EXHIBIT 4.1
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FIRST HAWAIIAN, INC.
to
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
______________________
JUNIOR SUBORDINATED INDENTURE
Dated as of June 30, 1997
______________________
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FIRST HAWAIIAN, INC.
Reconciliation and tie between the Trust Indenture Act of 1939
(including cross-references to provisions of Sections 310 to and including
317 which, pursuant to Section 318(c) of the Trust Indenture Act of 1939, as
amended by the Trust Reform Act of 1990, are a part of and govern the
Indenture whether or not physically contained therein) and the Junior
Subordinated Indenture, dated as of June 30, 1997.
Trust Indenture Indenture
Act Section Section
--------------- ----------
Section 310 (a) (1), (2) and (5). . . . . . . . . . . 6.9
(a) (3). . . . . . . . . . . . . . . . . Not Applicable
(a) (4). . . . . . . . . . . . . . . . . Not Applicable
(b). . . . . . . . . . . . . . . . . . . 6.8
. . . . . . . . . . . . . . . . . . . . . 6.10
(c). . . . . . . . . . . . . . . . . . . Not Applicable
Section 311 (a). . . . . . . . . . . . . . . . . . . 6.13
(b). . . . . . . . . . . . . . . . . . . 6.13
(b) (2). . . . . . . . . . . . . . . . . 6.13
. . . . . . . . . . . . . . . . . . . . . 6.13
Section 312 (a). . . . . . . . . . . . . . . . . . . 7.1
. . . . . . . . . . . . . . . . . . . . . 7.2(a)
(b). . . . . . . . . . . . . . . . . . . 7.2(b)
(c). . . . . . . . . . . . . . . . . . . 7.2(c)
Section 313 (a). . . . . . . . . . . . . . . . . . . 7.3(a)
(b). . . . . . . . . . . . . . . . . . . 7.3(b)
(c). . . . . . . . . . . . . . . . . . . 7.3(a), 7.3(b)
(d). . . . . . . . . . . . . . . . . . . 7.3(c)
Section 314 (a) (1), (2) and (3). . . . . . . . . . . 7.4
(a) (4). . . . . . . . . . . . . . . . . 10.5
(b). . . . . . . . . . . . . . . . . . . Not Applicable
(c) (1). . . . . . . . . . . . . . . . . 1.2
(c) (2). . . . . . . . . . . . . . . . . 1.2
(c) (3). . . . . . . . . . . . . . . . . Not Applicable
(d). . . . . . . . . . . . . . . . . . . Not Applicable
(e). . . . . . . . . . . . . . . . . . . 1.2
(f). . . . . . . . . . . . . . . . . . . Not Applicable
Section 315 (a). . . . . . . . . . . . . . . . . . . 6.1(a)
(b). . . . . . . . . . . . . . . . . . . 6.2
. . . . . . . . . . . . . . . . . . . . . 7.3(a)
(c). . . . . . . . . . . . . . . . . . . 6.1(b)
(d). . . . . . . . . . . . . . . . . . . 6.1(c)
(d) (1). . . . . . . . . . . . . . . . . 6.1(d) (1)
(d) (2). . . . . . . . . . . . . . . . . 6.1(d) (2)
(d) (3). . . . . . . . . . . . . . . . . 6.1(d) (3)
(e). . . . . . . . . . . . . . . . . . . 5.14
Section 316 (a). . . . . . . . . . . . . . . . . . . 1.1
(a) (1) (A). . . . . . . . . . . . . . . 5.12
(a) (1) (B). . . . . . . . . . . . . . . 5.13
(a) (2). . . . . . . . . . . . . . . . . Not Applicable
(b). . . . . . . . . . . . . . . . . . . 5.8
(c). . . . . . . . . . . . . . . . . . . 1.4(f)
Section 317 (a) (1). . . . . . . . . . . . . . . . . 5.3
(a) (2). . . . . . . . . . . . . . . . . 5.4
(b). . . . . . . . . . . . . . . . . . . 10.3
Section 318 (a). . . . . . . . . . . . . . . . . . . 1.7
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Junior Subordinated Indenture.
TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION . . . 1
SECTION 1.1. Definitions . . . . . . . . . . . . . . . . . . 1
SECTION 1.2. Compliance Certificate and Opinions . . . . . . 10
SECTION 1.3. Forms of Documents Delivered to Trustee . . . . 11
SECTION 1.4. Acts of Holders . . . . . . . . . . . . . . . . 12
SECTION 1.5. Notices, Etc. to Trustee and Corporation . . . . 14
SECTION 1.6. Notice to Holders; Waiver . . . . . . . . . . . 14
SECTION 1.7. Conflict with Trust Indenture Act . . . . . . . 15
SECTION 1.8. Effect of Headings and Table of Contents . . . . 15
SECTION 1.9. Successors and Assigns . . . . . . . . . . . . . 15
SECTION 1.10. Separability Clause . . . . . . . . . . . . . . 15
SECTION 1.11. Benefits of Indenture . . . . . . . . . . . . . 15
SECTION 1.12. Governing Law . . . . . . . . . . . . . . . . . 16
SECTION 1.13. Non-Business Days . . . . . . . . . . . . . . . 16
ARTICLE II
SECURITY FORMS . . . . . . . . . . . . . 16
SECTION 2.1. Forms Generally . . . . . . . . . . . . . . . . 16
SECTION 2.2. Form of Face of Security . . . . . . . . . . . . 17
SECTION 2.3. Form of Reverse of Security . . . . . . . . . . 21
SECTION 2.4. Additional Provisions Required in Global
Security . . . . . . . . . . . . . . . . . . 24
SECTION 2.5. Form of Trustee's Certificate of
Authentication . . . . . . . . . . . . . . . 24
ARTICLE III
THE SECURITIES . . . . . . . . . . . . . 25
SECTION 3.1. Title and Terms . . . . . . . . . . . . . . . . 25
SECTION 3.2. Denominations . . . . . . . . . . . . . . . . . 28
SECTION 3.3. Execution, Authentication, Delivery and
Dating . . . . . . . . . . . . . . . . . . . 28
SECTION 3.4. Temporary Securities . . . . . . . . . . . . . . 30
SECTION 3.5. Global Securities . . . . . . . . . . . . . . . 30
SECTION 3.6. Registration, Transfer and Exchange
Generally; Certain Transfers and
Exchanges; Securities Act Legends;
Exchange Offer . . . . . . . . . . . . . . . 32
SECTION 3.7. Mutilated, Destroyed, Lost and Stolen
Securities . . . . . . . . . . . . . . . . . 35
SECTION 3.8. Payment of Interest and Additional Interest;
Interest Rights Preserved . . . . . . . . . . 36
SECTION 3.9. Persons Deemed Owners . . . . . . . . . . . . . 38
SECTION 3.10. Cancellation . . . . . . . . . . . . . . . . . . 38
SECTION 3.11. Computation of Interest . . . . . . . . . . . . 38
SECTION 3.12. Deferrals of Interest Payment Dates . . . . . . 38
SECTION 3.13. Right of Set-Off . . . . . . . . . . . . . . . . 40
SECTION 3.14. Agreed Tax Treatment . . . . . . . . . . . . . . 40
SECTION 3.15. Shortening of Stated Maturity . . . . . . . . . 40
SECTION 3.16. CUSIP Numbers . . . . . . . . . . . . . . . . . 40
ARTICLE IV
SATISFACTION AND DISCHARGE . . . . . . . . . . 41
SECTION 4.1. Satisfaction and Discharge of Indenture . . . . 41
SECTION 4.2. Application of Trust Money . . . . . . . . . . . 42
ARTICLE V
REMEDIES . . . . . . . . . . . . . . 42
SECTION 5.1. Events of Default . . . . . . . . . . . . . . . 42
SECTION 5.2. Acceleration of Maturity; Rescission and
Annulment . . . . . . . . . . . . . . . . . . 43
SECTION 5.3. Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . . . 45
SECTION 5.4. Trustee May File Proofs of Claim . . . . . . . . 46
SECTION 5.5. Trustee May Enforce Claim Without Possession
of Securities . . . . . . . . . . . . . . . . 46
SECTION 5.6. Application of Money Collected . . . . . . . . . 47
SECTION 5.7. Limitation on Suits . . . . . . . . . . . . . . 47
SECTION 5.8. Unconditional Right of Holders to Receive
Principal, Premium and Interest; Direct
Action by Holders of Capital Securities . . . 48
SECTION 5.9. Restoration of Rights and Remedies . . . . . . . 48
SECTION 5.10. Rights and Remedies Cumulative . . . . . . . . . 49
SECTION 5.11. Delay or Omission Not Waiver . . . . . . . . . . 49
SECTION 5.12. Control by Holders . . . . . . . . . . . . . . . 49
SECTION 5.13. Waiver of Past Defaults . . . . . . . . . . . . 49
SECTION 5.14. Undertaking for Costs . . . . . . . . . . . . . 50
SECTION 5.15. Waiver of Usury, Stay or Extension Laws . . . . 50
ARTICLE VI
THE TRUSTEE . . . . . . . . . . . . . . 51
SECTION 6.1. Certain Duties and Responsibilities . . . . . . 51
SECTION 6.2. Notice of Defaults . . . . . . . . . . . . . . . 52
SECTION 6.3. Certain Rights of Trustee . . . . . . . . . . . 52
SECTION 6.4. Not Responsible for Recitals or Issuance of
Securities . . . . . . . . . . . . . . . . . 53
SECTION 6.5. May Hold Securities . . . . . . . . . . . . . . 53
SECTION 6.7. Compensation and Reimbursement . . . . . . . . . 54
SECTION 6.8. Disqualification; Conflicting Interests . . . . 54
SECTION 6.9. Corporate Trustee Required; Eligibility . . . . 55
SECTION 6.10. Resignation and Removal; Appointment of
Successor . . . . . . . . . . . . . . . . . . 55
SECTION 6.11. Acceptance of Appointment by Successor . . . . . 57
SECTION 6.12. Merger, Conversion, Consolidation or
Succession to Business . . . . . . . . . . . 58
SECTION 6.13. Preferential Collection of Claims Against
Corporation . . . . . . . . . . . . . . . . . 58
SECTION 6.14. Appointment of Authenticating Agent . . . . . . 58
ARTICLE VII
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND CORPORATION . . . 60
SECTION 7.1. Corporation to Furnish Trustee Names and
Addresses of Holders . . . . . . . . . . . . 60
SECTION 7.2. Preservation of Information, Communications
to Holders . . . . . . . . . . . . . . . . . 60
SECTION 7.3. Reports by Trustee . . . . . . . . . . . . . . . 61
SECTION 7.4. Reports by Corporation . . . . . . . . . . . . . 61
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE . . . 62
SECTION 8.1. Corporation May Consolidate, Etc., Only on
Certain Terms . . . . . . . . . . . . . . . . 62
SECTION 8.2. Successor Corporation Substituted . . . . . . . 62
ARTICLE IX
SUPPLEMENTAL INDENTURES . . . . . . . . . . . 63
SECTION 9.1. Supplemental Indentures Without Consent of
Holders . . . . . . . . . . . . . . . . . . . 63
SECTION 9.2. Supplemental Indentures with Consent of
Holders . . . . . . . . . . . . . . . . . . . 64
SECTION 9.3. Execution of Supplemental Indentures . . . . . . 66
SECTION 9.4. Effect of Supplemental Indentures . . . . . . . 66
SECTION 9.5. Conformity with Trust Indenture Act . . . . . . 66
SECTION 9.6. Reference in Securities to Supplemental
Indentures . . . . . . . . . . . . . . . . . 66
ARTICLE X
COVENANTS . . . . . . . . . . . . . . 67
SECTION 10.1. Payment of Principal, Premium and Interest . . . 67
SECTION 10.2. Maintenance of Office or Agency . . . . . . . . 67
SECTION 10.3. Money for Security Payments to be Held in
Trust . . . . . . . . . . . . . . . . . . . . 67
SECTION 10.4. Statement as to Compliance . . . . . . . . . . . 69
SECTION 10.5. Waiver of Certain Covenants . . . . . . . . . . 69
SECTION 10.6. Payment of Trust's Costs and Expenses . . . . . 69
SECTION 10.7. Additional Covenants . . . . . . . . . . . . . . 70
SECTION 10.8. Original Issue Discount . . . . . . . . . . . . 71
ARTICLE XI
REDEMPTION OF SECURITIES . . . . . . . . . . 71
SECTION 11.1. Applicability of This Article . . . . . . . . . 71
SECTION 11.2. Election to Redeem; Notice to Trustee . . . . . 71
SECTION 11.3. Selection of Securities to be Redeemed . . . . . 72
SECTION 11.4. Notice of Redemption . . . . . . . . . . . . . . 72
SECTION 11.5. Deposit of Redemption Price . . . . . . . . . . 73
SECTION 11.6. Payment of Securities Called for Redemption . . 73
SECTION 11.7. Right of Redemption of Securities Initially
Issued to an Issuer Trust . . . . . . . . . . 74
ARTICLE XII
SINKING FUNDS . . . . . . . . . . . . . 75
SECTION 12.1. Applicability of Article . . . . . . . . . . . . 75
SECTION 12.2. Satisfaction of Sinking Fund Payments with
Securities . . . . . . . . . . . . . . . . . 75
SECTION 12.3. Redemption of Securities for Sinking Fund . . . 75
ARTICLE XIII
SUBORDINATION OF SECURITIES . . . . . . . . . . 77
SECTION 13.1. Securities Subordinate to Senior Indebtedness . 77
SECTION 13.2. No Payment When Senior Indebtedness in
Default; Payment Over of Proceeds Upon
Dissolution, Etc . . . . . . . . . . . . . . 77
SECTION 13.3. Payment Permitted If No Default . . . . . . . . 79
SECTION 13.4. Subrogation to Rights of Holders of Senior
Indebtedness . . . . . . . . . . . . . . . . 79
SECTION 13.5. Provisions Solely to Define Relative Rights . . 80
SECTION 13.6. Trustee to Effectuate Subordination . . . . . . 80
SECTION 13.7. No Waiver of Subordination Provisions . . . . . 80
SECTION 13.8. Notice to Trustee . . . . . . . . . . . . . . . 81
SECTION 13.9. Reliance on Judicial Order or Certificate of
Liquidating Agent . . . . . . . . . . . . . . 82
SECTION 13.10. Trustee Not Fiduciary for Holders of Senior
Indebtedness . . . . . . . . . . . . . . . . 82
SECTION 13.11. Rights of Trustee as Holder of Senior
Indebtedness; Preservation of Trustee's
Rights . . . . . . . . . . . . . . . . . . . 82
SECTION 13.12. Article Applicable to Paying Agents . . . . . . 82
JUNIOR SUBORDINATED INDENTURE, dated as of June 30, 1997, between
FIRST HAWAIIAN, INC., a Delaware corporation (the "Corporation"), having its
principal office at First Hawaiian Center, 000 Xxxxxx Xxxxxx, Xxxxxxxx,
Xxxxxx 00000, and THE FIRST NATIONAL BANK OF CHICAGO, a national banking
association, as Trustee (the "Trustee").
RECITALS OF THE CORPORATION
WHEREAS, the Corporation has duly authorized the execution and
delivery of this Indenture to provide for the issuance from time to time of
its unsecured junior subordinated debt securities in series (the
"Securities") of substantially the tenor hereinafter provided, including
Securities issued to evidence loans made to the Corporation with the proceeds
from the issuance from time to time by one or more business trusts (each an
"Issuer Trust") of preferred undivided beneficial interests in the assets of
such Issuer Trusts (the "Capital Securities") and common undivided interests
in the assets of such Issuer Trusts (the "Common Securities"), and to provide
the terms and conditions upon which the Securities are to be authenticated,
issued and delivered; and
WHEREAS, all things necessary to make this Indenture a valid
agreement of the Corporation, in accordance with its terms, have been done.
NOW THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities or of
any series thereof, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(a) The terms defined in this Article have the meanings assigned
to them in this Article, and include the plural as well as the singular;
(b) All other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(c) All accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles;
(d) Whenever the context may require, any gender shall be deemed
to include the others;
(e) Unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case
may be, of this Indenture; and
(f) The words "hereby", "herein", "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a whole and not
to any particular Article, Section or other subdivision.
"Act" when used with respect to any Holder has the meaning
specified in Section 1.4.
"Additional Interest" means the interest, if any, that shall accrue
on any interest on the Securities of any series the payment of which has not
been made on the applicable Interest Payment Date or that has been deferred
during an Extension Period, and that shall accrue at the rate per annum
specified or determined as specified in such Security.
"Additional Taxes" means any additional taxes, duties and other
governmental charges to which an Issuer Trust has become subject from time to
time as a result of a Tax Event.
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agent Member" means any member of, or participant in, the
Depositary.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Security or beneficial interest therein, the
rules and procedures of the Depositary for such Security, in each case to the
extent applicable to such transaction and as in effect from time to time.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 6.14 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Bankruptcy Code" means Title 11 of the United States Code or any
successor statute thereto, in each case as amended from time to time.
"Board of Directors" means the board of directors of the
Corporation or the Executive Committee of the board of directors of the
Corporation (or any other committee of the board of directors of the
Corporation performing similar functions) or a committee designated by the
board of directors of the Corporation (or such committee), comprised of two
or more members of the board of directors of the Corporation or officers of
the Corporation, or both.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Corporation to have been duly
adopted by the Board of Directors, or officers of the Corporation to which
authority to act on behalf of the Board of Directors has been delegated, and
to be in full force and effect on the date of such certification, and
delivered to the Trustee.
"Business Day" means any day other than (i) a Saturday or Sunday,
(ii) a day on which banking institutions in The City of New York or Honolulu,
Hawaii are authorized or required by law or executive order to remain closed,
or (iii) a day on which the Corporate Trust Office of the Trustee, or, with
respect to Securities of a series initially issued to an Issuer Trust for so
long as such Securities are held by such Issuer Trust, the Corporate Trust
Office (as defined in the related Trust Agreement) of the Property Trustee or
the Delaware Trustee under the related Trust Agreement, is closed for
business.
"Capital Securities" has the meaning specified in the first recital
of this Indenture.
"Capital Treatment Event" means, in respect of any Issuer Trust,
the reasonable determination by the Corporation (as evidenced by an Officers'
Certificate delivered to the Trustee) that, as a result of the occurrence of
any amendment to, or change (including any announced proposed change) in, the
laws (or any rules or regulations thereunder) of the United States or any
political subdivision thereof or therein, or as a result of any official or
administrative pronouncement or action or judicial decision interpreting or
applying such laws, rules or regulations, which amendment or change is
effective or such pronouncement, action or decision is announced on or after
the date of the issuance of the Capital Securities of such Issuer Trust,
there is more than an insubstantial risk that the Corporation will not be
entitled to treat an amount equal to the aggregate Liquidation Amount (as
such term is defined in the related Trust Agreement) of such Capital
Securities as "Tier 1 Capital" (or the then equivalent thereof) for purposes
of the capital adequacy guidelines of the Board of Governors of the Federal
Reserve System, as then in effect and applicable to the Corporation.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or if at any time
after the execution of this instrument such Securities and Exchange
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties on such date.
"Common Securities" has the meaning specified in the first recital
of this Indenture.
"Corporate Trust Office" means the principal office of the Trustee
at which at any particular time its corporate trust business shall be
administered.
"corporation" includes a corporation, association, company, limited
liability company, joint-stock company or business trust.
"Corporation" means the Person named as the "Corporation" in the
first paragraph of this instrument until a successor corporation shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter "Corporation" shall mean such successor corporation.
"Corporation Request" and "Corporation Order" mean, respectively, a
written request or order signed in the name of the Corporation by its
Chairman of the Board of Directors, its Vice Chairman of the Board of
Directors, its President, one of its Vice Presidents, and by its Treasurer,
an Assistant Treasurer, its Secretary or an Assistant Secretary, and
delivered to the Trustee.
"Debt" means, with respect to any Person, whether recourse is to
all or a portion of the assets of such Person and whether or not contingent
and without duplication, (i) every obligation of such Person for money
borrowed; (ii) every obligation of such Person evidenced by bonds,
debentures, notes or other similar instruments, including obligations
incurred in connection with the acquisition of property, assets or
businesses; (iii) every reimbursement obligation of such Person with respect
to letters of credit, bankers' acceptances or similar facilities issued for
the account of such Person; (iv) every obligation of such Person issued or
assumed as the deferred purchase price of property or services (but excluding
trade accounts payable or accrued liabilities arising in the ordinary course
of business); (v) every capital lease obligation of such Person; (vi) all
indebtedness of the Corporation, whether incurred on or prior to the date of
this Indenture or thereafter 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 all dividends of another Person the payment of which, in
either case, such Person has guaranteed or is responsible or liable for,
directly or indirectly, as obligor or otherwise.
"Defaulted Interest" has the meaning specified in Section 3.8.
"Delaware Trustee" means, with respect to any Issuer Trust, the
Person identified as the "Delaware Trustee" in the related Trust Agreement,
solely in its capacity as Delaware Trustee of such Issuer Trust under such
Trust Agreement and not in its individual capacity, or its successor in
interest in such capacity, or any successor Delaware trustee appointed as
therein provided.
"Depositary" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more Global
Securities, the Person designated as Depositary by the Corporation pursuant
to Section 3.1 with respect to such series (or any successor thereto).
"Discount Security" means any security that provides for an amount
less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 5.2.
"Distributions", with respect to the Trust Securities issued by an
Issuer Trust, means amounts payable in respect of such Trust Securities as
provided in the related Trust Agreement and referred to therein as
"Distributions".
"Dollar" or "$" means the currency of the United States of America
that, as at the time of payment, is legal tender for the payment of public
and private debts.
"Event of Default", unless otherwise specified with respect to a
series of Securities as contemplated by Section 3.1, has the meaning
specified in Article V.
"Exchange Act" means the Securities Exchange Act of 1934 or any
successor statute thereto, in each case as amended from time to time.
"Expiration Date" has the meaning specified in Section 1.4.
"Extension Period" has the meaning specified in Section 3.12.
"Global Security" means a Security in the form prescribed in
Section 2.4 evidencing all or part of a series of Securities, issued to the
Depositary for such series or its nominee, and registered in the name of such
Depositary or its nominee.
