' Certificate delivered to the Trustee, and such
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Officers' Certificate, in the absence of negligence or bad faith on the part of
the Trustee, shall be full warrant to the Trustee for any action taken or
omitted by it under the provisions of this Indenture upon the faith thereof.
SECTION 6.08 Conflicting Interest of Trustee.
If the Trustee has or shall acquire any "conflicting interest" within
the meaning of Section 310(b) of the Trust Indenture Act, the Trustee and the
Company shall in all respects comply with the provisions of Section 310(b) of
the Trust Indenture Act.
SECTION 6.09 Eligibility of Trustee.
The Trustee hereunder shall at all times be a Person organized and
doing business under the laws of the United States of America or any state or
territory thereof or of the District of Columbia, or a Company or other Person
permitted to act as trustee by the Commission authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus of at
least fifty million U.S. dollars ($50,000,000) and subject to supervision or
examination by federal, state, territorial, or District of Columbia authority.
If such Person 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 6.09 the combined capital and surplus of such
Person shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published.
The Company may not, nor may any Person directly or indirectly
controlling, controlled by, or under common control with the Company, serve as
Trustee. In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 6.09, the Trustee shall resign
immediately in the manner and with the effect specified in Section 6.10.
SECTION 6.10 Resignation or Removal of Trustee.
(a) The Trustee, or any trustee or trustees hereafter appointed, may
at any time resign by giving written notice of such resignation
to the Company and by mailing notice thereof to the holders of
the Debentures at their addresses as they shall appear on the
Debenture Register. Upon receiving such notice of resignation,
the Company shall promptly appoint a successor trustee or
trustees, in accordance with the provisions of Section 6.09, by
written instrument, in duplicate, one copy of which instrument
shall be delivered to the resigning Trustee and one copy to the
successor trustee. If no successor trustee shall have been so
appointed and have accepted appointment within 60 days after the
mailing of such notice of resignation to the affected Holders,
the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee, or any
Holder who has been a bona fide holder of a Debenture for at
least six months may, subject to the provisions of Section 5.10,
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:
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(1) The Trustee shall fail to comply with the provisions of
Section 6.08 after written request therefor by the Company
or by any Holder entitled to give such request who has been
a bona fide holder of a Debenture or Debentures of the
applicable series for at least six months, or
(2) The Trustee shall cease to be eligible in accordance with
the provisions of Section 6.09 and shall fail to resign
after written request therefor by the Company or by any such
Holder, or
(3) The Trustee shall become incapable of acting, or shall be
adjudged a bankrupt or insolvent, or a receiver of the
Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of
its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, the Company may remove the Trustee and appoint a
successor trustee, in accordance with the provisions of Section 6.09, by written
instrument, in duplicate, 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 5.10, any Holder who has been a bona fide holder of a
Debenture of the applicable 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. Such court may thereupon, after such notice, if any, as it may deem
proper and prescribe, remove the Trustee and appoint a successor trustee.
(c) The holders of a majority in aggregate principal amount of the
Debentures of any series at the time outstanding may at any time
remove the Trustee with respect to that series and nominate a
successor trustee, which shall be deemed appointed as successor
trustee unless within 10 days after written notification of such
nomination the Company objects thereto, or if no successor
trustee shall have been so appointed and shall have accepted
appointment within 30 days after such removal, in which case the
Trustee so removed or any such Holder, upon the terms and
conditions and otherwise as in subsection (a) of this Section
6.10 provided, may petition any court of competent jurisdiction
for an appointment of a successor trustee.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this
Section 6.10 shall become effective upon acceptance of
appointment by the successor trustee as provided in Section 6.11.
SECTION 6.11 Acceptance by Successor Trustee.
Any successor trustee appointed as provided in Section 6.10 shall
execute, acknowledge and deliver to the Company and to its predecessor trustee
an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the retiring trustee shall become effective and such
successor trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, duties and obligations of its predecessor
hereunder, with like effect as if originally named as trustee herein; but,
nevertheless, on the written request of the Company or of the successor trustee,
the trustee ceasing to act shall, upon payment of all amounts then due it
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pursuant to the provisions of Section 6.06, execute and deliver an instrument
transferring to such successor trustee all the rights and powers of the trustee
so ceasing to act and shall duly assign, transfer and deliver to such successor
trustee all property and money held by such retiring trustee thereunder. 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 lien upon all property or funds held or collected
by such trustee to secure any amounts then due it pursuant to the provisions of
Section 6.06.
No successor trustee shall accept appointment as provided in this
Section 6.11 unless at the time of such acceptance such successor trustee shall
be qualified under the provisions of Section 6.08 and eligible under the
provisions of Section 6.09.
Upon acceptance of appointment by a successor trustee as provided in
this Section 6.11, the Company shall mail notice of the succession of such
trustee hereunder to the holders of Debentures at their addresses as they shall
appear on the Debenture Register. If the Company fails to mail such notice
within 10 days after the acceptance of appointment by the successor trustee, the
successor trustee shall cause such notice to be mailed at the expense of the
Company.
SECTION 6.12 Succession by Xxxxxx, etc.
Any Person into which the Trustee may be merged or converted or with
which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any Person
succeeding to all or substantially all of the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder without the execution
or filing of any paper or any further act on the part of any of the parties
hereto.
In case any Debentures shall have been authenticated but not delivered
at the time such successor to the Trustee shall succeed to the trusts created by
this Indenture, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Debentures so
authenticated; and in case at that time any of the Debentures shall not have
been authenticated, any successor to the Trustee may authenticate such
Debentures either in the name of any predecessor hereunder or in the name of the
successor trustee; and in all such cases such certificates shall have the full
force which the Debentures or this Indenture elsewhere provides that the
certificate of the Trustee shall have; provided, however, that the right to
adopt the certificate of authentication of any predecessor Trustee or
authenticate Debentures in the name of any predecessor Trustee shall apply only
to its successor or successors by merger, conversion or consolidation.
SECTION 6.13 Limitation on Rights of Trustee as a Creditor.
The Trustee shall comply with Section 311(a) of the Trust Indenture
Act, excluding any creditor relationship described in Section 311(b) of the
Trust Indenture Act. A Trustee who has resigned or been removed shall be subject
to Section 311(a) of the Trust Indenture Act to the extent included therein.
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SECTION 6.14 Authenticating Agents.
There may be one or more Authenticating Agents appointed by the Trustee
upon the request of the Company with power to act on the Trustee's behalf and
subject to the Trustee's direction in the authentication and delivery of
Debentures issued upon transfer, conversion or redemption thereof as fully to
all intents and purposes as though any such Authenticating Agent had been
expressly authorized to authenticate and deliver Debentures; provided, however,
that the Trustee shall have no liability to the Company for any acts or
omissions of the Authenticating Agent with respect to the authentication and
delivery of Debentures. Any such Authenticating Agent shall at all times be a
Person organized and doing business under the laws of the United States or of
any state or territory thereof or of the District of Columbia authorized under
such laws to act as Authenticating Agent, having a combined capital and surplus
of at least $5,000,000 and being subject to supervision or examination by
federal, state, territorial or District of Columbia authority. If such Person
publishes reports of condition at least annually pursuant to law or the
requirements of such authority, then for the purposes of this Section 6.14 the
combined capital and surplus of such Person shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect herein specified in this Section.
Any Person into which any Authenticating Agent may be merged, converted
or with which it may be consolidated, or any Person resulting from any merger or
consolidation to which any Authenticating Agent shall be a party, or any Person
succeeding to the corporate trust business of any Authenticating Agent, shall be
the successor of such Authenticating Agent hereunder, if such successor Person
is otherwise eligible under this Section 6.14 without the execution or filing of
any paper or any further act on the part of the parties hereto or such
Authenticating Agent.
Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Trustee and to the Company. The Trustee may at any
time terminate the agency of any Authenticating Agent by giving written notice
of termination to such Authenticating Agent and to the Company. Upon receiving
such a notice of resignation or upon such a termination, or in case at any time
any Authenticating Agent shall cease to be eligible under this Section 6.14, the
Trustee may, and upon the request of the Company shall, promptly appoint a
successor Authenticating Agent eligible under this Section 6.14, shall give
written notice of such appointment to the Company and shall mail notice of such
appointment to all Holders as the names and addresses of such holders appear on
the Debenture Register. 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 herein. The Company, as issuer of the
Debentures, agrees to pay to any Authenticating Agent from time to time
reasonable compensation for its services. Any Authenticating Agent shall have no
responsibility or liability for any action taken by it as such in accordance
with the directions of the Trustee.
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SECTION 6.15 Trustee Not Fiduciary for Holders of Senior Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness and shall not be liable to any such holders if
the Trustee shall in good faith mistakenly pay over or distribute to Holders of
Securities or to the Company or to any other person cash, property or securities
to which any holders of Senior Indebtedness shall be entitled by virtue of this
Article or otherwise. With respect to the holders of Senior Indebtedness, the
Trustee undertakes to perform or to observe only such of its covenants or
obligations as are specifically set forth in this Article and no implied
covenants or obligations with respect to holders of Senior Indebtedness shall be
read into this Indenture against the Trustee.
ARTICLE VII
CONCERNING THE DEBENTUREHOLDERS
SECTION 7.01 Action by Holders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or
taken by Holders or by holders of Preferred Securities may be
embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders or holders of
Preferred Securities, as applicable, personally or by an 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 and, where
it is hereby expressly required, to the Company. Such instrument
or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of Holders
or holders of Preferred Securities signing such instrument or
instruments. Proof of execution of any such instrument or of a
writing appointing any such agent shall be sufficient for any
purpose of this Indenture and conclusive in favor of the Trustee
and the Company, if made in the manner provided in this Section.
Without limiting the generality of this Section, unless otherwise
provided in or pursuant to this Indenture, a Holder, including a
Depositary that is a Holder of a Global Debenture, may make, give
or take, by a proxy, or proxies, duly appointed in writing, any
request, demand, authorization, direction, notice, consent,
waiver or other action provided in or pursuant to this Indenture
to be made, given or taken by Holders, and a Depositary that is a
Holder of a Global Debenture may provide its proxy or proxies to
the beneficial owners of interests in any such Global Debenture
through such Depositary's standing instructions and customary
practices.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any manner which the
Trustee deems sufficient.
(c) The Holders of Debentures shall be proved by the Debenture
Register.
(d) Any Act of the Holder of any Debenture shall bind every future
Holder of the same Debenture and the Holder of every Debenture
issued upon the transfer thereof or in exchange therefor or in
lieu thereof in respect of anything done, omitted or suffered to
46
be done by the Trustee or the Company in reliance thereon,
whether or not notation of such action is made upon such
Debenture.
(e) If the Company solicits from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other
action, the Company may, at its option, by or pursuant to a
resolution of its Board of Directors, fix in advance a Record
Date for the determination of Holders entitled to give such Act,
but the Company shall have no obligation to do so. If such a
Record Date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other action may be given
before or after such Record Date, but only Holders of record as
proved by the Debenture Register at the close of business on such
Record Date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of
outstanding Debentures have authorized or agreed or consented to
such Act, and for that purpose the outstanding Debentures shall
be computed as of such Record Date.
