Exhibit 4.2
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SOVEREIGN BANCORP, INC.
To
BNY MIDWEST TRUST COMPANY,
Trustee
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INDENTURE
Dated as of November 1, 2005
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Senior Debt Securities
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SOVEREIGN BANCORP, INC.
Reconciliation and tie between Trust Indenture Act of
1939, dated as of November 1, 2005
TRUST INDENTURE ACT SECTIONS INDENTURE SECTION
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ss. 310 (a)(1)................................................ 6.9
(a)(2)................................................ 6.9
(a)(3)................................................ Not Applicable
(a)(4)................................................ Not Applicable
(a)(5)................................................ 6.9
(b)................................................... 6.8
6.10
(c)................................................... Not Applicable
ss. 311 (a)(1)................................................ 6.13(a)
(b)................................................... 6.13(b)
(b)(2)................................................ 7.3(a)(3)
7.3(b)
ss. 312 (a)................................................... 7.1
(b)................................................... 7.2(a)
7.2(b)
(c)................................................... 7.2(c)
ss. 313 (a)................................................... 7.3(a)
(b)................................................... 7.3(b)
(c)................................................... 7.3(c)
(d)................................................... 7.3(d)
ss. 314 (a)................................................... 7.4, 10.7
(b)................................................... Not Applicable
(c)(1)................................................ 1.2
(c)(2)................................................ 1.2
(c)(3)................................................ Not Applicable
(d)................................................... Not Applicable
(e)................................................... 1.2
ss. 315 (a)................................................... 6.9(a)
6.1(c)
(b)................................................... 6.2
7.3(a)(7)
(c)................................................... 6.1(b)
(d)................................................... 6.1(c)
(d)(1)................................................ 6.1(a)
(d)(2)................................................ 6.1(c)(2)
(d)(3)................................................ 6.1(c)(3)
(e)................................................... 5.14
ss. 316 (a)................................................... 1.1
(a)(1)(A)............................................. 1.4(h), 5.2
5.12
(a)(1)(B)............................................. 1.4(h), 5.13
(a)(2)................................................ Not Applicable
(b)................................................... 5.8
ss. 317 (a)(1)................................................ 5.3
(a)(2)................................................ 5.4
(b)................................................... 10.3
ss. 318 (a)................................................... 1.7
(c)................................................... 1.7
Table of Contents
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Page
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ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF
GENERAL APPLICATION.....................................1
Section 1.1. Definitions..................................................1
Section 1.2. Compliance Certificates and Opinions.........................9
Section 1.3. Form of Documents Delivered to Trustee.......................9
Section 1.4. Acts of Holders.............................................10
Section 1.5. Notices, etc., to Trustee and Company.......................12
Section 1.6. Notice to Holders; Waiver...................................12
Section 1.7. Conflict with Trust Indenture Act...........................13
Section 1.8. Effect of Headings and Table of Contents....................13
Section 1.9. Successors and Assigns......................................13
Section 1.10. Separability Clause.........................................13
Section 1.11. Benefits of Indenture.......................................13
Section 1.12. Governing Law...............................................13
Section 1.13. Legal Holidays..............................................14
Section 1.14. Counterparts................................................14
ARTICLE TWO DEBT SECURITY FORMS....................................14
Section 2.1. Forms Generally.............................................14
Section 2.2. Form of Trustee's Certificate of Authentication.............15
Section 2.3. Debt Securities in Global Form..............................15
ARTICLE THREE THE DEBT SECURITIES....................................15
Section 3.1. Amount Unlimited: Issuable in Series........................15
Section 3.2. Denominations...............................................19
Section 3.3. Execution, Authentication, Delivery and Dating..............19
Section 3.4. Temporary Debt Securities...................................22
Section 3.5. Registration; Registration of Transfer and Exchange.........24
Section 3.6. Mutilated, Destroyed, Lost and Stolen Debt Securities.......27
Section 3.7. Payment of Interest; Interest Rights Preserved..............28
Section 3.8. Persons Deemed Owners.......................................30
Section 3.9. Cancellation................................................31
Section 3.10. Computation of Interest.....................................31
Section 3.11. Certification by a Person Entitled to Delivery of a
Bearer Security.............................................31
Section 3.12. Judgments...................................................32
ARTICLE FOUR SATISFACTION AND DISCHARGE.............................32
Section 4.1. Satisfaction and Discharge of Indenture.....................32
Section 4.2. Application of Trust Money and Eligible Instruments.........34
ARTICLE FIVE REMEDIES...............................................34
Section 5.1. Events of Default...........................................34
Section 5.2. Acceleration of Maturity; Rescission and Annulment..........35
Section 5.3. Collection of Indebtedness and Suits for Enforcement
by Trustee..................................................36
Section 5.4. Trustee May File Proofs of Claim............................37
(i)
Table of Contents
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(continued)
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Section 5.5. Trustee May Enforce Claims without Possession of Debt
Securities or Coupons.......................................37
Section 5.6. Application of Money Collected..............................38
Section 5.7. Limitation on Suits.........................................38
Section 5.8. Unconditional Right of Holders to Receive Principal,
Premium and Interest and to Exchange Debt Securities
for Capital Securities......................................39
Section 5.9. Restoration of Rights and Remedies..........................39
Section 5.10. Rights and Remedies Cumulative..............................39
Section 5.11. Delay or Omission Not Waiver................................39
Section 5.12. Control by Holders of Debt Securities.......................40
Section 5.13. Waiver of Past Defaults.....................................40
Section 5.14. Undertaking for Costs.......................................40
Section 5.15. Waiver of Stay or Extension Loans...........................41
ARTICLE SIX THE TRUSTEE............................................41
Section 6.1. Certain Duties and Responsibilities.........................41
Section 6.2. Notice of Defaults..........................................42
Section 6.3. Certain Rights of Trustee...................................43
Section 6.4. Not Responsible for Recitals or Issuance of Debt
Securities..................................................44
Section 6.5. Money Held in Trust.........................................45
Section 6.6. May Hold Debt Securities or Coupons.........................45
Section 6.7. Compensation and Reimbursement..............................45
Section 6.8. Disqualification............................................46
Section 6.9. Corporate Trustee Required; Eligibility.....................46
Section 6.10. Resignation and Removal; Appointment of Successor...........46
Section 6.11. Acceptance of Appointment by Successor......................48
Section 6.12. Merger, Conversion, Consolidation or Succession to
Business....................................................49
Section 6.13. Preferential Collection of Claims Against Company...........49
Section 6.14. Authenticating Agent........................................52
ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY......54
Section 7.1. Company to Furnish Trustee Names and Addresses of Holders...54
Section 7.2. Preservation of Information; Communications to Holders......54
Section 7.3. Reports by Trustee..........................................55
Section 7.4. Reports by Company..........................................57
ARTICLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE...58
Section 8.1. Company May Consolidate, etc., Only on Certain Terms........58
Section 8.2. Successor Corporation Substituted...........................58
ARTICLE NINE SUPPLEMENTAL INDENTURES................................59
Section 9.1. Supplemental Indentures without Consent of Holders..........59
Section 9.2. Supplemental Indentures with Consent of Holders.............60
Section 9.3. Execution of Supplemental Indentures........................61
(ii)
Table of Contents
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(continued)
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Section 9.4. Effect of Supplemental Indentures...........................62
Section 9.5. Conformity with Trust Indenture Act.........................62
Section 9.6. Reference in Debt Securities to Supplemental Indentures.....62
ARTICLE TEN COVENANTS..............................................62
Section 10.1. Payment of Principal, Premium and Interest..................62
Section 10.2. Maintenance of Office or Agency.............................62
Section 10.3. Money for Debt Securities Payments to Be Held in Trust......64
Section 10.4. Limitation on Mortgages and Liens...........................65
Section 10.5. Limitation on Disposition of Voting Stock of, and Merger
and Sale of Assets by, the Bank.............................65
Section 10.6. Payment of Additional Amounts...............................65
Section 10.7. Officers' Certificate as to Default.........................66
Section 10.8. Waiver of Certain Covenants.................................66
ARTICLE ELEVEN REDEMPTION OF DEBT SECURITIES..........................67
Section 11.1. Applicability of Article....................................67
Section 11.2. Election to Redeem; Notice to Trustee.......................67
Section 11.3. Selection by Trustee of Debt Securities to Be Redeemed......67
Section 11.4. Notice of Redemption........................................68
Section 11.5. Deposit of Redemption Price.................................68
Section 11.6. Debt Securities Payable on Redemption Date..................69
Section 11.7. Debt Securities Redeemed in Part............................69
ARTICLE TWELVE SINKING FUNDS..........................................70
Section 12.1. Applicability of Article....................................70
Section 12.2. Satisfaction of Sinking Fund Payments with Debt Securities..70
Section 12.3. Redemption of Debt Securities for Sinking Fund..............71
ARTICLE THIRTEEN REPAYMENT AT THE OPTION OF HOLDERS.....................71
Section 13.1. Applicability of Article....................................71
Section 13.2. Repayment of Debt Securities................................71
Section 13.3. Exercise of Option; Notice..................................71
Section 13.4. Election of Repayment by Remarketing Entities...............72
Section 13.5. Securities Payable on the Repayment Date....................73
ARTICLE FOURTEEN EXCHANGE OF CAPITAL SECURITIES FOR DEBT SECURITIES.....73
Section 14.1. Applicability of Article....................................73
Section 14.2. Exchange of Capital Securities for Debt Securities at
Stated Maturity.............................................73
Section 14.3. Right of Early Exchange of Capital Securities for Debt
Securities..................................................74
Section 14.4. Notices of Exchange.........................................74
Section 14.5. Rights and Duties of Holders of Debt Securities to be
Exchanged for Capital Securities............................76
Section 14.6. Election to Exchange........................................78
Section 14.7. Deposit of Capital Exchange Price...........................78
(iii)
Table of Contents
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(continued)
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Section 14.8. Debt Securities Due on Capital Exchange Date; Debt
Securities Exchanged in Part................................78
Section 14.9. Form of Capital Security Election Form......................79
Section 14.10. Fractional Capital Securities...............................80
Section 14.11. Company to Obtain Governmental and Regulatory Approvals.....80
Section 14.12. Taxes on Exchange...........................................80
Section 14.13. Covenants as to Capital Securities and Secondary Offering...81
Section 14.14. Provision in Case of Consolidation, Merger or Transfer of
Assets......................................................81
Section 14.15. Responsibility of Trustee...................................82
Section 14.16. Revocation of Obligation to Exchange Capital Securities
for Debt Securities.........................................82
Section 14.17. Optional Securities Funds...................................82
ARTICLE FIFTEEN SECURITIES FUNDS.......................................83
Section 15.1. Creation of Securities Funds................................83
Section 15.2. Designations of Securities Funds............................84
Section 15.3. Covenant of the Company to Obtain Securities Funds..........84
ARTICLE SIXTEEN MEETINGS OF HOLDERS OF DEBT SECURITIES.................85
Section 16.1. Purposes for Which Meetings May Be Called...................85
Section 16.2. Call, Notice and Place of Meetings..........................85
Section 16.3. Persons Entitled to Vote at Meetings........................85
Section 16.4. Quorum; Action..............................................86
Section 16.5. Determination of Voting Rights; Conduct and Adjournment
of Meetings.................................................86
Section 16.6. Counting Votes and Recording Action of Meetings.............87
ARTICLE SEVENTEEN DEFEASANCE.............................................88
Section 17.1. Termination of Company's Obligations........................88
Section 17.2. Repayment to Company........................................89
Section 17.3. Indemnity for Eligible Instruments..........................89
ARTICLE EIGHTEEN CONVERSION OF CONVERTIBLE SECURITIES...................89
Section 18.1. Applicability of Article....................................89
Section 18.2. Right to Convert............................................89
Section 18.3. Exercise of Conversion Privilege; Delivery of Common Stock
on Conversion; No Adjustment for Interest or Dividends......90
Section 18.4. Cash Payments in Lieu of Fractional Shares..................91
Section 18.5. Conversion Price............................................91
Section 18.6. Adjustment to Conversion Price..............................91
Section 18.7. Effect of Reclassification, Consolidation, Merger or Sale...94
Section 18.8. Taxes on Shares Issued......................................95
Section 18.9. Shares to be Fully Paid; Compliance with Governmental
Requirements; Listing of Common Stock.......................95
Section 18.10. Responsibility of Trustee...................................96
Section 18.11. Notice to Holders Prior to Certain Actions..................96
Section 18.12. Covenant to Reserve Shares..................................97
(iv)
SENIOR INDENTURE (the "Indenture") dated as of November 1,
2005, between SOVEREIGN BANCORP, INC., a Pennsylvania corporation (hereinafter
called the "Company"), having its principal place of business at 0000 Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000, and BNY MIDWEST TRUST COMPANY
(hereinafter called the "Trustee"), having its Corporate Trust Office at 0 Xxxxx
XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000.