"Guarantee Agreement" means, with respect to any Issuer Trust, the
Guarantee Agreement executed by the Corporation for the benefit of the
Holders of the Capital Securities issued by such Issuer Trust, as modified,
amended or supplemented from time to time.
"Holder" means a Person in whose name a Security is registered in
the Securities Register.
"Indenture" means this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of each particular series of Securities
established as contemplated by Section 3.1.
"Institutional Accredited Investor" means an accredited investor
within the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D under
the Securities Act.
"Interest Payment Date" means, as to each series of Securities, the
Stated Maturity of an installment of interest on such Securities.
"Issuer Trust" has the meaning specified in the first recital of
this Indenture.
"Maturity" when used with respect to any Security means the date on
which the principal of such Security or any installment of principal becomes
due and payable as therein or herein provided, whether at the Stated Maturity
or by declaration of acceleration, call for redemption or otherwise.
"Notice of Default" means a written notice of the kind specified in
Section 5.1(3).
"Officers' Certificate" means a certificate signed by the Chairman
of the Board, a Vice Chairman of the Board, the President or a Vice
President, the Treasurer, any Assistant Treasurer, the Secretary or any
Assistant Secretary, of the Corporation and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for or an employee of the Corporation or any Affiliate of the
Corporation.
"Original Issue Date" means the date of issuance specified as such
in each Security.
"Outstanding" means, when used in reference to any Securities, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities for whose payment money in the necessary amount has
been theretofore deposited with the Trustee or any Paying Agent in trust
for the Holders of such Securities; and
(iii) Securities in substitution for or in lieu of which other
Securities have been authenticated and delivered or that have been paid
pursuant to Section 3.7, unless proof satisfactory to the Trustee is
presented that any such Securities are held by Holders in whose hands
such Securities are valid, binding and legal obligations of the
Corporation;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities
owned by the Corporation or any other obligor upon the Securities or any
Affiliate of the Corporation or such other obligor shall be disregarded and
deemed not to be Outstanding, except that, in determining whether the Trustee
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities that the Trustee knows
to be so owned shall be so disregarded. Securities so owned that have been
pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Corporation
or any other obligor upon the Securities or any Affiliate of the Corporation
or such other obligor. Upon the written request of the Trustee, the
Corporation shall furnish to the Trustee promptly an Officers' Certificate
listing and identifying all Securities, if any, known by the Corporation to
be owned or held by or for the account of the Corporation or any other
obligor on the Securities, or any Affiliate of the Corporation or such
obligor, and subject to the provisions of Section 6.1, the Trustee shall be
entitled to accept such Officers' Certificate as conclusive evidence of the
facts therein set forth and of the fact that all Securities not listed
therein are Outstanding for the purpose of any such determination.
Notwithstanding anything herein to the contrary, Securities of any series
initially issued to an Issuer Trust that are owned by such Issuer Trust shall
be deemed to be Outstanding notwithstanding the ownership by the Corporation
or an Affiliate of any beneficial interest in such Issuer Trust.
"Paying Agent" means the Trustee or any Person authorized by the
Corporation to pay the principal of (or premium, if any) or interest on, or
other amounts in respect of, any Securities on behalf of the Corporation.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, trust, unincorporated
association, or government or any agency or political subdivision thereof, or
any other entity of whatever nature.
"Place of Payment" means, with respect to the Securities of any
series, the place or places where the principal of (and premium, if any) and
interest (including any Additional Interest) on the Securities of such series
are payable pursuant to Section 3.1.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security. For the purposes of this definition,
any security authenticated and delivered under Section 3.7 in exchange for or
in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"Proceeding" has the meaning specified in Section 13.2.
"Property Trustee" means, with respect to any Issuer Trust, the
Person identified as the "Property Trustee" in the related Trust Agreement,
solely in its capacity as Property Trustee of such Issuer Trust under such
Trust Agreement and not in its individual capacity, or its successor in
interest in such capacity, or any successor property trustee appointed as
therein provided.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture or the terms of such Security.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture or the terms of such Security.
"Regular Record Date" for the interest payable on any Interest
Payment Date with respect to the Securities of a series means, unless
otherwise provided pursuant to Section 3.1 with respect to Securities of such
series, the day that is fifteen days next preceding such Interest Payment
Date (whether or not a Business Day).
"Responsible Officer", when used with respect to the Trustee, means
the chairman or any vice-chairman of the board of directors, the chairman or
any vice-chairman of the executive committee of the board of directors, the
chairman of the trust committee, the president, any vice president, the
secretary, any assistant secretary, the treasurer, any assistant treasurer,
the cashier, any assistant cashier, any trust officer or assistant trust
officer, the controller or any assistant controller or any other officer of
the Trustee customarily performing functions similar to those performed by
any of the above designated officers and also means, with respect to a
particular matter, any other officer to whom such matter is referred because
of such officer's knowledge of and familiarity with the particular subject.
"Restricted Securities Certificate" means a certificate
substantially in the form of Exhibit A.
"Restricted Securities Legend" means a legend substantially in the
form of the legend required in the form of Security set forth in Section 2.2
to be placed upon a Restricted Security.
"Restricted Security" means each Security required pursuant to
Section 3.6(c) to bear the Restricted Securities Legend.
"Rights Plan" means a plan of the Corporation providing for the
issuance by the Corporation to all holders of its common stock of rights
entitling the holders thereof to subscribe for or purchase shares of any
class or series of capital stock of the Corporation, which rights are
(i) deemed to be transferred with such shares of such common stock and
(ii) also issued in respect of future issuances of such common stock, in each
case until the occurrence of a specified event or events.
"Rule 144A Information" shall be such information with respect to
the Corporation as is specified pursuant to Rule 144A(d)(4) under the
Securities Act or any successor provision thereto, in each case as amended
from time to time.
"Security" means any debt security authenticated and delivered
under this Indenture.
"Securities Act" means the Securities Act of 1933 or any successor
statute thereto, in each case as amended from time to time.
"Securities Register" and "Securities Registrar" have the
respective meanings specified in Section 3.6.
"Senior Indebtedness" means the principal of (and premium, if any)
and interest, if any (including interest accruing on or after the filing of
any petition in bankruptcy or for reorganization relating to the Corporation
whether or not such claim for post-petition interest is allowed in such
proceeding), on Debt of the Corporation, whether incurred on or prior to the
date of this Indenture or thereafter incurred, unless, in the instrument
creating or evidencing the same or pursuant to which the same is outstanding,
it is provided that such obligations are not superior in right of payment to
the Securities or to other Debt that is pari passu with, or subordinated to,
the Securities, provided, however, that Senior Indebtedness shall not be
deemed to include (a) any Debt of the Corporation that, when incurred and
without respect to any election under Section 1111(b) of the Bankruptcy
Reform Act of 1978, was without recourse to the Corporation, (b) any Debt of
the Corporation to any of its Subsidiaries, (c) any Debt of the Corporation
to any Person who is an employee of the Corporation in such Person's capacity
as such, (d) any Securities, (e) trade accounts payable of the Corporation,
(f) accrued liabilities arising in the ordinary course of business of the
Corporation and (g) any Debt which by its terms is subordinated to trade
accounts payable or accrued liabilities arising in the ordinary course of
business to the extent that payments made to the holders of such Debt by the
holders of the Securities as a result of the subordination provisions of this
Indenture would be greater than such payments otherwise would have been
(absent giving effect to this clause (g)) as a result of any obligation of
such holders of such Debt to pay any amounts over to the obligees on such
trade accounts payable or accrued liabilities arising in the ordinary course
of business as a result of the subordination provisions to which such Debt is
subject.
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 3.8.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof (or premium, if any) or interest (including
any Additional Interest) thereon, means the date specified pursuant to the
terms of such Security as the fixed date on which the principal of such
Security or such installment of principal (or premium, if any) or interest
(including any Additional Interest) is due and payable, as such date may be
shortened as provided pursuant to the terms of such Security and this
Indenture, in the case of the Stated Maturity of any Security, and subject to
the deferral of any such date during any Extension Period, in the case of any
instalment of interest.
"Subsidiary" means a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Corporation or
by one or more other Subsidiaries, or by the Corporation and one or more
other Subsidiaries. For purposes of this definition, "voting stock" means
stock that ordinarily has voting power for the election of directors, whether
at all times or only so long as no senior class of stock has such voting
power by reason of any contingency.
"Successor Security" of any particular Security means every
Security issued after, and evidencing all or a portion of the same debt as
that evidenced by, such particular Security. For the purposes of this
definition, any Security authenticated and delivered under Section 3.7 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security
shall be deemed to evidence the same debt as the mutilated, destroyed, lost
or stolen Security.
"Tax Event" means the receipt by an Issuer Trust of an Opinion of
Counsel experienced in such matters to the effect that, as a result of any
amendment to, or change (including any announced proposed 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 proposed change, pronouncement or decision is announced on or after the
date of issuance of the Capital Securities of such Issuer Trust, there is
more than an insubstantial risk that (i) such Issuer Trust is or will be
within 90 days of the delivery of such Opinion of Counsel subject to United
States federal income tax with respect to income received or accrued on the
corresponding series of Securities issued by the Corporation to such Issuer
Trust, (ii) interest payable by the Corporation on such corresponding series
of Securities is not, or within 90 days of the delivery of such Opinion of
Counsel will not be, deductible by the Corporation, in whole or in part, for
United States federal income tax purposes, or (iii) such Issuer Trust is, or
within 90 days of the delivery of such Opinion of Counsel will be, subject to
more than a de minimis amount of other taxes, duties or other governmental
charges.
"Trust Agreement" means, with respect to any Issuer Trust, the
trust agreement or other governing instrument of such Issuer Trust.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument, solely in its capacity as such Trustee and not
in its individual capacity, until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder
and, if at any time there is more than one such Person, "Trustee" as used
with respect to the Securities of any series shall mean the Trustee with
respect to Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed; provided,
however, that if the Trust Indenture Act of 1939 is amended after such date,
"Trust Indenture Act" means the Trust Indenture Act of 1939 as so amended.
"Trust Securities" means the Common Securities and the Capital
Securities.
"Vice President," when used with respect to the Corporation, means
any duly appointed vice president, whether or not designated by a number or a
word or words added before or after the title "vice president."
SECTION 1.2. Compliance Certificate and Opinions.
Upon any application or request by the Corporation to the Trustee
to take any action under any provision of this Indenture, the Corporation
shall furnish to the Trustee an Officers' Certificate stating that all
conditions precedent (including covenants compliance with which constitutes a
condition precedent), if any, provided for in this Indenture relating to the
proposed action have been complied with and an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent (including
covenants compliance with which constitutes a condition precedent), if any,
have been complied with, except that in the case of any such application or
request as to which the furnishing of such documents is specifically required
by any provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than the
certificates provided pursuant to Section 10.4) shall include:
(1) a statement by each individual signing such certificate or
opinion that such individual has read such covenant or condition and the
definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions of
such individual contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such individual, he or she
has made such examination or investigation as is necessary to enable him
or her to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(4) a statement as to whether, in the opinion of such individual,
such condition or covenant has been complied with.
SECTION 1.3. Forms of Documents Delivered to Trustee.
In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and
one or more other such Persons may certify or give an opinion as to other
matters, and any of such Persons may certify or give an opinion as to such
matters contained in one or several documents.
Any certificate or opinion of an officer of the Corporation may be
based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate, opinion or
representations with respect to matters upon which his or her certificate or
opinion is based are erroneous. Any such certificate or Opinion of Counsel
may be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, one or more officers of the Corporation
stating that the information with respect to such factual matters is in the
possession of the Corporation, unless such counsel knows, or in the exercise
of reasonable care should know, that the certificate, opinion or
representations with respect to matters upon which his or her certificate or
opinion is based are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions, or
other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
SECTION 1.4. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given to or
taken by Holders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Holders in person or by an
agent duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or
instruments is or are delivered to the Trustee, and, where it is hereby
expressly required, to the Corporation. Such instrument or instruments (and
the action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 6.1) conclusive in favor of the Trustee and
the Corporation, if made in the manner provided in this Section 1.4.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to such notary the
execution thereof. Where such execution is by a Person acting in other than
such Persons's individual capacity, such certificate or affidavit shall also
constitute sufficient proof of such Person's authority.
(c) The fact and date of the execution by any Person of any such
instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner that the Trustee deems sufficient and in
accordance with such reasonable rules as the Trustee may determine.
(d) The ownership of Securities shall be proved by the Securities
Register.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Security shall bind
every future Holder of the same Security and the Holder of every Security
issued upon the transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done or suffered to be done by the Trustee or the
Corporation in reliance thereon, whether or not notation of such action is
made upon such Security.
(f) The Corporation may set any day as a record date for the
purpose of determining the Holders of Outstanding Securities of any series
entitled to give, make or take any request, demand, authorization, direction,
notice, consent, waiver or other action provided or permitted by this
Indenture to be given, made or taken by Holders of Securities of such series,
provided that the Corporation may not set a record date for, and the
provisions of this paragraph shall not apply with respect to, the giving or
making of any notice, declaration, request or direction referred to in the
next succeeding paragraph. If any record date is set pursuant to this
paragraph, the Holders of Outstanding Securities of the relevant series on
such record date, and no other Holders, shall be entitled to take the
relevant action, whether or not such Holders remain Holders after such record
date, provided that no such action shall be effective hereunder unless taken
on or prior to the applicable Expiration Date by Holders of the requisite
principal amount of Outstanding Securities of such series on such record
date. Nothing in this paragraph shall be construed to prevent the
Corporation from setting a new record date for any action for which a record
date has previously been set pursuant to this paragraph (whereupon the record
date previously set shall automatically and with no action by any Person be
canceled and of no effect), and nothing in this paragraph shall be construed
to render ineffective any action taken by Holders of the requisite principal
amount of Outstanding Securities of the relevant series on the date such
action is taken. Promptly after any record date is set pursuant to this
paragraph, the Corporation, at its own expense, shall cause notice of such
record date, the proposed action by Holders and the applicable Expiration
Date to be given to the Trustee in writing and to each Holder of Securities
of the relevant series in the manner set forth in Section 1.6.
The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to
join in the giving or making of (i) any Notice of Default, (ii) any
declaration of acceleration referred to in Section 5.2, (iii) any request to
institute proceedings referred to in Section 5.7(2), or (iv) any direction
referred to in Section 5.12, in each case with respect to Securities of such
series. If any record date is set pursuant to this paragraph, the Holders of
Outstanding Securities of such series on such record date, and no other
Holders, shall be entitled to join in such notice, declaration, request or
direction, whether or not such Holders remain Holders after such record date,
provided that no such action shall be effective hereunder unless taken on or
prior to the applicable Expiration Date by Holders of the requisite principal
amount of Outstanding Securities of such series on such record date. Nothing
in this paragraph shall be construed to prevent the Trustee from setting a
new record date for any action for which a record date has previously been
set pursuant to this paragraph (whereupon the record date previously set
shall automatically and with no action by any Person be canceled and of no
effect), and nothing in this paragraph shall be construed to render
ineffective any action taken by Holders of the requisite principal amount of
Outstanding Securities of the relevant series on the date such action is
taken. Promptly after any record date is set pursuant to this paragraph, the
Trustee, at the Corporation's expense, shall cause notice of such record
date, the proposed action by Holders and the applicable Expiration Date to be
given to the Corporation in writing and to each Holder of Securities of the
relevant series in the manner set forth in Section 1.6.
With respect to any record date set pursuant to this Section 1.4,
the party hereto that sets such record date may designate any day as the
"Expiration Date" and from time to time may change the Expiration Date to any
earlier or later day, provided that no such change shall be effective unless
notice of the proposed new Expiration Date is given to the other party hereto
in writing, and to each Holder of Securities of the relevant series in the
manner set forth in Section 1.6, on or prior to the existing Expiration Date.
If an Expiration Date is not designated with respect to any record date set
pursuant to this Section 1.4, the party hereto that set such record date
shall be deemed to have initially designated the 180th day after such record
date as the Expiration Date with respect thereto, subject to its right to
change the Expiration Date as provided in this paragraph. Notwithstanding
the foregoing, no Expiration Date shall be later than the 180th day after the
applicable record date.
(g) Without limiting the foregoing, a Holder entitled hereunder to
take any action hereunder with regard to any particular Security may do so
with regard to all or any part of the principal amount of such Security or by
one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such principal amount.
SECTION 1.5. Notices, Etc. to Trustee and Corporation.
Any request, demand, authorization, direction, notice, consent,
waiver or other Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder, any holder of Capital Securities or
the Corporation shall be sufficient for every purpose hereunder if made,
given, furnished or filed in writing to or with the Trustee at its
Corporate Trust office, or
(2) the Corporation by the Trustee, any Holder or any holder of
Capital Securities shall be sufficient for every purpose (except as
otherwise provided in Section 5.1) hereunder if in writing and mailed,
first-class postage prepaid, to the Corporation addressed to it at the
address of its principal office specified in the first paragraph of this
Indenture or at any other address previously furnished in writing to the
Trustee by the Corporation.
SECTION 1.6. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event,
such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each
Holder affected by such event, at the address of such Holder as it appears in
the Securities Register, not later than the latest date, and not earlier than
the earliest date, prescribed for the giving of such notice. If, by reason
of the suspension of or irregularities in regular mail service or for any
other reason, it shall be impossible or impracticable to mail notice of any
event to Holders when said notice is required to be given pursuant to any
provision of this Indenture or of the relevant Securities, then any manner of
giving such notice as shall be satisfactory to the Trustee shall be deemed to
be a sufficient giving of such notice. In any case where notice to Holders
is given by mail, neither the failure to mail such notice, nor any defect in
any notice so mailed, to any particular Holder shall affect the sufficiency
of such notice with respect to other Holders. Where this Indenture provides
for notice in any manner, such notice may be waived in writing by the Person
entitled to receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
SECTION 1.7. Conflict with Trust Indenture Act.
Except as otherwise expressly provided herein, the Trust Indenture
Act shall apply as a matter of contract to this Indenture for purposes of
interpretation, construction and defining the rights and obligations
hereunder, and this Indenture, the Corporation and the Trustee shall be
deemed for all purposes hereof to be subject to and governed by the Trust
Indenture Act to the same extent as would be the case if this Indenture were
qualified under that Act on the date hereof. Except as otherwise expressly
provided herein, if and to the extent that any provision of this Indenture
limits, qualifies or conflicts with the duties imposed by any of Sections 310
to 317, inclusive, of the Trust Indenture Act through operation of
Section 318(c) thereof, such imposed duties shall control.
SECTION 1.8. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
SECTION 1.9. Successors and Assigns.
All covenants and agreements in this Indenture by the Corporation
shall bind its successors and assigns, whether so expressed or not.
SECTION 1.10. Separability Clause.
If any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
SECTION 1.11. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
and assigns, the holders of Senior Indebtedness, the Holders of the
Securities and, to the extent expressly provided in Sections 5.2, 5.8, 5.9,
5.11, 5.13, 9.1 and 9.2 the holders of Capital Securities, any benefit or any
legal or equitable right, remedy or claim under this Indenture.
SECTION 1.12. Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 1.13. Non-Business Days.
If any Interest Payment Date, Redemption Date or Stated Maturity of
any Security shall not be a Business Day, then (notwithstanding any other
provision of this Indenture or the Securities) payment of principal of (and
premium, if any) or interest (including any Additional Interest) or other
amounts in respect of such Security need not be made on such date, but may be
made on the next succeeding Business Day (and no interest shall accrue in
respect of the amounts whose payment is so delayed for the period from and
after such Interest Payment Date, Redemption Date or Stated Maturity, as the
case may be, until such next succeeding Business Day) except that, if such
Business Day falls in the next succeeding calendar year, such payment shall
be made on the immediately preceding Business Day (in each case with the same
force and effect as if made on the Interest Payment Date or Redemption Date
or at the Stated Maturity).
ARTICLE II
SECURITY FORMS
SECTION 2.1. Forms Generally.
The Securities of each series and the Trustee's certificate of
authentication shall be in substantially the forms set forth in this Article,
or in such other form or forms as shall be established by or pursuant to a
Board Resolution or in one or more indentures supplemental hereto, in each
case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with applicable tax
laws or the rules of any securities exchange or automated quotation system on
which the Securities may be listed or traded or as may, consistently
herewith, be determined by the officers executing such Securities, as
evidenced by their execution of the Securities. If the form of Securities of
any series is established by action taken pursuant to a Board Resolution, a
copy of an appropriate record of such action shall be certified by the
Secretary or an Assistant Secretary of the Corporation and delivered to the
Trustee at or prior to the delivery of the Corporation Order contemplated by
Section 3.3 with respect to the authentication and delivery of such
Securities.
The definitive Securities shall be typewritten, printed,
lithographed or engraved or produced by any combination of these methods, if
required by any securities exchange or automated quotation system on which
the Securities may be listed or traded, on a steel engraved border or steel
engraved borders or may be produced in any other manner permitted by the
rules of any securities exchange or automated quotation system on which the
Securities may be listed or traded, all as determined by the officers
executing such Securities, as evidenced by their execution of such
securities.
SECTION 2.2. Form of Face of Security.
FIRST HAWAIIAN, INC.