SECTION 7.02 Proof of Execution by Holders.
Subject to the provisions of Sections 6.01, 6.02 and 8.05, proof of the
execution of any instrument by a Holder or his agent or proxy shall be
sufficient if made 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 ownership of Debentures shall be proved by the Debenture
Register or by a certificate of the security registrar for the Debentures. The
Trustee may require such additional proof of any matter referred to in this
Section 7.02 as it shall deem necessary.
The record of any Holders' meeting shall be proved in the manner
provided in Section 8.06.
SECTION 7.03 Who Are Deemed Absolute Owners.
Prior to due presentment for registration of transfer of any Debenture,
the Company, the Trustee, any Authenticating Agent, any paying agent, any
transfer agent and any security registrar for the Debentures may deem the person
in whose name such Debenture shall be registered upon the Debenture Register to
be, and may treat him or her as, the absolute owner of such Debenture (whether
or not such Debenture shall be overdue) for the purpose of receiving payment of
or on account of the principal of and premium, if any, and (subject to Section
2.05) interest on such Debenture and for all other purposes; and neither the
Company nor the Trustee nor any Authenticating Agent nor any paying agent nor
any transfer agent nor any security registrar for the Debentures shall be
affected by any notice to the contrary. All such payments so made to any holder
for the time being or upon his or her 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 Debenture.
SECTION 7.04 Debentures Owned by Company Deemed Not Outstanding.
In determining whether the holders of the requisite aggregate principal
amount of Debentures have concurred in any direction, consent or waiver under
this Indenture, Debentures that are owned by the Company or any other obligor on
the Debentures or by any Person directly or indirectly controlling or controlled
47
by or under direct or indirect common control with the Company or any other
obligor on the Debentures shall be disregarded and deemed not to be outstanding
for the purpose of any such determination; provided, however, that for the
purposes of determining whether the Trustee shall be protected in relying on any
such direction, consent or waiver, only Debentures which a Responsible Officer
of the Trustee actually knows are so owned shall be so disregarded. Debentures
so owned which have been pledged in good faith may be regarded as outstanding
for the purposes of this Section 7.04 if the pledgee shall establish to the
satisfaction of the Trustee the pledgee's right to vote such Debentures and that
the pledgee is not the Company or any such other obligor or Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company or any such other obligor. In the case of a dispute as
to such right, any decision by the Trustee taken upon the advice of counsel
shall be full protection to the Trustee.
SECTION 7.05 Revocation of Consents; Future Holders Bound.
At any time prior to (but not after) the evidencing to the Trustee, as
provided in Section 7.01, of the taking of any action by the holders of the
percentage in aggregate principal amount of the Debentures specified in this
Indenture in connection with such action, any holder of a Debenture (or any
Debenture issued in whole or in part in exchange or substitution therefor),
subject to Section 7.01, the serial number of which is shown by the evidence to
be included in the group of Debentures the holders of which have consented to
such action, may, by filing written notice with the Trustee at its Corporate
Trust Office and upon proof of holding as provided in Section 7.02, revoke such
action so far as concerns such Debenture (or so far as concerns the principal
amount represented by any exchanged or substituted Debenture). Except as
aforesaid, any such action taken by the holder of any Debenture shall be
conclusive and binding upon such holder and upon all future holders and owners
of such Debenture, and of any Debenture issued in exchange or substitution
therefor, irrespective of whether or not any notation in regard thereto is made
upon such Debenture or any Debenture issued in exchange or substitution
therefor.
ARTICLE VIII
MEETINGS OF DEBENTUREHOLDERS
SECTION 8.01 Purposes of Meetings.
A meeting of Holders of any or all series at the time outstanding may
be called at any time and from time to time pursuant to the provisions of this
Article VIII for any of the following purposes:
(a) To give any notice to the Company or to the Trustee, or to give
any directions to the Trustee, or to consent to the waiving of
any Default hereunder and its consequences, or to take any other
action authorized to be taken by Holders of such series pursuant
to any of the provisions of Article V;
(b) To remove the Trustee and nominate a successor trustee pursuant
to the provisions of Article VI;
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(c) To consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 9.02;
or
(d) To take any other action authorized to be taken by or on behalf
of the holders of any specified aggregate principal amount of
such Debentures under any other provision of this Indenture or
under applicable law.
SECTION 8.02 Call of Meetings by Trustee.
The Trustee may at any time call a meeting of Holders or Holders of
Debentures of any series, as applicable, to take any action specified in Section
8.01, to be held at such time and at such place in New York, New York as the
Trustee shall determine. Notice of every meeting of such Holders, setting forth
the time and the place of such meeting and in general terms the action proposed
to be taken at such meeting, shall be mailed to such holders of Debentures at
their addresses as they shall appear on the Debenture Register. Such notice
shall be mailed not less than 21 nor more than 180 days prior to the date fixed
for the meeting.
SECTION 8.03 Call of Meetings by Company or Holders.
In case at any time the Company, pursuant to a resolution of the Board
of Directors, or the holders of at least 20% in aggregate principal amount of
the Debentures or the Debentures of any series, as applicable, then outstanding,
shall have requested the Trustee to call a meeting of such Holders, by written
request setting forth in reasonable detail the action proposed to be taken at
the meeting, and the Trustee shall not have mailed the notice of such meeting
within 21 days after receipt of such request, then the Company or such Holders
may determine the time and the place in The City of New York for such meeting
and may call such meeting to take any action authorized in Section 8.01, by
mailing notice thereof as provided in Section 8.02.
(a) Except as provided below, the Persons entitled to vote a majority
in principal amount of the Outstanding Debentures or Outstanding
Debentures of a series, as applicable, shall constitute a quorum.
In the absence of a quorum within 30 minutes of the time
appointed for any such meeting, the meeting shall, if convened at
the request of Holders of Debentures, be dissolved. In any other
case, the meeting may be adjourned for a period of not less than
10 days as determined by the chairman of the meeting prior to the
adjournment of such meeting. In the absence of a quorum at any
such adjourned meeting, such adjourned meeting may be further
adjourned for a period of not less than 10 days as determined by
the chairman of the meeting prior to the adjournment of such
adjourned meeting. Notice of the reconvening of any adjourned
meeting shall be given as provided herein, except that such
notice need be given only once and not less than five days prior
to the date on which the meeting is scheduled to be reconvened.
Notice of the reconvening of an adjourned meeting shall state
expressly the percentage of the principal amount of the
Outstanding Debentures of such series which shall constitute a
quorum.
(b) Subject to the foregoing, at the reconvening of any meeting
adjourned for a lack of a quorum, the Persons entitled to vote
25% in principal amount of the Outstanding Debentures entitled to
49
vote at such meeting at the time shall constitute a quorum for
the taking of any action set forth in the notice of the original
meeting.
(c) At a meeting or an adjourned meeting duly reconvened and at which
a quorum is present as aforesaid, any resolution and all matters
shall be effectively passed and decided if passed or decided by
the Persons entitled to vote the lesser of:
(1) A majority in principal amount of such Debentures of such
series entitled to vote at such meeting then Outstanding; or
(2) 66 2/3% in principal amount of the Debentures of such series
represented and voting at such meeting; provided, however,
that if any consent, waiver or other action is required by
this Indenture to be given, made or taken by the Holders of
a specified percentage in principal amount of Outstanding
Debentures entitled to vote, then such consent, waiver or
other action must be given, made or taken by the Holders of
such specified percentage of Debentures entitled to vote.
(d) Any resolution passed or decisions taken at any meeting of
Holders of Debentures duly held in accordance with this Section
shall be binding on all the Holders of Debentures, or of the
Debentures of such series, as applicable, whether or not present
or represented at the meeting.
SECTION 8.04 Qualifications for Voting.
To be entitled to vote at any meeting of Holders, a Person shall be:
(1) A holder of one or more Debentures of the applicable series;
or
(2) A Person appointed by an instrument in writing as proxy by a
holder of one or more Debentures of that series. The only
Persons who shall be entitled to be present or to speak at
any meeting of Holders shall be the Persons entitled to vote
at such meeting and their counsel and any representatives of
the Trustee and its counsel and any representatives of the
Company and its counsel.
SECTION 8.05 Regulations.
Notwithstanding any other provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting of
Holders, in regard to proof of the holding of Debentures and of the appointment
of proxies, and in regard to the appointment and duties of inspectors of votes,
the submission and examination of proxies, certificates and other evidence of
the right to vote, and such other matters concerning the conduct of the meeting
as it shall think fit. The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Holders as provided in Section 8.03, in which case the Company
or the Holders calling the meeting, as the case may be, shall in like manner
appoint a temporary chairman. A permanent chairman and a permanent secretary of
the meeting shall be elected by majority vote of the meeting.
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Subject to the provisions of Section 8.04, at any meeting each holder
of Debentures of the applicable series or proxy therefor shall be entitled to
one vote for each $1,000 principal amount of Debentures of that series held or
represented by him or her; provided, however, that no vote shall be cast or
counted at any meeting in respect of any Xxxxxxxxx challenged as not outstanding
and ruled by the chairman of the meeting to be not outstanding. The chairman of
the meeting shall have no right to vote other than by virtue of Debentures of
the applicable series held by him or instruments in writing as aforesaid duly
designating him as the person to vote on behalf of other Holders. Any meeting of
Holders duly called pursuant to the provisions of Section 8.02 or 8.03 may be
adjourned from time to time by holders of a majority of Debentures entitled to
vote at such meeting and which are represented at such meeting, and the meeting
may be held as so adjourned without further notice.
SECTION 8.06 Voting.
The vote upon any resolution submitted to any meeting of holders of
Debentures shall be by written ballots on which shall be subscribed the
signatures of such holders or of their representatives by proxy and the serial
number or numbers of the Debentures of the applicable series held or represented
by them. The permanent chairman of the meeting shall appoint two inspectors of
votes who shall count all votes cast at the meeting for or against any
resolution and who shall make and file with the secretary of the meeting their
verified written reports in triplicate of all votes cast at the meeting. A
record in duplicate of the proceedings of each meeting of Holders shall be
prepared by the secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more persons having knowledge of the
facts setting forth a copy of the notice of the meeting and showing that said
notice was mailed as provided in Section 8.02. The record shall show the serial
numbers of the Debentures voting in favor of or against any resolution. The
record shall be signed and verified by the affidavits of the permanent chairman
and secretary of the meeting and one of the duplicates shall be delivered to the
Company and the other to the Trustee to be preserved by the Trustee, the latter
to have attached thereto the ballots voted at the meeting. Any record so signed
and verified shall be conclusive evidence of the matters therein stated. The
holders of the Debentures entitled to vote at the meeting shall vote for all
purposes as a single class.
ARTICLE IX
AMENDMENTS
SECTION 9.01 Without Consent of Holders.