Recitals of the Company
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The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its debentures,
notes, bonds and other evidences of indebtedness (herein called the "Debt
Securities").
All things necessary have been done to make this Indenture a
valid agreement of the Company, in accordance with its terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Debt Securities of any series created and issued on or after the date hereof
by the Holders thereof, intending to be legally bound, it is mutually covenanted
and agreed, for the equal and proportionate benefit of all Holders of such Debt
Securities or of any such series, as follows:
ARTICLE ONE
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:
(1) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as
the singular;
(2) all other terms used herein which are defined in the
Trust Indenture Act or by Commission rule or regulation under the
Trust Indenture Act, either directly or by reference therein, as in
force at the date as of which this instrument was executed, except as
provided in Section 9.5, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally accepted
accounting principles, and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall mean
such accounting principles as are generally accepted in the United
States at the date of such computation applied in a manner consistent
with past practices of the Company; and
1
(4) the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in
that Article.
"Act" when used with respect to any Holder has the meaning
specified in Section 1.4.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise,
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authorized Newspaper" means a newspaper in an official
language of the country of publication or in the English language customarily
published on each Business Day, whether or not published on Saturdays, Sundays
or holidays, and of general circulation in the place in connection with which
the term is used or in the financial community of such place. Where successive
publications are required to be made in Authorized Newspapers, the successive
publications may be made in the same or in different newspapers in the same city
meeting the foregoing requirements and in each case on any Business Day.
"Bank" means Sovereign Bank, a federal savings bank and any
successors to any substantial part of the present business thereof.
"Bearer Security" means any Debt Security established pursuant
to Section 2.1 which is payable to bearer including, without limitation, unless
the context otherwise indicates, a Debt Security in global bearer form.
"Board of Directors" means either the board of directors of
the Company, or the executive or any other committee of that board duly
authorized to act in respect hereof.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day," when used with respect to any Place of Payment
or Place of Exchange, means any day which is not a Saturday or Sunday and which
is not a legal holiday or a day on which banking institutions or trust companies
in the Place of Payment or Place of Exchange are authorized or obligated by law
or executive order to close.
"Capital Exchange Agent" means the Person or Persons appointed
by the Company to give notices and to exchange Debt Securities of any series for
Capital Securities as specified in Article Fourteen.
2
"Capital Exchange Date", when used with respect to the Debt
Securities of any series, means any date on which such Debt Securities are to be
exchanged for Capital Securities pursuant to this Indenture.
"Capital Exchange Price", when used with respect to any Debt
Security of any series to be exchanged for Capital Securities, means the amount
of Capital Securities for which such Debt Security is to be exchanged pursuant
to this Indenture or the aggregate sale price of such Capital Securities in the
Secondary Offering for such Debt Security, as the case may be.
"Capital Securities" means any securities issued by the
Company which consist of any of the following: (i) Common Stock, (ii) Perpetual
Preferred Stock or (iii) securities which at the date of issuance may be issued
in exchange for, or the proceeds from the sale of which may be designated as
Securities Funds or Optional Securities Funds for the payment of the principal
of, "mandatory convertible securities" under applicable regulations of the
Primary Federal Regulator. Capital Securities may have such terms, rights and
preferences as may be determined by the Company.
"Capital Security Election Form" means a form substantially in
the form included in Section 14.9.
"Clearstream" means Clearstream Banking, S.A.
"Closing Price" has the meaning specified in Section 18.6(d).
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, or if at any time after the execution of this instrument such Commission
is not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties on such date.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provision of this Indenture, and thereafter "Company"
shall mean such successor person.
"Company Request" and "Company Order" mean, respectively, a
written request or order signed in the name of the Company by the Chairman of
the Board, the Chief Executive Officer, the President, the Chief Financial
Officer, or any Vice President (any reference to a Vice President of the Company
herein shall be deemed to include any Vice President of the Company whether or
not designated by a number or word or words added before or after the title
"Vice President"), and by the Treasurer, Assistant Treasurer, Secretary or an
Assistant Secretary of the Company, and delivered to the Trustee.
"Controlled Subsidiary" means any corporation more than 80% of
the outstanding shares of Voting Stock, except for directors' qualifying shares,
of which shall at the time be owned directly by the Company.
"Conversion Price" has the meaning specified in Section 18.5.
"Convertible Securities" means any series of Debt Securities
that are designated as such pursuant to Section 3.1.
3
"Corporate Trust Office" means the principal corporate trust
office of the Trustee at which at any particular time its corporate trust
business shall be administered.
The term "corporation" includes corporations, limited
liability companies, associations, companies and business trusts.
The term "coupon" means any interest coupon appertaining to a
Bearer Security.
"Debt Securities" has the meaning in the first recital of this
Indenture and more particularly means any Debt Securities authenticated and
delivered under this Indenture.
"Defaulted Interest" has the meaning specified in Section 3.7.
"Depositary" means, with respect to the Debt Securities of any
series issuable or issued in the form of a Global Security, the Person
designated as Depositary by the Company pursuant to Section 3.1 until a
successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean or include
each Person who is then a Depositary hereunder, and if at any time there is more
than one such Person, "Depositary" as used with respect to the Debt Securities
of any such series shall mean the Depositary with respect to the Debt Securities
of that series.
"Designated Currency" has the meaning specified in Section
3.12.
"Dollar" or "$" means the coin or currency of the United
States of America as at the time of payment is legal tender for the payment of
public and private debts.
"Euro" means the European currency unit as defined and revised
from time to time by the Council of the European Commissions.
"Eligible Instruments" means monetary assets, money market
instruments and securities that are payable in Dollars only and essentially risk
free as to collection of principal and interest, including U.S. Government
Obligations.
"Euroclear" means the Euroclear System.
"Event of Default" has the meaning specified in Section 5.1.
"Exchange Rate" shall have the meaning specified as
contemplated in Section 3.1.
"Exchange Rate Agent" shall have the meaning specified as
contemplated in Section 3.1.
"Exchange Rate Officer's Certificate," with respect to any
date for the payment of principal of (and premiums, if any) and interest on any
series of Debt Securities, means a certificate setting forth the applicable
Exchange Rate and the amounts payable in Dollars and Foreign Currencies in
respect of the principal of (and premium, if any) and interest on debt
Securities denominated in Euro, and other composite currency or Foreign
Currency, and signed by the Chairman of the Board, the President, the Chief
Financial Officer, any Vice President, the Treasurer or any Assistant Treasurer
of the Company or the Exchange Rate Agent appointed pursuant to Section 3.1 and
delivered to the Trustee.
4
"Foreign Currency" means a currency issued by the government
of any country other than the United States of America.
"Global Exchange Agent" has the meaning specified in Section
3.4.
"Global Exchange Date" has the meaning specified in Section
3.4.
"Global Security" means a Debt Security issued to evidence all
or a part of a series of Debt Securities in accordance with Section 3.3.
"Holder," with respect to a Registered Security, means a
Person in whose name such Registered Security is registered in the Security
Register and, with respect to a Bearer Security or a coupon, means the bearer
thereof.
"Indenture" means this instrument as originally executed or as
it may from time to time be supplemented, amended or restated by or pursuant to
one or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof and, unless the context otherwise requires, shall
include the terms of a particular series of Debt Securities established as
contemplated by Section 3.1.
The term "interest," when used with respect to an Original
Issue Discount Security which by its terms bears interest only after Maturity,
means interest payable after Maturity.
"Interest Payment Date," with respect to any Debt Security,
means the Stated Maturity of an installment of interest on such Debt Security.
"Market Value" of any Capital Securities issued on any Capital
Exchange Date for Debt Securities of any series shall be the sale price of such
Capital Securities which are sold in the Secondary Offering for the Debt
Securities of such series. In the event no such Secondary Offering takes place,
the Market Value of such Capital Securities shall be the fair value of such
Capital Securities on such Capital Exchange Date for Debt Securities of such
series as determined by three independent nationally recognized investment
banking firms selected by the Company.
"Maturity," when used with respect to any Debt Security, means
the date on which the principal of such Debt Security becomes due and payable as
therein or herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption, repayment at the option of the Holder or
otherwise.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the Chief Executive Officer, the President, the Chief
Financial Officer, or any Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary of the Company, and delivered
to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who
may (except as otherwise expressly provided in this Indenture) be counsel for
the Company, or who may be other counsel acceptable to the Trustee, which is
delivered to the Trustee.
5
"Optional Securities Fund" means a fund pursuant to which the
proceeds of sales of Capital Securities may be designated on the books of the
Company for the payment of any of the principal of any Debt Security pursuant to
Section 14.17 of this Indenture.
"Original Issue Discount Security" means any Debt Security
which provides for an amount less than the principal amount thereof to be due
and payable upon a declaration of acceleration of the Maturity thereof pursuant
to Section 5.2.
"Outstanding," when used with respect to Debt Securities
means, as of the date of determination, all Debt Securities theretofore
authenticated and delivered under this Indenture, except:
(i) Debt Securities theretofore cancelled by the Trustee
or delivered to the Trustee for cancellation.
(ii) Debt Securities or portions thereof for whose payment
or redemption money in the necessary amount has been theretofore
deposited with the Trustee or any Paying Agent (other than the
Company) in trust or set aside and segregated in trust by the Company
(if the Company shall act as its own Paying Agent) for the Holders of
such Debt Securities and any coupons appertaining thereto; provided,
however, that if such Debt Securities are to be redeemed, notice of
such redemption has been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee has been made; and
(iii) Debt Securities in exchange for in lieu of which
other Debt Securities have been authenticated and delivered, or which
have been paid, pursuant to this Indenture"
provided, however, that in determining whether the Holders of the requisite
principal amount of Debt Securities Outstanding have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Debt Securities
owned by the Company or any other obligor upon the Debt Securities or any
Affiliate of the Company or of such other obligor shall be disregarded and
deemed not to be Outstanding, except that, in determining whether the Trustee
shall be protected in relying upon such request, demand, authorization,
direction, notice, consent or waiver, only Debt Securities which the Trustee
knows to be so owned shall be disregarded. Debt Securities so owned which have
been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Debt Securities and that the pledgee is not the Company or
any other obligor upon the Debt Securities or any Affiliate of the Company or of
such other obligor.
"Paying Agent" means any Person authorized by the Company to
pay the principal of (and premium, if any) or interest on any Debt Securities on
behalf of the Company.
"Perpetual Preferred Stock" means any stock of any class of
the Company which has a preference over Common Stock in respect of dividends or
of amounts payable in the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Company and which is not mandatorily redeemable
or repayable, or redeemable or repayable at the option of the Holder, other than
in shares of Common Stock or Perpetual Preferred Stock of another class or
series or with the proceeds of the sale of Common Stock or Perpetual Preferred
Stock.
6
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization,
limited liability company, or government or any agency or political subdivision
thereof.
"Place of Capital Exchange", when used with respect to Debt
Securities of any series, means any place where the Debt Securities of such
series are exchangeable for Capital Securities pursuant to Section 3.1.