[Title of Security]
[If the Security is a Restricted Security, insert --"THIS SECURITY
(OR ANY PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS AND
NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS
SECURITY IS HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION
FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A,
REGULATION S OR ANOTHER EXEMPTION THEREUNDER. THE HOLDER OF THIS SECURITY,
BY ITS ACCEPTANCE HEREOF, REPRESENTS, ACKNOWLEDGES AND AGREES FOR THE BENEFIT
OF THE ISSUER TRUST THAT: (I) IT HAS ACQUIRED A "RESTRICTED" SECURITY WHICH
HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT; OR (II) IT WILL NOT OFFER,
SELL, PLEDGE OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE
CORPORATION, (B) FOR SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT
TO RULE 144A, TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN AN
OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN
OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 OF REGULATION S
UNDER THE SECURITIES ACT, (D) PURSUANT TO AN EXEMPTION FROM REGISTRATION
UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR
(E) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT
AND, IN EACH CASE, IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE
STATES OF THE UNITED STATES AND OTHER APPLICABLE JURISDICTIONS; AND (III) IT
WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT
OF THIS SECURITY OF THE RESALE RESTRICTIONS SET FORTH IN (II) ABOVE. ANY
OFFER, SALE, PLEDGE OR OTHER DISPOSITION PURSUANT TO THE FOREGOING CLAUSES
(II)(C) AND (D) IS SUBJECT TO THE RIGHT OF THE ISSUER OF THIS SECURITY AND
THE PROPERTY TRUSTEE FOR SUCH SECURITIES TO REQUIRE THE DELIVERY OF AN
OPINION OF COUNSEL, CERTIFICATIONS OR OTHER INFORMATION ACCEPTABLE TO THEM IN
FORM AND SUBSTANCE. SECURITIES OWNED BY AN INITIAL INVESTOR THAT IS NOT A
QUALIFIED INSTITUTIONAL BUYER MAY NOT BE HELD IN BOOK-ENTRY FORM AND MAY NOT
BE TRANSFERRED WITHOUT CERTIFICATION THAT THE TRANSFER COMPLIES WITH THE
FOREGOING RESTRICTIONS, AS PROVIDED IN THE TRUST AGREEMENT REFERRED TO BELOW.
THE SECURITIES EVIDENCED HEREBY ARE SUBJECT TO THE TERMS OF A REGISTRATION
RIGHTS AGREEMENT, DATED OF EVEN DATE HEREWITH, AMONG THE ISSUER TRUST, THE
DEPOSITOR AND THE PURCHASER NAMED THEREIN."
[If the Security is subject to an agreement providing for the exchange
on registration pursuant to the Securities Act, insert --- THE HOLDER OF THIS
SECURITY IS DEEMED, BY SUCH HOLDER'S ACCEPTANCE OF THIS SECURITY, TO HAVE
AGREED TO BE BOUND BY THE PROVISIONS OF THE REGISTRATION RIGHTS AGREEMENT,
DATED OF EVEN DATE HEREWITH, AMONG THE ISSUER TRUST, THE DEPOSITOR AND THE
PURCHASERS NAMED THEREIN.]
No. _____________ $__________
FIRST HAWAIIAN, INC., a Delaware corporation (hereinafter called
the "Corporation", which term includes any successor Person under the
Indenture hereinafter referred to), for value received, hereby promises to
pay to _______________, or registered assigns, the principal sum of
__________ Dollars on _________, ____ [if the Security is a Global Security,
then insert, if applicable--, or such other principal amount represented
hereby as may be set forth in the records of the Securities Registrar
hereinafter referred to in accordance with the Indenture] [; provided that
the Corporation may shorten the Stated Maturity of the principal of this
Security to a date not earlier than __________, in the circumstances
described on the reverse hereof]. The Corporation further promises to pay
interest on said principal sum from ___________, ____ or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
[monthly][quarterly][semi-annually] [if applicable, insert-(subject to
deferral as set forth herein)] in arrears on [insert applicable Interest
Payment Dates] of each year, commencing __.__. at the rate of __% per annum
until the principal hereof is paid or duly provided for or made available for
payment [if applicable, insert-- ; provided that any overdue principal,
premium and any overdue installment of interest shall bear Additional
Interest at the rate of ___% per annum (to the extent that the payment of
such interest shall be legally enforceable), compounded
[monthly][quarterly][semi-annually], from the dates such amounts are due
until they are paid or made available for payment, and such interest shall be
payable on demand]. The amount of interest payable for any period less than
a full interest period shall be computed on the basis of a 360-day year of
twelve 30-day months and the actual days elapsed in a partial month in such
period. The amount of interest payable for any full interest period shall be
computed by dividing the applicable rate per annum by [twelve/four/two]. The
interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in the Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest installment [if applicable insert--, which shall be the
[____________ or ____________] (whether or not a Business Day), as the case
may be, next preceding such Interest Payment Date]. Any such interest not so
punctually paid or duly provided for shall forthwith cease to be payable to
the Holder on such Regular Record Date and may either be paid to the Person
in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment
of such Defaulted Interest to be fixed by the Trustee, notice whereof shall
be given to Holders of Securities of this series not less than 10 days prior
to such Special Record Date, or be paid at any time in any other lawful
manner not inconsistent with the requirements of any securities exchange or
automated quotation system on which the Securities of this series may be
listed or traded, and upon such notice as may be required by such exchange or
self regulatory organization, all as more fully provided in said Indenture.
[If applicable, insert--So long as no Event of Default has occurred
and is continuing, the Corporation shall have the right, at any time during
the term of this Security, from time to time to defer the payment of interest
on this Security for up to ____ consecutive [monthly][quarterly][semi-annual]
interest payment periods with respect to each deferral period (each an
"Extension Period") [if applicable, insert--, during which Extension Periods
the Corporation shall have the right to make partial payments of interest on
any Interest Payment Date, and] at the end of which the Corporation shall pay
all interest then accrued and unpaid (including any Additional Interest, as
provided below); provided, however, that no Extension Period shall extend
beyond the Stated Maturity of the principal of this Security [if Stated
Maturity can be shortened or extended, insert--, as then in effect,] and no
such Extension Period may end on a date other than an Interest Payment Date;
and provided further, however, that during any such Extension Period, the
Corporation shall not (i) declare or pay any dividends or distributions on,
or redeem, purchase, acquire or make a liquidation payment with respect to,
any of the Corporation's capital stock, or (ii) make any payment of principal
of or interest or premium, if any, on or repay, repurchase or redeem any debt
securities of the Corporation that rank pari passu in all respects with or
junior in interest to this Security (other than (a) repurchases, redemptions
or other acquisitions of shares of capital stock of the Corporation in
connection with any employment contract, benefit plan or other similar
arrangement with or for the benefit of any one or more employees, officers,
directors or consultants, in connection with a dividend reinvestment or
stockholder stock purchase plan or in connection with the issuance of capital
stock of the Corporation (or securities convertible into or exercisable for
such capital stock) as consideration in an acquisition transaction entered
into prior to the applicable Extension Period, (b) as a result of an exchange
or conversion of any class or series of the Corporation's capital stock (or
any capital stock of a Subsidiary of the Corporation) for any class or series
of the Corporation's capital stock or of any class or series of the
Corporation's indebtedness for any class or series of the Corporation's
capital stock, (c) the purchase of fractional interests in shares of the
Corporation's capital stock pursuant to the conversion or exchange provisions
of such capital stock or the security being converted or exchanged, (d) any
declaration of a dividend in connection with any Rights Plan, or the issuance
of rights, stock or other property under any Rights Plan, or the redemption
or repurchase of rights pursuant thereto, or (e) any dividend in the form of
stock, warrants, options or other rights where the dividend stock or the
stock issuable upon exercise of such warrants, options or other rights is the
same stock as that on which the dividend is being paid or ranks pari passu
with or junior to such stock). Prior to the termination of any such
Extension Period, the Corporation may further defer the payment of interest,
provided that no Extension Period shall exceed ____ consecutive
[monthly][quarterly][semi-annual] interest payment periods, extend beyond the
Stated Maturity of the principal of this Security or end on a date other than
an Interest Payment Date. Upon the termination of any such Extension Period
and upon the payment of all accrued and unpaid interest and any Additional
Interest then due on any Interest Payment Date, the Corporation may elect to
begin a new Extension Period, subject to the above conditions. No interest
shall be due and payable during an Extension Period, except at the end
thereof, but each installment of interest that would otherwise have been due
and payable during such Extension shall bear Additional Interest (to the
extent that the payment of such interest shall be legally enforceable) at the
rate of ____% per annum, compounded [monthly][quarterly][semi-annually] and
calculated as set forth in the first paragraph of this Security, from the
dates on which amounts would otherwise have been due and payable until paid
or made available for payment. The Corporation shall give the Property
Trustee of this Security notice of its election of such Extension Period at
least one Business Day prior to the next succeeding Interest Payment Date on
which interest on this Security would be payable but for such deferral [if
applicable, insert--or so long as such Securities are held by [insert name of
applicable Issuer Trust], at least one Business Day prior to the earlier of
(i) the next succeeding date on which Distributions on the Capital Securities
of such Issuer Trust would be payable but for such deferral, and (ii) the
date on which the Property Trustee of such Issuer Trust is required to give
notice to holders of such Capital Securities of the record date or the date
such Distributions are payable. The Property Trustee will give notice of the
Corporation's election to begin a new Extension Period to the Holders of the
Capital Securities.]
Payment of the principal of (and premium, if any) and interest on
this Security will be made at the office or agency of the Corporation
maintained for that purpose in [insert Place of Payment], in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts [if applicable, insert--;
provided, however, that at the option of the Corporation payment of interest
may be made (i) by check mailed to the address of the Person entitled thereto
as such address shall appear in the Securities Register, or (ii) by wire
transfer in immediately available funds at such place and to such account as
may be designated in writing at least 15 days before the relevant Interest
Payment Date by the Person entitled thereto as specified in the Securities
Register].
The indebtedness evidenced by this Security is, to the extent
provided in the Indenture, subordinate and junior in right of payment to the
prior payment in full of all Senior Indebtedness, and this Security is issued
subject to the provisions of the Indenture with respect thereto. Each Holder
of this Security, by accepting the same, (a) agrees to and shall be bound by
such provisions, (b) authorizes and directs the Trustee on such Holder's
behalf to take such actions as may be necessary or appropriate to effectuate
the subordination so provided, and (c) appoints the Trustee his or her
attorney-in-fact for any and all such purposes. Each Holder hereof, by such
Holder's acceptance hereof, waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by each holder
of Senior Indebtedness, whether now outstanding or hereafter incurred, and
waives reliance by each such holder upon said provisions.
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed
by the Trustee referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose.
IN WITNESS WHEREOF, the Corporation has caused this instrument to
be duly executed.
FIRST HAWAIIAN, INC.
By:
------------------------------
Name:
Title:
SECTION 2.3. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of
the Corporation (herein called the "Securities"), issued and to be issued in
one or more series under the Junior Subordinated Indenture, dated as of
June 30, 1997 (herein called the "Indenture"), between the Corporation and
____________, as Trustee (herein called the "Trustee", which term includes
any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of
the respective rights, limitations of rights, duties and immunities
thereunder of the Corporation, the Trustee, the Holders of Senior
Indebtedness and the Holders of the Securities, and of the terms upon which
the Securities are, and are to be, authenticated and delivered. This
Security is one of the series designated on the face hereof [if applicable,
insert--, limited in aggregate principal amount to $ ___________].
All terms used in this Security that are defined in the Indenture
[if applicable, insert--or in the Amended and Restated Trust Agreement, dated
as of _____________ (as modified, amended or supplemented from time to time,
the "Trust Agreement"), relating to [insert name of Issuer Trust] (the
"Issuer Trust") among the Corporation, as Depositor, the Trustees named
therein and the Holders from time to time of the Trust Securities issued
pursuant thereto,] shall have the meanings assigned to them in the Indenture
[if applicable, insert--or the Trust Agreement, as the case may be].
[If applicable, insert--The Corporation may at any time, at its
option, on or after _______, __ and subject to the terms and conditions of
Article XI of the Indenture, redeem this Security in whole at any time or in
part from time to time, at the following Redemption Prices (expressed as per-
centages of the principal amount hereof): If redeemed during the 12-month
period beginning __________,
Redemption
Year Price
------ ------------
and thereafter at a Redemption Price equal to 100% of the principal amount
hereof, together, in the case of any such redemption, with accrued interest
[if applicable, insert-- (including any Additional Interest)] to but
excluding the date fixed for redemption.]
[If applicable, insert--In addition, upon the occurrence and during
the continuation of a Tax Event or a Capital Treatment Event in respect of
the Issuer Trust, the Corporation may, at its option, at any time within 90
days of the occurrence and during the continuation of such Tax Event or
Capital Treatment Event, as the case may be, redeem this Security, in whole
but not in part, subject to the terms and conditions of Article XI of the
Indenture, at a Redemption Price equal to [insert formula].
[If the Security is subject to redemption of any kind, insert--In
the event of redemption of this Security in part only, a new Security or
Securities of this series for the unredeemed portion hereof will be issued in
the name of the Holder hereof upon the cancellation hereof.]
The Indenture contains provisions for satisfaction and discharge of
the entire indebtedness of this Security upon compliance by the Corporation
with certain conditions set forth in the Indenture.
The Indenture permits, with certain exceptions as therein provided,
the Corporation and the Trustee at any time to enter into a supplemental
indenture or indentures for the purpose of modifying in any manner the rights
and obligations of the Corporation and of the Holders of the Securities, with
the consent of the Holders of not less than a majority in principal amount of
the Outstanding Securities of each series to be affected by such supplemental
indenture. The Indenture also contains provisions permitting Holders of
specified percentages in principal amount of the Securities of each series at
the time Outstanding, on behalf of the Holders of all Securities of such
series, to waive compliance by the Corporation with provisions of the
Indenture and their consequences. Any such consent or waiver by the Holder
of this Security shall be conclusive and binding upon such Holder and upon
all future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
[If the Security is not a Discount Security, insert--As provided in
and subject to the provisions of the Indenture, if an Event of Default with
respect to the Securities of this series at the time Outstanding occurs and
is continuing, then and in every such case the Trustee or the Holders of not
less than 25% in aggregate principal amount of the Outstanding Securities of
this series may declare the principal amount of all the Outstanding
Securities of this series to be due and payable immediately, by a notice in
writing to the Corporation (and to the Trustee if given by Holders) [if
applicable, insert--, provided that, if upon an Event of Default, the Trustee
or such Holders fail to declare the principal of all the Outstanding
Securities of this series to be immediately due and payable, the holders of
at least 25% in aggregate Liquidation Amount of the Capital Securities then
Outstanding shall have the right to make such declaration by a notice in
writing to the Corporation and the Trustee]; and upon any such declaration
the principal of and the accrued interest (including any Additional Interest)
on all the Securities of this series shall become immediately due and
payable, provided that the payment of such principal and interest (including
any Additional Interest) on such Securities shall remain subordinated to the
extent provided in Article XIII of the Indenture.]
[If the Security is a Discount Security, insert--As provided in and
subject to the provisions of the Indenture, if an Event of Default with
respect to the Securities of this series at the time Outstanding occurs and
is continuing, then and in every such case the Trustee or the Holders of not
less than 25% in aggregate principal amount of the Outstanding Securities of
this series may declare an amount of principal of the Outstanding Securities
of this series to be due and payable immediately, by a notice in writing to
the Corporation (and to the Trustee if given by Holders) [if applicable,
insert --, provided that if upon an Event of Default, the Trustee or such
Holders fail to declare such principal amount of the Outstanding Securities
of this series to be immediately due and payable, the holders of at least 25%
in aggregate Liquidation Amount of the Capital Securities then Outstanding
shall have the right to make such declaration by a notice in writing to the
Corporation and the Trustee]. The principal amount payable upon such
acceleration shall be equal to [insert formula for determining the amount].
Upon any such declaration, such amount of the principal of and the accrued
interest (including any Additional Interest) on such Securities shall become
immediately due and payable, provided that the payment of such principal and
interest (including any Additional Interest) on such Securities shall remain
subordinated to the extent provided in Article XIII of the Indenture. Upon
payment (i) of the amount of principal so declared due and payable and
(ii) of interest on any overdue principal, premium and interest (in each case
to the extent that the payment of such interest shall be legally
enforceable), all of the Corporation's obligations in respect of the payment
of the principal of and premium and interest, if any, on this Security shall
terminate.]
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Corporation, which is absolute and unconditional, to pay the principal of
(and premium, if any) and interest [if applicable, insert--(including any
Additional Interest)] on this Security at the times, place and rate, and in
the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the
Securities Register, upon surrender of this Security for registration of
transfer at the office or agency of the Corporation maintained under
Section 10.2 of the Indenture for such purpose, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Corporation and the Securities Registrar duly executed by, the Holder hereof
or such Holder's attorney duly authorized in writing, and thereupon one or
more new Securities of this series, of like tenor, of authorized
denominations and for the same aggregate principal amount, will be issued to
the designated transferee or transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $_______ and any integral multiple of
$_____ in excess thereof. As provided in the Indenture and subject to certain
limitations therein set forth, Securities of this series are exchangeable for
a like aggregate principal amount of Securities of this series and of like
tenor of a different authorized denomination, as requested by the Holder
surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Corporation may require payment of a sum
sufficient to cover any tax or other governmental charge payable in
connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Corporation, the Trustee and any agent of the Corporation or
the Trustee may treat the Person in whose name this Security is registered as
the owner hereof for all purposes, whether or not this Security be overdue,
and neither the Corporation, the Trustee nor any such agent shall be affected
by notice to the contrary.
It is intended that this Security constitute indebtedness of the
Corporation for all United States tax purposes and the Corporation and, by
its acceptance of this Security or a beneficial interest therein, the Holder
of, and any Person that acquires a beneficial interest in, this Security
agree to treat the Security as indebtedness of the Corporation for all United
States federal, state and local tax purposes.
THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
SECTION 2.4. Additional Provisions Required in Global Security.
Unless otherwise specified as contemplated by Section 3.1, any
Global Security issued hereunder shall, in addition to the provisions
contained in Sections 2.2 and 2.3, bear a legend in substantially the
following form:
This Security is a Global Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depositary or
a nominee of a Depositary. This Security is exchangeable for Securities
registered in the name of a person other than the Depositary or its
nominee only in the limited circumstances described in the Indenture and
may not be transferred except as a whole by the Depositary to a nominee
of the Depositary or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary, except in the limited circumstances
described in the Indenture.
SECTION 2.5. Form of Trustee's Certificate of Authentication.
The Trustee's certificates of authentication shall be in
substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Dated:
---------------------------------
THE FIRST NATIONAL BANK OF
CHICAGO, as Trustee
By:
------------------------------
Authorized Officer
ARTICLE III
THE SECURITIES
SECTION 3.1. Title and Terms.
The aggregate principal amount of Securities that may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to Section 3.3,
set forth or determined in the manner provided in an Officers' Certificate,
or established in one or more indentures supplemental hereto, prior to the
issuance of Securities of a series:
(a) the title of the securities of such series, which shall
distinguish the Securities of the series from all other Securities;
(b) the limit, if any, upon the aggregate principal amount of the
Securities of such series that may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 3.4, 3.5, 3.6, 3.7, 9.6 or
11.6 and except for any Securities that, pursuant to Section 3.3, are
deemed never to have been authenticated and delivered hereunder);
provided, however, that the authorized aggregate principal amount of
such series may be increased above such amount by a Board Resolution to
such effect;
(c) the Person to whom any interest (including any Additional
Interest) on a Security of the series shall be payable, if other than
the Person in whose name that security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record
Date for such interest;
(d) the Stated Maturity or Maturities on which the principal of
the Securities of such series is payable or the method of determination
thereof, and any dates on which or circumstances under which, the
Corporation shall have the right to shorten such Stated Maturity or
Maturities;
(e) the rate or rates, if any, at which the Securities of such
series shall bear interest, if any, the rate or rates at which and
extent to which Additional Interest, if any, shall be payable in respect
of any Securities of such series, the date or dates from which any such
interest or Additional Interest shall accrue, the Interest Payment Dates
on which such interest shall be payable, the right, pursuant to
Section 3.12 or as otherwise set forth therein, of the Corporation to
defer or extend an Interest Payment Date, and the Regular Record Date
for the interest payable on any Interest Payment Date or the method by
which any of the foregoing shall be determined;
(f) the place or places where the principal of (and premium, if
any) and interest (including any Additional Interest) on the Securities
of such series shall be payable, the place or places where the
Securities of such series may be presented for registration of transfer
or exchange, any restrictions that may be applicable to any such
transfer or exchange in addition to or in lieu of those set forth
herein, and the place or places where notices and demands to or upon the
Corporation in respect of the Securities of such series may be made;
(g) the period or periods within or the date or dates on which,
the price or prices at which and the terms and conditions upon which, if
any, the Securities of such series may be redeemed, in whole or in part,
at the option of the Corporation, and if other than by a Board
Resolution, the manner in which any election by the Corporation to
redeem such Securities shall be evidenced;
(h) the obligation or the right, if any, of the Corporation to
redeem, repay or purchase the Securities of such series pursuant to any
sinking fund, amortization or analogous provisions, or at the option of
a Holder thereof, and the period or periods within which, the price or
prices at which, the currency or currencies (including currency unit or
units) in which and the other terms and conditions upon which Securities
of the series shall be redeemed, repaid or purchased, in whole or in
part, pursuant to such obligation;
(i) the denominations in which any Securities of such series shall
be issuable, if other than denominations of $1,000 and any integral
multiple thereof;
(j) if other than Dollars, the currency or currencies (including
any currency unit or units) in which the principal of (and premium, if
any) and interest (including any Additional Interest) on the Securities
of the series shall be payable, or in which the Securities of the series
shall be denominated and the manner of determining the equivalent
thereof in Dollars for purposes of the definition of Outstanding;
(k) the additions, modifications or deletions, if any, in the
covenants of the Corporation set forth herein with respect to the
Securities of such series;
(l) if other than the principal amount thereof, the portion of the
principal amount of Securities of such series that shall be payable upon
declaration of acceleration of the Maturity thereof;
(m) if the principal amount payable at the Stated Maturity of any
Securities of the series will not be determinable as of any one or more
dates prior to the Stated Maturity, the amount that shall be deemed to
be the principal amount of such Securities as of any such date for any
purpose thereunder or hereunder, including the principal amount thereof
that shall be due and payable upon any Maturity other than the Stated
Maturity or that shall be deemed to be Outstanding as of any date prior
to the Stated Maturity (or, in any such case, the manner in which such
amount deemed to be the principal amount shall be determined);
(n) the additions or changes, if any, to this Indenture with
respect to the Securities of such series as shall be necessary to permit
or facilitate the issuance of the Securities of such series in bearer
form, registrable or not registrable as to principal, and with or
without interest coupons;
(o) any index or indices used to determine the amount of payments
of principal of and premium, if any, on the Securities of such series or
the manner in which such amounts will be determined;
(p) if applicable, that any Securities of the series shall be
issuable in whole or in part in the form of one or more Global
Securities and, in such case, the respective Depositories for such
Global Securities, the form of any legend or legends that shall be borne
by any such Global Security in addition to or in lieu of that set forth
in Section 2.4 and any circumstances in addition to or in lieu of those
set forth in Section 3.5 in which any such Global Security may be
exchanged in whole or in part for Securities registered, and any
transfer of such Global Security in whole or in part may be registered,
in the name or names of Persons other than the Depositary for such
Global Security or a nominee thereof;
(q) the appointment of any Paying Agent or Agents for the
Securities of such series;
(r) the terms of any right to convert or exchange Securities of
such series into any other securities or property of the Corporation,
and the additions or changes, if any, to this Indenture with respect to
the Securities of such series to permit or facilitate such conversion or
exchange;
(s) if such Securities are to be issued to an Issuer Trust, the
form or forms of the Trust Agreement and Guarantee Agreement relating
thereto;
(t) if other than as set forth herein, the relative degree, if
any, to which the Securities of the series shall be senior to or be
subordinated to other series of Securities in right of payment, whether
such other series of Securities are Outstanding or not;
(u) the additions, modifications or deletions, if any, in the
Events of Default that apply to any Securities of the series and any
change in the right of the Trustee or the requisite Holders of such
Securities to declare the principal amount thereof due and payable
pursuant to Section 5.2 and
(v) any other terms of the Securities of such series (which terms
shall not be inconsistent with the provisions of this Indenture, except
as permitted by Section 9.1(6)).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided herein or
in or pursuant to such Board Resolution and set forth, or determined in the
manner provided, in such Officers' Certificate or in any indenture
supplemental hereto.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the
Corporation and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of the series.