The Company and the Trustee may from time to time and at any time amend
this Indenture, without the consent of the Holders, for one or more of the
following purposes:
(a) To evidence the succession of another Person to the Company, or
successive successions, and the assumption by the successor
Person of the covenants, agreements and obligations of the
Company pursuant to Article X hereof;
(b) To add to the covenants of the Company such further covenants,
restrictions or conditions for the protection of the Holders of
all or any series of Debentures as the Board of Directors and the
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Trustee shall consider to be for the protection of the Holders of
such series, and to make the occurrence, or the occurrence and
continuance, of a default in any of such additional covenants,
restrictions or conditions a Default or an Event of Default
permitting the enforcement of all or any of the remedies provided
in this Indenture as herein set forth; provided, however, that in
respect of any such additional covenant, restriction or condition
such amendment may provide for a particular period of grace after
default (which period may be shorter or longer than that allowed
in the case of other defaults) or may provide for an immediate
enforcement upon such default or may limit the remedies available
to the Trustee upon such default;
(c) To provide for the issuance under this Indenture of Debentures in
coupon form (including Debentures registrable as to principal
only) and to provide for exchangeability of such Debentures with
the Debentures issued hereunder in fully registered form and to
make all appropriate changes for such purpose;
(d) To:
(1) Cure any ambiguity; or
(2) To correct or supplement any provision contained herein or
in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in
any supplemental indenture; or
(3) To make such other provisions in regard to matters or
questions arising under this Indenture, provided that any
such action shall not materially adversely affect the
interests of the holders of Debentures of a series affected
thereby;
(e) To evidence and provide for the acceptance of appointment
hereunder by a successor trustee with respect to the Debentures
of any series; and to add to or change any of the provisions of
this Indenture as shall be necessary to provide for or to
facilitate the administration of the trusts hereunder by more
than one trustee;
(f) To make provision for transfer procedures, certification,
book-entry provisions, the form of restricted Debentures legends,
if any, to be placed on Debentures, and all other matters
required pursuant to Section 2.06 or otherwise necessary,
desirable or appropriate in connection with the issuance of
Debentures of a series to holders of Preferred Securities of a
Trust in the event of a distribution of Debentures by such Trust
following a Dissolution Event, provided that any such action
shall not materially adversely affect the interests of the
holders of such Debentures;
(g) To make provision with respect to conversion procedures;
(h) To qualify or maintain qualification of this Indenture under the
Trust Indenture Act;
(i) To make any change that does not adversely affect the rights of
any Holder of an outstanding Debenture in any material respect;
52
(j) Surrender any right or power herein conferred upon the Company;
or
(k) To add any Events of Default with respect to all or any series of
Debenture (as shall be specified in such supplemental indenture);
(l) To establish the form or terms of Debentures of any series as
permitted by Section 2.01 or, in lieu of any such supplemental
indenture, the Company may provide the Trustee with an Officers'
Certificate with respect to the form or terms of such Debentures;
or
(m) To supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the
defeasance and discharge of any series of Debentures provided
that any such action shall not adversely affect the interests of
any Holder of a Debenture of such series or any other Debenture
in any material respect.
The Trustee is hereby authorized to join with the Company in the
execution of any supplemental indenture to effect such amendment, to make any
further appropriate agreements and stipulations which may be therein contained
and to accept the conveyance, transfer and assignment of any property
thereunder, but the Trustee shall not be obligated to, but may in its
discretion, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Any amendment to this Indenture authorized by the provisions of this
Section 9.01 may be executed by the Company and the Trustee without the consent
of the holders of any of the Debentures at the time outstanding, notwithstanding
any of the provisions of Section 9.02.
SECTION 9.02 With Consent of Holders.
The Company and the Trustee may amend this Indenture with respect to
any series of Debentures in any manner not permitted by Section 9.01 or may
waive future compliance by the Company with any provisions of this Indenture
with respect to such series with the consent of the Holders of at least a
majority in aggregate principal amount of the Debentures of that series affected
thereby then outstanding (and, in the case of any series of Debentures held as
assets of a Trust and with respect to which a Security Exchange has not
theretofore occurred, the consent of at least a majority of the aggregate
liquidation amount of the outstanding holders of the Preferred Securities of
such Trust). Such an amendment or waiver may not, without the consent of each
Holder of any Debenture affected thereby:
(a) Reduce the principal amount of such Debentures;
(b) Reduce the percentage of the principal amount of such Debentures
of a series the Holders of which must consent to modify or amend
of this Indenture or waive compliance by the Company with any
covenant hereunder or past Default or Event of Default with
respect to such series;
(c) Change
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(1) The Stated Maturity of the principal of or the interest on
such Debentures, except in connection with any Extended
Period,
(2) The rate of interest (or the manner of calculation thereof)
on such Debentures, or
(3) The duration of the maximum consecutive period that payments
of interest on such Debentures may be deferred;
(d) Change adversely to the Holders the redemption, conversion or
exchange provisions applicable to such Debentures, if any;
(e) Change the currency in respect of which the payments on such
Debentures are to be made;
(f) Make any change in Article XV that adversely affects the rights
of the Holders of the Debentures or any change to any other
Section hereof that adversely affects their rights under Article
XV; or
(g) Change Section 5.04;
provided that, in the case of the outstanding Debentures of a series then held
by a Trust or the trustee of a Trust,
(1) No such amendment or supplement shall be made, without the
prior consent of the holders of at least a majority of the
aggregate liquidation amount of the outstanding Preferred
Securities of that Trust, and
(2) If the consent of each Holder of each Debenture of a series
is required with respect to any such amendment, such
amendment shall not be effective without the prior consent
of each Holder of Preferred Securities of the applicable
Trust.
A supplemental indenture that changes or eliminates any covenant or
other provision of this Indenture that has expressly been included solely for
the benefit of one or more particular series of Debentures, or which modifies
the rights of the Holders of Debentures of such series with respect to such
covenant or other provision, shall be deemed to affect only the rights under
this Indenture of the Holders of Debentures of such series and not to affect the
rights under this Indenture of the Holders of Debentures of any other series.
It shall not be necessary for the consent of the Holders of Debentures
or holders of Preferred Securities under this Section to approve the particular
form of any proposed amendment, but it shall be sufficient if such consent
approves the substance thereof.
After an amendment or waiver under this Section becomes effective, the
Company shall mail to each Holder affected thereby a notice briefly describing
the amendment or waiver. Any failure of the Company to mail such notices, or any
defect therein, shall not, however, in any way impair or affect the validity of
such amendment or waiver.
54
SECTION 9.03 Compliance with Trust Indenture Act; Effect of Supplemental
Indentures.
Any supplemental indenture executed pursuant to the provisions of this
Article IX shall comply with the Trust Indenture Act. Upon the execution of any
supplemental indenture pursuant to the provisions of this Article IX, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Company and the holders
of Debentures affected by such supplemental indenture shall thereafter be
determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes with respect to any series
of Debenture affected by such supplemental indenture.
SECTION 9.04 Notation on Debentures.
Debentures authenticated and delivered after the execution of any
supplemental indenture pursuant to the provisions of this Article IX may bear a
notation in form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company or the Trustee shall so determine, new
Debentures so modified as to conform, in the opinion of the Trustee and the
Board of Directors, to any modification of this Indenture contained in any such
supplemental indenture may be prepared and executed by the Company,
authenticated by the Trustee or the Authenticating Agent and delivered in
exchange for the Debentures then outstanding.
SECTION 9.05 Evidence of Compliance of Supplemental Indenture to be Furnished to
Trustee.
The Trustee, subject to the provisions of Sections 6.01 and 6.02, may
receive an Officers' Certificate and an Opinion of Counsel as conclusive
evidence that any supplemental indenture executed pursuant hereto complies with
the requirements of this Article IX.
ARTICLE X
CONSOLIDATION, MERGER, SALE, CONVEYANCE,
TRANSFER AND LEASE
SECTION 10.01 Company May Consolidate, etc., on Certain Terms.
Nothing contained in this Indenture or in any of the Debentures shall
prevent any consolidation or merger of the Company with or into any other Person
(whether or not affiliated with the Company, as the case may be), or successive
consolidations or mergers in which the Company or its successor or successors,
as the case may be, shall be a party or parties, or shall prevent any sale,
conveyance, transfer or lease of the property of the Company, or its successor
or successors as the case may be, as an entirety, or substantially as an
entirety, to any other Person (whether or not affiliated with the Company, or
its successor or successors, as the case may be) authorized to acquire and
operate the same; provided, that:
(a) The Company is the surviving Person, or the Person formed by or
surviving any such consolidation or merger (if other than the
Company) or to which such sale, conveyance, transfer or lease of
property is made is a Person organized and existing under the
55
laws of the United States or any State thereof or the District of
Columbia, and
(b) If the Company is not the surviving Person, upon any such
consolidation, merger, sale, conveyance, transfer or lease, the
due and punctual payment of the principal of and interest on the
Debentures according to their tenor and the due and punctual
performance and observance of all the covenants and conditions of
this Indenture to be kept or performed by the Company shall be
expressly assumed by the surviving Person, by supplemental
indenture (which shall conform to the provisions of the Trust
Indenture Act as then in effect) satisfactory in form to the
Trustee executed and delivered to the Trustee by the Person
formed by such consolidation, or into which the Company shall
have been merged, or by the Person which shall have acquired such
property, as the case may be; and
(c) Immediately after giving effect to such consolidation, merger,
sale, conveyance, transfer or lease, no Default or Event of
Default shall have occurred and be continuing.
SECTION 10.02 Successor Person to be Substituted for Company.
In case of any such consolidation, merger, sale, conveyance, transfer
or lease, and upon the assumption by the successor Company, by supplemental
indenture, executed and delivered to the Trustee and satisfactory in form to the
Trustee, of the obligation of due and punctual payment of the principal of and
interest on all of the Debentures and the due and punctual performance and
observance of all of the covenants and conditions of this Indenture to be
performed or observed by the Company, such successor Person shall succeed to and
be substituted for the Company, with the same effect as if it had been named
herein as a party hereto, and the Company thereupon shall be relieved of any
further liability or obligation hereunder or upon the Debentures. Such successor
Person thereupon may cause to be signed, and may issue either in its own name or
in the name of the Company, any or all of the Debentures issuable hereunder
which theretofore shall not have been signed by the Company and delivered to the
Trustee or the Authenticating Agent; and, upon the order of such successor
Person instead of the Company and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee or the Authenticating
Agent shall authenticate and deliver any Debentures which previously shall have
been signed and delivered by any Officer of the Company to the Trustee or the
Authenticating Agent for authentication, and any Debentures which such successor
Person thereafter shall cause to be signed and delivered to the Trustee or the
Authenticating Agent for that purpose. All the Debentures so issued shall in all
respects have the same legal rank and benefit under this Indenture as the
Debentures theretofore or thereafter issued in accordance with the terms of this
Indenture as though all of such Debentures had been issued at the date of the
execution hereof.
SECTION 10.03 Opinion of Counsel to be Given Trustee.
The Trustee, subject to the provisions of Sections 6.01 and 6.02, may
receive an Opinion of Counsel as conclusive evidence that any consolidation,
merger, sale, conveyance, transfer or lease, and any assumption, permitted or
required by the terms of this Article X complies with the provisions of this
Article X.
56
ARTICLE XI
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 11.01 Discharge of Indenture.