"Place of Payment," when used with respect to the Debt
Securities of any series means any place where the principal of (and premium, if
any) and interest on the Debt Securities of that series are payable as specified
as contemplated by Section 3.1.
"Predecessor Security" of any particular Debt Security means
every previous Debt Security evidencing all or a portion of the same debt as
that evidenced by such particular Debt Security; and, for the purposes of this
definition, any Debt Security authenticated and delivered under Section 3.6 in
lieu of a lost, destroyed or stolen Debt Security shall be deemed to evidence
the same debt as the lost, destroyed or stolen Debt Security.
"Primary Federal Regulator" means the primary United States
federal regulator of the Company (which at the date of this Indenture is the
Office of Thrift Supervision) or any successor body or institution.
"Redemption Date," when used with respect to any Debt Security
to be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price," when used with respect to any Debt
Security to be redeemed, means the price at which it is to be redeemed pursuant
to this Indenture.
"Registered Security" means any Debt Security in the form of
Registered Securities established pursuant to Section 2.1 which is registered in
the Security Register.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Registered Securities of any series means the date specified
for that purpose as contemplated by Section 3.1.
"Remarketing Entity," when used with respect to Debt
Securities of any series which are repayable at the option of the Holders
thereof before their Stated Maturity, means any person designated by the Company
to purchase any such Debt Securities.
"Repayment Date," when used with respect to any Debt Security
to be repaid upon exercise of option for repayment by the Holder, means the
price at which it is to be repaid pursuant to this Indenture.
"Repayment Price," when used with respect to any Debt Security
to be repaid upon exercise of option for repayment by the Holder, means the
price at which it is to be repaid pursuant to this Indenture.
7
"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 (whether or
not designated by a number or a word or words added before or after the title
"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
preformed by any of the above designated officers and also means, with respect
to a particular corporate trust matter, any other officer to whom such matter is
referred because of such officer's knowledge of and familiarity with the
particular subject.
"Rights" has the meaning specified in Section 18.6(c).
"Secondary Offering", when used with respect to the Debt
Securities of any series, means the offering and sale by the Company of Capital
Securities for the account of Holders of Debt Securities of such series who
elect to receive cash and not Capital Securities on the Capital Exchange Date
for such series.
"Securities Fund" means a fund pursuant to which the proceeds
of sales of Capital Securities are designated on the books of the Company for
the payment of any principal of any Debt Security pursuant to the provisions of
Section 15.1.
"Security Register" and "Security Registrar" have the
respective meaning specified in Section 3.5.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 3.7.
"Stated Maturity," when used with respect to any Debt Security
or any installment of interest thereon, means the date specified in such Debt
Security or a coupon representing such installment of interest as the fixed date
on which the principal of such Debt Security or such installment of interest is
due and payable.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as
in force at the date as of which this instrument was executed, except as
provided in Section 9.5.
"Trustee" means the Person named as the "trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Debt Securities of any series shall mean the Trustee with respect
to Debt Securities of that series.
"United States" means the United States of America (including
the District of Columbia) and its possessions.
"United States Alien" means any Person who, for United States
Federal income tax purposes, is a foreign corporation, a non-resident alien
individual, a non-resident alien fiduciary of a foreign estate or trust, or a
foreign partnership one or more of the members of which is, for United States
Federal income tax purposes, a foreign corporation, a non-resident alien
individual or a non-resident alien fiduciary of a foreign estate or trust.
8
"U.S. Government Obligation" means direct obligations of the
United States for the payment of which its full faith and credit is pledged, or
obligations of a person controlled or supervised by and acting as an agency or
instrumentality of the United States the timely payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States.
"Voting Stock," as applied to the stock (or the equivalent
thereof) of any corporation, means stock (or the equivalent thereof) of any
class or classes, however designated, having ordinary voting power for the
election of a majority of the directors of such corporation, other than stock
(or such equivalent) having such power only by reason of the happening of a
contingency.
Section 1.2. Compliance Certificates and Opinions
Upon any application or request by the Company to the Trustee
to take any action under any provision of this Indenture (other than the
delivery of any Debt Security to the Trustee for authentication pursuant to
Section 3.3), the Company shall furnish to the Trustee an Officers' Certificate
stating that all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with and an Opinion of
Counsel stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than certificates
provided pursuant to Section 7.4(4)) shall include:
(1) a statement that each individual signing such
certificate or opinion has read such covenant or condition and the
definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such
individual, he or she has made such examination or investigation as
is necessary to enable him or her to express an informed opinion as
to whether or not such covenant or condition has been complied with;
and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.3. Form of Documents Delivered to Trustee
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
9
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his or her certificate or opinion is
based is erroneous. Any such certificate or Opinion of Counsel may be based,
insofar as it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company, unless such counsel
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to such matters is 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 or taken
by Holders may be embodied in and evidenced by one or more instruments
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing. If Debt Securities of a series are issuable in whole or in
part as Bearer Securities, any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture to be given
or taken by Holders may, alternatively, be embodied in and evidenced by the
record of Holders of Debt Securities voting in favor thereof, either in person
or by proxies duly appointed in writing, at any meeting of Holders of Debt
Securities duly called and held in accordance with the provisions of Article
Sixteen, or a combination of such instruments and any such record. Except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments or record or both are delivered to the Trustee,
and, where it is hereby expressly required, to the Company. Such instrument or
instruments and any such record (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments and so voting at any such meeting. Proof of
execution of any such instrument or of a writing appointing any such agent, or
the holding by any Person of a Debt Security, shall be sufficient for any
purpose of this Indenture and(subject to or the holding by any Person of a Debt
Security, shall be sufficient for any purpose of this Indenture and (subject to
Section 6.1) conclusive in favor of the Trustee and the Company, if made in the
manner provided in this Section. The record of any meeting of Holders of Debt
Securities shall be proved in the manner provided in Section 16.6.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved in any manner which the Trustee deems
sufficient.
(c) The ownership of the Registered Securities shall be
proved by the Security Register.
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(d) The principal amount and serial numbers of Bearer
Securities held by any Person, and the date of holding the same, may be proved
by the production of such Bearer Securities or by a certificate executed, as
depositary, by any trust company, bank, banker or other depositary, wherever
situated, if such certificate shall be deemed by the Trustee to be satisfactory,
showing that at the date therein mentioned such Person had on deposit with such
depositary, or exhibited to it, the Bearer Securities in the amount and with the
serial numbers therein described; or such facts may be proved by the certificate
or affidavit of the Person holding such Bearer Securities, if such certificate
or affidavit is deemed by the Trustee to be satisfactory. The Trustee and the
Company may assume that such ownership of any Bearer Security continues until
(1) another certificate or affidavit bearing a later date issued in respect of
the same Bearer Security is produced, or (2) such Bearer Security is produced to
the Trustee by some other Person, or (3) such Bearer Security is surrendered in
exchange for a Registered Security, or (4) such Bearer Security is no longer
Outstanding.
(e) The fact and date of execution of any such instrument or
writing, the authority of the Person executing the same and the principal amount
and serial numbers of Bearer Securities held by the Person so executing such
instrument or writing and the date of holding the same may also be proved in any
other manner which the Trustee deems sufficient; and the Trustee may in any
instance require further proof with respect to any of the matters referred to in
this Section.
(f) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Debt Security shall bind every
future holder of the same Debt Security and the Holder of every Debt Security
issued upon the registration or transfer thereof or in exchange therefor or in
lieu thereof in respect of anything done, suffered or omitted by the Trustee or
the Company in reliance thereon, whether or not notation of such action is made
upon such Debt Security.
(g) For purposes of determining the principal amount of
Outstanding Debt Securities of any series the Holders of which are required,
requested or permitted to give any request, demand, authorization, direction,
notice, consent, waiver or take any other Act under this Indenture, (i) each
Original Issue Discount Security shall be deemed to have the principal amount
determined by the Trustee that could be declared to be due and payable pursuant
to the terms of such Original Issue Discount Security as of the date there is
delivered to the Trustee, and where it is hereby expressly required, to the
Company, such Act by Holders of the required aggregate principal amount of the
Outstanding Debt Securities of such series and (ii) each Debt Security
denominated in a Foreign Currency or composite currency shall be deemed to have
the principal amount determined by the Exchange Rate Agent by converting the
principal amount of such Debt Security in the currency in which such Debt
Security is denominated into Dollars at the Exchange Rate as of the date such
Act is delivered to the Trustee and, where it is hereby expressly required, to
the Company, by Holders of the required aggregate principal amount of the
Outstanding Debt Securities of such series (or, if there is no such rate on such
date, such rate on the date determined as specified as contemplated in Section
3.1).
(h) The Company may set a record date for purposes of
determining the identity of Holders of Debt Securities of any series entitled to
vote or consent to any action by vote or consent authorized or permitted by
Section 5.12 or Section 5.13. Such record date shall be the later of 30 days
prior to the first solicitation of such consent or the date of the most recent
list of Holders of such Debt Securities furnished the Trustee pursuant to
Section 7.1 prior to such solicitation.
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Section 1.5. Notices, etc., to Trustee and Company.
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 or by the Company shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided), if made, given, furnished or filed in writing
and mailed, first class postage prepaid to or with the Trustee at its
Corporate Trust Office, Attention: Indenture Trust Division, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to the attention of its Secretary
at the address of its principal office specified in the first
paragraph of this instrument or at any other address previously
furnished in writing to the Trustee by the Company.
Section 1.6. Notice to Holders; Waiver.
Except as otherwise expressly provided herein, where this
Indenture provides for notice to Holders of any event, (1) such notice shall be
sufficiently given to Holders of Registered Securities if in writing and mailed,
first-class postage prepaid, to each Holder of a Registered Security affected by
such event, at such Holder's address as it appears in the Security Register, not
later than the latest date, and not earlier than the earliest date, prescribed
for the giving of such notice; and (2) such notice shall be sufficiently given
to Holders of Bearer Securities by publication thereof in an Authorized
Newspaper in the City of New York, and if the Debt Securities of such series are
then listed on any other stock exchange outside the United States and such stock
exchange shall so require, in any other required city outside the United States,
or if not practicable, in Europe on a Business Day at least twice, the first
such publication to be not earlier than the earliest date and not later than the
latest date prescribed for the giving of such notice.
In case, by reason of the suspension of or irregularities in
regular mail service or for any other reason, it shall be impossible or
impracticable to mail notice of any event to Holders when said notice is
required to be given pursuant to any provision of this Indenture or of the Debt
Securities, then any manner of giving such notice as shall be satisfactory to
the Trustee shall be deemed to be a sufficient giving of such notice. In any
case where notice to Holders of Registered Securities is to be given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed,
to any particular Holder of a Registered Security shall affect the sufficiency
of such notice with respect to other Holders of Registered Securities or the
sufficiency of any notice by publication to Holders of Bearer Securities given
as provided above.
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In case, by reason of the suspension of publication of any
Authorized Newspaper, or by reason of any other cause, it shall be impossible or
impracticable to make publication of any notice to Holders of Bearer Securities
as provided above, then such method of publication or notification as shall be
made with the approval of the Trustee shall constitute a sufficient publication
of such notice. Neither failure to give notice by publication to Holders of
Bearer Securities as provided above, nor any defect in any notice so published,
shall affect the sufficiency of any notice mailed to Holders of Registered
Securities as provided above.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
Any request, demand, authorization, direction, notice,
consent, election, waiver or other Act required or permitted under this
Indenture shall be in the English language, except that any published notice may
be in an official language of the country of publication.
Section 1.7. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with
another provision hereof which is required to be included in this Indenture by
any of the provisions of the Trust Indenture Act, such required provision shall
control.
Section 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 Company
shall bind its successors and assigns, whether expressed or not.
Section 1.10. Separability Clause.
In case any provision in this Indenture or in the Debt
Securities or coupons shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
Section 1.11. Benefits of Indenture.
Nothing in this Indenture or in the Debt Securities or
coupons, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder, any Paying Agent and the Holders, any
benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 1.12. Governing Law.