The Securities shall be subordinated in right of payment to Senior
Indebtedness as provided in Article XIII.
SECTION 3.2. Denominations.
The Securities of each series shall be in registered form without
coupons and shall be issuable in denominations of $1,000 and any integral
multiple thereof, unless otherwise specified as contemplated by Section 3.1.
SECTION 3.3. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Corporation by
its Chairman of the Board, one of its Vice Chairman of the Board, its
President or one of its Vice Presidents. The signature of any of these
officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Corporation shall
bind the Corporation, notwithstanding that such individuals or any of them
have ceased to hold such offices prior to the authentication and delivery of
such Securities or did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Corporation may deliver Securities of any series executed by
the Corporation to the Trustee for authentication, together with a
Corporation Order for the authentication and delivery of such Securities, and
the Trustee in accordance with the Corporation Order shall authenticate and
deliver such Securities. If the form or terms of the Securities of the
series have been established by or pursuant to one or more Board Resolutions
as permitted by Sections 2.1 and 3.1, in authenticating such Securities, and
accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive, and (subject to
Section 6.1) shall be fully protected in relying upon, an Opinion of Counsel
stating,
(1) if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by Section 2.1, that such form
has been established in conformity with the provisions of this
Indenture;
(2) if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 3.1, that such
terms have been established in conformity with the provisions of this
Indenture; and
(3) that such Securities, when authenticated and delivered by the
Trustee and issued by the Corporation in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid
and legally binding obligations of the Corporation, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issuance of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
that is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.1 and of the preceding
paragraphs, if all Securities of a series are not to be originally issued at
one time, it shall not be necessary to deliver the Officers' Certificate
otherwise required pursuant to Section 3.1 or the Corporation Order and
Opinion of Counsel otherwise required pursuant to such preceding paragraphs
at or prior to the authentication of each Security of such series if such
documents are delivered at or prior to the authentication upon original
issuance of the first Security of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose, unless there appears on such
Security a certificate of authentication substantially in the form provided
for herein executed by the Trustee by the manual signature of one of its
authorized officers, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder. Notwithstanding the foregoing, if any
Security shall have been authenticated and delivered hereunder but never
issued and sold by the Corporation, and the Corporation shall deliver such
Security to the Trustee for cancellation as provided in Section 3.10, for all
purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
SECTION 3.4. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Corporation may execute, and upon Corporation Order the Trustee shall
authenticate and deliver, temporary Securities that are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
denomination, substantially of the tenor of the definitive Securities of such
series in lieu of which they are issued and with such appropriate insertions,
omissions, substitutions and other variations as the officers executing such
Securities may determine, as evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Corporation
will cause definitive Securities of such series to be prepared without
unreasonable delay. After the preparation of definitive Securities, the
temporary Securities shall be exchangeable for definitive Securities upon
surrender of the temporary Securities at the office or agency of the
Corporation designated for that purpose without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities, the
Corporation shall execute and the Trustee shall authenticate and deliver in
exchange therefor one or more definitive Securities of the same series of any
authorized denominations, of like tenor and aggregate principal amount,
bearing such restrictive legends as may be required by this Indenture and
bearing a number not contemporaneously outstanding. Until so exchanged, the
temporary Securities of any series shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities of such series.
SECTION 3.5. Global Securities.
(a) Each Global Security issued under this Indenture shall be
registered in the name of the Depositary designated by the Corporation for
such Global Security or a nominee thereof and delivered to such Depositary or
a nominee thereof or custodian therefor, and each such Global Security shall
constitute a single Security for all purposes of this Indenture.
(b) Notwithstanding any other provision in this Indenture, no
Global Security may be exchanged in whole or in part for Securities
registered, and no transfer of a Global Security in whole or in part may be
registered, in the name of any Person other than the Depositary for such
Global Security or a nominee thereof unless (i) such Depositary advises the
Trustee in writing that such Depositary is no longer willing or able to
properly discharge its responsibilities as Depositary with respect to such
Global Security, and the Corporation is unable to locate a qualified
successor, (ii) the Corporation executes and delivers to the Trustee a
Corporation Order stating that the Corporation elects to terminate the book-
entry system through such Depositary or (iii) an Event of Default occurs and
is continuing. Upon the occurrence of any event specified in clause (i),
(ii) or (iii) above, the Securities Registrar shall notify the applicable
Depositary and instruct such Depositary to notify all beneficial owners of
Global Securities of the occurrence of such event and of the availability of
the definitive Securities to beneficial owners of such Securities requesting
the same; provided, however, that no Securities shall be issued in any
denomination less than the minimum authorized denomination therefor.
(c) If any Global Security is to be exchanged in whole for other
Securities or canceled in whole, it shall be surrendered by or on behalf of
the applicable Depositary or its nominee to the Securities Registrar for
exchange or cancellation as provided in this Article III. If any Global
Security is to be exchanged for other Securities or canceled in part, or if
another Security is to be exchanged in whole or in part for a beneficial
interest in any Global Security, then either (i) such Global Security shall
be so surrendered for exchange or cancellation as provided in this Article
III or (ii) the principal amount thereof shall be reduced, subject to Section
3.6(b)(v), or increased by an amount equal to the portion thereof to be so
exchanged or canceled, or equal to the principal amount of such other
Security to be so exchanged for a beneficial interest therein, as the case
may be, by means of an appropriate adjustment made on the records of the
Securities Registrar with notice to the Trustee, whereupon the Trustee, in
accordance with the Applicable Procedures, shall instruct such Depositary or
its authorized representative to make a corresponding adjustment to its
records. Upon any such surrender or adjustment of a Global Security by the
Depositary, accompanied by registration instructions, the Trustee shall,
subject to Section 3.5(b) and as otherwise provided in this Article III,
authenticate and deliver any Securities issuable in exchange for such Global
Security (or any portion thereof) in accordance with the instructions of the
Depositary; provided, however, that no Securities shall be issued in any
denomination less than the minimum authorized denomination therefor. Neither
the Securities Registrar nor the Trustee shall be liable for any delay in
delivery of such instructions and may conclusively rely on, and shall be
fully protected in relying on, such instructions.
(d) Every Security authenticated and delivered upon registration
of transfer of, or in exchange for or in lieu of, a Global Security or any
portion thereof, whether pursuant to this Article III, Section 9.6 or 11.6 or
otherwise, shall be authenticated and delivered in the form of, and shall be,
a Global Security, unless such Security is registered in the name of a Person
other than the Depositary for such Global Security or a nominee thereof.
(e) Securities distributed to holders of Book-Entry Capital
Securities (as defined in the applicable Trust Agreement) upon the
dissolution of an Issuer Trust shall be distributed in the form of one or
more Global Securities registered in the name of a Depositary or its nominee,
and deposited with the Securities Registrar, as custodian for such
Depositary, or with such Depositary, for credit by the Depositary to the
respective accounts of the beneficial owners of the Securities represented
thereby (or such other accounts as they may direct). Securities distributed
to holders of Capital Securities other than Book-Entry Capital Securities
upon the dissolution of an Issuer Trust shall not be issued in the form of a
Global Security or any other form intended to facilitate book-entry trading
in beneficial interests in such Securities.
(f) As provided in Section 3.9, the Depositary for a Global
Security or its nominee, as the registered owner of a Global Security, shall
be the Holder of such Global Security for all purposes under this Indenture
and the Securities, and owners of beneficial interests in a Global Security
shall hold such interests pursuant to the Applicable Procedures. The
Securities Registrar and the Trustee shall be entitled to deal with the
Depositary for such Global Security for all purposes of this Indenture
relating to the Global Security (including the payment of the principal
amount of (and premium, if any) and interest (including Additional Interest)
on such Global Security and the giving of instructions or directions by or to
beneficial owners of the Securities represented thereby) as the sole Holder
of the Securities represented thereby and shall have no obligation to such
beneficial owners. Neither the Corporation, the Trustee nor the Securities
Registrar shall have any liability in respect of any transfers effected by
the Depositary.
(g) The rights of owners of beneficial interests in a Global
Security shall be exercised only through the Depositary for such Global
Security and shall be limited to those established by law, the Applicable
Procedures and agreements between such beneficial owners and the Depositary
and/or its Agent Members.
SECTION 3.6. Registration, Transfer and Exchange Generally;
Certain Transfers and Exchanges; Securities Act Legends; Exchange Offer.
(a) The Corporation shall cause to be kept at the Corporate Trust
Office of the Trustee a register or registers (the "Securities Register") in
which the registrar and transfer agent with respect to the Securities (the
"Securities Registrar"), subject to such reasonable regulations as it may
prescribe, shall provide for the registration of Securities and of transfers
and exchanges of Securities as herein provided. The Trustee is hereby
appointed Securities Registrar for the purpose of registering Securities and
transfers and exchanges of Securities as herein provided.
Upon surrender for registration of transfer of any Security at the
office or agency of the Corporation designated for that purpose, the
Corporation shall execute, and the Trustee shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new
Securities of the same series of any authorized denominations, of like tenor
and aggregate principal amount, bearing such restrictive legends as may be
required by this Indenture and bearing a number not contemporaneously
outstanding.
At the option of the Holder, Securities may be exchanged for other
Securities of the same series of any authorized denominations, of like tenor
and aggregate principal amount, bearing such restrictive legends as may be
required by this Indenture and bearing a number not contemporaneously
outstanding, upon surrender of the Securities to be exchanged at such office
or agency. Whenever any Securities are so surrendered for exchange, the
Corporation shall execute, and the Trustee shall authenticate and deliver,
the Securities that the Holder making the exchange is entitled to receive.
All Securities issued upon any transfer or exchange of Securities
shall be the valid obligations of the Corporation, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such transfer or exchange.
Neither the Corporation, the Trustee nor the Securities Registrar
shall be required, pursuant to the provisions of this Section 3.6, (i) to
issue, register the transfer of or exchange any Security of any series during
a period beginning at the opening of business 15 days before the day of
selection for redemption of Securities of that series pursuant to Article XI
and ending at the close of business on the day of mailing of the notice of
redemption, or (ii) to register the transfer of or exchange any Security so
selected for redemption in whole or in part, except, in the case of any such
Security to be redeemed in part, any portion thereof not to be redeemed.
Every Security presented or surrendered for registration of
transfer or exchange shall (if so required by the Corporation or the Trustee)
be duly endorsed, or be accompanied by a written instrument of transfer in
form satisfactory to the Corporation and the Securities Registrar, duly
executed by the Holder thereof or such Holder's attorney duly authorized in
writing.
No service charge shall be made to a Holder for any registration of
transfer or exchange of Securities, but the Corporation may require payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any transfer or exchange of Securities.
(b) Notwithstanding any other provision of this Indenture,
transfers and exchanges of Securities and beneficial interests in a Global
Security shall be made only in accordance with this Section 3.6(b).
(i) Non-Global Security to Global Security. If the Holder of a
Security (other than a Global Security) wishes at any time to transfer
all or any portion of such Security to a Person who wishes to take
delivery thereof in the form of a beneficial interest in a Global
Security, such transfer may be effected only in accordance with the
provisions of this Clause (b)(i) and subject to the Applicable
Procedures. Upon receipt by the Securities Registrar of (A) such
Security as provided in Section 3.6(a) and instructions satisfactory to
the Securities Registrar directing that a beneficial interest in the
Global Security in a specified principal amount not greater than the
principal amount of such Security be credited to a specified Agent
Member's account and (B) if the Security to be transferred in whole or
in part is a Restricted Security, a Restricted Securities Certificate
duly executed by such Holder or such Holder's attorney duly authorized
in writing, then the Securities Registrar shall cancel such Security
(and issue a new Security in respect of any untransferred portion
thereof) as provided in Section 3.6(a) and increase the aggregate
principal amount of the Global Security by the specified principal
amount so transferred as provided as provided in Section 3.5(c).
(ii) Non-Global Security to Non-Global Security. A Security that
is not a Global Security may be transferred, in whole or in part, to a
Person who takes delivery in the form of another Security that is not a
Global Security as provided in Section 3.6(a), provided that if the
Security to be transferred in whole or in part is a Restricted Security,
the Securities Registrar shall have received a Restricted Securities
Certificate duly executed by the transferor Holder or such Holder's
attorney duly authorized in writing.
(iii) Global Security to Non-Global Security. A beneficial interest
in a Global Security may be exchanged for a Security that is not a
Global Security as provided in Section 3.5.
(iv) Certain Initial Transfers of Non-Global Securities. In the
case of Securities initially issued other than in global form, an
initial transfer or exchange of such Securities that does not involve
any change in beneficial ownership may be made to an Institutional
Accredited Investor or Investors as if such transfer or exchange were
not an initial transfer or exchange; provided that written certification
shall be provided by the transferee and transferor of such Securities to
the Securities Registrar that such transfer or exchange does not involve
a change in beneficial ownership.
(v) Limitations Relating to Principal Amount. Notwithstanding any
other provision of this Indenture, Securities or portions thereof may be
transferred or exchanged only in principal amounts of not less than the
minimum authorized denomination therefor, and only if, following such
transfer or exchange, each Holder would hold Securities with a principal
amount of not less than such minimum authorized denomination. Any
transfer, exchange or other disposition of Securities in contravention
of this Section 3.6(b)(v) shall be deemed to be void and of no legal
effect whatsoever, any such transferee shall be deemed not to be the
Holder or owner of any beneficial interest in such Securities for any
purpose, including but not limited to the receipt of interest (including
any Additional Interest) payable on such Securities, and such transferee
shall be deemed to have no interest whatsoever in such Securities.
(c) Except as set forth below, all Securities shall bear a
Restricted Securities Legend:
(i) subject to the following Clauses of this Section 3.6(c), a
Security or any portion thereof that is exchanged, upon transfer or
otherwise, for a Global Security or any portion thereof shall bear the
Restricted Securities Legend;
(ii) subject to the following Clauses of this Section 3.6(c), a new
Security that is not a Global Security and is issued in exchange for
another Security (including a Global Security) or any portion thereof,
upon transfer or otherwise, shall bear a Restricted Securities Legend;
(iii) a new Security that does not bear a Restricted Securities
Legend may be issued in exchange for or in lieu of a Restricted Security
or any portion thereof that bears such a legend if, in the Corporation's
sole judgment, placing such a legend upon such new Security is not and
will not be necessary to ensure compliance with the registration
requirements of the Securities Act, and the Trustee, at the written
direction of the Corporation in the form of an Officers' Certificate,
shall authenticate and deliver such a new Security as provided in this
Article III;
(iv) any Securities that are sold or otherwise disposed of pursuant
to an effective registration statement under the Securities Act such
that such Securities are freely transferable by the holders thereof
shall not bear a Restricted Securities Legend;
(v) notwithstanding the foregoing provisions of this Section
3.6(c), a Successor Security of a Security that does not bear a
Restricted Securities Legend shall not bear such form of legend unless,
in the Corporation's sole judgement such Successor Security is a
"restricted security" within the meaning of Rule 144 under the
Securities Act, in which case the Trustee, at the written direction of
the Corporation in the form of an Officers' Certificate, shall
authenticate and deliver a new Security bearing a Restricted Securities
Legend in exchange for such Successor Security as provided in this
Article III; and
(vi) Securities distributed to a holder of Capital Securities upon
dissolution of an Issuer Trust shall bear a Restricted Securities Legend
if the Capital Securities so held bear a similar legend.
(d) The exchange or registration pursuant to the Securities Act of
Securities of any series as permitted or required by any form of Security
issued pursuant to this Indenture shall be made in accordance with this
Indenture and any agreement specifying the terms and conditions of such
exchange. All holders of an interest in such securities will be deemed to be
bound by the provisions of such security and the related agreement providing
for exchange and registration.
The Corporation shall inform the Trustee in writing of the
effective date of any registration statement registering any Securities under
the Securities Act. The Trustee shall not be liable for any action taken or
omitted to be taken by it in good faith in accordance with the aforementioned
registration statement.
SECTION 3.7. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee together
with such security or indemnity as may be required by the Corporation or the
Trustee to save each of them harmless, the Corporation shall execute and the
Trustee shall authenticate and deliver in exchange therefor a new Security of
the same series, of like tenor and aggregate principal amount, bearing the
same legends, and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Corporation and to the Trustee
(i) evidence to their satisfaction of the destruction, loss or theft of any
Security, and (ii) such security or indemnity as may be required by them to
save each of them harmless, then, in the absence of notice to the Corporation
or the Trustee that such Security has been acquired by a bona fide purchaser,
the Corporation shall execute and upon its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series, of like tenor and aggregate
principal amount, bearing the same legends as such destroyed, lost or stolen
Security, and bearing a number not contemporaneously outstanding.
If any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Corporation in its
discretion may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section 3.7, the
Corporation may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Corporation, whether or not the destroyed, lost
or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to the same benefits of this Indenture equally and proportionately
with any and all other Securities of the same series duly issued hereunder.
The provisions of this Section 3.7 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 3.8. Payment of Interest and Additional Interest; Interest
Rights Preserved.
Interest (including any Additional Interest) on any Security of any
series that is payable, and is punctually paid or duly provided for, on any
Interest Payment Date, shall be paid to the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the close
of business on the Regular Record Date for such interest in respect of
Securities of such series, except that, unless otherwise provided in the
Securities of such series, interest (including any Additional Interest)
payable on the Stated Maturity of the principal of a Security shall be paid
to the Person to whom principal is paid. The initial payment of interest on
any Security of any series that is issued between a Regular Record Date and
the related Interest Payment Date shall be payable as provided in such
Security or in the Board Resolution pursuant to Section 3.1 with respect to
the related series of Securities. At the option of the Corporation, interest
on any series of Securities may be paid (i) by check mailed to the address of
the Person entitled thereto as it shall appear on the Securities Register of
such series or (ii) by wire transfer in immediately available funds at such
place and to such account as designated by the Person entitled thereto as
specified in the Securities Register of such series.
Any interest on any Security that is due and payable, but is not
timely paid or duly provided for, on any Interest Payment Date for Securities
of such series (herein called "Defaulted Interest"), shall forthwith cease to
be payable to the registered Holder on the relevant Regular Record Date by
virtue of having been such Holder, and such Defaulted Interest may be paid by
the Corporation, at its election in each case, as provided in Clause (1) or
(2) below:
(1) The Corporation may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series in
respect of which interest is in default (or their respective Predecessor
Securities) are registered at the close of business on a Special Record
Date for the payment of such Defaulted Interest, which shall be fixed in
the following manner. The Corporation shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each
Security and the date of the proposed payment, and at the same time the
Corporation 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 provided in this Clause (1). Thereupon the
Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest, which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less than
10 days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Corporation of such
Special Record Date and, in the name and at the expense of the
Corporation, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder of a Security of such series
at the address of such Holder as it appears in the Securities Register
not less than 10 days prior to such Special Record Date. The Trustee
may, in its discretion, in the name and at the expense of the
Corporation, cause a similar notice to be published at least once in a
newspaper, customarily published in the English language on each
Business Day and of general circulation in the Borough of Manhattan, The
City of New York, but such publication shall not be a condition
precedent to the establishment of such Special Record Date. Notice of
the proposed payment of such Defaulted Interest and the Special Record
Date therefor having been mailed as aforesaid, such Defaulted Interest
shall be paid to the Persons in whose names the Securities of such
series (or their respective Predecessor Securities) are registered on
such Special Record Date and shall no longer be payable pursuant to the
following Clause (2).
(2) The Corporation may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any
securities exchange or automated quotation system on which the
Securities of the series in respect of which interest is in default may
be listed and, upon such notice as may be required by such exchange (or
by the Trustee if the Securities are not listed), if, after notice given
by the Corporation to the Trustee of the proposed payment pursuant to
this Clause (2), such payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section 3.8, each
Security delivered under this Indenture upon transfer of or in exchange for
or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, that were carried by such other Security.
SECTION 3.9. Persons Deemed Owners.
The Corporation, the Trustee and any agent of the Corporation or
the Trustee shall treat the Person in whose name any Security is registered
as the owner of such Security for the purpose of receiving payment of
principal of and (subject to Section 3.8) any interest on such Security and
for all other purposes whatsoever, whether or not such Security be overdue,
and neither the Corporation, the Trustee nor any agent of the Corporation or
the Trustee shall be affected by notice to the contrary.
No holder of any beneficial interest in any Global Security held on
its behalf by a Depositary shall have any rights under this Indenture with
respect to such Global Security, and such Depositary may be treated by the
Corporation, the Trustee and any agent of the Corporation or the Trustee as
the owner of such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Corporation,
the Trustee or any agent of the Corporation or the Trustee from giving effect
to any written certification, proxy or other authorization furnished by a
Depositary or impair, as between a Depositary and such holders of beneficial
interests, the operation of customary practices governing the exercise of the
rights of the Depositary (or its nominee) as Holder of any Security.