When either:
(a) The Company shall deliver to the Trustee for cancellation all
Debentures of any series theretofore authenticated (other than
any Debentures which shall have been destroyed, lost or stolen
and which shall have been replaced as provided in Section 2.07)
and not theretofore canceled, or
(b) All the Debentures of such series not theretofore canceled or
delivered to the Trustee for cancellation shall have become due
and payable, or are by their terms to become due and payable
within one year or are to be called for redemption within one
year under arrangements satisfactory to the Trustee for the
giving of notice of redemption, and the Company shall deposit or
cause to be deposited with the Trustee, in trust, funds or U.S.
Government Obligations (or any combination) sufficient to pay on
the Stated Maturity Date or upon redemption all of the Debentures
of such series (other than any Debentures which shall have been
destroyed, lost or stolen and which shall have been replaced as
provided in Section 2.07) not theretofore canceled or delivered
to the Trustee for cancellation, including principal and interest
(including Compounded Interest and Additional Sums, if any) due
or to become due to the Stated Maturity Date or redemption date,
as the case may be, but excluding, however, the amount of any
moneys for the payment of principal of or interest (including
Compounded Interest and Additional Sums, if any) on the
Debentures of such series
(1) Theretofore repaid to the Company in accordance with the
provisions of Section 11.04; or
(2) Paid to any State or to the District of Columbia pursuant to
its unclaimed property or similar laws;
and if, in either case, the Company shall also pay or cause to be paid all other
sums payable hereunder by the Company, then this Indenture shall cease to be of
further effect with respect to Debentures of such series, except for the
provisions of Sections [2.02, 2.06, 2.07, 3.01, 3.02, 3.04, 6.06, 6.10 and
11.04] hereof, which shall survive until such Debentures of such series shall
mature and be paid. Thereafter, Sections [6.06 and 11.04] shall survive, and the
Trustee, on demand of the Company accompanied by any Officers' Certificate and
an Opinion of Counsel and at the cost and expense of the Company, shall execute
proper instruments acknowledging satisfaction of and discharging this Indenture
with respect to Debentures of such series; the Company, however, hereby agrees
to reimburse the Trustee for any costs or expenses thereafter reasonably and
properly incurred by the Trustee in connection with this Indenture or the
Debentures of such series.
57
SECTION 11.02 Deposited Moneys and U.S. Government Obligations to be Held in
Trust by Trustee.
Subject to the provisions of Section 11.04, all moneys and U.S.
Government Obligations deposited with the Trustee pursuant to Sections 11.01 or
11.05 shall be held in trust and applied by it to the payment, either directly
or through any paying agent (including the Company if acting as its own paying
agent), to the holders of a particular series of Debentures for the payment of
which such moneys or U.S. Government Obligations have been deposited with the
Trustee, of all sums due and to become due thereon for principal and interest.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Governmental Obligations
deposited pursuant to Section 11.05 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the holders of outstanding Debentures.
SECTION 11.03 Paying Agent to Repay Moneys Held.
Upon the satisfaction and discharge of this Indenture all moneys then
held by any paying agent of the Debentures (other than the Trustee) shall, upon
written 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 11.04 Return of Unclaimed Moneys.
Any moneys deposited with or paid to the Trustee or any paying agent
for payment of the principal of or interest (including Compounded Interest and
Additional Sums, if any) on Debentures of any series and not applied but
remaining unclaimed by the holders of Debentures for two years after the date
upon which the principal of or interest (including Compounded Interest and
Additional Sums, if any) on such Debentures, as the case may be, shall have
become due and payable, shall be repaid to the Company by the Trustee or such
paying agent; and the holder of any of the Debentures shall thereafter look only
to the Company for any payment which such holder may be entitled to collect and
all liability of the Trustee or such paying agent with respect to such moneys
shall thereupon cease.
SECTION 11.05 Defeasance Upon Deposit of Moneys or U.S. Government Obligations.
The Company shall be deemed to have been Discharged (as defined below)
from its obligations with respect to the Debentures of any series on the 91st
day after the applicable conditions set forth below have been satisfied:
(a) The Company shall have deposited or caused to be deposited
irrevocably with the Trustee or the Defeasance Agent (as defined
below) as trust funds in trust, specifically pledged as security
for, and dedicated solely to, the benefit of the holders of the
Debentures of such series:
(1) Money in an amount; or
58
(2) U.S. Government Obligations which through the payment of
interest and principal in respect thereof in accordance with
their terms will provide, not later than one day before the
due date of any payment, money in an amount; or
(3) A combination of (1) and (2),
sufficient, in the opinion (with respect to (ii) and (iii)) of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee and the Defeasance Agent, if any,
to pay and discharge each installment of principal of and interest on the
outstanding Debentures of such series on the dates such installments of
principal and interest are due;
(b) If the Debentures of such series are then listed on any national
securities exchange, the Company shall have delivered to the
Trustee and the Defeasance Agent, if any, an Opinion of Counsel
to the effect that the exercise of the option under this Section
11.05 would not cause such Debentures to be delisted from such
exchange;
(c) No Default or Event of Default with respect to the Debentures
shall have occurred and be continuing on the date of such
deposit;
(d) The Company shall have delivered to the Trustee and the
Defeasance Agent, if any, an Opinion of Counsel to the effect
that holders of the Debentures of such series will not recognize
income, gain or loss for United States federal income tax
purposes solely as a result of the exercise of the option under
this Section 11.05 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 option had not
been exercised;
(e) The Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company
with the intent of preferring the Holders over any other
creditors of the Company or with the intent of defeating,
hindering, delaying or defrauding any other creditors of the
Company;
(f) Such deposit shall not result in an Investment Company Event, or
such trust shall be qualified under such Act or exempt from
regulation thereunder; and
(g) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent relating to the defeasance contemplated by
this Section have been complied with.
"Discharged" means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by, and obligations under, the
Debentures of any series and to have satisfied all the obligations under this
Indenture relating to the Debentures of such series (and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging the
same), except:
59
(1) The rights of holders of Debentures of such series to
receive, from the trust fund described in clause (a) above,
payment of the principal of and the interest if any, on the
Debentures of such series when such payments are due;
(2) The Company's obligations with respect to the Debentures of
such series under Sections [2.06, 2.07, 5.02 and 11.04]; and
(3) The rights, powers, trusts, duties and immunities of the
Trustee hereunder.
"Defeasance Agent" means another financial institution which is
eligible to act as Trustee hereunder and which assumes all of the obligations of
the Trustee necessary to enable the Trustee to act hereunder. In the event such
a Defeasance Agent is appointed pursuant to this Section, the following
conditions shall apply:
(i) The Trustee shall have approval rights over the
document appointing such Defeasance Agent and the
document setting forth such Defeasance Agent's rights
and responsibilities; and
(ii) The Defeasance Agent shall provide verification to the
Trustee acknowledging receipt of sufficient money
and/or U.S. Government Obligations to meet the
applicable conditions set forth in this Section 11.05.
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.01 Indenture and Debentures Solely Corporate Obligations.
No recourse for the payment of the principal of or interest (including
Compounded Interest and Additional Sums, if any) on any Debenture, or for any
claim based thereon or otherwise in respect thereof, and no recourse under or
upon any obligation, covenant or agreement of the Company in this Indenture, or
in any Debenture, or because of the creation of any indebtedness represented
thereby, shall be had against any incorporator, stockholder, employee, officer
or director, as such, past, present or future, of the Company or of any
successor Person to the Company, either directly or through the Company or any
successor Person to the Company, whether by virtue of any constitution, statute
or rule of law, or by the enforcement of any assessment or penalty or otherwise;
it being expressly understood that all such liability is hereby expressly waived
and released as a condition of, and as a consideration for, the execution of
this Indenture and the issuance of the Debentures.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01 Successors.
All of the covenants, stipulations, promises and agreements of the
Company contained in this Indenture shall also bind the Company's successors and
assigns whether so expressed or not.
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SECTION 13.02 Official Acts by Successor Company.
Any act or proceeding that, by any provision of this Indenture, is
authorized or required to be done or performed by any board, committee or
officer of the Company shall and may be done and performed with like force and
effect by the like board, committee or officer of any Company that shall at the
time be the lawful sole successor of the Company.
SECTION 13.03 Surrender of Company Powers.
The Company by instrument in writing authorized by its Board of
Directors and delivered to the Trustee may surrender any of the powers reserved
to the Company hereunder, and thereupon such power so surrendered shall
terminate both as to the Company, as the case may be, and as to any successor
Person.
SECTION 13.04 Addresses for Notices, etc.
Any notice or demand which by any provision of this Indenture is
required or permitted to be given or served by the Trustee or by the holders of
Debentures on the Company may be given or served by being deposited postage
redeemed by first class mail, registered or certified mail, overnight courier
service or conformed telecopy addressed (until another address is filed by the
Company with the Trustee for the purpose) to Commerce Bancorp, Inc. at 0000
Xxxxx 00 Xxxx, Xxxxxx Xxxx, Xxx Xxxxxx 00000-5400, Attention: Chief Financial
Officer. Any notice, direction, request or demand by any Holder to or upon the
Trustee shall be deemed to have been sufficiently given or made, for all
purposes, if given or made in writing at the office of The Bank of New York at
000 Xxxxxxx Xxxxxx, Xxxxx 0X, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate
Trust - Administration (unless another address is provided by the Trustee to the
Company for such purpose). Any notice or communication to a Holder shall be
mailed by first class mail to his or her address shown on the Debenture Register
kept by the security registrar for the Debentures. Notices required to be given
to the Trustee or the Authenticating Agent shall be in writing, personally
delivered or mailed first class postage redeemed to each of the foregoing, or at
such other address as shall be designated by written notice to the other
parties.
SECTION 13.05 Governing Law.
This Indenture and each Debenture shall be deemed to be a contract made
under the laws of the State of New York, and for all purposes shall be governed
by and construed in accordance with the laws of said State without regard to
conflict of law principles thereof.
SECTION 13.06 Evidence of Compliance with Conditions Precedent.
Upon any application or demand by the Company to the Trustee to take
any action under any of the provisions of this Indenture, the Company shall
furnish to the Trustee (which the Trustee shall be fully protected relying on)
an Officers' Certificate stating that in the opinion of the signers all
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with and an Opinion of Counsel stating that,
in the opinion of such counsel, all such conditions precedent have been complied
61
with. Each certificate or opinion provided for in this Indenture and delivered
to the Trustee with respect to compliance with a condition or covenant provided
for in this Indenture (except certificates delivered pursuant to Section 3.05)
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 or she has
made such examination or investigation as is necessary to enable
him or her to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(d) A statement as to whether or not, in the opinion of such person,
such condition or covenant has been complied with.
SECTION 13.07 Business Days.
In any case where the date of payment of principal of or interest on
the Debentures is not a Business Day, the payment of such principal of or
interest on the Debentures will not be made on such date but will be made on the
next succeeding Business Day, except if such Business Day is in the next
succeeding calendar year, such payment will be made on the immediately preceding
Business Day, with the same force and effect as if made on the original date of
payment, and no interest shall accrue for the period from and after such date.
SECTION 13.08 Trust Indenture Act to Control.
If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with the duties imposed by Sections 310 to 318,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
SECTION 13.09 Table of Contents, Headings, etc.
The table of contents and the titles and headings of the articles and
sections of this Indenture have been inserted for convenience of reference only,
are not to be considered a part hereof, and shall in no way modify or restrict
any of the terms or provisions hereof.