This Indenture and the Debt Securities and coupons shall be
governed by and construed in accordance with the laws of the Commonwealth of
Pennsylvania.
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Section 1.13. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date,
Repayment Date, Capital Exchange Date, or Stated Maturity of any Debt Security
shall not be a Business Day at any Place of Payment or Place of Capital
Exchange, then (notwithstanding any other provision of this Indenture or of the
Debt Securities or coupons) payment of interest or principal (and premium, if
any) need not be made at such Place of Payment on such date, but may be made on
the next succeeding Business Day at such Place of Payment or Place of Capital
Exchange with the same force and effect as if made on the Interest Payment Date,
Redemption Date, Capital Exchange Date, Repayment Date or Stated Maturity, and
no interest shall accrue for the period from and after such Interest Payment
Date, Redemption Date, Repayment Date, Capital Exchange Date, or Stated
Maturity, as the case may be.
Section 1.14. Counterparts.
This Indenture may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same Indenture.
ARTICLE TWO
DEBT SECURITY FORMS
Section 2.1. Forms Generally.
The Registered Securities, if any, and the Bearer Securities
and related coupons, if any, of each series shall be substantially in the form
(including temporary or permanent global form) as shall be established in or
pursuant to a Board Resolution, in or pursuant to an Officers' Certificate, or
in one or more indentures supplemental hereto, in each case with such
appropriate insertions, omission, substitutions and other variations as are
required or permitted in this Indenture, and may have such letters, numbers or
other marks of identification and such legends or endorsements placed thereof,
as may be required to comply with the rules of any securities exchange, or as
may, consistently herewith, be determined by the officers executing such Debt
Securities or coupons, as evidenced by their signatures on the Debt Securities
or coupons. If the form of Debt Securities of any series or coupons (including
any such Global Security) is established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of such action shall be certified by
the Secretary or an Assistant Secretary of the Company and delivered to the
Trustee at or prior to the delivery of the Company Order contemplated by Section
3.3 or the authentication and delivery of such Debt Securities or coupons.
Unless otherwise specified as contemplated by Section 3.1,
Debt Securities in bearer form other than Debt Securities in temporary or
permanent global form shall have coupons attached.
The definitive Debt Securities and coupons, if any, shall be
printed, lithographed or engraved on steel engraved borders or may be produced
in any other manner, all as determined by the officers executing such Debt
Securities, as evidenced by the execution of such Debt Securities and coupons.
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Section 2.2. Form of Trustee's Certificate of Authentication
This is one of the Debt Securities, of the series designated
herein, described in the within-mentioned Indenture.
BNY MIDWEST TRUST COMPANY,
as Trustee
By____________________________________
Authorized Signatory
Section 2.3. Debt Securities in Global Form.
If Debt Securities of a series are issuable in whole or in
part in global form, as specified as contemplated by Section 3.1, then,
notwithstanding clause (12) of Section 3.1 and the provisions of Section 3.2,
such Global Security shall represent such of the outstanding Debt Securities of
such series as shall be specified therein and may provide that it shall
represent the aggregate amount of Outstanding Debt Securities from time to time
endorsed thereon and that the aggregate amount of Outstanding Debt Securities
represented thereby may from time to time be reduced to reflect exchanges. Any
endorsement of a Global Security to reflect the amount, or any increase or
decrease in the amount, of Outstanding Debt Securities represented thereby shall
be made in such manner and upon instructions given by such Person or Persons as
shall be specified therein or in the Company Order to be delivered to the
Trustee pursuant to Section 3.3 or Section 3.4.
The provisions of the last sentence of Section 3.3(g) shall
apply to any Debt Securities represented by a Debt Security in global form if
such Debt Security was never issued and sold by the Company and the Company
delivers to the Trustee the Debt Security in global form together with written
instructions (which need not comply with Section 1.2 and need not be accompanied
by an Opinion of Counsel) with regard to the reduction in the principal amount
of Debt Securities represented thereby, together with the written statement
contemplated by the last sentence of Section 3.3(g).
Global Securities may be issued in either registered or bearer
form and in either temporary or permanent form.
ARTICLE THREE
THE DEBT SECURITIES
Section 3.1. Amount Unlimited: Issuable in Series
The aggregate principal amount of Debt Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Debt Securities may be issued in one or more series. There
shall be established in or pursuant to a Board Resolution, an Officers'
Certificate, or one or more indentures supplemental hereto, prior to the
issuance of Debt Securities of any series:
15
(1) the title of the Debt Securities of the series (which
shall distinguish the Debt Securities of the series from all other
Debt Securities);
(2) the limit, if any, upon the aggregate principal amount
of the Debt Securities of the series which may be authenticated and
delivered under this Indenture (except for Debt Securities
authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Debt Securities of the series
pursuant to Section 3.4, 3.5, 3.6, 9.6, 11.7 or 13.3, 14.8 or 18.3
and except for any Debt Securities which, pursuant to Section 3.3,
are deemed never to have been authenticated and delivered hereunder.
(3) the date or dates on which the principal and premium,
if any, of the Debt Securities of the series are payable;
(4) the rate or rates, if any, at which the Debt
Securities of the series shall bear interest, or the method or
methods by which such rate or rates may be determined, the date or
dates from which such interest shall accrue, the Interest Payment
Dates on which such interest shall be payable, the Regular Record
Date for the interest payable on any Registered Security on any
Interest Payment Date and the circumstances, if any, in which the
Company may defer interest payments;
(5) the place or places where, subject to the provisions
of Section 1.2, the principal of (and premium, if any) and interest
on Debt Securities of the series shall be payable, any Registered
Securities of the series may be surrendered for registration of
transfer, Debt Securities of the series may be surrendered for
exchange and notices and demands to or upon the Company in respect of
the Debt Securities of the series and this Indenture may be served
and where notices to Holders pursuant to Section 1.6 will be
published;
(6) if applicable, the period or periods within which or
the date or dates on which, the price or prices at which and the
terms and conditions upon which Debt Securities of the series may be
redeemed, in whole or in part, at the option of the Company;
(7) if applicable, the place or places at which, the
period or periods within which, the price or prices at which and the
terms and conditions upon which Debt Securities shall be exchangeable
for Capital Securities of the Company, which terms and conditions
shall not be inconsistent with Article Fourteen;
(8) any covenant or option of the Company to create a
Securities Fund for the repayment of the Debt Securities and the
terms and conditions of such Securities Fund, which terms and
conditions shall not be inconsistent with Article Fifteen;
(9) the obligation, if any, of the Company to redeem,
repay or purchase Debt Securities of the series pursuant to any
sinking fund or analogous provisions or at the option of a Holder
thereof and the period or periods within which, the price or prices
at which and the terms and conditions upon which Debt Securities of
the series shall be redeemed, repaid or purchased, in whole or in
part, pursuant to such obligations;
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(10) whether Debt Securities of the series are to be
issuable as Registered Securities, Bearer Securities or both, whether
Debt Securities of the series are to be issuable with or without
coupons or both and, in the case of Bearer Securities, the date as of
which such Bearer Securities shall be dated if other than the date of
original issuance of the first Debt Security of such series of like
tenor and term to be issued;
(11) whether the Debt Securities of the series shall be
issued in whole or in part in the form of a Global Security or
Securities and, in such case, the Depositary and Global Exchange
Agent for such Global Security or Securities, whether such global
form shall be permanent or temporary and, if applicable, the Global
Exchange Date,
(12) if Debt Securities of the series are to be issuable
initially in the form of a temporary Global Security, the
circumstances under which the temporary Global Security can be
exchanged for definitive Debt Securities and whether the definitive
Debt Securities will be Registered and/or Bearer Securities and will
be in global form and whether interest in respect of any portion of
such Global Security payable in respect of an Interest Payment Date
prior to the Global Exchange Date shall be paid to any clearing
organization with respect to a portion of such Global Security held
for its account and, in such event, the terms and conditions
(including any certification requirements) upon which any such
interest payment received by a clearing organization will be credited
to the Persons entitled to interest payable on such Interest Payment
Date if other than as provided in this Article Three;
(13) whether, and under what conditions, additional
amounts will be payable to Holders of Debt Securities of the series
pursuant to Section 10.6;
(14) the denomination in which any Registered Securities
of the series shall be issuable, if other than denominations of
$1,000 and any integral multiple thereof, and the denominations in
which any Bearer Securities of such series, shall be issuable, if
other than the denomination of $5,000;
(15) if other than the principal amount thereof, the
portion of the principal amount of Debt Securities of the series
which shall be payable upon declaration of acceleration of the
Maturity thereof pursuant to Section 5.2;
(16) the currency or currencies of denomination of the
Debt Securities of any series, which may be in Dollars, any Foreign
Currency or any composite currency, including but not limited to the
Euro, and, if any such currency of denomination is a composite
currency other than the Euro, the agency or organization, if any,
responsible for overseeing such composite currency;
(17) the currency or currencies in which payment of
principal of (and premium, if any) and interest on the Debt
Securities will be made, the currency or currencies, if any, in which
payment of the principal of (and premium, if any) or the interest on
Registered Securities, at the election of each of the Holders
thereof, may also be payable and the periods within which and the
terms and conditions upon which such election is to be made and the
Exchange Rate and Exchange Rate Agent;
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(18) if the amount of payments of principal of (and
premium, if any) or interest on the Debt Securities of the series may
be determined with reference to an index based on a currency or
currencies other than in which the Debt Securities are denominated or
designated to be payable, the manner in which such amounts shall be
determined;
(19) if payments of principal of (and premium, if any) or
interest on the Debt Securities of the series are to be made in a
Foreign Currency other than the currency in which such Debt
Securities are denominated, the manner in which the Exchange Rate
with respect to such payments shall be determined or if the Exchange
Rate is to be determined otherwise than as provided in Section 1.1;
(20) any Events of Default with respect to Debt Securities
of such series, if not set forth herein;
(21) the terms and conditions, if any, pursuant to which
the Company's obligations under this Indenture may be terminated
through the deposit of money or Eligible Instruments as provided in
Articles Four and Seventeen;
(22) the Person or Persons who shall be Security Registrar
for the Debt Securities of such series if other than the Trustee, and
the place or places where the Security Register for such series shall
be maintained and the Person or Persons who will be the initial
Paying Agent or Agents, if other than the Trustee; and
(23) whether the Debt Securities are Convertible
Securities and the terms related thereto including the Conversion
Price and the date on which the right to convert expires;
(24) any other terms of the series (which terms shall not
be inconsistent with the provisions of this Indenture).
All Debt Securities of any one series and the coupons
appertaining to Bearer Securities of such series if any, shall be substantially
identical except, in the case of Registered Securities, as to denomination and
except as may otherwise be provided in or pursuant to such Board Resolution and
set forth in such Officers' Certificate or in any such indenture supplemental
hereto.
Debt Securities of any particular series may be issued at
various times, with different dates on which the principal or any installment of
principal is payable, with different rates of interest, if any, or different
methods by which rates of interest may be determined, with different dates on
which such interest may be payable and with different Redemption or Repayment
Dates and may be denominated in different currencies or payable in different
currencies.
If any of the terms of a series of Debt Securities are
established by action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Officers' Certificate setting forth the terms of the series.
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Section 3.2. Denominations.
Debt Securities of each series shall be issuable in such form
and denominations as shall be specified in the form of Debt Security for such
series approved or established pursuant to Section 2.1 or in the Officers'
Certificate delivered pursuant to Section 3.1. In the absence of any
specification with respect to the Debt Securities of any series, the Registered
Securities of such series, if any, shall be issuable in denominations of $1,000
and any integral multiple thereof and the Bearer Securities of such series, if
any, shall be issuable in the denomination of $5,000.
Section 3.3. Execution, Authentication, Delivery and Dating.
(a) The Debt Securities shall be executed on behalf of the
Company by its Chairman of the Board, the Chief Executive Officer, the
President, the Chief Financial Officer, or any Vice President, and by its
Treasurer or one of its Assistant Treasurers or its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the Debt
Securities may be manual or facsimile. Coupons shall bear the facsimile
signature of the Treasurer or any Assistant Treasurer of the Company.