SECTION 3.10. Cancellation.
All Securities surrendered for payment, redemption, transfer or
exchange shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee, and any such Securities and Securities surrendered
directly to the Trustee for any such purpose shall be promptly canceled by
it. The Corporation may at any time deliver to the Trustee for cancellation
any Securities previously authenticated and delivered hereunder that the
Corporation may have acquired in any manner whatsoever, and all Securities so
delivered shall be promptly canceled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as
provided in this Section 3.10, except as expressly permitted by this
Indenture. All canceled Securities shall be destroyed by the Trustee and the
Trustee shall deliver to the Corporation a certificate of such destruction.
SECTION 3.11. Computation of Interest.
Except as otherwise specified as contemplated by Section 3.1 for
Securities of any series, interest on the Securities of each series for any
partial period shall be computed on the basis of a 360-day year of twelve 30-
day months and the actual number of days elapsed in any partial month in such
period, and interest on the Securities of each series for a full period shall
be computed by dividing the rate per annum by the number of interest periods
that together constitute a full twelve months.
SECTION 3.12. Deferrals of Interest Payment Dates.
If specified as contemplated by Section 2.1 or Section 3.1 with
respect to the Securities of a particular series, so long as no Event of
Default has occurred and is continuing, the Corporation shall have the right,
at any time during the term of such series, from time to time to defer the
payment of interest on such Securities for such period or periods as may be
specified as contemplated by Section 3.1 (each, an "Extension Period"),
during which Extension Periods the Corporation shall, if so specified as
contemplated by Section 3.1, have the right to make partial payments of
interest (including any Additional Interest) on any Interest Payment Date.
No Extension Period shall end on a date other than an Interest Payment Date.
At the end of any such Extension Period the Corporation shall pay all
interest then accrued and unpaid on the Securities (together with Additional
Interest thereon, if any, at the rate specified for the Securities of such
series, to the extent permitted by applicable law); provided, however, that
no Extension Period shall extend beyond the Stated Maturity of the principal
of the Securities of such series; and provided further, however that during
any such Extension Period, the Corporation shall not (i) declare or pay any
dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of the Corporation's capital stock,
or (ii) make any payment of principal of or interest or premium, if any, on
or repay, repurchase or redeem any debt securities of the Corporation that
rank pari passu in all respects with or junior in interest to the Securities
of such series (other than (a) repurchases, redemptions or other acquisitions
of shares of capital stock of the Corporation in connection with any
employment contract, benefit plan or other similar arrangement with or for
the benefit of any one or more employees, officers, directors or consultants,
in connection with a dividend reinvestment or stockholder stock purchase plan
or in connection with the issuance of capital stock of the Corporation (or
securities convertible into or exercisable for such capital stock) as
consideration in an acquisition transaction entered into prior to the
applicable Extension Period, (b) as a result of an exchange or conversion of
any class or series of the Corporation's capital stock (or any capital stock
of a Subsidiary of the Corporation) for any class or series of the
Corporation's capital stock or of any class or series of the Corporation's
indebtedness for any class or series of the Corporation's capital stock,
(c) the purchase of fractional interests in shares of the Corporation's
capital stock pursuant to the conversion or exchange provisions of such
capital stock or the security being converted or exchanged, (d) any
declaration of a dividend in connection with any Rights Plan, or the issuance
of rights, stock or other property under any Rights Plan, or the redemption
or repurchase of rights pursuant thereto, or (e) any dividend in the form of
stock, warrants, options or other rights where the dividend stock or the
stock issuable upon exercise of such warrants, options or other rights is the
same stock as that on which the dividend is being paid or ranks pari passu
with or junior to such stock). Prior to the termination of any such
Extension Period, the Corporation may further defer the payment of interest,
provided that no Event of Default has occurred and is continuing, and
provided further that no Extension Period shall exceed the period or periods
specified in such Securities, extend beyond the Stated Maturity of the
principal of such Securities or end on a date other than an Interest Payment
Date. Upon the termination of any such Extension Period and upon the payment
of all accrued and unpaid interest (including any Additional Interest) then
due on any Interest Payment Date, the Corporation may elect to begin a new
Extension Period, subject to the above conditions. No interest (including
any Additional Interest) shall be due and payable during an Extension Period,
except at the end thereof, but each installment of interest that would
otherwise have been due and payable during such Extension Period shall bear
Additional Interest as and to the extent as may be specified as contemplated
by Section 3.1. The Corporation shall give the Property Trustee of the
Securities of such series and the Trustee notice of its election to begin any
such Extension Period at least one Business Day prior to the next succeeding
Interest Payment Date on which interest on Securities of such series would be
payable but for such deferral or, with respect to any Securities of a series
issued to an Issuer Trust, so long as any such Securities are held by such
Issuer Trust, at least one Business Day prior to the earlier of (i) the next
succeeding date on which Distributions on the Capital Securities of such
Issuer Trust would be payable but for such deferral, and (ii) the date on
which the Property Trustee of such Issuer Trust is required to give notice to
holders of such Capital Securities of the record date or the date such
Distributions are payable. The Property Trustee will give notice of the
Corporation's election to begin a new Extension Period to the holders of the
Capital Securities.
The Trustee shall promptly give notice of the Corporation's
election to begin any such Extension Period to the Holders of the Outstanding
Securities of such series.
SECTION 3.13. Right of Set-Off.
With respect to the Securities of a series initially issued to an
Issuer Trust, notwithstanding anything to the contrary herein, the
Corporation shall have the right to set off any payment it is otherwise
required to make in respect of any such Security to the extent the
Corporation has theretofore made, or is concurrently on the date of such
payment making, a payment under the Guarantee Agreement relating to such
Security or to a holder of Capital Securities pursuant to an action
undertaken under Section 5.8 of this Indenture.
SECTION 3.14. Agreed Tax Treatment.
It is intended that each Security issued hereunder shall constitute
indebtedness of the Corporation and, consequently, each such Security provide
that the Corporation and, by its acceptance of a Security or a beneficial
interest therein, the Holder of, and any Person that acquires a beneficial
interest in, such Security agree to treat such Security as indebtedness of
the Corporation for all United States federal, state and local tax purposes.
SECTION 3.15. Shortening of Stated Maturity.
If specified as contemplated by Section 2.1 or Section 3.1 with
respect to the Securities of a particular series, the Corporation shall have
the right to shorten the Stated Maturity of the principal of the Securities
of such series at any time to any date.
SECTION 3.16. CUSIP Numbers.
The Corporation in issuing the Securities may use"CUSIP" numbers
(if then generally in use), and, if so, the Trustee shall use"CUSIP" numbers
in notices of redemption and other similar or related materials as a
convenience to Holders; provided that any such notice or other materials may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of
redemption or other materials and that reliance may be placed only on the
other identification numbers printed on the Securities, and any such
redemption shall not be affected by any defect in or omission of such
numbers.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1. Satisfaction and Discharge of Indenture.
This Indenture shall, upon Corporation Request, cease to be of
further effect (except as to any surviving rights of registration of transfer
or exchange of Securities herein expressly provided for and as otherwise
provided in this Section 4.1) and the Trustee, on demand of and at the
expense of the Corporation, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and
delivered (other than (i) Securities that have been destroyed,
lost or stolen and that have been replaced or paid as provided
in Section 3.7 and (ii) Securities for whose payment money has
theretofore been deposited in trust or segregated and held in
trust by the Corporation and thereafter repaid to the
Corporation or discharged from such trust, as provided in
Section 10.3) have been delivered to the Trustee for
cancellation; or
(B) all such Securities not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year of the date of deposit, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving
of notice of redemption by the Trustee in the name, and at the
expense, of the Corporation,
and the Corporation, in the case of subclause (B)(i), (ii) or (iii)
above, has deposited or caused to be deposited with the Trustee as
trust funds in trust for such purpose an amount in the currency or
currencies in which the Securities of such series are payable
sufficient to pay and discharge the entire indebtedness on such
Securities not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) and interest
(including any Additional Interest) to the date of such deposit (in
the case of Securities that have become due and payable) or to the
Stated Maturity or Redemption Date, as the case may be;
(2) the Corporation has paid or caused to be paid all other sums
payable hereunder by the Corporation; and
(3) the Corporation has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Corporation to the Trustee under Section 6.7, the
obligations of the Trustee to any Authenticating Agent under Section 6.14
and, if money shall have been deposited with the Trustee pursuant to
subclause (B) of Clause (1) of this Section 4.1, the obligations of the
Trustee under Section 4.2 and the last paragraph of Section 10.3 shall
survive.
SECTION 4.2. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 10.3,
all money deposited with the Trustee pursuant to Section 4.1 shall be held in
trust and applied by the Trustee, in accordance with the provisions of the
Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Corporation acting as its own Paying Agent) as
the Trustee may determine, to the Persons entitled thereto, of the principal
(and premium, if any) and interest (including any Additional Interest) for
the payment of which such money or obligations have been deposited with or
received by the Trustee.
ARTICLE V
REMEDIES
SECTION 5.1. Events of Default.
"Event of Default", wherever used herein with respect to the
Securities of any series, means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body), except as may be specified pursuant to
Section 3.1:
(1) default in the payment of any interest (including any
Additional Interest) upon any Security of that series when it becomes
due and payable, and continuance of such default for a period of 30 days
(subject to the deferral of any due date in respect of any interest
(including Additional Interest) in the case of an Extension Period); or
(2) default in the payment of the principal of (or premium, if
any, on) any Security of that series at its Maturity; or
(3) failure on the part of the Corporation duly to observe or
perform in any material respect any other of the covenants or agreements
on the part of the Corporation in the Securities of that series or in
this Indenture for a period of 90 days after the date on which written
notice of such failure, requiring the Corporation to remedy the same,
shall have been given to the Corporation by the Trustee by registered or
certified mail or to the Corporation and the Trustee by the Holders of
at least 25% in aggregate principal amount of the Outstanding Securities
of that series; or
(4) the entry of a decree or order by a court having jurisdiction
in the premises adjudging the Corporation a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization of the
Corporation under the Bankruptcy Code or any other similar applicable
Federal or State law, which decree or order shall have continued
undischarged and unstayed for a period of 90 days; or the entry of a
decree or order of a court having jurisdiction in the premises for the
appointment of a receiver or liquidator or trustee or assignee in
bankruptcy or insolvency of the Corporation or of its property, or for
the winding up or liquidation of its affairs, which decree or order
shall have continued undischarged and unstayed for a period of 90 days;
or
(5) the commencement by the Corporation of voluntary proceedings
to be adjudicated a bankrupt, or the consent by the Corporation to the
filing of a bankruptcy proceeding against it, or the filing by the
Corporation of a petition or answer or consent seeking reorganization
under the Bankruptcy Code or any other similar Federal or State law, or
the consent by the Corporation to the filing of any such petition, or
the consent by the Corporation to the appointment of a receiver or
liquidator or trustee or assignee in bankruptcy or insolvency of it or
of its property, or the making by the Corporation of an assignment for
the benefit of creditors, or the admission by the Corporation in writing
of its inability to pay its debts generally as they become due; or
(6) any other Event of Default provided with respect to Securities
of that series.
SECTION 5.2. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in
Section 5.1(4) or 5.1(5)) with respect to Securities of any series at the
time Outstanding occurs and is continuing, then and in every such case the
Trustee or the Holders of not less than 25% in aggregate principal amount of
the Outstanding Securities of that series may declare the principal amount
(or, if the Securities of that series are Discount Securities, such portion
of the principal amount as may be specified in the terms of that series) of
all the Securities of that series to be due and payable immediately, by a
notice in writing to the Corporation (and to the Trustee if given by
Holders), provided that, in the case of the Securities of a series issued to
an Issuer Trust, if, upon an Event of Default, the Trustee or the Holders of
not less than 25% in principal amount of the Outstanding Securities of such
series fail to declare the principal of all the Outstanding Securities of
such series (or specified portion thereof) to be immediately due and payable,
the holders of at least 25% in aggregate Liquidation Amount (as defined in
the related Trust Agreement) of the related series of Capital Securities
issued by such Issuer Trust then outstanding shall have the right to make
such declaration by a notice in writing to the Corporation and the Trustee;
and upon any such declaration such principal amount (or specified portion
thereof) of and the accrued interest (including any Additional Interest) on
all the Securities of such series shall become immediately due and payable.
If an Event of Default specified in Section 5.1(4) or 5.1(5) with respect to
Securities of any series at the time Outstanding occurs, the principal amount
of all the Securities of such series (or, if the Securities of such series
are Discount Securities, such portion of the principal amount of such
Securities as may be specified by the terms of that series) and the accrued
interest (including any Additional Interest) on all the Securities of such
series shall automatically, and without any declaration or other action on
the part of the Trustee or any Holder, become immediately due and payable.
Payment of principal (and premium, if any) and interest (including any
Additional Interest) on such Securities shall remain subordinated to the
extent provided in Article XIII notwithstanding that such amount shall become
immediately due and payable as herein provided.
At any time after such a declaration of acceleration with respect
to Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in
this Article V provided, the Holders of a majority in aggregate principal
amount of the Outstanding Securities of that series, by written notice to the
Corporation and the Trustee, may rescind and annul such declaration and its
consequences if:
(1) the Corporation has paid or deposited with the Trustee a sum
sufficient to pay:
(A) all overdue installments of interest on all Securities of
such series,
(B) any accrued Additional Interest on all Securities of such
series,
(C) the principal of (and premium, if any, on) any Securities
of such series that have become due otherwise than by such
declaration of acceleration, and
(D) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that
series, other than the non-payment of the principal of Securities of
that series that has become due solely by such acceleration, have been
cured or waived as provided in Section 5.13.
In the case of Securities of a series initially issued to an Issuer
Trust, if the Holders of such Securities fail to annul such declaration and
waive such default, the holders of a Majority in Liquidation Amount of the
Capital Securities (as defined in the related Trust Agreement) issued by such
Issuer Trust shall also have the right to rescind and annul such declaration
and its consequences by written notice to the Corporation and the Trustee,
subject to the satisfaction of the conditions set forth in Clauses (1) and
(2) above of this Section 5.2.
No such rescission shall affect any subsequent default or impair
any right consequent thereon.
SECTION 5.3. Collection of Indebtedness and Suits for Enforcement
by Trustee.
The Corporation covenants that if:
(1) default is made in the payment of any installment of interest
(including any Additional Interest) on any Security of any series when
such interest becomes due and payable and such default continues for a
period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof,
the Corporation will, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities, the whole amount then due and
payable on such Securities for principal (and premium, if any), including any
sinking fund payment or analogous obligations, and interest (including any
Additional Interest), and, in addition thereto, all amounts owing to the
Trustee under Section 6.7.
If the Corporation fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, and may prosecute such proceeding to judgment or final decree, and
may enforce the same against the Corporation or any other obligor upon such
Securities and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Corporation or any other
obligor upon the Securities, wherever situated.
If an Event of Default with respect to Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities of
such series by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid
of the exercise of any power granted herein, or to enforce any other proper
remedy.
SECTION 5.4. Trustee May File Proofs of Claim.
In case of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Corporation or any other obligor upon the
Securities or the property of the Corporation or of such other obligor or
their creditors,
(a) the Trustee (irrespective of whether the principal of the
Securities of any series shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Corporation for the payment of
overdue principal (or premium, if any) or interest (including any
Additional Interest)) shall be entitled and empowered, by intervention
in such proceeding or otherwise,
(1) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest (including any
Additional Interest) owing and unpaid in respect of the Securities
and to file such other papers or documents as may be necessary or
advisable and to take any and all actions as are authorized under
the Trust Indenture Act in order to have the claims of the Holders
and any predecessor to the Trustee under Section 6.7 allowed in any
such judicial proceedings; and
(2) in particular, the Trustee shall be authorized to collect
and receive any moneys or other property payable or deliverable on
any such claims and to distribute the same in accordance with
Section 5.6; and
(b) any custodian, receiver, assignee, trustee, liquidator,
sequestrator (or other similar official) in any such judicial proceeding
is hereby authorized by each Holder to make such payments to the Trustee
for distribution in accordance with Section 5.6, and in the event that
the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due to it and any predecessor
Trustee under Section 6.7.
Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any
plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof, or to authorize the Trustee
to vote in respect of the claim of any Holder in any such proceeding;
provided, however, that the Trustee may, on behalf of the Holders, vote for
the election of a trustee in bankruptcy or similar official and be a member
of a creditors' or other similar committee.
SECTION 5.5. Trustee May Enforce Claim Without Possession of
Securities.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust, and
any recovery of judgment shall, subject to Article XIII and after provision
for the payment of all the amounts owing the Trustee and any predecessor
Trustee under Section 6.7, its agents and counsel, be for the ratable benefit
of the Holders of the Securities in respect of which such judgment has been
recovered.
SECTION 5.6. Application of Money Collected.
Any money or property collected or to be applied by the Trustee
with respect to a series of Securities pursuant to this Article V shall be
applied in the following order, at the date or dates fixed by the Trustee
and, in case of the distribution of such money or property on account of
principal (or premium, if any) or interest (including any Additional
Interest), upon presentation of the Securities and the notation thereon of
the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 6.7;
SECOND: Subject to Article XIII, to the payment of the amounts then
due and unpaid upon Securities of such series for principal (and
premium, if any) and interest (including any Additional Interest) in
respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such series of Securities
for principal (and premium, if any) and interest (including any
Additional Interest), respectively; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
SECTION 5.7. Limitation on Suits.
Subject to Section 5.8, no Holder of any Securities of any series
shall have any right to institute any proceeding, judicial or otherwise, with
respect to this Indenture or for the appointment of a receiver, assignee,
trustee, liquidator or sequestrator (or other similar official) or for any
other remedy hereunder, unless:
(1) such Holder has previously given written notice to the Trustee
of a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in aggregate principal amount
of the Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of such Event
of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in aggregate principal amount of the Outstanding Securities of
that series;
it being understood and intended that no one or more of such Holders shall
have any right in any manner whatever by virtue of, or by availing itself of,
any provision of this Indenture to affect, disturb or prejudice the rights of
any other Holders of Securities, or to obtain or to seek to obtain priority
or preference over any other of such Holders or to enforce any right under
this Indenture, except in the manner herein provided and for the equal and
ratable benefit of all such Holders.
SECTION 5.8. Unconditional Right of Holders to Receive Principal,
Premium and Interest; Direct Action by Holders of Capital Securities.
Notwithstanding any other provision in this Indenture, the Holder
of any Security of any series shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium, if any)
and (subject to Sections 3.8 and 3.12) interest (including any Additional
Interest) on such Security on the respective Stated Maturities expressed in
such Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such right shall
not be impaired without the consent of such Holder. In the case of
Securities of a series issued to an Issuer Trust, any registered holder of
the series of Capital Securities issued by such Issuer Trust shall have the
right, upon the occurrence of an Event of Default described in Section 5.1(1)
or 5.1(2), to institute a suit directly against the Corporation for
enforcement of payment to such holder of principal of (premium, if any) and
(subject to Sections 3.8 and 3.12) interest (including any Additional
Interest) on the Securities having a principal amount equal to the aggregate
Liquidation Amount (as defined in the related Trust Agreement) of such
Capital Securities held by such holder.
SECTION 5.9. Restoration of Rights and Remedies.
If the Trustee, any Holder or any holder of Capital Securities
issued by any Issuer Trust has instituted any proceeding to enforce any right
or remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee,
such Holder or such holder of Capital Securities, then and in every such case
the Corporation, the Trustee, such Holders and such holder of Capital
Securities shall, subject to any determination in such proceeding, be
restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Trustee, such Holder and such
holder of Capital Securities shall continue as though no such proceeding had
been instituted.
SECTION 5.10. Rights and Remedies Cumulative.
Except as otherwise provided in the last paragraph of Section 3.7,
no right or remedy herein conferred upon or reserved to the Trustee or the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of
any right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 5.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee, any Holder of any Security or
any holder of any Capital Security to exercise any right or remedy accruing
upon any Event of Default with respect to the Securities of the related
series shall impair any such right or remedy or constitute a waiver of any
such Event of Default or an acquiescence therein.
Every right and remedy given by this Article V or by law to the
Trustee or to the Holders and the right and remedy given to the holders of
Capital Securities by Section 5.8 may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee, the Holders or the holders
of Capital Securities, as the case may be.
SECTION 5.12. Control by Holders.
The Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities of any series shall have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred on the
Trustee, with respect to the Securities of such series, provided that:
(1) such direction shall not be in conflict with any rule of law
or with this Indenture,
(2) the Trustee may take any other action deemed proper by the
Trustee that is not inconsistent with such direction, and
(3) subject to the provisions of Section 6.1, the Trustee shall
have the right to decline to follow such direction if a Responsible
Officer or Officers of the Trustee shall, in good faith, determine that
the proceeding so directed would be unjustly prejudicial to the Holders
not joining in any such direction or would involve the Trustee in
personal liability.
SECTION 5.13. Waiver of Past Defaults.
The Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities of any series affected thereby and, in
the case of any Securities of a series initially issued to an Issuer Trust,
the holders of a Majority in Liquidation Amount of the Capital Securities (as
defined in the related Trust Agreement) issued by such Issuer Trust may waive
any past default or Event of Default hereunder and its consequences with
respect to such series except a default:
(1) in the payment of the principal of (or premium, if any) or
interest (including any Additional Interest) on any Security of such
series (unless such default has been cured and the Corporation has paid
to or deposited with the Trustee a sum sufficient to pay all matured
installments of interest (including any Additional Interest) and all
principal of (and premium, if any, on) all Securities of that series due
otherwise than by acceleration), or
(2) in respect of a covenant or provision hereof that under
Article IX cannot be modified or amended without the consent of each
Holder of any Outstanding Security of such series affected.
Any such waiver shall be deemed to be on behalf of the Holders of
all the Securities of such series or, in the case of a waiver by holders of
Capital Securities issued by such Issuer Trust, by the holders of all the
Capital Securities issued by such Issuer Trust.
Upon any such waiver, such default or Event of Default shall cease
to exist, and any default or Event of Default arising therefrom shall be
deemed to have been cured, for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other default or Event of Default or
impair any right consequent thereon.