SECTION 13.10 Execution in Counterparts.
This Indenture may be executed in any number of counterparts, each of
which shall be an original, but such counterparts shall together constitute but
one and the same instrument.
SECTION 13.11 Severability.
In case any one or more of the provisions contained in this Indenture
or in the Debentures shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
62
shall not affect any other provisions of this Indenture or of the Debentures,
but this Indenture and the Debentures shall be construed as if such invalid or
illegal or unenforceable provision had never been contained herein or therein.
SECTION 13.12 Assignment.
The Company will have the right at all times to assign any of its
respective rights or obligations under this Indenture to a direct or indirect
wholly owned Subsidiary of the Company, provided that, in the event of any such
assignment, the Company will remain liable for all such obligations. Subject to
the foregoing, this Indenture is binding upon and inures to the benefit of the
parties thereto and their respective successors and assigns. This Indenture may
not otherwise be assigned by the parties thereto.
SECTION 13.13 Acknowledgment of Rights.
The Company acknowledges that, with respect to any Debentures of any
series held by a Trust or a trustee of such Trust, if the Property Trustee of
such Trust fails to enforce its rights under this Indenture as the holder of the
Debentures held as the assets of such Trust, any holder of Preferred Securities
may institute legal proceedings, subject to Section 5.08, directly against the
Company to enforce such Property Trustee's rights under this Indenture without
first instituting any legal proceedings against such Property Trustee or any
other person or entity. Notwithstanding the foregoing, if an Event of Default
has occurred and is continuing and such event is attributable to the failure of
the Company to pay principal of or interest on the Debentures when due, the
Company acknowledges that a holder of Preferred Securities may directly
institute a proceeding for enforcement of payment to such holder of the
principal of or interest on the Debentures having an aggregate principal amount
equal to the aggregate liquidation amount of the Preferred Securities of such
holder on or after the respective due date specified in the Debentures.
ARTICLE XIV
REDEMPTION OF DEBENTURES
SECTION 14.01 Special Event Redemption.
If a Special Event has occurred and is continuing, then notwithstanding
Section 14.02(a) but subject to Section 14.02(c), the Company shall have the
right, at any time within [90] days following the occurrence of such Special
Event, upon:
(1) Not less than [45] days' written notice to the Trustee; and
(2) not less than [30] days nor more than [60] days' written
notice to the Holders, to redeem the Debentures, in whole
(but not in part), at the Special Event Redemption Price.
Following a Special Event, the Company shall take such
action as is necessary to promptly determine the Special
Event Redemption Price. The Special Event Redemption Price
shall be paid prior to 12:00 noon, New York City time, on
the date of such redemption or such earlier time as the
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Company determines, provided that the Company shall deposit
with the Trustee an amount sufficient to pay the Special
Event Redemption Price by 10:00 a.m., New York City time, on
the date such Special Event Redemption Price is to be paid.
SECTION 14.02 Optional Redemption by Company.
(a) The Company may redeem the Debentures of any series issued
hereunder, in whole or in part, on and after the dates and in
accordance with the terms established for such series pursuant to
Section 2.01.
(b) If any or all of the Debentures are to be redeemed pursuant to
this Section, the Company shall deliver to the Trustee no more
than [60] and no less than [45] days prior to the Redemption Date
a Company Order specifying the series and principal amount of
Debentures to be redeemed and the Redemption Date and Redemption
Price for such Debentures. Such Company Order shall be
accompanied by a Board Resolution authorizing such redemption. If
the Debentures of a series are held by a Trust, the Company shall
also deliver a copy of such Company Order to the Property Trustee
for such Trust. If the Debentures of any series are only
partially redeemed pursuant to this Section 14.02, the Debentures
to be redeemed shall be selected on a pro rata basis not more
than [60] days prior to the date fixed for redemption from the
outstanding Debentures not previously called for redemption;
provided, further, that any such proration may be made on the
basis of the aggregate principal amount of Debentures held by
each Holder and may be made by making such adjustments as the
Company deems fair and appropriate.
(c) Any redemption of Debentures pursuant to Section 14.01 or Section
14.02 shall be subject to the Company obtaining any required
prior approval of its primary federal banking regulator, if
required by applicable law or regulation, and any other required
regulatory approvals.
SECTION 14.03 Notice of Redemption; Selection of Debentures.
In case the Company shall desire to exercise the right to redeem all,
or, as the case may be, any part of the Debentures of any series in accordance
with their terms, it shall fix a date for redemption and shall mail a notice of
such redemption at least 30 and not more than 60 days' prior to the date fixed
for redemption to the holders of Debentures of such series to be so redeemed as
a whole or in part at their last addresses as the same appear on the Debenture
Register. Such mailing shall be by first class mail. The notice, if mailed in
the manner herein provided, shall be conclusively presumed to have been duly
given, whether or not the holder receives such notice. In any case, failure to
give such notice by mail or any defect in the notice to the holder of any
Debenture of such series designated for redemption as a whole or in part shall
not affect the validity of the proceedings for the redemption of any other
Debenture of such series.
Each such notice of redemption shall specify the CUSIP number, if any,
of the Debentures of such series to be redeemed, the date fixed for redemption,
the Redemption Price at which the Debentures of such series are to be redeemed
(or the method by which such Redemption Price is to be calculated), the place or
places of payment where payment will be made upon presentation and surrender of
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the Debentures of such series, that interest accrued to the date fixed for
redemption will be paid as specified in said notice, and that on and after said
date interest thereon or on the portions thereof to be redeemed will cease to
accrue. If less than all the Debentures of such series are to be redeemed, the
notice of redemption shall specify the numbers of the Debentures of such series
to be redeemed. In case any Debenture of such 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 Debenture of such series, a new Debenture or
Debentures in principal amount equal to the portion thereof that has not been
redeemed will be issued.
By 10:00 a.m., New York City time, on 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 an amount of money
sufficient to redeem on the redemption date all the Debentures of such series so
called for redemption at the Redemption Price.
SECTION 14.04 Payment of Debentures Called for Redemption.
If notice of redemption has been given as provided in Section 14.03,
the Debentures of such series or portions of Debentures of such series with
respect to which such notice has been given shall become due and payable on the
date and at the place or places stated in such notice at the Redemption Price
(subject to the rights of holders of Debentures of such series at the close of
business on a regular record date in respect of an Interest Payment Date
occurring on or prior to the redemption date) and on and after said date (unless
the Company shall default in the payment of such Debentures of such series at
the Redemption Price) interest (including Compounded Interest and Additional
Sums, if any) on the Debentures of such series or portions of Debentures of such
series so called for redemption shall cease to accrue. On presentation and
surrender of such Debentures of such series at a place of payment specified in
said notice, the said Debentures of such series or the specified portions
thereof shall be paid and redeemed by the Company at the applicable Redemption
Price (subject to the rights of holders of Debentures of such series on the
close of business on a regular record date in respect of an Interest Payment
Date occurring on or prior to the redemption date).
Upon presentation of any Debenture redeemed in part only, the Company
shall execute and the Trustee shall authenticate and make available for delivery
to the holder thereof, at the expense of the Company, a new Debenture or
Debentures of authorized denominations, in principal amount equal to the portion
of the Debenture so presented that has not been redeemed.
ARTICLE XV
SUBORDINATION OF DEBENTURES
SECTION 15.01 Agreement to Subordinate.
The Company covenants and agrees, and each holder of Debentures issued
hereunder likewise covenants and agrees, that the Debentures shall be issued
subject to the provisions of this Article XV; and each holder of a Debenture,
whether upon original issue or upon transfer or assignment thereof, accepts and
agrees to be bound by such provisions.
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The payment by the Company of the principal of and interest (including
Compounded Interest and Additional Sums, if any) on all Debentures issued
hereunder shall, to the extent and in the manner hereinafter set forth, be
subordinated and subject in right of payment to the prior payment in full of all
Allocable Amounts then due and payable in respect of Senior Indebtedness,
whether outstanding at the date of this Indenture or thereafter incurred.
Unless otherwise specified in their terms, the Debentures will rank on
a parity with any series of junior subordinated debentures, whether currently
outstanding or created, assumed or incurred at a later date, initially issued to
a trust, partnership, or other entity affiliated with the Company in connection
with an issuance of securities similar to the Preferred Securities.
No provision of this Article XV shall prevent the occurrence of any
Default or Event of Default hereunder.
SECTION 15.02 Default on Senior Indebtedness.
In the event and during the continuation of any default by the Company
in the payment of principal, premium, interest or any other payment due on any
Senior Indebtedness, or in the event that the maturity of any Senior
Indebtedness has been accelerated because of a default and such acceleration has
not been rescinded or canceled, then, in either case, no payment shall be made
by the Company with respect to the principal (including redemption payments) of
or interest on the Debentures (including Compounded Interest and Additional
Sums, if any, or any other amounts which may be due on the Debentures pursuant
to the terms hereof or thereof).
In the event of the acceleration of the maturity of the Debentures,
then no payment shall be made by the Company with respect to the principal
(including redemption payments) of or interest on the Debentures (including
Compounded Interest and Additional Sums, if any, or any other amounts which may
be due on the Debentures pursuant to the terms hereof or thereof) until the
holders of all Senior Indebtedness outstanding at the time of such acceleration
shall receive payment, in full, of all Allocable Amounts due on or in respect of
such Senior Indebtedness (including any amounts due upon acceleration).
In the event that, notwithstanding the foregoing, any payment is
received by the Trustee, or any Holder, when such payment is prohibited by the
preceding paragraphs of this Section 15.02, such payment shall be held in trust
for the benefit of, and shall be paid over or delivered by the Trustee (if the
notice requested by Section 15.06 has been received by the Trustee) or by any
Holder, to the holders of Senior Indebtedness or their respective
representatives, or to the trustee or trustees under any indenture pursuant to
which any of such Senior Indebtedness may have been issued, as their respective
interests may appear, but only to the extent of the Allocable Amounts in respect
of such Senior Indebtedness and to the extent that the holders of the Senior
Indebtedness (or their representative or representatives or a trustee) notify
the Trustee in writing within 90 days prior to the Trustee's receipt of such
payment of the Allocable Amounts then due and owing on such Senior Indebtedness,
and only the Allocable Amounts specified in such notice to the Trustee shall be
paid to the holders of such Senior Indebtedness.
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SECTION 15.03 Liquidation; Dissolution; Bankruptcy.