Debt Securities and coupons bearing the manual or facsimile
signatures of individuals who were at any time the proper officers of the
Company shall bind the Company, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the authentication and delivery
of such Debt Securities or coupons of any series or did not hold such offices at
the date of such Debt Securities or coupons.
(b) At any time and from time to time after the execution
and delivery of this Indenture, Debt Securities of any series may be executed by
the Company and delivered to the Trustee for authentication, and, except as
otherwise provided in this Article Three, shall thereupon be authenticated and
delivered by the Trustee upon Company Order, without any further action by the
Company, provided, however, that, in connection with its original issuance, a
Bearer Security may be delivered only outside the United States and, except in
the case of a temporary Global Security, only if the Company or its agent shall
have received the certification required pursuant to Sections 3.4(b)(iii) and
(iv), unless such certification shall have been provided earlier pursuant to
Section 3.4(b)(v) hereof, and only if the Company has no reason to know that
such certification is false.
To the extent authorized in or pursuant to a Board Resolution
and set forth in an Officers' Certificate, or established in one or more
indentures supplemental hereto, such written Company Order may be given by any
one officer of the Company, may be electronically transmitted, and may provide
instructions as to registration of holders, principal amounts, rates of
interest, maturity dates and other matters contemplated by such Board Resolution
and Officers' Certificate or supplemental indenture to be so instructed in
respect thereof. Before authorizing and delivering the first Debt Securities of
any series (and upon request of the Trustee thereafter), the Company shall
deliver to Trustee (i) the certificates called for under Sections 2.1 and 3.1
hereof and (ii) an Opinion of Counsel described in the next sentence.
In authenticating such Debt Securities, and accepting the
additional responsibilities under this Indenture in relation to any Debt
Securities, the Trustee shall be entitled to receive, prior to the initial
authentication of such Debt Securities, and (subject to Section 6.1) shall be
fully protected in relying upon:
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(i) a Board Resolution relating thereto and, if
applicable, an appropriate record of any action taken pursuant to
such resolution certified by the Secretary or an Assistant Secretary
of the Company;
(ii) an executed supplemental indenture, if any, relating
thereto;
(iii) an Officers' Certificate setting forth the form and
terms of the Debt Securities of such series and coupons, if any,
pursuant to Sections 2.1 and 3.1 and stating that all conditions
precedent provided for in this Indenture relating to the issuance of
such Debt Securities have been complied with, that no Event of
Default with respect to any series of Debt Securities has occurred
and is continuing and that the issuance of such Debt Securities is
not and will not result in an Event of Default or an event or
condition which, upon the giving of notice (or the acquisition of
knowledge) or the lapse or time or both, would become an Event of
Default; and
(iv) an Opinion of Counsel stating:
(A) that the form of such Debt Securities and
coupons, if any, has been established in or pursuant to a Board
Resolution, an Officers' Certificate or a supplemental indenture
as permitted by Section 2.1 in conformity with the provisions of
this Indenture;
(B) that the terms of the Debt Securities and
coupons, if any, have been established in or pursuant to a Board
Resolution, an Officers' Certificate or a supplemental indenture
as permitted by Section 3.1 in conformity with the provisions of
this Indenture;
(C) that such Debt Securities and coupons, if any,
when authenticated and delivered by the Trustee and issued by the
Company in the manner and subject to any conditions specified in
such Opinion of Counsel, will constitute valid and binding
obligations of the Company, enforceable in accordance with their
terms, subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other laws
affecting creditors' rights generally and the application of
general principles of equity;
(D) that the Company has the corporate power to
issue such Debt Securities and coupons, if any, and has duly taken
all necessary corporate action with respect to such issuance;
(E) that the issuance of such Debt Securities and
coupons, if any, will not contravene the charter or by-laws of the
Company or result in any violation of any of the terms or
provisions of any law or regulation or of any indenture, mortgage
or other agreement known to such counsel by which the Company or
any of its subsidiaries is bound;
(F) that all laws and requirements in respect of the
execution and delivery by the Company of such Debt Securities and
coupons, if any, have been complied with and that authentication
and delivery of such Debt Securities by the Trustee will not
violate the terms of the Indenture; and
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(G) such other matters as the Trustee may reasonably
request.
(c) If the Company shall establish pursuant to Section 3.1
that the Debt Securities of a series are to be issued in whole or in part in the
form of one or more Global Securities, then the Company shall execute and the
Trustee shall, in accordance with this Section and the Company Order with
respect to such series, authenticate and deliver one or more Global Securities
in permanent or temporary form that (i) shall represent and shall be denominated
in an aggregate amount equal to the aggregate principal amount of the
Outstanding Debt Securities of such series to be represented by one or more
Global Securities, (ii) shall be registered in the name of the Depositary for
such Global Security or Securities or the nominee of such Depositary and (iii)
shall be delivered by the Trustee to such Depositary or pursuant to such
Depositary's instruction.
(d) The Trustee shall have the right to decline to
authenticate and delivery any Debt Securities under this Section 3.3 if (i) the
Trustee, being advised by counsel, determines that such action may not lawfully
be taken or (ii) the issuance of such Debt Securities will adversely affect the
Trustee's own rights, duties or immunities under the Debt Securities and this
Indenture or otherwise in a manner which is not reasonably acceptable to the
Trustee.
(e) If all the Debt Securities of any series are not to be
issued at one time, it shall not be necessary to deliver an Opinion of Counsel
at the time of issuance of each Debt Security, but such Opinion of Counsel, with
appropriate modifications, may instead be delivered at or prior to the time of
the first issuance of Debt Securities of such series.
(f) Each Registered Security shall be dated the date of its
authentication. Each Bearer Security shall be dated as of the date specified as
contemplated by Section 3.1.
(g) No Debt Security or coupon attached thereto shall be
entitled to any benefit under this Indenture or be valid or obligatory for any
purpose, unless there appears on such Debt Security a certificate of
authentication substantially in the form provided for herein executed by the
Trustee, and such certificate upon any Debt Security shall be conclusive
evidence, and the only evidence, that such Debt Security has been duly
authenticated and delivered hereunder. Except as permitted by Section 3.6, the
Trustee shall not authenticate and deliver any Bearer Security unless all
appurtenant coupons for interest then matured have been duly detached and
cancelled. Notwithstanding the foregoing, if any Debt Security or portion
thereof shall have been duly authenticated and delivered hereunder but never
issued and sold by the Company, and the Company shall deliver such Debt Security
to the Trustee for cancellation as provided in Section 3.9 together with a
written statement (which need not comply with Section 1.2 and need not be
accompanied by an Opinion of Counsel) stating that such Debt Security or portion
thereof has never been issued and sold by the Company, for all purposes of this
Indenture such Debt Security shall be deemed never to have been authenticated
and delivered hereunder and shall never be entitled to the benefits of this
Indenture.
(h) Each Depositary designated pursuant to Section 3.1 for a
Global Security in registered form must, at the time of its designation and at
all times while it serves as Depositary, be a clearing agency registered under
the Securities Exchange Act of 1934 and any other applicable statute or
regulation.
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Section 3.4. Temporary Debt Securities.
(a) Pending the preparation of definitive Debt Securities of
any series, the Company may execute, and upon receipt of documents required by
Sections 3.1 and 3.3, together with a Company Order, the Trustee shall
authenticate and deliver, temporary Debt Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
denomination, substantially of the tenor and terms of the definitive Debt
Securities in lieu of which they are issued in registered form or, if
authorized, in bearer form with one or more coupons or without coupons, and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Debt Securities may determine, as evidenced by their
signatures on such Debt Securities. In the case of Debt Securities of any series
issuable as Bearer Securities, such temporary Debt Securities may be in global
form, representing all or any part of the Outstanding Debt Securities of such
series.
(b) Unless otherwise provided pursuant to Section 3.1:
(i) Except in the case of temporary Debt Securities in
global form, if temporary Debt Securities of any series are issued,
the Company will cause definitive Debt Securities of such series to
be prepared without reasonable delay. After the preparation of
definitive Debt Securities of such series, the related temporary Debt
Securities shall be exchangeable for such definitive Debt Securities
upon surrender of the temporary Debt Securities of such series at the
office or agency of the Company in a Place of Payment for such
series, without charge to the Holder. Upon surrender for cancellation
of any one or more temporary Debt Securities of any series
(accompanied, if applicable, by all unmatured coupons and all matured
coupons in default appertaining thereto), the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor a
like principal amount of definitive Debt Securities of the same
series of like tenor and terms and of authorized denominations;
provided, however, that no Bearer Security shall be delivered in
exchange for a Registered Security; and provided, further, that a
Bearer Security shall be delivered in exchange for a Bearer Security
only in compliance with the conditions set forth in Section 3.5.
(ii) If Debt Securities of any series are issued in
temporary global form, any such temporary Global Security shall,
unless otherwise provided pursuant to Section 3.1, be delivered to
the Depositary for the benefit of Euroclear and Clearstream, for
credit to the respective accounts of the beneficial owners of such
Debt Securities (or to such other accounts as they may direct);
(iii) Without unnecessary delay but in any event not
later than the date specified in, or determined pursuant to the terms
of, any such temporary Global Security (the "Global Exchange Date"),
the Company shall deliver definitive Debt Securities to the Trustee
or the agent appointed by the Company pursuant to Section 3.1 to
effect the exchange of the temporary Global Security for definitive
Debt Securities (the "Global Exchange Agent"), in an aggregate
principal amount equal to the principal amount of such temporary
Global Security, executed by the Company. On or after the Global
Exchange Date, such temporary Global Security shall be surrendered by
the Depositary to the Global Exchange Agent, to be exchanged, in
whole or from time to time in part, for definitive Debt Securities
without charge and the Trustee or the Global Exchange Agent,
22
if authorized by the Trustee pursuant to Section 6.14, shall
authenticate and deliver, in exchange for each portion of such
temporary Global Security, an equal aggregate principal amount of
definitive Debt Securities of the same series of authorized
denominations and of like tenor and terms as the portion of such
temporary Global Security to be exchanged. Upon any exchange of a
part of such temporary Global Security for definitive Debt
Securities, the portion of the principal amount and any interest
thereon so exchanged shall be endorsed by the Global Exchange Agent
on a schedule to such temporary Global Security, whereupon the
principal amount and interest payable with respect to such temporary
Global Security shall be reduced for all purposes by the amount so
exchanged and endorsed. The definitive Debt Securities to be
delivered in exchange for any such temporary Global Security shall be
in bearer form, registered form, global registered form or global
bearer form, or any combination thereof, as specified as contemplated
by Section 3.1, and, if any combination thereof is so specified, as
requested by the beneficial owner thereof, provided, however, that in
the case of the exchange of the temporary Global Security for
definitive Bearer Securities (including a definitive Global Bearer
Security), upon such presentation by the Depositary, such temporary
Global Security shall be accompanied by a certificate signed by
Euroclear as to the portion of such temporary Global Security held
for its account then to be exchanged and a certificate signed by
Clearstream as to the portion of such temporary Global Security held
for its account then to be exchanged, each in the form set forth in
Exhibit B to this Indenture, unless such certificate(s) shall have
been provided earlier pursuant to Section 3.4(b)(v) hereof; and
provided, further, that definitive Bearer Securities (including a
definitive global Bearer Security) shall be delivered in exchange for
a portion of a temporary Global Security only in compliance with the
requirements of Section 3.3.