SECTION 5.14. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
Security, by 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, 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 5.14 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 Outstanding Securities of any series, or to any suit
instituted by any Holder for the enforcement of the payment of the principal
of (or premium, if any) or interest (including any Additional Interest) on
any Security on or after the respective Stated Maturities expressed in such
Security.
SECTION 5.15. Waiver of Usury, Stay or Extension Laws.
The Corporation covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any usury, stay or
extension law wherever enacted, now or at any time hereafter in force, which
may affect the covenants or the performance of this Indenture; and the
Corporation (to the extent that it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law, and covenants that it will
not hinder, delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
ARTICLE VI
THE TRUSTEE
SECTION 6.1. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this
Indenture; but in the case of any such certificates or opinions that by
any provisions hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this
Indenture.
(b) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct
of his or her own affairs.
(c) No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act, or its own wilful misconduct except that:
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section 6.1;
(2) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer, unless it shall be proved that
the Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of Holders pursuant to Section 5.12 relating to the time,
method and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred upon the
Trustee, under this Indenture with respect to the Securities of a
series.
(d) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if there shall be reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability
is not reasonably assured to it.
(e) Whether or not therein expressly so provided, every provision
of this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of
this Section 6.1.
SECTION 6.2. Notice of Defaults.
Within 90 days after actual knowledge by a Responsible Officer of
the Trustee of the occurrence of any default hereunder with respect to the
Securities of any series, the Trustee shall transmit by mail to all Holders
of Securities of such series, as their names and addresses appear in the
Securities Register, notice of such default, unless such default shall have
been cured or waived; provided, however, that, except in the case of a
default in the payment of the principal of (or premium, if any) or interest
(including any Additional Interest) on any Security of such series, the
Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee or a trust committee of directors
and/or Responsible Officers of the Trustee in good faith determines that the
withholding of such notice is in the interests of the Holders of Securities
of such series; and provided further, however, that, in the case of any
default of the character specified in Section 5.1(3), no such notice to
Holders of Securities of such series shall be given until at least 30 days
after the occurrence thereof. For the purpose of this Section 6.2, the term
"default" means any event that is, or after notice or lapse of time or both
would become, an Event of Default with respect to Securities of such series.
SECTION 6.3. Certain Rights of Trustee.
Subject to the provisions of Section 6.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, Security or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Corporation mentioned herein
shall be sufficiently evidenced by a Corporation Request or Corporation Order
and any resolution of the Board of Directors may be sufficiently evidenced by
a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith
on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities that might be incurred by it in
complying with such request or direction;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, Security or other paper or document, but the Trustee in its
discretion may make such inquiry or investigation into such facts or matters
as it may see fit; and
(g) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed by it with due care
hereunder.
SECTION 6.4. Not Responsible for Recitals or Issuance of
Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Corporation, and neither the Trustee nor any Authenticating Agent assumes
any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities. Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Corporation of the Securities
or the proceeds thereof.
SECTION 6.5. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any
Securities Registrar or any other agent of the Corporation, in its individual
or any other capacity, may become the owner or pledgee of Securities and,
subject to Sections 6.8 and 6.13, may otherwise deal with the Corporation
with the same rights it would have if it were not Trustee, Authenticating
Agent, Paying Agent, Securities Registrar or such other agent.
SECTION 6.6. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law (including the Trust
Indenture Act). The Trustee shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed with the
Corporation.
SECTION 6.7. Compensation and Reimbursement.
The Corporation, in its capacity as the issuer of the Securities,
agrees
(1) to pay to the Trustee from time to time such reasonable
compensation for all services rendered by it hereunder in such
amounts as the Corporation and the Trustee shall agree from time to
time (which compensation shall not be limited by any provision of
law in regard to the compensation of a trustee of an express
trust);
(2) to reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by
the Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or
bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense (including the reasonable
compensation and the expenses and disbursements of its agents and
counsel) incurred without negligence, wilful misconduct or bad
faith, arising out of or in connection with the acceptance or
administration of this trust or the performance of its duties
hereunder, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder. This
indemnification shall survive the termination of this Indenture.
When the Trustee incurs expenses or renders services after an Event
of Default specified in Section 5.1(4) or 5.1(5) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under the Bankruptcy Code.
SECTION 6.8. Disqualification; Conflicting Interests.
(a) The Trustee for the Securities of any series issued hereunder
shall be subject to the provisions of Section 310(b) of the Trust Indenture
Act. Nothing herein shall prevent the Trustee from filing with the
Commission the application referred to in the second to last paragraph of
said Section 310(b).
(b) The Trust Agreement and the Guarantee Agreement with respect
to each Issuer Trust shall be deemed to be specifically described in this
Indenture for the purposes of clause (i) of the first proviso contained in
Section 310(b) of the Trust Indenture Act.
SECTION 6.9. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be:
(a) a corporation organized and doing business under the laws of
the United States of America or of any State or Territory thereof or the
District of Columbia, authorized under such laws to exercise corporate
trust powers and subject to supervision or examination by Federal,
State, Territorial or District of Columbia authority, or
(b) a corporation or other Person organized and doing business
under the laws of a foreign government that is permitted to act as
Trustee pursuant to a rule, regulation or order of the Commission,
authorized under such laws to exercise corporate trust powers, and
subject to supervision or examination by authority of such foreign
government or a political subdivision thereof substantially equivalent
to supervision or examination applicable to United States institutional
trustees,
in either case having at the time of appointment securities rated in one of
the three highest rating categories by a nationally recognized statistical
rating organization and a combined capital and surplus of at least
$50,000,000. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising
or examining authority, then, for the purposes of this Section 6.9 and to the
extent permitted by the Trust Indenture Act, the combined capital and surplus
of such corporation shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any
time the Trustee shall cease to be eligible in accordance with the provisions
of this Section 6.9, it shall resign immediately in the manner and with the
effect hereinafter specified in this Article VI. Neither the Corporation nor
any Person directly or indirectly controlling, controlled by or under common
control with the Corporation shall serve as Trustee for the Securities of any
series issued hereunder.
SECTION 6.10. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of
a successor Trustee pursuant to this Article VI shall become effective until
the acceptance of appointment by the successor Trustee under Section 6.11.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Corporation. If an instrument of acceptance by a successor Trustee shall not
have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in aggregate
principal amount of the Outstanding Securities of such series, delivered to
the Trustee and to the Corporation.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 6.8 after
written request therefor by the Corporation or by any Holder who has
been a bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 6.9 and
shall fail to resign after written request therefor by the Corporation
or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Corporation, acting pursuant to the authority
of a Board Resolution, may remove the Trustee with respect to the Securities
of all series issued hereunder, or (ii) subject to Section 5.14, any Holder
who has been a bona fide Holder of a Security for at least six months may, on
behalf of such Holder and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to the
Securities of all series issued hereunder and the appointment of a successor
Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause
with respect to the Securities of one or more series, the Corporation, by a
Board Resolution, shall promptly appoint a successor Trustee with respect to
the Securities of that or those series. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in aggregate principal amount
of the Outstanding Securities of such series delivered to the Corporation and
the retiring Trustee, the successor Trustee so appointed shall, forthwith
upon its acceptance of such appointment, become the successor Trustee with
respect to the Securities of such series and supersede the successor Trustee
appointed by the Corporation. If no successor Trustee with respect to the
Securities of any series shall have been so appointed by the Corporation or
the Holders and accepted appointment in the manner hereinafter provided, any
Holder who has been a bona fide Holder of a Security of such series for at
least six months may, subject to Section 5.14, on behalf of such Holder and
all others similarly situated, petition any court of competent jurisdiction
for the appointment of a successor Trustee with respect to the Securities of
such series.
(f) The Corporation shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any
series by mailing written notice of such event by first-class mail, postage
prepaid, to the Holders of Securities of such series as their names and
addresses appear in the Securities Register. Each notice shall include the
name of the successor Trustee with respect to the Securities of such series
and the address of its Corporate Trust Office.
SECTION 6.11. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee
with respect to all Securities, every such successor Trustee so appointed
shall execute, acknowledge and deliver to the Corporation and to the retiring
Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and
such successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Trustee; but, on the request of the Corporation or the successor Trustee,
such retiring Trustee shall, upon payment of its charges, execute and deliver
an instrument transferring to such successor Trustee all the rights, powers
and trusts of the retiring Trustee and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such
retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series, the
Corporation, the retiring Trustee and each successor Trustee with respect to
the Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such
appointment and which (1) shall contain such provisions as shall be necessary
or desirable to transfer and confirm to, and to vest in, each successor
Trustee all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee is
not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series as to which the retiring Trustee is not
retiring shall continue to be vested in the retiring Trustee, and (3) shall
add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein
or in such supplemental indenture shall constitute such Trustees co-trustees
of the same trust and that each such Trustee shall be trustee of a trust or
trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee; and upon the execution and delivery
of such supplemental indenture the resignation or removal of the retiring
Trustee shall become effective to the extent provided therein and each such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates; but, on request of the
Corporation or any successor Trustee, such retiring Trustee shall duly
assign, transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder with respect to the Securities of
that or those series to which the appointment of such successor Trustee
relates.
(c) Upon request of any such successor Trustee, the Corporation
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all rights, powers and trusts
referred to in paragraph (a) or (b) of this Section 6.11, as the case may be.
(d) No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article VI.
SECTION 6.12. Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor Trustee hereunder, provided
such corporation shall be otherwise qualified and eligible under this
Article VI, without the execution or filing of any paper or any further act
on the part of any of the parties hereto. If any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating
Trustee may adopt such authentication and deliver the Securities so
authenticated, and if any Securities shall not have been authenticated, any
successor to the Trustee may authenticate such Securities either in the name
of any predecessor Trustee or in the name of such successor Trustee, and in
all cases the certificate of authentication shall have the full force which
it is provided anywhere in the Securities or in this Indenture that the
certificate of the Trustee shall have.
SECTION 6.13. Preferential Collection of Claims Against
Corporation.
If and when the Trustee shall be or become a creditor of the
Corporation (or any other obligor upon the Securities), the Trustee shall be
subject to the provisions of the Trust Indenture Act regarding the collection
of claims against the Corporation (or any such other obligor).
SECTION 6.14. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with
respect to one or more series of Securities, which shall be authorized to act
on behalf of the Trustee to authenticate Securities of such series issued
upon original issue and upon exchange, registration of transfer or partial
redemption thereof or pursuant to Section 3.7, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall
be valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or to the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating
Agent or the Authenticating Agent's certificate of authentication set forth
for this Section 6.14. Each Authenticating Agent shall be acceptable to the
Corporation and shall at all times be a corporation organized and doing
business under the laws of the United States of America or of any State or
Territory thereof or the District of Columbia, authorized under such laws to
act as Authenticating Agent, having a combined capital and surplus of not
less than $50,000,000 and subject to supervision or examination by Federal,
State, Territorial or District of Columbia authority. If such Authenticating
Agent 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 6.14 and to the extent permitted by the
Trust Indenture Act, the combined capital and surplus of such Authenticating
Agent shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 6.14, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section 6.14.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating
Agent shall be a party, or any corporation succeeding to all or substantially
all of the corporate trust business of an Authenticating Agent, shall be the
successor Authenticating Agent hereunder, provided such corporation shall be
otherwise qualified and eligible under this Section 6.14, without the
execution or filing of any paper or any further act on the part of the
Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Corporation. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Corporation. Upon receiving
such a notice of resignation or upon such a termination, or in case at any
time such Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section 6.14, the Trustee may appoint a successor
Authenticating Agent, which shall be acceptable to the Corporation and shall
give notice of such appointment in the manner provided in Section 1.6 to all
Holders of Securities of the series with respect to which such Authenticating
Agent will serve. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if originally named
as an Authenticating Agent. No successor Authenticating Agent shall be
appointed unless eligible under the provision of this Section 6.14.
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section 6.14, and
the Trustee shall be entitled to be reimbursed for such payments, subject to
the provisions of Section 6.7.
If an appointment with respect to one or more series is made
pursuant to this Section 6.14, the Securities of such series may have
endorsed thereon, in addition to the Trustee's certificate of authentication,
an alternative certificate of authentication in the following form:
This is one of the Securities of the series designated therein
referred to in the within mentioned Indenture.
Dated:
-------------------
THE FIRST NATIONAL BANK OF
CHICAGO, as Trustee
By:
------------------------------
As Authenticating Agent
By:
------------------------------
Authorized Officer
ARTICLE VII
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND CORPORATION
SECTION 7.1. Corporation to Furnish Trustee Names and Addresses of
Holders.
The Corporation will furnish or cause to be furnished to the
Trustee:
(a) semi-annually, on or before June 30 and December 31 of each
year, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders as of a date not more than 15 days
prior to the delivery thereof, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Corporation 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,
in each case to the extent such information is in the possession or control
of the Corporation and has not otherwise been received by the Trustee in its
capacity as Securities Registrar.
SECTION 7.2. Preservation of Information, Communications to
Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the
most recent list furnished to the Trustee as provided in Section 7.1 and the
names and addresses of Holders received by the Trustee in its capacity as
Securities Registrar. The Trustee may destroy any list furnished to it as
provided in Section 7.1 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and privileges of the Trustee, shall be as provided in
the Trust Indenture Act.
(c) Every Holder of Securities, by its acceptance thereof, agrees
with the Corporation and the Trustee that neither the Corporation nor the
Trustee nor any agent of either of them shall be held accountable by reason
of the disclosure of information as to the names and addresses of the Holders
made pursuant to the Trust Indenture Act.
SECTION 7.3. Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports concerning
the Trustee and its actions under this Indenture as may be required pursuant
to the Trust Indenture Act, at the times and in the manner provided pursuant
thereto.
(b) Reports so required to be transmitted at stated intervals of
not more than 12 months shall be transmitted no later than 60 days following
December 31 in each calendar year, commencing December 31, 1997 after the
first issuance of Securities under this Indenture.
(c) If this Indenture shall have been qualified under the Trust
Indenture Act, a copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each securities
exchange upon which any Securities are listed and also with the Commission.
The Corporation will notify the Trustee when any Securities are listed on any
securities exchange.
SECTION 7.4. Reports by Corporation.
The Corporation shall file with the Trustee and with the
Commission, and transmit to the Holders, such information, documents and
other reports, and such summaries thereof, as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided in the Trust
Indenture Act; provided that any such information, documents or reports
required to be filed with the Commission pursuant to Section 13 or
Section 15(d) of the Exchange Act shall be filed with the Trustee within 15
days after the same is required to be filed with the Commission. At any time
when the Corporation is not subject to Section 13 or 15(d) of the Exchange
Act, upon the request of a Holder or beneficial owner of a Security, the
Corporation shall promptly furnish Rule 144A Information, or cause such
information to be furnished, to such Holder or beneficial owner or to a
prospective purchaser of such Security designated by such Holder or
beneficial owner in order to permit compliance by such Holder or beneficial
owner with Rule 144A under the Securities Act in connection with the resale
of such Security by such Holder or beneficial owner; provided, however, that
the Corporation shall not be required to furnish such information at any time
to a prospective purchaser located outside the United States who is not a
"U.S. person" within the meaning of Regulation S under the Securities Act.
The Corporation also shall comply with the other provisions of Trust
Indenture Act Section 314(a), provided, however, that the Corporation shall
be required, pursuant to this Section 7.4, to provide any document, report or
other information to the Commission only if this Indenture shall have been
qualified under the Trust Indenture Act.
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1. Corporation May Consolidate, Etc., Only on Certain
Terms.
The Corporation shall not consolidate with or merge into any other
Person or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, and no Person shall consolidate with or merge
into the Corporation or convey, transfer or lease its properties and assets
substantially as an entirety to the Corporation, unless:
(1) if the Corporation shall consolidate with or merge into
another Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, the corporation formed by
such consolidation or into which the Corporation is merged or the Person
that acquires by conveyance or transfer, or that leases, the properties
and assets of the Corporation substantially as an entirety shall be a
corporation, partnership or trust organized and existing under the laws
of the United States of America or any State thereof or the District of
Columbia and shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory to
the Trustee, the due and punctual payment of the principal of (and
premium, if any) and interest (including any Additional Interest) on all
the Securities of every series and the performance of every covenant of
this Indenture on the part of the Corporation to be performed or
observed;
(2) immediately after giving effect to such transaction, no Event
of Default, and no event that, after notice or lapse of time, or both,
would constitute an Event of Default, shall have occurred and be
continuing; and
(3) the Corporation has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and any such
supplemental indenture comply with this Article VIII and that all
conditions precedent herein provided for relating to such transaction
have been complied with; and the Trustee, subject to Section 6.1, may
rely upon such Officers' Certificate and Opinion of Counsel as
conclusive evidence that such transaction complies with this
Section 8.1.
SECTION 8.2. Successor Corporation Substituted.
Upon any consolidation or merger by the Corporation with or into
any other Person, or any conveyance, transfer or lease by the Corporation of
its properties and assets substantially as an entirety to any Person in
accordance with Section 8.1, the successor corporation formed by such
consolidation or into which the Corporation is merged or to which such
conveyance, transfer or lease is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Corporation under this
Indenture with the same effect as if such successor Person had been named as
the Corporation herein; and in the event of any such conveyance, transfer or
lease, the Corporation shall be discharged from all obligations and covenants
under this Indenture and the Securities.
Such successor Person may cause to be executed, and may issue
either in its own name or in the name of the Corporation, any or all of the
Securities issuable hereunder that theretofore shall not have been signed by
the Corporation and delivered to the Trustee; and, upon the order of such
successor Person instead of the Corporation and subject to all the terms,
conditions and limitations in this Indenture prescribed, the Trustee shall
authenticate and shall deliver any Securities that previously shall have been
signed and delivered by the officers of the Corporation to the Trustee for
authentication pursuant to such provisions and any Securities that such
successor Person thereafter shall cause to be executed and delivered to the
Trustee on its behalf for the purpose pursuant to such provisions. All the
Securities so issued shall in all respects have the same legal rank and
benefit under this Indenture as the Securities theretofore or thereafter
issued in accordance with the terms of this Indenture.
In case of any such consolidation, merger, conveyance, transfer or
lease, such changes in phraseology and form may be made in the Securities
thereafter to be issued as may be appropriate.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Corporation, when
authorized by a Board Resolution, and the Trustee, at any time and from time
to time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Corporation, and the assumption by any such successor of the covenants
of the Corporation contained herein and in the Securities contained; or
(2) to convey, transfer, assign, mortgage or pledge any property
to or with the Trustee or to surrender any right or power herein
conferred upon the Corporation; or
(3) to establish the form or terms of Securities of any series as
permitted by Sections 2.1 or 3.1; or
(4) to add to the covenants of the Corporation for the benefit of
the Holders of all or any series of Securities (and if such covenants
are to be for the benefit of less than all series of Securities, stating
that such covenants are expressly being included solely for the benefit
of the series specified) or to surrender any right or power herein
conferred upon the Corporation; or
(5) to add any additional Events of Default for the benefit of the
Holders of all or any series of Securities (and if such additional
Events of Default are to be for the benefit of less than all series of
Securities, stating that such additional Events of Default are expressly
being included solely for the benefit of the series specified); or
(6) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall (a) become
effective only when there is no Security Outstanding of any series
created prior to the execution of such supplemental indenture that is
entitled to the benefit of such provision or (b) not apply to any
Outstanding Securities; or
(7) to cure any ambiguity, to correct or supplement any provision
herein that may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, provided that such action
pursuant to this clause (7) shall not adversely affect the interest of
the Holders of Securities of any series in any material respect or, in
the case of the Securities of a series issued to an Issuer Trust and for
so long as any of the corresponding series of Capital Securities issued
by such Issuer Trust shall remain outstanding, the holders of such
Capital Securities; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 6.11(b); or
(9) to comply with the requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the Trust
Indenture Act.
SECTION 9.2. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities of each series
affected by such supplemental indenture, by Act of said Holders delivered to
the Corporation and the Trustee, the Corporation, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities of such
series under this Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding
Security of each series affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of interest (including any Additional Interest) on, any
Security, or reduce the principal amount thereof or the rate of interest
thereon or any premium payable upon the redemption thereof, or reduce
the amount of principal of a Discount Security that would be due and
payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 5.2, or change the place of payment where, or the
coin or currency in which, any Security or interest (including any
Additional Interest) thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date), or
(2) reduce the percentage in aggregate principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section 9.2, Section 5.13
or Section 10.5, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Security affected
thereby;
provided further, however, that, in the case of Securities of a series issued
to an Issuer Trust, so long as any of the corresponding series of Capital
Securities issued by such Issuer Trust remains outstanding, (i) no such
amendment shall be made that adversely affects the holders of such Capital
Securities in any material respect, and no termination of this Indenture
shall occur, and no waiver of any Event of Default or compliance with any
covenant under this Indenture shall be effective, without the prior consent
of the holders of at least a Majority in Liquidation Amount of such Capital
Securities (as defined in the related Trust Agreement) unless and until the
principal of (and premium, if any, on) the Securities of such series and all
accrued and (subject to Section 3.12) unpaid interest (including, subject to
Section 3.12, any Additional Interest) thereon have been paid in full, and
(ii) no amendment shall be made to Section 5.8 of this Indenture that would
impair the rights of the holders of Capital Securities issued by any Issuer
Trust provided therein without the prior consent of the holders of each such
Capital Security then outstanding unless and until the principal of (and
premium, if any, on) the Securities of such series and all accrued and
(subject to Section 3.12) unpaid interest (including, subject to Section
3.12, any Additional Interest) thereon have been paid in full.
A supplemental indenture that changes or eliminates any covenant or
other provision of this Indenture that has expressly been included solely for
the benefit of one or more particular series of Securities or any
corresponding series of Capital Securities of an Issuer Trust that holds the
Securities of any series, or that modifies the rights of the Holders of
Securities of such series or holders of such Capital Securities of such
corresponding series with respect to such covenant or other provision, shall
be deemed not to affect the rights under this Indenture of the Holders of
Securities of any other series or holders of Capital Securities of any other
series.
It shall not be necessary for any Act of Holders under this Section
9.2 to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 9.3. Execution of Supplemental Indentures.