Upon any payment by the Company or distribution of assets of the
Company of any kind or character, whether in cash, property or securities, to
creditors upon any dissolution, winding-up, liquidation or reorganization of the
Company, whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other proceedings, the holders of all Senior Indebtedness of the
Company will first be entitled to receive payment in full of Allocable Amounts
due on or in respect of such Senior Indebtedness, before any payment is made by
the Company on account of the principal of or interest on the Debentures
(including Compounded Interest and Additional Sums (if any) or any other amounts
which may be due on the Debentures pursuant to the terms hereof or thereof); and
upon any such dissolution, winding-up, liquidation or reorganization, any
payment by the Company, or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, which the Holders or the
Trustee would be entitled to receive from the Company, except for the provisions
of this Article XV, shall be paid by the Company or by any receiver, trustee in
bankruptcy, liquidating trustee, agent or other Person making such payment or
distribution, or by the Holders or by the Trustee under the Indenture if
received by them or it, directly to the holders of Senior Indebtedness of the
Company (pro rata to such holders on the basis of the respective Allocable
Amounts of Senior Indebtedness held by such holders, as calculated by the
Company) or their representative or representatives, or to the trustee or
trustees under any indenture pursuant to which any instruments evidencing such
Senior Indebtedness may have been issued, as their respective interests may
appear, to the extent necessary to pay all such Allocable Amounts of Senior
Indebtedness in full, in money or moneys worth, after giving effect to any
concurrent payment or distribution to or for the holders of such Senior
Indebtedness, before any payment or distribution is made to the Holders or to
the Trustee.
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character prohibited by the
foregoing, whether in cash, property or Debentures, shall be received by the
Trustee, or any Holder, before the Allocable Amounts of all Senior Indebtedness
is paid in full, or provision is made for such payment in money in accordance
with its terms, such payment or distribution shall be held in trust for the
benefit of and shall be paid over or delivered by the Trustee (if the Notice
required by Section 15.06 has been received by the Trustee) or by any Holder, to
the holders of such Senior Indebtedness or their representative or
representatives, or to the trustee or trustees under any indenture pursuant to
which any instruments evidencing such Senior Indebtedness may have been issued,
as their respective interests may appear, as calculated by the Company, for
application to the payment of all Allocable Amounts of Senior Indebtedness
remaining unpaid to the extent necessary to pay all Allocable Amounts due on or
in respect of such Senior Indebtedness in full in money in accordance with its
terms, after giving effect to any concurrent payment or distribution to or for
the benefit of the holders of such Senior Indebtedness.
For purposes of this Article XV, the words "cash, property or
securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or Debentures of the Company or any other Company
provided for by a plan of reorganization or readjustment, the payment of which
is subordinated at least to the extent provided in this Article XV with respect
to the Debentures to the payment of Senior Indebtedness that may at the time be
outstanding, provided that: (i) such Senior Indebtedness is assumed by the new
Corporation, if any, resulting from any such reorganization or readjustment; and
(ii) the rights of the holders of such Senior Indebtedness are not, without the
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consent of such holders, altered by such reorganization or readjustment. The
consolidation of the Company with, or the merger of the Company into, another
Person or the liquidation or dissolution of the Company following the sale,
conveyance, transfer or lease of its property as an entirety, or substantially
as an entirety, to another Person upon the terms and conditions provided for in
Article X of this Indenture shall not be deemed a dissolution, winding-up,
liquidation or reorganization for the purposes of this Section 15.03 if such
other Person shall, as a part of such consolidation, merger, sale, conveyance,
transfer or lease, comply with the conditions stated in Article X of this
Indenture. Nothing in Section 15.02 or in this Section 15.03 shall apply to
claims of, or payments to, the Trustee under or pursuant to Section 6.06 of this
Indenture.
SECTION 15.04 Subrogation.
Subject to the payment in full of all Allocable Amounts of Senior
Indebtedness, the rights of the Holders shall be subrogated to the rights of the
holders of such Senior Indebtedness to receive payments or distributions of
cash, property or securities of the Company, as the case may be, applicable to
such Senior Indebtedness until the principal of and interest on the Debentures
shall be paid in full; and, for the purposes of such subrogation, no payments or
distributions to the holders of such Senior Indebtedness of any cash, property
or Debentures to which the Holders or the Trustee would be entitled except for
the provisions of this Article XV, and no payment over pursuant to the
provisions of this Article XV to or for the benefit of the holders of such
Senior Indebtedness by Holders or the Trustee, shall, as between the Company,
its creditors other than holders of Senior Indebtedness of the Company, and the
holders of the Debentures, be deemed to be a payment by the Company to or on
account of such Senior Indebtedness. It is understood that the provisions of
this Article XV are and are intended solely for the purposes of defining the
relative rights of the holders of the Debentures, on the one hand, and the
holders of such Senior Indebtedness on the other hand.
Nothing contained in this Article XV or elsewhere in this Indenture or
in the Debentures is intended to or shall impair, as between the Company, its
creditors other than the holders of Senior Indebtedness of the Company, and the
holders of the Debentures, the obligation of the Company, which is absolute and
unconditional, to pay to the holders of the Debentures the principal of and
interest (including Compounded Interest and Additional Sums, if any) on the
Debentures as and when the same shall become due and payable in accordance with
their terms, or is intended to or shall affect the relative rights of the
holders of the Debentures and creditors of the Company, as the case may be,
other than the holders of Senior Indebtedness of the Company, as the case may
be, nor shall anything herein or therein prevent the Trustee or the holder of
any Debenture from exercising all remedies otherwise permitted by applicable law
upon default under this Indenture, subject to the rights, if any, under this
Article XV of the holders of such Senior Indebtedness in respect of cash,
property or securities of the Company, as the case may be, received upon the
exercise of any such remedy.
SECTION 15.05 Trustee to Effectuate Subordination.
Each Holder, by such Xxxxxx's acceptance thereof, authorizes and
directs the Trustee on such Xxxxxx's behalf to take such action (as the Trustee,
in its discretion, deems necessary or appropriate, upon instruction or
otherwise) to effectuate the subordination provided in this Article XV and
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appoints the Trustee such Xxxxxx's attorney-in-fact for any and all such
purposes.
SECTION 15.06 Notice by the Company.
The Company shall give prompt written notice to a Responsible Officer
of the Trustee of any fact known to the Company that would prohibit the making
of any payment of monies to or by the Trustee in respect of the Debentures
pursuant to the provisions of this Article XV. Notwithstanding the provisions of
this Article XV or any other provision of this Indenture, the Trustee shall not
be charged with knowledge of the existence of any facts that would prohibit the
making of any payment of monies to or by the Trustee in respect of the
Debentures pursuant to the provisions of this Article XV, unless and until a
Responsible Officer of the Trustee shall have received written notice thereof
from the Company or a holder or holders of Senior Indebtedness or from any
trustee therefor; and before the receipt of any such written notice, the
Trustee, subject to the provisions of Article VI of this Indenture, shall be
entitled in all respects to assume that no such facts exist; provided, however,
that if the Trustee shall not have received the notice provided for in this
Section 15.06 at least two Business Days prior to the date upon which, by the
terms hereof, any money may become payable for any purpose (including, without
limitation, the payment of the principal of or interest (including Compounded
Interest and Additional Sums, if any) on any Debenture), then, anything herein
contained to the contrary notwithstanding, the Trustee shall have full power and
authority to receive such money and to apply the same to the purposes for which
they were received, and shall not be affected by any notice to the contrary that
may be received by it within two Business Days prior to such date.
The Trustee, subject to the provisions of Article VI of this Indenture,
shall be entitled to conclusively rely on a written notice delivered to it by a
Person representing himself to be a holder of Senior Indebtedness of the Company
(or a trustee on behalf of such holder), as the case may be, to establish that
such notice has been given by a holder of such Senior Indebtedness or a trustee
on behalf of any such holder or holders. In the event that the Trustee
determines in good faith that further evidence is required with respect to the
right of any Person as a holder of such Senior Indebtedness to participate in
any payment or distribution pursuant to this Article XV, the Trustee may request
such Person to furnish evidence to the reasonable satisfaction of the Trustee as
to the amount of such Senior Indebtedness held by such Person, the extent to
which such Person is entitled to participate in such payment or distribution and
any other facts pertinent to the rights of such Person under this Article XV,
and, if such evidence is not furnished, the Trustee may defer any payment to
such Person pending judicial determination as to the right of such Person to
receive such payment.
Upon any payment or distribution of assets of the Company referred to
in this Article XV, the Trustee, subject to the provisions of Article VI of this
Indenture, and the Holders shall be entitled to conclusively rely upon any order
or decree entered by any court of competent jurisdiction in which such
insolvency, bankruptcy, receivership, liquidation, reorganization, dissolution,
winding-up or similar case or proceeding is pending, or a certificate of the
trustee in bankruptcy, liquidating trustee, custodian, receiver, assignee for
the benefit of creditors, agent or other person making such payment or
distribution, delivered to the Trustee or to the Holders, for the purpose of
ascertaining the persons entitled to participate in such payment or
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distribution, the holders of Senior Indebtedness and other indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article XV.
SECTION 15.07 Rights of the Trustee; Holders of Senior Indebtedness.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article XV in respect of any Senior Indebtedness at any
time held by it, to the same extent as any other holder of Senior Indebtedness,
and nothing in this Indenture shall deprive the Trustee of any of its rights as
such holder.
With respect to the holders of Senior Indebtedness of the Company, the
Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article XV, and no implied
covenants or obligations with respect to the holders of such Senior Indebtedness
shall be read into this Indenture against the Trustee. The Trustee shall not be
deemed to owe any fiduciary duty to the holders of such Senior Indebtedness and,
subject to the provisions of Article VI of this Indenture, the Trustee shall not
be liable to any holder of such Senior Indebtedness if it shall pay over or
deliver to Holders, the Company or any other Person money or assets to which any
holder of such Senior Indebtedness shall be entitled by virtue of this Article
XV or otherwise.
Nothing in this Article XV shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 6.06.
SECTION 15.08 Subordination May Not Be Impaired.
No right of any present or future holder of any Senior Indebtedness of
the Company to enforce subordination as herein provided shall at any time in any
way be prejudiced or impaired by any act or failure to act on the part of the
Company, as the case may be, or by any act or failure to act, in good faith, by
any such holder, or by any noncompliance by the Company, as the case may be,
with the terms, provisions and covenants of this Indenture, regardless of any
knowledge thereof that any such holder may have or otherwise be charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Indebtedness of the Company may, at any time and from time
to time, without the consent of or notice to the Trustee or the Holders, without
incurring responsibility to the Holders and without impairing or releasing the
subordination provided in this Article XV or the obligations hereunder of the
holders of the Debentures to the holders of such Senior Indebtedness, do any one
or more of the following:
(a) Change the manner, place or terms of payment or extend the time
of payment of, or renew or alter, such Senior Indebtedness, or
otherwise amend or supplement in any manner such Senior
Indebtedness or any instrument evidencing the same or any
agreement under which such Senior Indebtedness is outstanding;
(b) Sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing such Senior
Indebtedness;
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(c) Release any Person liable in any manner for the collection of
such Senior Indebtedness; and
(d) Exercise or refrain from exercising any rights against the
Company, as the case may be, and any other Person.
SECTION 15.09 Payment Blockage Notice.
During the continuance of any event of default with respect to any
Senior Indebtedness, as such event of default is defined under any such Senior
Indebtedness or in any agreement pursuant to which any Senior Indebtedness has
been issued (other than a default in payment of the principal of or interest on
any Senior Indebtedness), permitting the holder or holders of such Senior
Indebtedness to accelerate the maturity thereof, no payment shall be made by the
Company, directly or indirectly, with respect to principal of, premium, if any,
or interest on the Debentures for 179 days following notice in writing (a
"Payment Blockage Notice") to the Company, from any holder or holders of such
Senior Indebtedness or their representative or representatives or the trustee or
trustees under any indenture or under which any instrument evidencing any such
Senior Indebtedness may have been issued, that such an event of default has
occurred and is continuing, unless such event of default has been cured or
waived or such Senior Indebtedness has been paid in full; provided, however, if
the maturity of such Senior Indebtedness is accelerated, no payment may be made
on the Debentures until such Senior Indebtedness has been paid in full in cash
or other payment satisfactory to the holders of such Senior Indebtedness or such
acceleration (or termination, in the case of a lease) has been cured or waived.