(iv) The interest of a beneficial owner of Debt
Securities of a series in a temporary Global Security shall be
exchanged for definitive Debt Securities of the same series and of
like tenor and terms following the Global Exchange Date when the
account holder instructs Euroclear or Clearstream, as the case may
be, to request such exchange on such account holder's behalf and, in
the case of the exchange of the temporary Global Security for the
definitive Bearer Securities (including a definitive Global Bearer
Security), unless such certificate(s) shall have been provided
earlier pursuant to Section 3.4(b)(v) hereof, the account holder
delivers to Euroclear or Clearstream, as the case may be, a
certificate in the form set forth in Exhibit A-1 and, if applicable,
A-2 to this Indenture, dated no earlier than 15 days prior to the
Global Exchange Date, copies of which certificate shall be available
from the offices of Euroclear and Clearstream, the Global Exchange
Agent, any authenticating agent appointed for such series of Debt
Securities and each Paying Agent. Unless otherwise specified in such
temporary Global Security, any such exchange shall be made free of
charge to the beneficial owners of such temporary Global Security,
except that a Person receiving definitive Debt Securities must bear
the cost of insurance, postage, transportation and the like in the
event that such Person does not take delivery of such definitive Debt
Securities in person at the offices of Euroclear and Clearstream.
Definitive Debt Securities in bearer form to be delivered in exchange
for any portion of a temporary Global Security shall be delivered
only outside the United States.
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(v) Until exchanged in full as hereinabove provided, the
temporary Debt Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Debt
Securities of the same series and of like tenor and terms
authenticated and delivered hereunder, except that interest payable
on a temporary Global Security on an Interest Payment Date shall be
payable to Euroclear and Clearstream on such Interest Payment Date
only if there has been delivery by Euroclear and Clearstream to the
Global Exchange Agent of a certificate or certificates in the form
set forth in Exhibit B to this Indenture dated no earlier than the
first Interest Payment Date, for credit without further interest on
or after such Interest Payment Date to the respective accounts of the
Persons who are the beneficial owners of such temporary Global
Security on such Interest Payment Date and who have each delivered to
Euroclear or Clearstream, as the case may be, a certificate in the
form set forth in Exhibit A-1 and, if applicable, A-2 to this
Indenture dated no earlier than the first Interest Payment Date. Any
interest so received by Euroclear and Clearstream and not paid as
herein provided prior to the Global Exchange Date shall be returned
to the Global Exchange Agent which, upon the expiration of two years
after such Interest Payment Date shall repay such interest to the
Company in accordance with Section 10.3.
Section 3.5. Registration; Registration of Transfer and Exchange
The Company shall cause to be kept at one of the offices or
agencies to be maintained by the Company in accordance with the provisions of
this Section 3.5 and Section 10.2, with respect to the Debt Securities of each
series which are Registered Securities, a register (herein sometimes referred as
the "Security Register") in which, subject to such reasonable regulations as it
may prescribe, the Company shall provide for the registration of Registered
Securities and of transfers of Registered Securities. Pursuant to Section 3.1,
the Company shall appoint, with respect to the Debt Securities of each series
which are Registered Securities, a "Security Register" for the purpose of
registering such Debt Securities and transfers and exchanges of such Debt
Securities as herein provided.
Upon surrender for registration of transfer of any Registered
Security of any series at the office or agency of the Company maintained for
such purpose, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Registered Securities of the same series of any authorized denomination or
denominations, of like tenor and terms and aggregate principal amount.
At the option of the Holder, Registered Securities of any
series may be exchanged for other Registered Securities of the same series of
any authorized denomination or denominations, of like tenor and terms and
aggregate principal amount, upon surrender of the Registered Securities to be
exchanged at such office or agency. Bearer Securities may not be delivered in
exchange for Registered Securities.
At the option of the Holder, Registered Securities or Bearer
Securities of any series may be issued in exchange for Bearer Securities (except
as otherwise specified as contemplated by Section 3.1 with respect to a Bearer
Security in global form) of the same series, of any authorized denominations and
of like tenor and terms and aggregate principal amount, upon surrender of the
Bearer Securities to be exchanged at any such office or agency, with all
unmatured coupons and all matured coupons in default thereto appertaining.
24
If the Holder of a Bearer Security is unable to produce any such unmatured
coupon or coupons or matured coupon or coupons in default, such exchange may be
effected if the Bearer Securities are accompanied by payment in funds acceptable
to the Company and the Trustee in an amount equal to the face amount of such
missing coupon or coupons, or the surrender of such missing coupon or coupons
may be waived by the Company and the Trustee if there be furnished to them such
security or indemnity as they may require to save each of them and any Paying
Agent harmless. If thereafter the Holder of such Security shall surrender to any
Paying Agent any such missing coupon in respect of which such a payment shall
have been made, such Holder shall be entitled to receive the amount of such
payment; provided, however, that, except as otherwise provided in Section 10.2,
interest represented by coupons shall be payable only upon presentation and
surrender of those coupons at an office or agency located outside the United
States. Notwithstanding the foregoing, in case a Bearer Security of any series
is surrendered at any such office or agency in exchange for a Registered
Security of the same series and like tenor and terms after the close of business
at such office or agency on (i) any Regular Record Date and before the opening
of business at such office or agency on the relevant Interest Payment Date, or
(ii) any Special Record Date and before the opening of business at such office
or agency on the related date for payment of Defaulted Interest, such Bearer
Security shall be surrendered without the coupon relating to such Interest
Payment Date or proposed date of payment, as the case may be.
Whenever any Debt Securities are so surrendered for exchange,
the Company shall execute, and the Trustee shall authenticate and deliver, the
Debt Securities which the Holder making the exchange is entitled to receive.
If at any time the Depositary for the Debt Securities of a
series notified the Company that it is unwilling or unable to continue as
Depositary for the Debt Securities of such series or if at any time the
Depositary for the Debt Securities of such series shall no longer be eligible
under Section 3.3(b), the Company shall appoint a successor Depositary with
respect to the Debt Securities of such series. If a successor Depositary for the
Debt Securities of such series is not appointed by the Company within 90 days
after the Company receives such notice or becomes aware of such ineligibility,
the Company's election pursuant to Section 3.1(11) shall no longer be effective
with respect to the Debt Securities of such series and the Company will execute,
and the Trustee, upon receipt of a Company Order for the authentication and
delivery of definitive Debt Securities of such series, will authenticate and
deliver, Debt Securities of such series in definitive form in an aggregate
principal amount equal to the principal amount of the Global Security or
Securities representing such series in exchange for such Global Security or
Securities.
The Company may at any time and in its sole discretion
determine that the Debt Securities of any series issued in the form of one or
more Global Securities shall no longer be represented by such Global Security or
Securities. In such event the Company will execute, and the Trustee, upon
receipt of a Company Order for the authentication and delivery of definitive
Debt Securities of such series, will authenticate and deliver, Debt Securities
of such series in definitive form and in an aggregate principal amount equal to
the principal amount of the Global Security or Securities representing such
series in exchange for such Global Security or Securities.
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If specified by the Company pursuant to Section 3.1 with
respect to a series of Debt Securities, the Depositary for such series of Debt
Securities may surrender a Global Security for such series of Debt Securities in
exchange in whole or in part for Debt Securities of such series of like tenor
and terms and in definitive form on such terms as are acceptable to the Company
and such Depositary. Thereupon, the Company shall execute, and the Trustee shall
authenticate and deliver, without service charge,
(a) to each Person specified by such Depositary a new Debt
Security or Securities of the same series, of like tenor and terms and of any
authorized denomination as requested by such Person in aggregate principal
amount equal to and in exchange for such Person's beneficial interest in the
Global Security; and
(b) to such Depositary a new Global Security of like tenor
and terms and in a denomination equal to the difference, if any, between the
principal amount of the surrendered Global Security and the aggregate principal
amount of Debt Securities delivered to Holders thereof.
In any exchange provided for in any of the preceding three
paragraphs, the Company will execute and the Trustee will authenticate and
deliver Debt Securities (a) in definitive registered form in authorized
denominations, if the Debt Securities of such series are issuable as Registered
Securities, (b) in definitive bearer form in authorized denominations, with
coupons attached, if the Debt Securities of such series are issuable as Bearer
Securities or (c) as either Registered or Bearer Securities, as shall be
specified by the beneficial owner thereof, if the Debt Securities of such series
are issuable in either form; provided, however, that no definitive Bearer
Security shall be delivered in exchange for a temporary Global Security unless
the Company or its agent shall have received from the person entitled to receive
the definitive Bearer Security a certificate substantially in the form set forth
in Exhibit A-1 and, if applicable, A-2 hereto; and provided further that
delivery of a Bearer Security shall occur only outside the United States; and
provided further that no definitive Bearer Security will be issued if the
Company has reason to know that any such certificate is false.
Upon the exchange of a Global Security for Debt Securities in
definitive form, such Global Security shall be cancelled by the Trustee.
Registered Securities issued in exchange for a Global Security pursuant to this
Section shall be registered in such names and in such authorized denominations
as the Depositary for such Global Security, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the Trustee. The
Trustee shall deliver such Registered Securities to the persons in whose names
such Debt Securities are so registered. The Trustee shall deliver Bearer
Securities issued in exchange for a Global Security pursuant to this Section to
the persons, and in such authorized denominations, as the Depositary for such
Global Security, pursuant to instructions from its direct or indirect
participation or otherwise, shall instruct the Trustee; provided, however, that
no definitive Bearer Security shall be delivered in exchange for a temporary
Global Security unless the Company or its agent shall have received from the
person entitled to receive the definitive Bearer Security a certificate
substantially in the form set forth in Exhibit A-1 and, if applicable, A-2
hereto; and provided further that delivery of a Bearer Security shall occur only
outside the United States; and provided further that no definitively Bearer
Security will be issued if the Company has reason to know that any such
certificate is false.
26
All Debt Securities issued upon any registration of transfer
or exchange of Debt Securities shall be valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as Debt Securities surrendered upon such registration of transfer or
exchange.
Every Registered Security presented or surrendered for
registration of transfer or for exchange shall (if so required by the Company,
the Security Registrar or the Trustee) be duly endorsed, or be accompanied by a
written instrument of transfer in form satisfactory to the Company, the Security
Registrar and the Trustee duly executed, by the Holder thereof or such Holder's
attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Debt Securities, but the Company may require payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any transfer, registration of transfer or exchange of
Debt Securities, other than exchanges expressly provided in this Indenture to be
made at the Company's own expense or without expense or without charge to the
Holders.
The Company shall not be required (i) to issue, register the
transfer of or exchange Debt Securities of any particular series to be redeemed
or exchanged for Capital Securities for a period of fifteen days preceding the
first publication of the relevant notice of redemption or, if Registered
Securities are outstanding and there is no publication, the mailing of the
relevant notice of redemption or exchange or (ii) to register the transfer of or
exchange any Registered Security so selected for redemption or exchange in whole
or in part, except the unredeemed or unexchanged portion of such Registered
Security being redeemed or exchanged in part, or (iii) to exchange any Bearer
Security so selected for redemption or exchange except that such a Bearer
Security may be exchange for a Registered Security of like tenor and terms of
that series, provided that such Registered Security shall be simultaneously
surrendered for redemption or exchange.
Notwithstanding anything herein to the contrary, the exchange
of Bearer Securities into Registered Securities shall be subject to applicable
laws and regulations in effect at the time of exchange; neither the Company, the
Trustee nor the Security Registrar shall exchange any Bearer Securities into
Registered Securities if it has received an Opinion of Counsel that as a result
of such exchanges the Company would suffer adverse consequences under the United
States federal income tax laws and regulations then in effect and the Company
has delivered to the Trustee a Company Order directing the Trustee not to make
such exchanges thereafter unless and until the Trustee receives a subsequent
Company Order to the contrary. The Company shall deliver copies of such Company
Orders to the Security Registrar.