In executing or accepting the additional trusts created by any
supplemental indenture permitted by this Article IX or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be
entitled to receive, and (subject to Section 6.1) shall be fully protected in
relying upon, an Officers' Certificate and an Opinion of Counsel stating that
the execution of such supplemental indenture is authorized or permitted by
this Indenture, and that all conditions precedent herein provided for
relating to such action have been complied with. The Trustee may, but shall
not be obligated to, enter into any such supplemental indenture that affects
the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
SECTION 9.4. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article IX, this Indenture shall be modified in accordance therewith, and
such supplemental indenture shall form a part of this Indenture for all
purposes; and every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.
SECTION 9.5. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act as then in
effect.
SECTION 9.6. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article IX may, and shall if required
by the Corporation, bear a notation in form approved by the Corporation as to
any matter provided for in such supplemental indenture. If the Corporation
shall so determine, new Securities of any series so modified as to conform,
in the opinion of the Corporation, to any such supplemental indenture may be
prepared and executed by the Corporation and authenticated and delivered by
the Trustee in exchange for Outstanding Securities of such series.
ARTICLE X
COVENANTS
SECTION 10.1. Payment of Principal, Premium and Interest.
The Corporation covenants and agrees for the benefit of each series
of Securities that it will duly and punctually pay the principal of (and
premium, if any) and interest (including any Additional Interest) on the
Securities of that series in accordance with the terms of such Securities and
this Indenture.
SECTION 10.2. Maintenance of Office or Agency.
The Corporation will maintain in each Place of Payment for any
series of Securities an office or agency where Securities of that series may
be presented or surrendered for payment, where Securities of that series may
be surrendered for registration of transfer or exchange and where notices and
demands to or upon the Corporation in respect of the Securities of that
series and this Indenture may be served. The Corporation initially appoints
the Trustee, acting through its Corporate Trust Office, as its agent for said
purposes. The Corporation will give prompt written notice to the Trustee of
any change in the location of any such office or agency. If at any time the
Corporation shall fail to maintain such office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of
the Trustee, and the Corporation hereby appoints the Trustee as its agent to
receive all such presentations, surrenders, notices and demands.
The Corporation may also from time to time designate one or more
other offices or agencies where the Securities may be presented or
surrendered for any or all of such purposes, and may from time to time
rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Corporation of its obligation to
maintain an office or agency in each Place of Payment for Securities of any
series for such purposes. The Corporation will give prompt written notice to
the Trustee of any such designation and any change in the location of any
such office or agency.
SECTION 10.3. Money for Security Payments to be Held in Trust.
If the Corporation shall at any time act as its own Paying Agent
with respect to any series of Securities, it will, on or before each due date
of the principal of (or premium, if any) or interest (including any
Additional Interest) on any of the Securities of such series, segregate and
hold in trust for the benefit of the Persons entitled thereto a sum
sufficient to pay the principal (or premium, if any) or interest (including
any Additional Interest) so becoming due until such sums shall be paid to
such Persons or otherwise disposed of as herein provided, and will promptly
notify the Trustee of its failure so to act.
Whenever the Corporation shall have one or more Paying Agents, it
will, prior to 10:00 a.m., New York City time, on each due date of the
principal of (or premium, if any) or interest (including any Additional
Interest) on any Securities, deposit with a Paying Agent a sum sufficient to
pay the amount so becoming due, such sum to be held in trust for the benefit
of the Persons entitled to such amount, and (unless such Paying Agent is the
Trustee) the Corporation will promptly notify the Trustee of its failure so
to act.
The Corporation will cause each Paying Agent other than the Trustee
to execute and deliver to the Trustee an instrument in which such Paying
Agent shall agree with the Trustee, subject to the provisions of this Section
10.3, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of
(and premium, if any) and interest (including any Additional Interest)
on the Securities of a series in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Corporation (or
any other obligor upon such Securities) in the making of any payment of
principal (or premium, if any) or interest (including any Additional
Interest) in respect of any Security of any series;
(3) at any time during the continuance of any default with respect
to a series of Securities, upon the written request of the Trustee,
forthwith pay to the Trustee all sums so held in trust by such Paying
Agent with respect to such series; and
(4) comply with the provisions of the Trust Indenture Act
applicable to it as a Paying Agent.
The Corporation may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay,
or by Corporation Order direct any Paying Agent to pay, to the Trustee all
sums held in trust by the Corporation or such Paying Agent, such sums to be
held by the Trustee upon the same trusts as those upon which such sums were
held by the Corporation or such Paying Agent; and, upon such payment by any
Paying Agent to the Trustee, such Paying Agent shall be released from all
further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Corporation in trust for the payment of the principal of (or
premium, if any) or interest (including any Additional Interest) on any
Security and remaining unclaimed for two years after such principal (or
premium, if any) or interest (including any Additional Interest) has become
due and payable shall (unless otherwise required by mandatory provision of
applicable escheat or abandoned or unclaimed property law) be paid on
Corporation Request to the Corporation, or (if then held by the Corporation)
shall (unless otherwise required by mandatory provision of applicable escheat
or abandoned or unclaimed property law) be discharged from such trust; and
the Holder of such Security shall thereafter, as a general unsecured
creditor, look only to the Corporation for payment thereof, and all liability
of the Trustee or such Paying Agent with respect to such trust money, and all
liability of the Corporation as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Corporation
cause to be published once, in a newspaper published in the English language,
customarily published on each Business Day and of general circulation in the
Borough of Manhattan, The City of New York, such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days
from the date of such publication, any unclaimed balance of such money then
remaining will be repaid to the Corporation.
SECTION 10.4. Statement as to Compliance.
The Corporation shall deliver to the Trustee, within 120 days after
the end of each fiscal year of the Corporation ending after the date hereof,
an Officers' Certificate covering the preceding calendar year, stating
whether or not to the best knowledge of the signers thereof the Corporation
is in default in the performance, observance or fulfillment of or compliance
with any of the terms, provisions, covenants and conditions of this
Indenture, and if the Corporation shall be in default, specifying all such
defaults and the nature and status thereof of which they may have knowledge.
For the purpose of this Section 10.4, compliance shall be determined without
regard to any grace period or requirement of notice provided pursuant to the
terms of this Indenture.
SECTION 10.5. Waiver of Certain Covenants.
Subject to the rights of holders of Capital Securities specified in
Section 9.2, if any, the Corporation may omit in any particular instance to
comply with any covenant or condition provided pursuant to Section 3.1,
9.1(3) or 9.1(4) with respect to the Securities of any series, if before or
after the time for such compliance the Holders of at least a majority in
aggregate principal amount of the Outstanding Securities of such series
shall, by Act of such Holders, either waive such compliance in such instance
or generally waive compliance with such covenant or condition, but no such
waiver shall extend to or affect such covenant or condition except to the
extent so expressly waived, and, until such waiver shall become effective,
the obligations of the Corporation in respect of any such covenant or
condition shall remain in full force and effect.
SECTION 10.6. Payment of Trust's Costs and Expenses.
Since the Issuer Trust is being formed solely to facilitate an
investment in the Securities, the Corporation, as borrower, hereby covenants
to pay all debts and obligations (other than with respect to the Capital
Securities and Common Securities) and all costs and expenses of the Issuer
Trust (including, but not limited to, all costs and expenses relating to the
organization of the Issuer Trust, the fees and expenses of the Trustees of
the Issuer Trust and all costs and expenses relating to the operation of the
Issuer Trust) and to pay any and all taxes, duties, assessments or
governmental charges of whatever nature (other than United States federal
withholding taxes) imposed on the Issuer Trust by the United States, or any
other taxing authority, so that the net amounts received and retained by the
Issuer Trust and the Property Trustee after paying such expenses will be
equal to the amounts the Issuer Trust and the Property Trustee would have
received had no such costs or expenses been incurred by or imposed on the
Issuer Trust. The obligations of the Corporation to pay all debts,
obligations, costs and expenses of the Issuer Trust (other than with respect
to the Capital Securities and the Common Securities) shall constitute
additional indebtedness hereunder and shall survive the satisfaction and
discharge of the Indenture.
SECTION 10.7. Additional Covenants.
The Corporation covenants and agrees with each Holder of Securities
of each series that it shall not, and it shall not permit any Subsidiary of
the Corporation to, (x) declare or pay any dividends or distributions on, or
redeem purchase, acquire or make a liquidation payment with respect to, any
shares of the Corporation's capital stock, or (y) make any payment of
principal of or interest or premium, if any, on or repay, repurchase or
redeem any debt securities of the Corporation that rank pari passu in all
respects with or junior in interest to the Securities of such series (other
than (a) repurchases, redemptions or other acquisitions of shares of capital
stock of the Corporation in connection with any employment contract, benefit
plan or other similar arrangement with or for the benefit of any one or more
employees, officers, directors or consultants, in connection with a dividend
reinvestment or stockholder stock purchase plan or in connection with the
issuance of capital stock of the Corporation (or securities convertible into
or exercisable for such capital stock) as consideration in an acquisition
transaction entered into prior to the applicable Extension Period, (b) as a
result of an exchange or conversion of any class or series of the
Corporation's capital stock (or any capital stock of a Subsidiary of the
Corporation) for any class or series of the Corporation's capital stock or of
any class or series of the Corporation's indebtedness for any class or series
of the Corporation's capital stock, (c) the purchase of fractional interests
in shares of the Corporation's capital stock pursuant to the conversion or
exchange provisions of such capital stock or the security being converted or
exchanged, (d) any declaration of a dividend in connection with the adoption
of any Rights Plan, or the issuance of rights, stock or other property under
any Rights Plan, or the redemption or repurchase of rights pursuant thereto,
or (e) any dividend in the form of stock, warrants, options or other rights
where the dividend stock or the stock issuable upon exercise of such
warrants, options or other rights is the same stock as that on which the
dividend is being paid or ranks pari passu with or junior to such stock) if
at such time (i) there shall have occurred any event (A) of which the
Corporation has actual knowledge that with the giving of notice or the lapse
of time, or both, would constitute an Event of Default with respect to the
Securities of such series, and (B) which the Corporation shall not have taken
reasonable steps to cure, (ii) if the Securities of such series are held by
an Issuer Trust, the Corporation shall be in default with respect to its
payment of any obligations under the Guarantee Agreement relating to the
Capital Securities issued by such Issuer Trust, or (iii) the Corporation
shall have given notice of its election to begin an Extension Period with
respect to the Securities of such series as provided herein and shall not
have rescinded such notice, or such Extension Period, or any extension
thereof, shall be continuing.
The Corporation also covenants with each Holder of Securities of a
series issued to an Issuer Trust (i) to hold, directly or indirectly, 100% of
the Common Securities of such Issuer Trust, provided that any permitted
successor of the Corporation hereunder may succeed to the Corporation's
ownership of such Common Securities, (ii) as holder of such Common
Securities, not to voluntarily terminate, wind-up or liquidate such Issuer
Trust, other than (a) in connection with a distribution of the Securities of
such series to the holders of the related Capital Securities in liquidation
of such Issuer Trust, or (b) in connection with certain mergers,
consolidations or amalgamations permitted by the related Trust Agreement, and
(iii) to use its reasonable efforts, consistent with the terms and provisions
of such Trust Agreement, to cause such Issuer Trust to continue to be
classified as a grantor trust and not to be taxable as a corporation for
United States federal income tax purposes.
SECTION 10.8. Original Issue Discount.
For each year during which any Securities are considered to have
been issued with "original issue discount" (within the meaning of Section
1273(a) of the Internal Revenue Code of 1986, as amended), the Corporation
shall furnish to each Paying Agent in a timely fashion such information as
may be reasonably requested by each Paying Agent in order that such Paying
Agent may prepare the information that it is required to report for such year
on Internal Revenue Service Forms 1096 and 1099 pursuant to Section 6049 of
the Internal Revenue Code of 1986, as amended. Such information shall
include the amount of original issue discount includable in income for each
$1,000 of principal amount at Stated Maturity of Securities Outstanding
during such year.
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.1. Applicability of This Article.
Redemption of Securities of any series (whether by operation of a
sinking fund or otherwise) as permitted or required by any form of Security
issued pursuant to this Indenture shall be made in accordance with such form
of Security and this Article XI; provided, however, that if any provision of
any such form of Security shall conflict with any provision of this
Article XI, the provision of such form of Security shall govern. Except as
otherwise set forth in the form of Security for such series, each Security of
a series shall be subject to partial redemption only in integral multiples of
$1,000.
SECTION 11.2. Election to Redeem; Notice to Trustee.
The election of the Corporation to redeem any Securities shall be
evidenced by or pursuant to a Board Resolution. In case of any redemption at
the election of the Corporation, the Corporation shall, not less than 45 nor
more than 60 days prior to the Redemption Date (unless a shorter notice shall
be satisfactory to the Trustee), notify the Trustee and, in the case of
Securities of a series held by an Issuer Trust, the Property Trustee under
the related Trust Agreement, of such date and of the principal amount of
Securities of the applicable series to be redeemed and provide the additional
information required to be included in the notice or notices contemplated by
Section 11.4; provided that in the case of any series of Securities initially
issued to an Issuer Trust, for so long as such Securities are held by such
Issuer Trust, such notice shall be given not less than 45 nor more than 75
days prior to such Redemption Date (unless a shorter notice shall be
satisfactory to the Property Trustee under the related Trust Agreement). In
the case of any redemption of Securities prior to the expiration of any
restriction on such redemption provided in the terms of such Securities, the
Corporation shall furnish the Trustee with an Officers' Certificate and an
Opinion of Counsel evidencing compliance with such restriction.
SECTION 11.3. Selection of Securities to be Redeemed.
If less than all the Securities of any series are to be redeemed,
the particular Securities to be redeemed shall be selected not more than 60
days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series not previously called for redemption, by such
method as the Trustee shall deem fair and appropriate and which may provide
for the selection for redemption of a portion of the principal amount of any
Security of such series, provided that the unredeemed portion of the
principal amount of any Security shall be in an authorized denomination
(which shall not be less than the minimum authorized denomination) for such
Security.
The Trustee shall promptly notify the Corporation in writing of the
Securities selected for partial redemption and the principal amount thereof
to be redeemed. For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Security redeemed or to be redeemed only in
part, to the portion of the principal amount of such Security that has been
or is to be redeemed. If the Corporation shall so direct, Securities
registered in the name of the Corporation, any Affiliate or any Subsidiary
thereof shall not be included in the Securities selected for redemption.
SECTION 11.4. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Securities to be redeemed, at the address
of such Holder as it appears in the Securities Register, provided that in the
case of any series of Securities initially issued to an Issuer Trust, for so
long as such Securities are held by such Issuer Trust, such notice shall be
given not less than 45 nor more than 75 days prior to such Redemption Date
(unless a shorter notice shall be satisfactory to the Property Trustee under
the related Trust Agreement).
With respect to Securities of each series to be redeemed, each
notice of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price or, if the Redemption Price cannot be
calculated prior to the time the notice is required to be sent, an
estimate of the Redemption Price together with a statement that it is an
estimate and that the actual Redemption Price will be calculated on the
third Business Day prior to the Redemption Date (and, if such an
estimate of the Redemption Price is given, a subsequent notice shall be
given as set forth above on the date that such Redemption Price is
calculated setting forth the actual Redemption Price);
(c) if less than all Outstanding Securities of such particular
series are to be redeemed, the identification (and, in the case of
partial redemption, the respective principal amounts) of the particular
Securities to be redeemed;
(d) that on the Redemption Date, the Redemption Price will become
due and payable upon each such Security or portion thereof, and that
interest (including any Additional Interest) thereon, if any, shall
cease to accrue on and after said date;
(e) the place or places where such Securities are to be
surrendered for payment of the Redemption Price;
(f) that the redemption is for a sinking fund, if such is the
case;
(g) such other provisions as may be required in respect of the
terms of a particular series of Securities.
Notice of redemption of Securities to be redeemed at the election
of the Corporation shall be given by the Corporation or, at the Corporation's
request, by the Trustee in the name and at the expense of the Corporation and
shall be irrevocable. The notice if mailed in the manner provided above
shall be conclusively presumed to have been duly given, whether or not the
Holder receives such notice. In any case, a failure to give such notice by
mail or any defect in the notice to the Holder of any Security designated for
redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Security.
SECTION 11.5. Deposit of Redemption Price.
Prior to 10:00 a.m., New York City time, on the Redemption Date
specified in the notice of redemption given as provided in Section 11.4, the
Corporation will deposit with the Trustee or with one or more Paying Agents
(or, if the Corporation is acting as its own Paying Agent, the Corporation
will segregate and hold in trust as provided in Section 10.3) an amount of
money sufficient to pay the Redemption Price of, and any accrued interest
(including any Additional Interest) on, all the Securities (or portions
thereof) that are to be redeemed on that date.
SECTION 11.6. Payment of Securities Called for Redemption.
If any notice of redemption has been given as provided in
Section 11.4, the Securities or portion of Securities with respect to which
such notice has been given shall become due and payable on the date and at
the place or places stated in such notice at the applicable Redemption Price,
together with accrued interest (including any Additional Interest) to the
Redemption Date. On presentation and surrender of such Securities at a Place
of Payment in said notice specified, the said Securities or the specified
portions thereof shall be paid and redeemed by the Corporation at the
applicable Redemption Price, together with accrued interest (including any
Additional Interest) to the Redemption Date; provided, however, that, unless
otherwise specified as contemplated by Section 3.1, installments of interest
(including any Additional Interest) whose Stated Maturity is on or prior to
the Redemption Date will be payable to the Holders of such Securities, or one
or more Predecessor Securities, registered as such at the close of business
on the relevant record dates according to their terms and the provisions of
Section 3.8.
Upon presentation of any Security redeemed in part only, the
Corporation shall execute and the Trustee shall authenticate and deliver to
the Holder thereof, at the expense of the Corporation, a new Security or
Securities of the same series, of authorized denominations, in aggregate
principal amount equal to the unredeemed portion of the Security so presented
and having the same Original Issue Date, Stated Maturity and terms.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal of (and premium, if any, on)
such Security shall, until paid, bear interest from the Redemption Date at
the rate prescribed therefor in such Security.
SECTION 11.7. Right of Redemption of Securities Initially Issued
to an Issuer Trust.
In the case of Securities of a series initially issued to an Issuer
Trust, except as otherwise specified as contemplated by Section 3.1, the
Corporation, at its option, may redeem such Securities (i) on or after the
date specified in such Security, in whole at any time or in part from time to
time, or (ii) upon the occurrence and during the continuation of a Tax Event
or a Capital Treatment Event, in whole (but not in part) at any time within
90 days following the occurrence and during the continuation of such Tax
Event or Capital Treatment Event, in each case at a Redemption Price
specified in such Security, together with accrued interest (including any
Additional Interest) to but excluding the Redemption Date.
If less than all the Securities of any such series are to be
redeemed, the aggregate principal amount of such Securities remaining
Outstanding after giving effect to such redemption shall be sufficient to
satisfy any provisions of the Trust Agreement related to the Issuer Trust to
which such Securities were issued, including any requirement in such Trust
Agreement as to the minimum Liquidation Amount (as defined in such Trust
Agreement) of Capital Securities that may be held by a holder of Capital
Securities thereunder.
ARTICLE XII
SINKING FUNDS
SECTION 12.1. Applicability of Article.
The provisions of this Article shall be applicable to any sinking
fund for the retirement of Securities of any series except as otherwise
specified as contemplated by Section 3.1 for such Securities.
The minimum amount of any sinking fund payment provided for by the
terms of any Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any sinking fund payment in excess of such minimum
amount that is permitted to be made by the terms of such Securities of any
series is herein referred to as an "optional sinking fund payment". If
provided for by the terms of any Securities of any series, the cash amount of
any sinking fund payment may be subject to reduction as provided in
Section 12.2. Each sinking fund payment shall be applied to the redemption
of Securities of any series as provided for by the terms of such Securities.
SECTION 12.2. Satisfaction of Sinking Fund Payments with
Securities.
In lieu of making all or any part of a mandatory sinking fund
payment with respect to any Securities of a series in cash, the Corporation
may at its option, at any time no more than 16 months and no less than 45
days prior to the date on which such sinking fund payment is due, deliver to
the Trustee Securities of such series (together with the unmatured coupons,
if any, appertaining thereto) theretofore purchased or otherwise acquired by
the Corporation, except Securities of such series that have been redeemed
through the application of mandatory or optional sinking fund payments
pursuant to the terms of the Securities of such series, accompanied by a
Corporation Order instructing the Trustee to credit such obligations and
stating that the Securities of such series were originally issued by the
Corporation by way of bona fide sale or other negotiation for value; provided
that the Securities to be so credited have not been previously so credited.
The Securities to be so credited shall be received and credited for such
purpose by the Trustee at the Redemption Price for such Securities, as
specified in the Securities so to be redeemed, for redemption through
operation of the sinking fund and the amount of such sinking fund payment
shall be reduced accordingly.
SECTION 12.3. Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date for
any series of Securities, the Corporation will deliver to the Trustee an
Officers' Certificate specifying the amount of the next ensuing sinking fund
payment for such Securities pursuant to the terms of such Securities, the
portion thereof, if any, that is to be satisfied by payment of cash in the
currency in which the Securities of such series are payable (except as
provided pursuant to Section 3.1) and the portion thereof, if any, that is to
be satisfied by delivering and crediting Securities pursuant to Section 12.2,
and will also deliver to the Trustee any Securities to be so delivered. Such
Officers' Certificate shall be irrevocable and upon its delivery the
Corporation shall be obligated to make any cash payment or payments referred
to therein, on or before the succeeding sinking fund payment date. If the
Corporation fails to deliver such Officers' Certificate (or, as required by
this Indenture, the Securities and coupons, if any, specified in such
Officers' Certificate) by the due date therefor, the sinking fund payment due
on the succeeding sinking fund payment date for such series shall be paid
entirely in cash and shall be sufficient to redeem the principal amount of
the Securities of such series subject to a mandatory sinking fund payment
without the right to deliver or credit securities as provided in Section 12.2
and without the right to make the optional sinking fund payment with respect
to such series at such time.