For purposes of this Section 15.09, such Payment Blockage Notice shall
be deemed to include notice of all other events of default under such indenture
or instrument which are continuing at the time of the event of default specified
in such Payment Blockage Notice. The provisions of this Section 15.09 shall
apply only to one such Payment Blockage Notice given in any period of 365 days
with respect to any issue of Senior Indebtedness, and no such continuing event
of default that existed or was continuing on the date of delivery of any Payment
Blockage Notice shall be, or shall be made, the basis for a subsequent Payment
Blockage Notice.
ARTICLE XVI
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 16.01 Extension of Interest Payment Period.
So long as no Event of Default has occurred and is continuing, the
Company shall have the right, at any time and from time to time during the term
of the Debentures of any series, to defer payments of interest by extending the
interest payment period of such Debentures of such series for a period not
exceeding [__] consecutive [semi-annual] periods, including the first such
[semi-annual] period during such extension period (the "Extended Period"),
during which Extended Period no interest shall be due and payable, provided that
no Extended Period shall end on a date other than an Interest Payment Date or
extend beyond the Stated Maturity Date. To the extent permitted by applicable
law, interest, the payment of which has been deferred because of the extension
of the interest payment period pursuant to this Section 16.01, will bear
interest thereon at the Coupon Rate compounded semi-annually for each
semi-annual period during the Extended Period ("Compounded Interest"). At the
end of the Extended Period, the Company shall pay all interest accrued and
unpaid on the Debentures of such series, including any Additional Sums and
Compounded Interest (together, "Deferred Interest"), that shall be payable to
the holders of the Debentures of such series in whose names the Debentures are
registered in the Debenture Register on the record date immediately preceding
the end of the Extended Period. Before the termination of any Extended Period,
the Company may further defer payments of interest by further extending such
Extended Period, provided that such Extended Period, together with all such
previous and further extensions within such Extended Period, shall not (i)
exceed [__] consecutive [semi-annual] periods, including the first such
[semi-annual] period during such Extended Period, (ii) end on a date other than
an Interest Payment Date or (iii) extend beyond the Stated Maturity Date of the
Debentures of such series. Upon the termination of any Extended Period and the
payment of all amounts then due, the Company may commence a new Extended Period,
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subject to the foregoing requirements. No interest shall be due and payable
during an Extended Period, except at the end thereof, but the Company may redeem
at any time all or any portion of the interest accrued during an Extended
Period.
SECTION 16.02 Notice of Extension.
(a) If the Property Trustee is the only holder of the Debentures of
any series at the time the Company elects to commence an Extended
Period, the Company shall give written notice to the
Administrative Trustees, the Property Trustee and the Trustee of
its election to commence such Extended Period at least five
Business Days before the earlier of (i) the next succeeding date
on which Distributions on the Trust Securities would have been
payable, and (ii) the date the Property Trustee is required to
give notice of the record date, or the date such Distributions
are payable, to any national securities exchange or to holders of
the Preferred Securities, but in any event at least five Business
Days before such record date.
(b) If the Property Trustee is not the only holder of the Debentures
of such series at the time the Company elects to commence an
Extended Period, the Company shall give the holders of the
Debentures of such series and the Trustee written notice of its
election of such Extended Period at least 10 Business Days before
the earlier of (i) the next succeeding Interest Payment Date, and
(ii) the date the Trustee is required to give notice of the
record or payment date of such interest payment to any national
securities exchange.
(c) The [semi-annual] period in which any notice is given pursuant to
paragraphs (a) or (b) of this Section 16.02 shall be counted as
one of the [__] semi-annual periods permitted in the maximum
Extended Period permitted under Section 16.01. The Bank of New
York hereby accepts the trusts in this Indenture declared and
provided, upon the terms and conditions hereinabove set forth.
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ARTICLE XVII
[CONVERSION OF debentures]
SECTION 17.01 [Conversion Rights
The Debentures or any portion of the principal amount thereof that is
$[_____] or an integral multiple of $[_____] shall be convertible into a number
of fully paid and nonassessable shares (calculated as to each conversion to the
nearest 1/100th of a share) of Common Stock in accordance with their terms and
in accordance with and subject to this Article. In case a Debenture or portion
thereof is called for redemption, such conversion right in respect of the
Debenture or portion so called shall expire at the close of business on the
Business Day that is 10 days prior to the Redemption Date, unless the Company
defaults in making the payment due upon redemption.
The price at which shares of Common Stock shall be delivered upon
conversion, which shall be specified pursuant to Section 2.01, shall be referred
to herein as the "Conversion Price". The Conversion Price shall be adjusted in
certain instances as provided in paragraphs (a), (b), (c), (d) and (g) of
Section 17.04.
SECTION 17.02 Exercise of Conversion Privilege
To convert all or a portion of the Debentures, the Holder thereof shall
deliver to the office or agency maintained by the Company for such purpose (the
"Conversion Agent") a Conversion Request setting forth the principal amount of
Debentures to be converted, together with the name or names, if other than the
Holder, in which the shares of Common Stock should be issued upon conversion
and, if such Debentures are in certificate form, surrender to the Conversion
Agent the Debentures to be converted, duly endorsed or assigned to the Company
or in blank. In addition, a holder of Preferred Scurities may exercise its right
under the Trust Agreement to exchange such Preferred Securities for Debentures
which shall be converted into Common Stock by delivering to the Conversion Agent
a Conversion Request setting forth the information called for in the preceding
sentence and directing the Conversion Agent (i) to exchange such Preferred
Security for a portion of the Debentures held by the Trust and (ii) to
immediately convert such Debentures, on behalf of such Holder, into Common Stock
pursuant to this Article and, if such Preferred Securities are in certificate
form, surrendering such Preferred Securities, duly endorsed or assigned to the
Company or in blank. So long as any Preferred Securities are outstanding,
Debentures shall not be converted into shares of Common Stock except pursuant to
a Conversion Request delivered to the Conversion Agent by a holder of Preferred
Securities. Debentures surrendered for conversion during the period from the
close of business on any Regular Record Date next preceding any Interest Payment
Date to the opening of business on such Interest Payment Date shall (except in
the case of Debentures or portions thereof that 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 of
Debentures being surrendered for conversion. Except as provided in the preceding
sentence and in Section 2.05, no payment or adjustment shall be made upon any
conversion on account of any interest accrued on the Debentures surrendered for
conversion or on account of any dividends on the Common Stock issued upon
conversion.
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Each conversion shall be deemed to have been effected immediately prior
to 5:00 p.m., New York, New York time, on the Business Day on which the
Conversion Request and any other required deliveries were received (the
"Conversion Date") by the Conversion Agent from the Holder or from a holder of
the Preferred Securities effecting a conversion thereof pursuant to its
conversion rights under the Trust Agreement, as the case may be. The person or
persons entitled to receive the Common Stock issuable upon such conversion shall
be treated for all purposes as a record holder or holders of such Common Stock
as of the Conversion Date. As promptly as practicable on or after the Conversion
Date, the Company shall issue and deliver at the office of the Conversion Agent,
unless otherwise directed by the Holder in the Conversion Request, a certificate
or certificates for the number of full shares of Common Stock issuable upon such
conversion, together with the cash payment, if any, in lieu of any fraction of
any share to the Person or Persons entitled to receive the same. The Conversion
Agent shall deliver such certificate or certificates to each person or persons,
together with payment in lieu of any fractional share, as provided in Section
17.03.
In the case of any Debenture that is converted in part only, upon such
conversion the Company shall execute and the Trustee shall authenticate and
deliver to the Holder thereof, at the expense of the Company, a new Debenture or
Debentures of authorized denominations in aggregate principal amount equal to
the portion of the principal amount of such Debenture not converted.
In effecting the conversion transactions described in this Section
17.02, the Conversion Agent is acting as agent of the holders of Preferred
Securities (in the exchange of Preferred Securities for Debentures) and as agent
of the Holders (in the exchange of Debentures into Common Stock), as the case
may be, directing it to effect such conversion transactions. The Conversion
Agent is hereby authorized (i) to exchange Preferred Securities for Debentures
held by the Trust from time to time in connection with the conversion of such
Preferred Securities in accordance with this Article, and (ii) to convert all or
a portion of the Debentures into Common Stock and thereupon to deliver such
shares of Common Stock in accordance with the provisions of this Article and to
deliver to the Trust a new Debenture or Debentures for any resulting unconverted
principal amount.
SECTION 17.03 Fractional Shares
No fractional shares of Common Stock shall be issued upon
conversion. If more than one Debenture or Preferred Security shall be
surrendered for conversion at one time by the same Holder, the number of full
shares that shall be issuable upon conversion thereof shall be computed on the
basis of the aggregate principal amount of the Debentures or Preferred
Securities (or specified portions thereof) so surrendered. Instead of a
fractional share of Common Stock that would otherwise be issuable upon
conversion of any Debenture or or Preferred Security (or specified portions
thereof), the Company shall pay to the Conversion Agent a cash adjustment in
respect of such fraction in an amount equal to the same fraction of the market
price per share of Common Stock (as determined by the Board of Directors or in
any manner prescribed by the Board of Directors) at the close of business on the
day of conversion and the Conversion Agent in turn shall make such payment, if
any, to the Holder or the holder of the Preferred Securities so converted.
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SECTION 17.04 Adjustment of Conversion Price
(a) In case the Company shall pay or make a dividend or other
distribution on any class of capital stock of the Company in
Common Stock, the Conversion Price in effect at the opening of
the Trading Day following the date fixed for the determination of
stockholders entitled to receive such dividend or other
distribution shall be reduced by multiplying such Conversion
Price by a fraction, the numerator of which shall be the number
of shares of Common Stock outstanding at the close of the Trading
Day on the date fixed for such determination and the denominator
of which shall be the sum of such number of shares and the total
number of shares constituting such dividend or other
distribution, such reduction to become effective immediately
after the opening of business on the day following the date fixed
for such determination. For the purposes of this paragraph (a),
the number of shares of Common Stock at any time outstanding
shall not include shares held in the treasury of the Company, but
shall include shares issuable in respect of scrip certificates
issued in lieu of fractional shares of Common Stock. The Company
will not pay any dividend or make any distribution on shares of
Common Stock held in the treasury of the Company.