Section 3.6. Mutilated, Destroyed, Lost and Stolen Debt Securities
If (i) any mutilated Debt Security or a Bearer Security with a
mutilated coupon appertaining to it is surrendered to a Paying Agent outside the
Untied States designated by the Company, or, in the case of any Registered
Security, to the Trustee, or (ii) the Company and the Trustee receive evidence
to their satisfaction of the destruction, loss or theft of any Debt Security or
coupon, and there is delivered to the Company and the Trustee such security or
indemnity as may be required by them to save each of them harmless, then, in the
27
absence of notice to the Company and the Trustee that such Debt Security or
coupon has been acquired by a bona fide purchaser, the Company shall execute and
upon its written request the Trustee shall authenticate and deliver, in exchange
for any such mutilated Debt Security or Bearer Security with a mutilated coupon
appertaining to it or to which a destroyed, lost or stolen coupon appertains
(with all appurtenant coupons not destroyed, lost or stolen) or in lieu of any
such destroyed, lost or stolen Debt Security, a new Debt Security of like tenor
and terms and principal amount, bearing a number not contemporaneously
outstanding, with coupons corresponding to the coupons, if any, appertaining to
such destroyed, lost or stolen Security or to the Security to which such
destroyed, lost or stolen coupon appertains; provided, however, that any such
Bearer Security will be delivered only in compliance with the conditions set
forth in Section 3.5.
In case any such mutilated, destroyed, lost or stolen Debt
Security or coupon has become or is about to become due and payable, the Company
in its discretion may, instead of issuing a new Debt Security, pay such Debt
Security or coupon; provided, however, that payment of principal of (and
premium, if any) and any interest on Bearer Securities shall, except as
otherwise provided in Section 10.2, be payable only at an office or agency
located outside the United States; and provided, further, that, with respect to
any such coupons, interest represented thereby (but not any additional amounts
payable as provided in Section 10.6), shall be payable only upon presentation
and surrender of the coupons appertaining thereto.
Upon the issuance of any new Debt Security or coupon under
this Section, the Company may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation thereto and
any other expenses (including the fees and expenses of the Trustee and printing
expenses) connected therewith.
Every new Debt Security of any series, with its coupons, if
any, issued pursuant to this Section in lieu of any destroyed, lost or stolen
Debt Security, or in exchange for a Bearer Security to which a destroyed, lost
or stolen coupon appertains, shall constitute an original additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Debt
Security and its coupons, if any, or the destroyed, lost or stolen coupon shall
be at any time enforceable by anyone, and any such new Debt Security and
coupons, if any, shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Debt Securities of that series and
their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Debt
Securities or coupons.
Section 3.7. Payment of Interest; Interest Rights Preserved.
Interest on any Registered Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the Person in whose name that Registered Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest. In case a Bearer Security of any series is surrendered in
exchange for a Registered Security of such series after the close of business
(at an office or agency in a Place of Payment for such series) on any Regular
Record Date and before the opening of business (at such office or agency) on the
next succeeding Interest Payment Date, such Bearer Security shall be surrendered
without the coupon relating to such Interest Payment Date and interest will not
28
be payable on such Interest Payment Date in respect of the Registered Security
issued in exchange for such Bearer Security, but will be payable only to the
Holder of such coupon when due in accordance with the provisions of this
Indenture. At the option of the Company, payment of interest on any Registered
Security may be made by check in the currency designated for such payment
pursuant to the terms of such Registered Security mailed to the address of the
Person entitled thereto as such address shall appear in the Security Register or
by wire transfer to an account in such currency designated by such Person in
writing not later than ten days prior to the date of such payment.
Any interest on any Registered Security of any series which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") shall forthwith cease to be
payable to the registered Holder on the relevant Regular Record Date by virtue
of his having been such Holder, and such Defaulted Interest may be paid by the
Company, at its election in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered Securities of
such series (or their respective Predecessor Securities) are
registered at the close of business on a Special Record Date for the
payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each
Registered Security of such series and the date of the proposed
payment, and at the same time the Company shall deposit with the
Trustee an amount of money and/or, to the extent such Debt Securities
are denominated and payable in Dollars only, Eligible Instruments the
payments of principal and interest on which when due (and without
reinvestment and providing no tax liability will be imposed upon the
Trustee or the Holder of such Registered Securities) will provide
money in such amounts as will (together with any money irrevocably
deposited in trust with the Trustee, without investment) be equal to
the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for
such deposit prior to the date of the proposed payment, such money
and/or Eligible Instruments when deposited to be held in trust for
the benefit of the Persons entitled to such Defaulted Interest as in
this Clause provided. Thereupon the Trustee shall fix a Special
Record Date for the payment of such Defaulted Interest which shall be
not more than 15 days and not less than 10 days prior to the date of
the proposed payment and not less than 10 days after the receipt by
the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date. Unless the
Trustee is acting as the Security Registrar, promptly after such
Special Record Date, the Company shall furnish the Trustee with a
list, or shall make arrangements satisfactory to the Trustee with
respect thereto, of the names and addresses of, and principal amounts
of Registered Securities of such series held by, the Holders
appearing on the Security Registrar at the close of business on such
Special Record Date. In the name and at the expense of the Company,
the Trustee shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder of Registered Securities
of such series at his address as it appears in the Security Register,
not less than 10 days prior to such Special Record Date. Notice of
the proposed payment of such Defaulted Interest and the Special
Record Date therefor having been mailed as aforesaid, such Defaulted
Interest shall be paid to the Persons in whose names the Registered
29
Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such Special
Record Date and shall no longer be payable pursuant to the following
Clause (2). In case a Bearer Security of any series is surrendered at
the office or agency in a Place of Payment for such series in
exchange for a Registered Security of such series after the close of
business at such office or agency on any Special Record Date and
before the opening of business at such office or agency on the
related proposed date for payment of Defaulted Interest, such Bearer
Security shall be surrendered without the coupon relating to such
proposed date of payment and Defaulted Interest will not be payable
on such proposed date of payment in respect of the Registered
Security issued in exchange for such Bearer Security, but will be
payable only to the Holder of such coupon when due in accordance with
the provisions of this Indenture.
(2) The Company may make payment of any Defaulted Interest
on the Registered Securities of any series in any other lawful manner
not inconsistent with the requirements of any securities exchange on
which the Registered Securities may be listed, and upon such notice
as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this
Clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, each Debt
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Debt Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Debt Security.
Subject to the limitations set forth in Section 10.2, the
Holder of any coupon appertaining to a Bearer Security shall be entitled to
receive the interest payable on such coupon upon presentation and surrender of
such coupon on or after the Interest Payment Date of such coupon at an office or
agency maintained for such purpose pursuant to Section 10.2.
If any Registered Security is exchanged for Capital Securities
after any record date and on or prior to the next succeeding Interest Payment
Date (other than any Debt Security whose Maturity is prior to such Interest
Payment Date), interest whose Stated Maturity is on such Interest Payment Date
shall be paid by the Company on such Interest Payment Date notwithstanding such
exchange, and such interest (whether or not punctually paid or duly provided
for) shall be paid to the Person in whose name that Debt Security is registered
at the close of business on such record date.
If any Bearer Security is exchanged for Capital Securities
after any record date and on or prior to the next succeeding Interest Payment
Date (other than any Debt Security whose Maturity is prior to such Interest
Payment Date), interest whose Stated Maturity is on such Interest Payment Date
shall be payable on such Interest Payment Date notwithstanding such exchange,
and such interest (whether or not punctually paid or duly provided for) shall be
paid by the Company pursuant to such procedures as may be satisfactory to the
Trustee.
Section 3.8. Persons Deemed Owners
Prior to due presentment of a Registered Security for
registration of transfer, the Company, the Trustee and any agent of the Company
or of the Trustee may treat the Person in whose name such Registered Security is
registered as the owner of such Registered Security for the purpose of receiving
30
payment of principal of (and premium, if any) and (subject to Section 307)
interest on such Registered Security and for all other purposes whatsoever,
whether or not such Registered Security be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by notice
to the contrary.
The Company, the Trustee and any agent of the Company or the
Trustee may treat the bearer of any Bearer Security and the bearer of any coupon
as the absolute owner of such Bearer Security or coupon for the purpose of
receiving payment thereof or on account thereof and for all other purposes
whatsoever, whether or not such Bearer Security or coupon be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the
Security Registrar will have any responsibility or liability for any aspect of
the records relating to or payments made on account of beneficial ownership
interests of a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
Section 3.9. Cancellation
Unless otherwise provided with respect to a series of Debt
Securities, all Debt Securities and coupons surrendered for payment, redemption,
repayment, transfer, exchange or credit against any sinking fund payment
pursuant to this Indenture, shall, if surrendered to the Company or any agent of
the Company, be delivered to the Trustee and shall be promptly cancelled by it.
The Company may at any time deliver to the Trustee for cancellation any Debt
Securities previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever, and all Debt Securities so delivered
shall be promptly cancelled by the Trustee. No Debt Securities shall be
authenticated in lieu of or in exchange for any Debt Securities cancelled as
provided in this Section, except as expressly permitted by this Indenture. All
cancelled Debt Securities and coupons held by the Trustee shall be destroyed and
certification of their destruction delivered to the Company unless by a Company
Order the Company shall direct that the cancelled Debt Securities or coupons be
returned to it.
Section 3.10. Computation of Interest
Except as otherwise specified as contemplated by Section 3.1
for Debt Securities of any series, interest on the Debt Securities of each
series shall be computed on the basis of a 360-day year of twelve 30-day months.
Section 3.11. Certification by a Person Entitled to Delivery of a Bearer
Security
Whenever any provision of this Indenture or a Debt Security
contemplates that certification be given by a Person entitled to delivery of a
Bearer Security, such certification shall be provided substantially in the form
of Exhibit A-1 and, if applicable, A-2 hereto, with only such changes as shall
be approved by the Company and consented to by the Trustee whose consent shall
not unreasonably be withheld.
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Section 3.12. Judgments.
The Company may provide, pursuant to Section 3.1, for the Debt
Securities of any series that, to the fullest extent possible under applicable
law and except as may otherwise be specified as contemplated in Section 3.1, (a)
the obligation, if any, of the Company to pay the principal of (and premium, if
any) and interest on the Debt Securities of any series and any appurtenant
coupons in a Foreign Currency, composite currency or Dollars (the "Designated
Currency") as may be specified pursuant to Section 3.1 is of the essence and
agrees that judgments in respect of such Debt Securities shall be given in the
Designated Currency; (b) the obligation of the Company to make payments in the
Designated Currency of the principal of (and premium, if any) and interest on
such Debt Securities and any appurtenant coupons shall, notwithstanding any
payment in any other currency (whether pursuant to a judgment or otherwise), be
discharged only to the extent of the amount in the Designated Currency that the
Holder receiving such payment may, in accordance with normal banking procedures,
purchase with the sum paid in such other currency (after any premium and cost of
exchange) in the country of issue of the Designated Currency in the case of
Foreign Currency or Dollars or in the international banking community in the
case of a composite currency on the Business Day immediately following the day
on which such Holder receives such payment; (c) if the amount in the Designated
Currency that may be so purchased for any reason falls short of the amount
originally due, the Company shall pay such additional amounts as may be
necessary to compensate for such shortfall; and (d) any obligation of the
Company not discharged by such payment shall be due as a separate and
independent obligation and, until discharged as provided herein, shall continue
in full force and effect.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 4.1. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of
further effect (except as to any surviving rights of registration of transfer or
exchange of Debt Securities herein expressly provided for and rights to receive
payments of principal and interest thereon and any right to receive additional
amounts, as provided in Section 10.6) and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture when
(1) either
(A) all Debt Securities theretofore authenticated and
delivered and all coupons appertaining thereto (other than (i)
coupons appertaining to Bearer Securities surrendered in
exchange for Registered Securities and maturing after such
exchange, surrender of which is not required or has been
waived as provided in Section 3.5, (ii) Debt Securities and
coupons which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 3.6, (iii)
coupons appertaining to Bearer Securities called for
redemption or surrendered for repayment and maturing after the
relevant Redemption Date or Repayment Date, as appropriate,
surrender of which has been waived as provided in Section 11.6
or 13.3 and (iv) Debt Securities and coupons for whose payment
32
money and/or Eligible Instruments have theretofore been
deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged
from such trust, as provided in Section 10.3) have been
delivered to the Trustee cancelled or for cancellation; or
(B) all such Debt Securities not theretofore delivered
to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one
year under arrangements satisfactory to the Trustee for
the giving of notice by the Trustee in the name, and at
the expense, of the Company,
and the Company, in the case of (B)(i), (B)(ii) or (B)(iii)
above, has irrevocably deposited or caused to be deposited
with the Trustee as trust funds in trust for the purpose money
and/or, to the extent such Debt Securities are denominated and
payable in Dollars only, Eligible Instruments the payments of
principal and interest on which when due (and without
reinvestment) and providing no tax liability will be imposed
upon the Trustee or the Holders of Debt Securities) will
provide money in such amounts as will (together with any money
irrevocably deposited in trust with the Trustee, without
investment) be sufficient to pay and discharge the entire
indebtedness on such Debt Securities and coupons of such
series for principal (and premium, if any) and interest, and
any mandatory sinking fund, repayment or analogous payments
thereon, on the scheduled due dates therefor to the date of
such deposit (in the case of Debt Securities and coupons which
have become due and payable) or to the Stated Maturity or
Redemption Date, if any, and all Repayment Dates (in the case
of Debt Securities repayable at the option of the Holders
thereof); provided, however, that in the event a petition for
relief under the Bankruptcy Reform Act of 1978 or a successor
statute is filed with respect to the Company within 91 days
after the deposit, the obligations of the Company under the
Indenture with respect to the Debt Securities of such series
shall not be deemed terminated or discharged, and in such
event the Trustee shall be required to return the deposited
money and Eligible Instruments to the Company;
(2) the Company has paid or caused to be paid all other
sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that all
conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Sections 6.7 and, if money or
Eligible Instruments shall have been deposited with the Trustee pursuant to
Subclause (B) of Clause (1) of this Section, the obligations of the Trustee
under Section 4.2 and the last paragraph of Section 10.3 shall survive.