Any sinking fund payment or payments (mandatory or optional) made
in cash plus any unused balance of any preceding sinking fund payments made
with respect to the Securities of any particular series shall be applied by
the Trustee (or by the Corporation, if the Corporation is acting as its own
Paying Agent) on the sinking fund payment date on which such payment is made
(or, if such payment is made before a sinking fund payment date, on the
sinking fund payment date immediately following the date of such payment) to
the redemption of Securities of such series at the Redemption Price specified
in such Securities with respect to the sinking fund. Any and all sinking
fund moneys with respect to the Securities of any particular series held by
the Trustee (or, if the Corporation is acting as its own Paying Agent,
segregated and held in trust as provided in Section 10.3) on the last sinking
fund payment date with respect to Securities of such series and not held for
the payment or redemption of particular Securities of such series shall be
applied by the Trustee (or, by the Corporation, if the Corporation is acting
as its own Paying Agent), together with other moneys, if necessary, to be
deposited (or segregated) sufficient for the purpose, to the payment of the
principal of the Securities of such series at Maturity. The Trustee shall
select the Securities to be redeemed upon such sinking fund payment date in
the manner specified in Section 11.3 and cause notice of the redemption
thereof to be given in the name of and at the expense of the Corporation in
the manner provided in Section 11.4. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Section 11.6. On or before each sinking fund payment date, the
Corporation shall pay to the Trustee (or, if the Corporation is acting as its
own Paying Agent, the Corporation shall segregate and hold in trust as
provided in Section 10.3) in cash a sum in the currency in which Securities
of such series are payable (except as provided pursuant to Section 3.1) equal
to the principal (and premium, if any) and any interest (including any
Additional Interest) accrued to the Redemption Date for the Securities or
portions thereof to be redeemed on such sinking fund payment date pursuant to
this Section 12.3.
Neither the Trustee nor the Corporation shall redeem any Securities
of a series with sinking fund monies or mail any notice of redemption of
Securities of such series by operation of the sinking fund for such series
during the continuance of a default in payment of interest (including any
Additional Interest), if any, on any Securities of such series or of any
Event of Default (other than an Event of Default occurring as a consequence
of this paragraph) with respect to the Securities of such series, except that
if the notice of redemption shall have been provided in accordance with the
provisions hereof, the Trustee (or the Corporation, if the Corporation is
acting as its own Paying Agent) shall redeem such Securities if cash
sufficient for that purpose shall be deposited with the Trustee (or
segregated by the Corporation) for that purpose in accordance with the terms
of this Article XII. Except as aforesaid, any monies in the sinking fund for
such series at the time when any such default or Event of Default shall occur
and any monies thereafter paid into such sinking fund shall, during the
continuance of such default or Event of Default, be held as security for the
payment of the principal of (and premium, if any) and interest (including any
Additional Interest) on the Securities of such series; provided, however,
that if such default or Event of Default shall have been cured or waived as
provided herein, such monies shall thereafter be applied on the next sinking
fund payment date for the Securities of such series on which such monies may
be applied pursuant to the provisions of this Section 12.3.
ARTICLE XIII
SUBORDINATION OF SECURITIES
SECTION 13.1. Securities Subordinate to Senior Indebtedness.
The Corporation covenants and agrees, and each Holder of a
Security, by its acceptance thereof, likewise covenants and agrees, that, to
the extent and in the manner hereinafter set forth in this Article XIII, the
payment of the principal of (and premium, if any) and interest (including any
Additional Interest) on each and all of the Securities of each and every
series are hereby expressly made subordinate and junior in right of payment
to the prior payment in full of all Senior Indebtedness.
SECTION 13.2. No Payment When Senior Indebtedness in Default;
Payment Over of Proceeds Upon Dissolution, Etc.
If the Corporation shall default in the payment of any principal of
(or premium, if any) or interest, if any, or any other amount payable on any
Senior Indebtedness when the same becomes due and payable, whether at
maturity or at a date fixed for prepayment or by declaration of acceleration
or otherwise, then, upon written notice of such default to the Corporation by
the holders of Senior Indebtedness or any trustee therefor, unless and until
such default shall have been cured or waived or shall have ceased to exist,
or all such Senior Indebtedness has been paid, no direct or indirect payment
(in cash, property or securities, by set-off or otherwise) shall be made or
agreed to be made on account of the principal of (or premium, if any) or
interest (including any Additional Interest) on any of the Securities, or in
respect of any redemption, repayment, retirement, purchase or other
acquisition of any of the Securities.
In the event of (a) any insolvency, bankruptcy, receivership,
liquidation, reorganization, readjustment, composition or other similar
proceedings relating to the Corporation, its creditors or its property,
(b) any proceeding for the liquidation, dissolution or other winding up of
the Corporation, voluntary or involuntary, whether or not involving
insolvency or bankruptcy proceedings, (c) any assignment by the Corporation
for the benefit of creditors or (d) any other marshaling of the assets of the
Corporation (each such event, if any, herein sometimes referred to as a
"Proceeding"), all Senior Indebtedness (including any interest thereon
accruing after the commencement of any such proceedings) shall first be paid
in full before any payment or distribution, whether in cash, securities or
other property, shall be made to any Holder of any of the Securities on
account thereof; provided, however, that holders of any Senior Indebtedness
shall not be entitled to receive payment of any such amounts to the extent
that holders of such Senior Indebtedness would be required by the
subordination provisions of such Senior Indebtedness to pay such amounts over
to the obligees on trade accounts payable or other liabilities arising in the
ordinary course of the Corporation's business. Any payment or distribution,
whether in cash, securities or other property (other than securities of the
Corporation or any other corporation provided for by a plan of reorganization
or readjustment the payment of which is subordinate, at least to the extent
provided in these subordination provisions with respect to the indebtedness
evidenced by the Securities, to the payment of all Senior Indebtedness at the
time outstanding and to any securities issued in respect thereof under any
such plan of reorganization or readjustment), that would otherwise (but for
these subordination provisions) be payable or deliverable in respect of the
Securities of any series shall be paid or delivered directly to the holders
of Senior Indebtedness in accordance with the priorities then existing among
such holders until all Senior Indebtedness (including any interest thereon
accruing after the commencement of any Proceeding) shall have been paid in
full; provided, however, that holders of any Senior Indebtedness shall not be
entitled to receive payment of any such amounts to the extent that holders of
such Senior Indebtedness would be required by the subordination provisions of
such Senior Indebtedness to pay such amounts over to the obligees on trade
accounts payable or other liabilities arising in the ordinary course of the
Corporation's business.
In the event of any Proceeding, after payment in all sums owing
with respect to Senior Indebtedness to the extent provided herein, the
Holders of the Securities to the extent provided herein, together with the
holders of any obligations of the Corporation ranking on a parity with the
Securities, shall be entitled to be paid from the remaining assets of the
Corporation the amounts at the time due and owing on account of unpaid
principal of (and premium, if any) and interest (including any Additional
Interest) on the Securities and such other obligations before any payment or
other distribution, whether in cash, property or otherwise, shall be made on
account of any capital stock ranking junior to the Securities and such other
obligations.
If, notwithstanding the foregoing, any payment or distribution of
any character or any security, whether in cash, securities or other property
(other than securities of the Corporation or any other corporation provided
for by a plan of reorganization or readjustment the payment of which is
subordinate, at least to the extent provided in these subordination
provisions with respect to the indebtedness evidenced by the Securities, to
the payment of all Senior Indebtedness at the time outstanding and to any
securities issued in respect thereof under any such plan of reorganization or
readjustment), shall be received by the Trustee or any Holder in
contravention of any of the terms hereof and before all Senior Indebtedness
(including any interest thereon accruing after the commencement of any
Proceeding) shall have been paid to the extent provided herein, such payment
or distribution or security shall be received in trust for the benefit of,
and shall be paid over or delivered and transferred to, the holders of the
Senior Indebtedness to the extent provided herein at the time outstanding in
accordance with the priorities then existing among such holders for
application to the payment of all Senior Indebtedness remaining unpaid, to
the extent necessary to pay all such Senior Indebtedness (including any
interest thereon accruing after the commencement of any Proceeding) to the
extent provided herein. If the Trustee or any Holder fails to endorse or
assign any such payment, distribution or security, each holder of Senior
Indebtedness is hereby irrevocably authorized to endorse or assign the same.
The Trustee and the Holders shall take such action (including the
delivery of this Indenture to an agent for the holders of Senior Indebtedness
or consent to the filing of a financing statement with respect hereto) as
may, in the opinion of counsel designated by the holders of a majority in
principal amount of the Senior Indebtedness at the time outstanding, be
necessary or appropriate to assure the effectiveness of the subordination
effected by these provisions.
The provisions of this Section 13.2 shall not impair any rights,
interests, remedies or powers of any secured creditor of the Corporation in
respect of any security interest the creation of which is not prohibited by
the provisions of this Indenture.
The securing of any obligations of the Corporation, otherwise
ranking on a parity with the Securities or ranking junior to the Securities,
shall not be deemed to prevent such obligations from constituting,
respectively, obligations ranking on a parity with the Securities or ranking
junior to the Securities.
SECTION 13.3. Payment Permitted If No Default.
Nothing contained in this Article XIII or elsewhere in this
Indenture or in any of the Securities shall prevent (a) the Corporation, at
any time, except during the pendency of the conditions described in the first
paragraph of Section 13.2 or of any Proceeding referred to in Section 13.2,
from making payments at any time of principal of (and premium, if any) or
interest (including any Additional Interest) on the Securities, or (b) the
application by the Trustee of any moneys deposited with it hereunder to the
payment of or on account of the principal of (and premium, if any) or
interest (including any Additional Interest) on the Securities or the
retention of such payment by the Holders, if, at the time of such application
by the Trustee, it did not have knowledge that such payment would have been
prohibited by the provisions of this Article XIII.
SECTION 13.4. Subrogation to Rights of Holders of Senior
Indebtedness.
Subject to the payment to the extent provided herein of all amounts
due or to become due on all Senior Indebtedness, or the provision for such
payment in cash or cash equivalents or otherwise in a manner satisfactory to
the holders of Senior Indebtedness, the Holders of the Securities shall be
subrogated to the extent of the payments or distributions made to the holders
of such Senior Indebtedness pursuant to the provisions of this Article XIII
(equally and ratably with the holders of all indebtedness of the Corporation
that by its express terms is subordinated to Senior Indebtedness of the
Corporation to substantially the same extent as the Securities are
subordinated to the Senior Indebtedness and is entitled to like rights of
subrogation by reason of any payments or distributions made to holders of
such Senior Indebtedness) to the rights of the holders of such Senior
Indebtedness to receive payments and distributions of cash, property and
securities applicable to the Senior Indebtedness until the principal of (and
premium, if any) and interest (including any Additional Interest) on the
Securities shall be paid in full. For purposes of such subrogation, no
payments or distributions to the holders of the Senior Indebtedness of any
cash, property or securities to which the Holders of the Securities or the
Trustee would be entitled except for the provisions of this Article XIII, and
no payments over pursuant to the provisions of this Article XIII to the
holders of Senior Indebtedness by Holders of the Securities or the Trustee,
shall, as among the Corporation, its creditors other than holders of Senior
Indebtedness, and the Holders of the Securities, be deemed to be a payment or
distribution by the Corporation to or on account of such Senior Indebtedness.
SECTION 13.5. Provisions Solely to Define Relative Rights.
The provisions of this Article XIII are and are intended solely for
the purpose of defining the relative rights of the Holders of the Securities
on the one hand and the holders of Senior Indebtedness on the other hand.
Nothing contained in this Article XIII or elsewhere in this Indenture or in
the Securities is intended to or shall (a) impair, as between the Corporation
and the Holders of the Securities, the obligations of the Corporation, which
are absolute and unconditional, to pay to the Holders of the Securities the
principal of (and premium, if any) and interest (including any Additional
Interest) on the Securities as and when the same shall become due and payable
in accordance with their terms; (b) affect the relative rights against the
Corporation of the Holders of the Securities and creditors of the Corporation
other than their rights in relation to the holders of Senior Indebtedness; or
(c) prevent the Trustee or the Holder of any Security (or to the extent
expressly provided herein, the holder of any Capital Security) from
exercising all remedies otherwise permitted by applicable law upon default
under this Indenture, including filing and voting claims in any Proceeding,
subject to the rights, if any, under this Article XIII of the holders of
Senior Indebtedness to receive cash, property and securities otherwise
payable or deliverable to the Trustee or such Holder.
SECTION 13.6. Trustee to Effectuate Subordination.
Each Holder of a Security, by its acceptance thereof, authorizes
and directs the Trustee on such Holder's behalf to take such action as may be
necessary or appropriate to acknowledge or effectuate the subordination
provided in this Article XIII and appoints the Trustee such Holder's
attorney-in-fact for any and all such purposes.
SECTION 13.7. No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior Indebtedness
to enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the
Corporation or by any act or failure to act, in good faith, by any such
holder, or by any noncompliance by the Corporation with the terms, provisions
and covenants of this Indenture, regardless of any knowledge thereof that any
such holder may have or be otherwise charged with.
Without in any way limiting the generality of the immediately
preceding paragraph, the holders of Senior Indebtedness may, at any time and
from to time, without the consent of or notice to the Trustee or the Holders
of the Securities of any series, without incurring responsibility to such
Holders and without impairing or releasing the subordination as provided in
this Article XIII or the obligations hereunder of such Holders to the holders
of Senior Indebtedness, do any one or more of the following: (i) change the
manner, place or terms of payment or extend the time of payment of, or renew
or alter, Senior Indebtedness, or otherwise amend or supplement in any manner
Senior Indebtedness or any instrument evidencing the same or any agreement
under which Senior Indebtedness is outstanding; (ii) sell, exchange, release
or otherwise deal with any property pledged, mortgaged or otherwise securing
Senior Indebtedness; (iii) release any Person liable in any manner for the
collection of Senior Indebtedness; and (iv) exercise or refrain from
exercising any rights against the Corporation and any other Person.
SECTION 13.8. Notice to Trustee.
The Corporation shall give prompt written notice to the Trustee of
any fact known to the Corporation that would prohibit the making of any
payment to or by the Trustee in respect of the Securities. Notwithstanding
the provisions of this Article or any other provision of this Indenture, the
Trustee shall not be charged with knowledge of the existence of any facts
that would prohibit the making of any payment to or by the Trustee in respect
of the Securities, unless and until the Trustee shall have received written
notice thereof from the Corporation or a holder of Senior Indebtedness or
from any trustee, agent or representative therefor; provided, however, that
if the Trustee shall not have received the notice provided for in this
Section 13.8 at least two Business Days prior to the date upon which by the
terms hereof any monies may become payable for any purpose (including the
payment of the principal of (and premium, if any, on) or interest (including
any Additional Interest) on any Security), then, anything herein contained to
the contrary notwithstanding, the Trustee shall have full power and authority
to receive such monies and to apply the same to the purpose for which they
were received and shall not be affected by any notice to the contrary that
may be received by it within two Business Days prior to such date.
Subject to the provisions of Section 6.1, the Trustee shall be
entitled to rely on the delivery to it of a written notice by a Person
representing himself or herself to be a holder of Senior Indebtedness (or a
trustee or attorney-in-fact therefor) to establish that such notice has been
given by a holder of Senior Indebtedness (or a trustee or attorney-in-fact
therefor). If the Trustee determines in good faith that further evidence is
required with respect to the right of any Person as a holder of Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article XIII, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior
Indebtedness held by such Person, the extent to which such Person is entitled
to participate in such payment or distribution and any other facts pertinent
to the rights of such Person under this Article XIII, and if such evidence is
not furnished, the Trustee may defer any payment to such Person pending
judicial determination as to the right of such Person to receive such
payment.
SECTION 13.9. Reliance on Judicial Order or Certificate of
Liquidating Agent.
Upon any payment or distribution of assets of the Corporation
referred to in this Article XIII, the Trustee, subject to the provisions of
Section 6.1, and the Holders of the Securities shall be entitled to rely upon
any order or decree entered by any court of competent jurisdiction in which
any Proceeding is pending, or a certificate of the trustee in bankruptcy,
receiver, liquidating trustee, custodian, assignee for the benefit of
creditors, agent or other Person making such payment or distribution,
delivered to the Trustee or to the Holders of Securities, for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, the holders of the Senior Indebtedness and other indebtedness
of the Corporation, the amount thereof or payable thereon, the amount or
amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article XIII.
SECTION 13.10. Trustee Not Fiduciary for Holders of Senior
Indebtedness.
The Trustee, in its capacity as trustee under this Indenture, shall
not be deemed to owe any fiduciary duty to the holders of Senior Indebtedness
and shall not be liable to any such holders if it shall in good faith
mistakenly pay over or distribute to Holders of Securities or to the
Corporation or to any other Person cash, property or securities to which any
holders of Senior Indebtedness shall be entitled by virtue of this Article
XIII or otherwise.
SECTION 13.11. Rights of Trustee as Holder of Senior Indebtedness;
Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article XIII with respect to any Senior Indebtedness
that may at any time be held by it, to the same extent as any other holder of
Senior Indebtedness, and nothing in this Indenture shall deprive the Trustee
of any of its rights as such holder.
SECTION 13.12. Article Applicable to Paying Agents.
If at any time any Paying Agent other than the Trustee shall have
been appointed by the Corporation and be then acting hereunder, the term
"Trustee" as used in this Article shall in such case (unless the context
otherwise requires) be construed as extending to and including such Paying
Agent within its meaning as fully for all intents and purposes as if such
Paying Agent were named in this Article in addition to or in place of the
Trustee.
* * * *
This Indenture may be executed in any number of counterparts, each
of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, all as of the day and year first above written.
FIRST HAWAIIAN, INC.
By:/s/ Xxxxxxx X. Xxxxxxxxx III
------------------------------
Name: Xxxxxxx X. Xxxxxxxxx III
Title: Assistant Treasurer
THE FIRST NATIONAL BANK OF
CHICAGO, as Trustee
By:/s/ Xxxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
Exhibit A
[Form of Restricted Securities Certificate]
RESTRICTED SECURITIES CERTIFICATE
(For transfers pursuant to Sections 3.5(b) and 3.6(b) of
the Indenture referred to below)
[ ],
as Securities Registrar
[address]
Re: [Title of Securities] of First Hawaiian, Inc.
(the "Securities")
Reference is made to the Junior Subordinated Indenture, dated as of
June __, 1997 (the "Indenture"), between First Hawaiian, Inc., a Delaware
corporation, and ____________, as Trustee. Terms used herein and defined in
the Indenture or in Regulation S, Rule 144A or Rule 144 under the U.S.
Securities Act of 1933 (the "Securities Act") are used herein as so defined.
This certificate relates to $__________ aggregate principal amount
of Securities, which are evidenced by the following certificate(s) (the
"Specified Securities"):
CUSIP No(s). ___________________________
CERTIFICATE No(s). _____________________
CURRENTLY IN BOOK-ENTRY FORM: Yes ___ No ___ (check one)
The person in whose name this certificate is executed below (the
"Undersigned") hereby certifies that either (i) it is the sole beneficial
owner of the Specified Securities or (ii) it is acting on behalf of all the
beneficial owners of the Specified Securities and is duly authorized by them
to do so. Such beneficial owner or owners are referred to herein
collectively as the "Owner". If the Specified Securities are represented by
a Global Security, they are held through a Depositary or an Agent Member in
the name of the Undersigned, as or on behalf of the Owner. If the Specified
Securities are not represented by a Global Security, they are registered in
the name of the Undersigned, as or on behalf of the Owner.
The Owner has requested that the Specified Securities be
transferred to another person (the "Transferee") who will take delivery in
the form of a Restricted Security. In connection with such transfer, the
Owner hereby certifies that, unless such transfer is being effected pursuant
to an effective registration statement under the Securities Act, it is being
effected in accordance with Rule 144A, Rule 904 of Regulation S or Rule 144
under the Securities Act and all applicable securities laws of the states of
the United States and other jurisdictions. Accordingly, the Owner hereby
further certifies as follows:
(1) Rule 144A Transfers. If the transfer is being effected in
accordance with Rule 144A:
(A) the Specified Securities are being transferred to a
person that the Owner and any person acting on its behalf
reasonably believe is a"qualified institutional buyer" within the
meaning of Rule 144A, acquiring for its own account or for the
account of a qualified institutional buyer; and
(B) the Owner and any person acting on its behalf have taken
reasonable steps to ensure that the Transferee is aware that the
Owner may be relying on Rule 144A in connection with the transfer;
and
(2) Rule 904 Transfers. If the transfer is being effected in
accordance with Rule 904:
(A) the Owner is not a distributor of the Securities, an
affiliate of the Corporation or any such distributor or a person
acting in behalf of any of the foregoing;
(B) the offer of the Specified Securities was not made to a
person in the United States;
(C) either;
(i) at the time the buy order was originated, the
Transferee was outside the United States or the Owner and
any person acting on its behalf reasonably believed that
the Transferee was outside the United States, or
(ii) the transaction is being executed in, on or
through the facilities of the Eurobond market, as
regulated by the Association of International Bond
Dealers, or another designated offshore securities market
and neither the Owner nor any person acting on its behalf
knows that the transaction has been prearranged with a
buyer in the United States;
(D) no directed selling efforts have been made in the United
States by or on behalf of the Owner or any affiliate thereof; and
(E) the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act.
(3) Rule 144 Transfers. If the transfer is being effected
pursuant to Rule 144:
(A) the transfer is occurring after a holding period of at
least two years (computed in accordance with paragraph (d) of Rule
144) has elapsed since the date the Specified Securities were
acquired from the Corporation or from an affiliate (as such term is
defined in Rule 144) of the Corporation, whichever is later, and is
being effected in accordance with the applicable amount, manner of
sale and notice requirements of paragraphs (e), (f) and (h) of Rule
144; or
(B) the transfer is occurring after a holding period by the
Owner of at least three years has elapsed since the date the
Specified Securities were acquired from the Corporation or from an
affiliate (as such term is defined in Rule 144) of the Corporation,
whichever is later, and the Owner is not, and during the preceding
three months has not been, an affiliate of the Corporation.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Corporation and the Purchasers (as defined in
the Trust Agreement relating to the Issuer Trust to which the Securities were
initially issued).
Dated:
------------------------------
(Print the name of the
Undersigned, as such term is
defined in the second paragraph
of this certificate.)
By:
------------------------------
Name:
Title:
(If the Undersigned is a
corporation, partnership or
fiduciary, the title of the person
signing on behalf of the
Undersigned must be stated.)