(b) In case the Company shall issue rights or warrants to all holders
of its Common Stock entitling them to subscribe for or purchase
shares of Common Stock at a price per share less than the current
market price per share (determined as provided in paragraph (f)
of this Section) of the Common Stock on the dated fixed for the
determination of stockholders entitled to receive such rights or
warrants, the Conversion Price in effect at the opening of the
Trading Day following the date fixed for such determination shall
be reduced by multiplying such Conversion Price by a fraction,
the numerator of which shall be the number of shares of Common
Stock outstanding at the close of business on the date fixed for
such determination plus the number of shares of Common Stock that
the aggregate of the offering price of the total number of shares
of Common Stock so offered for subscription or purchase would
purchase at such current market price and the denominator of
which shall be the number of shares of Common Stock outstanding
at the close of business on the date fixed for such determination
plus the number of shares of Common Stock so offered for
subscription or purchase, such reduction to become effective
immediately after the opening of the Trading Day following the
date fixed for determination. For the purposes of this paragraph
(b), the number of shares of Common Stock at any time outstanding
shall not include shares held in the treasury of the Company, but
shall include shares issuable in respect of scrip certificates
issued in lieu of fractional shares of Common Stock. The Company
will not issue any rights or warrants in respect of shares of
Common Stock held in the treasury of the Company.
(c) In case outstanding shares of Common Stock shall be subdivided
into a greater number of shares of Common Stock, the Conversion
Price in effect at the opening of the Trading Day following the
day upon which such subdivision becomes effective shall be
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proportionately reduced and, conversely, in the case that
outstanding shares of Common Stock shall be combined into a
smaller number of shares of Common Stock, the Conversion Price in
effect at the opening of business on the day following the day
upon which such combination becomes effective shall be
proportionately increased, such reduction or increase, as the
case may be, to become effective immediately after the opening of
business on the day following the day upon which such subdivision
or combination becomes effective.
(d) In case the Company shall, by dividend or otherwise, distribute
to all holders of its Common Stock evidences of its Indebtedness
or assets (including securities, but excluding any rights or
warrants referred to in paragraph (b) of this Section, any
dividend or distribution paid in cash out of the retained
earnings of the Company and any dividend or distribution referred
to in paragraph (a) of this Section), the Conversion Price shall
be adjusted so that the same shall equal the price determined by
multiplying the Conversion Price in effect immediately prior to
the close of business on the date fixed for the determination of
stockholders entitled to receive such distribution by a fraction,
the numerator of which shall be the current market price share
(determined as provided in paragraph (f) of this Section) of the
Common Stock on the date fixed for such determination less the
then fair market value (as determined by the Board of Directors,
whose determination shall be conclusive and described in a Board
Resolution filed with the Trustee) of the portion of the assets
or evidences of Indebtedness so distributed applicable to one
share of Common Stock and the denominator of which shall be such
current market price per share of the Common Stock, such
adjustment to become effective immediately prior to the opening
of business on the day following the date fixed for the
determination of stockholders entitled to receive such
distribution.
(e) The reclassification of Common Stock into securities other than
Common Stock (other than any reclassification upon a
consolidation or merger, to which Section 17.11 applies) shall be
deemed to involve (i) a distribution of such securities other
than Common Stock to all holders of Common Stock (and the
effective date of such reclassification shall be deemed to be
"the date fixed for the determination of stockholders entitled to
receive such distribution" and "the date fixed for such
determination" within the meaning of paragraph (d) of this
Section) and (ii) a subdivision or combination, as the case may
be, of the number of shares of Common Stock outstanding
immediately prior to such reclassification into the number of
shares of Common Stock outstanding immediately thereafter (and
the effective date of such reclassification shall be deemed to be
"the day upon which such subdivision becomes effective" or "the
day upon which such combination becomes effective", as the case
may be, and "the day upon which such subdivision or combination
becomes effective" within the meaning of paragraph (c) of this
Section).
(f) For the purpose of any computation under paragraphs (b) and (d)
of this Section, the current market price per share of Common
Stock on any date shall be deemed to be the average of the daily
closing prices for the five consecutive Trading Days selected by
the Company commencing not more than 20 Trading Days before, and
ending not later than, the earlier of the day in question and the
day before the "ex" date with respect to the issuance or
distribution requiring such computation. The closing price for
each day shall be the last reported sales price regular way or,
in case that no such reported sale takes place on such day, the
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average of the reported closing bid and asked prices regular way,
in either case on the New York Stock Exchange or, if the Common
Stock is not listed or admitted to trading on such Exchange, on
the principal national securities exchange on which the Common
Stock is listed or admitted to trading or, if not listed or
admitted to trading on any national securities exchange, on the
Nasdaq National Market or, if the Common Stock is not listed or
admitted to trading on any national securities exchange or quoted
on the Nasdaq National Market, the average of the closing bid and
asked prices in the over-the-counter market as furnished by any
New York Stock Exchange member firm selected from time to time by
the Company for that purpose. For purposes of this paragraph, the
term "`ex date", when used with respect to any issuance or
distribution, means the first date on which the Common Stock
trades regular way on such exchange or in such market without the
right to receive such issuance or distribution.
(g) The Company may make such reductions in the Conversion Price, in
addition to those required by paragraphs (a), (b), (c) and (d) of
this Section, as it considers to be advisable in order that any
event treated for federal income tax purposes as a dividend of
stock or stock rights shall not be taxable to the recipients.
SECTION 17.05 Notice of Adjustments of Conversion Price
Whenever the Conversion Price is adjusted as herein provided:
(a) the Company shall compute the adjusted Conversion Price in
accordance with Section 17.04 and shall prepare a certificate
signed by the Treasurer of the Company setting forth the adjusted
Conversion Price and showing in reasonable detail the facts upon
which such adjustment is based, and such certificate shall
forthwith be filed at the Trustee, the Conversion Agent and the
transfer agent for the Preferred Securities and the Debentures;
(b) a notice stating that the Conversion Price has been adjusted and
setting forth the adjusted Conversion Price shall forthwith be
required and, as soon as practicable after it is required, shall
be mailed by the Company to all Holders and all holders of
Preferred Securities at their last addresses as they shall appear
in the Register.
SECTION 17.06 Notice of Certain Corporate Action
In case:
(a) the Company shall declare a dividend (or any other distribution)
on the Common Stock payable otherwise than in cash out of its
retained earnings; or
(b) the Company shall authorize the granting to the holders of the
Common Stock of rights or warrants to subscribe for or purchase
any shares of capital stock of any class or of any other rights;
or
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(c) of any reclassification of the Common Stock (other than a
subdivision or combination of its outstanding shares of Common
Stock), or of any consolidation or merger to which the Company is
a party and for which approval of any stockholders of the Company
is required, or of the sale or transfer of all or substantially
all of the assets of the Company; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company;
then the Company shall (i) if any Preferred Securities are outstanding, cause
to be filed with the Property Trustee and the transfer agent for the Preferred
Securities, and shall cause to be mailed to all holders of record of the
Preferred Securities at their last addresses as they shall appear in the
Preferred Securities register of the Trust, or (2) cause to be mailed to all
Holders at their last addresses as they shall appear in the Debenture Register,
at least 20 days (or 10 days in any case specified in clause (a) or (b) above)
prior to the applicable record or effective date hereinafter specified, a notice
stating (y) the date on which a record is to be taken for the purpose of such
dividend, distribution, rights or warrants, or, if a record is not to be taken,
the date as of which the holders of Common Stock of record to be entitled to
such dividend, distribution, rights or warrants are to be determined, or (z) the
date on which such reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding up is expected to become effective, and the
date as of which it is expected that holders of Common Stock of record shall be
entitled to exchange their shares of Common Stock for securities, cash or other
property deliverable upon such reclassification, consolidation, merger, sale,
transfer, dissolution, liquidation or winding up (but no failure to mail such
notice or any defect therein or in the mailing thereof shall affect the validity
of the corporate action required to be specified in such notice).
SECTION 17.07 Company to Reserve Common Stock
The Company shall at all times reserve and keep available, free
from preemptive rights, out of its authorized but unissued Common Stock, for the
purpose of effecting the conversion of Debentures, the full number of shares of
Common Stock then issuable upon the conversion of all outstanding Debentures.
SECTION 17.08 Taxes on Conversions
The Company will pay any and all taxes that may be payable in
respect of the issue or delivery of shares of Common Stock on conversion of
Debentures pursuant hereto. The Company shall not, however, be required to pay
any tax that may be payable in respect of any transfer involved in the issue and
delivery of shares of Common Stock in a name other than that of the Holder of
the Debenture or Debentures to be converted, and no such issue or delivery shall
be made unless and until the Person requesting such issue has paid to the
Company the amount of any such tax, or has established to the satisfaction of
the Company that such tax has been paid.
SECTION 17.09 Covenant as to Common Stock
The Company covenants that all shares of Common Stock that may be
issued upon conversion of Debentures will upon issue be fully paid and
nonassessable and, except as provided in Section 17.08, the Company will pay all
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taxes, liens and charges with respect to the issue thereof.
SECTION 17.10 Cancellation of Converted Debentures
All Debentures delivered for conversion shall be delivered to the
Trustee to be cancelled by or at the direction of the Trustee, which shall
dispose of the same as provided in Section 3.09.
SECTION 17.11 Provisions in Case of Consolidation, Merger or Sale of Assets
In case of any consolidation of the Company with, or merger of the
Company into, any other Person, any merger of another Person into the Company
(other than a merger that does not result in any reclassification, conversion,
exchange or cancellation of outstanding shares of Common Stock) or any sale or
transfer of all or substantially all of the assets of the Company, the Person
formed by such consolidation or resulting from such merger or which acquires
such assets, as the case may be, shall execute and deliver to the Trustee a
supplemental indenture providing that the Holder of each Debenture then
outstanding shall have the right thereafter, during the period such Debenture
shall be convertible as specified in Section 17.01, to convert such Debenture
only into the kind and amount of securities, cash and other property receivable
upon such consolidation, merger, sale or transfer by a holder of the number of
shares of Common Stock into which such Debenture might have been converted
immediately prior to such consolidation, merger, sale or transfer, assuming such
holder of Common Stock (i) is not a Person with which the Company consolidated
or into which the Company merged or which merged into the Company or to which
such sale or transfer was made, as the case may be ("constituent Person"), or an
Affiliate of a constituent Person and (ii) failed to exercise his rights of
election, if any, as to the kind or amount of securities, cash and other
property receivable upon such consolidation, merger, sale or transfer (provided
that if the kind or amount of securities, cash and other property receivable
upon such consolidation, merger, sale or transfer is not the same for each share
of Common Stock of the Company held immediately prior to such consolidation,
merger, sale or transfer by others than a constituent Person or an Affiliate
thereof and in respect of which such rights of election shall not have been
exercised ("nonelecting share"), then for the purpose of this Section the kind
and amount of securities, cash and other property receivable upon such
consolidation, merger, sale or transfer by each nonelecting share shall be
deemed to be the kind and amount so receivable per share by a plurality of the
nonelecting shares). Such supplemental indenture shall provide for adjustments
that, for events subsequent to the effective date of such supplemental
indenture, shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Article. The above provisions of this Section
shall similarly apply to successive consolidations, mergers, sales or transfers.
The Company shall be solely responsible for performing the duties and
responsibilities contained in this Article and the Trustee shall have no
responsibility therefor.]
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed by their respective officers thereunto duly authorized, as of the
day and year first above written.
COMMERCE BANCORP, INC.
By:
---------------------------
Name:
Title:
THE BANK OF NEW YORK,
as Trustee
By:
---------------------------
Name:
Title:
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