33
Section 4.2. Application of Trust Money and Eligible Instruments
Subject to the provisions of the last paragraph of Section
10.3, all money and Eligible Instruments deposited with the Trustee pursuant to
Section 4.1 shall be held in trust and such money and the principal and interest
received on such Eligible Instruments shall be applied by it, in accordance with
the provisions of the Debt Securities, the coupons and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal (and premium, if any) and interest for whose
payment such money or Eligible Instruments have been deposited with the Trustee.
ARTICLE FIVE
REMEDIES
Section 5.1. Events of Default
"Event of Default," wherever used herein with respect to Debt
Securities of any series, means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law, pursuant to any judgment, decree
or order of any court or any order, rule or regulation of any administrative or
governmental body):
(1) default in the payment of any interest upon any Debt
Security of such series or a related coupon, if any, when it becomes
due and payable, and continuance of such default for a period of 30
days; or
(2) default in the payment of the principal of (or
premium, if any, on) any Debt Security of such series at its
Maturity; or
(3) default in the deposit of any sinking fund payment,
when and as due by the terms of a Debt Security of such series; or
(4) default in the performance, or breach, of any covenant
or warranty of the Company in this Indenture (other than a covenant
or warranty a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with or which has
expressly been included in this Indenture solely for the benefit of
Debt Securities of a series other than such series), and continuance
of such default or breach for a period of 90 days after there has
been given by registered or certified mail, to the Company by the
Trustee, or to the Company and the Trustee by the Holders of at least
25% in principal amount of the Outstanding Debt Securities of such
series, a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a "Notice
of Default" hereunder; or
(5) the entry of a decree or order for relief in respect
of the Company or the Bank by a court having jurisdiction in the
premises in an involuntary case under the Federal bankruptcy laws, as
now or hereafter constituted, or any other applicable Federal or
34
State bankruptcy, insolvency or other similar law, or appointing a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or
other similar official) of the Company or the Bank or of any
substantial part of the property of either, or ordering the winding
up or liquidation of the affairs of either, and the continuance of
any such decree or order unstayed and in effect for a period of 60
consecutive days; or
(6) the commencement by the Company or the Bank of a
voluntary case under the Federal bankruptcy laws, as now or hereafter
constituted, or any other applicable Federal or State bankruptcy,
insolvency or other similar law, or the consent by the Company or the
Bank to the entry of a decree or order for relief in an involuntary
case under any such law or to the appointment of a receiver,
liquidator, assignee, custodian, trustee, sequestrator or other
similar official of either of the foregoing or of any substantial
part of the property of either, or the making by the Company or the
Bank of an assignment for the benefit of creditors, or the admission
by the Company or the Bank in writing of its inability to pay its
debts generally as they become due, or the taking of corporate action
by the Company or the Bank in furtherance of any such action; or
(7) any other Event of Default, if any, provided with
respect to Debt Securities of such series specified as contemplated
by Section 3.1.
Section 5.2. Acceleration of Maturity; Rescission and Annulment
If an Event of Default with respect to Debt Securities of any
series at the time Outstanding occurs and is continuing, then and in every such
case the Trustee or the Holders of not less than 25% in principal amount of
Outstanding Debt Securities of such series may declare the principal amount (or,
if the Debt Securities of such series are Original Issue Discount Securities,
such portion of the principal amount as may be specified in the terms of such
series) of and all accrued but unpaid interest on all the Debt Securities of
such series to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by such Holders), and upon any such
declaration such principal amount (or specified amount) shall become immediately
due and payable. Upon payment of such amount, all obligations of the Company in
respect of the payment of principal of the Debt Securities of such series shall
terminate.
At any time after such a declaration of acceleration with
respect to Debt Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a majority in principal
amount of the Outstanding Debt Securities of such series, by written notice to
the Company and the Trustee, may rescind and annul such declaration and its
consequences if
(1) the Company has paid or deposited with the Trustee a
sum sufficient to pay
(A) all overdue installments of interest on all Debt
Securities of such series and any related coupons,
(B) the principal of (and premium, if any, on) any
Debt Securities of such series which have become due otherwise
than by such declaration of acceleration and interest thereon at
the rate or rates prescribed therefor in such Debt Securities,
35
(C) to the extent that payment of such interest is
lawful, interest upon overdue installments of interest on each
Debt Security and any related coupons at the rate or rates
prescribed therefor in such Debt Securities, and
(D) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel; and
(E) all Events of Default with respect to Debt
Securities of such series, other than the non-payment of the
principal of Debt Securities of such series which have become
due solely by such declaration of acceleration, have been cured
or waived as provided in Section 5.13.
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 Company covenants that if:
(1) default is made in the payment of any installment of
interest on any Debt Security or any related coupon when such
interest becomes due and payable and such default continues for a
period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Debt Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Debt Securities and coupons, the amount then due and payable on
such Debt Securities and coupons for principal (and premium, if any) and
interest and, to the extent that payment of such interest shall be legally
enforceable, interest upon the overdue principal (and premium, if any) and, upon
overdue installments of interest, at the rate or rates prescribed therefor in
such Debt Securities; and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Company fails to pay such amounts (including the
delivery of any Capital Securities then required to be delivered) forthwith upon
such demand, the Trustee, in its own name and as trustee of an express trust,
may institute a judicial proceeding for the collection of the sums so due and
unpaid, and may prosecute such proceeding to judgment or final decree, and may
enforce the same against the Company or any other obligor upon such Debt
Securities and coupons and collect the moneys adjudged or decreed to be payable
in the manner provided by law out of the property of the Company or any other
obligor upon such Debt Securities and coupons, wherever situated.
If an Event of Default with respect to Debt Securities of any
series occurs and is continuing, the Trustee may in its discretion proceed to
36
protect and enforce its rights and the rights of the Holders of Debt Securities
of such series and any related coupons by such appropriate judicial proceedings
as the Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
Section 5.4. Trustee May File Proofs of Claim
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceedings, or any voluntary or involuntary case under the
Federal bankruptcy laws as now or hereafter constituted, relative to the Company
or any other obligor upon the Debt Securities of a particular series or any
related coupons or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of such Debt
Securities shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand
on the Company for the payment of overdue principal or 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 owing and unpaid in
respect of the Debt Securities of such series and any appurtenant
coupons and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel)
and of the Holders allowed in such judicial proceeding, and
(2) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, custodian, liquidator, sequestrator or
other similar official in any such proceeding is hereby authorized by each
Holder to make such payments to the Trustee, and in the event that the trustee
shall consent to the making of such payments directly to the Holders, to pay to
the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 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
Debt Securities or coupons or the rights of any Holder thereof, or to authorize
the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
Section 5.5. Trustee May Enforce Claims without Possession of Debt
Securities or Coupons
All rights of action and claims under this Indenture or the
Debt Securities or coupons may be prosecuted and enforced by the Trustee without
the possession of any of the Debt Securities or coupons or the production
thereof in any proceeding relating thereto, and any such proceeding instituted
by the Trustee shall be brought in its own name, as trustee of an express trust,
and any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders of the Debt
Securities and coupons in respect of which such judgment has been recovered.
37
Section 5.6. Application of Money Collected
Any money collected by the Trustee pursuant to this Article
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal
(and premium, if any) or interest, upon presentation of the Debt Securities or
coupons, or both, as the case may be, and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:
FIRST: To the Trustee for payment of all costs and expenses of
collection, including all sums paid or advanced by the Trustee
and the reasonable compensation, expenses and disbursements of
the Trustee, its agents and counsel, and any other amounts due
the Trustee under Section 6.7;
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Debt
Securities and any coupons, in respect of which or for the
benefit of which such money has been collected ratably,
without preference or priority of any kind, according to the
amounts due and payable on such Debt Securities and any
coupons for principal (and premium, if any) and interest,
respectively. The Holders of each series of Debt Securities
denominated in Euro, any other composite currency or a Foreign
Currency and any matured coupons relating thereto shall be
entitled to receive a ratable portion of the amount determined
by the Exchange Rate Agent by converting the principal amount
Outstanding of such series of Debt Securities and matured but
unpaid interest on such series of Debt Securities in the
currency in which such series of Debt Securities is
denominated into Dollars at the Exchange Rate as of the date
of declaration of acceleration of the Maturity of the Debt
Securities; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
Section 5.7. Limitation on Suits.
No Holder of any Debt Security of any series or any related
coupons shall have any right to institute any proceeding, judicial or otherwise,
with respect to this Indenture, or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Debt
Securities of such series;
(2) the Holders of not less than 25% in principal amount
of the Outstanding Debt Securities of such series shall have made
written request to the Trustee to institute proceedings in respect of
such Event of Default in its own name as Trustee hereunder,
(3) such Holder or Holders have offered indemnity
reasonable to the Trustee against the costs, expenses and liabilities
to be incurred in compliance with such request;
38
(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 principal amount of the Outstanding Debt
Securities of such series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other such
Holders, or to obtain or to seek to obtain priority or preference over any other
of such Holders or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and ratable benefit of all of such
Holders.
Section 5.8. Unconditional Right of Holders to Receive Principal, Premium
and Interest and to Exchange Debt Securities for Capital
Securities
Notwithstanding any other provision in this Indenture, the
Holder of any Debt Security or coupon shall have the right which is absolute and
unconditional to receive payment of the principal of (and premium, if any) and
(subject to Section 3.7) interest on such Debt Security or payment of such
coupon (or, in the case of redemption or repayment, on the Redemption Date or
the Repayment Date, as the case may be) to have the Debt Securities exchanged
for Capital Securities pursuant to Article Fourteen, if applicable, and to
institute suit for the enforcement of any such payment, and such right shall not
be impaired without the consent of such Holder.
Section 5.9. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case the Company, the
Trustee and the Holders shall, subject to any determination in such proceeding,
be restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
Section 5.10. Rights and Remedies Cumulative.
Except as otherwise provided in Section 3.6, no right or
remedy herein conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the 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 or of any Holder of any
Debt Security or coupon to exercise any right or remedy accruing upon any Event
of Default shall impair any such right or remedy or constitute a waiver of any
39
such Event of Default or an acquiescence therein. Every right and remedy given
by this Article or by law to the Trustee or to the Holders may be exercised from
time to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
Section 5.12. Control by Holders of Debt Securities
The Holders of a majority in principal amount of the
Outstanding Debt Securities of any series shall have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee or exercising any trust or power conferred on the Trustee with
respect to the Debt Securities of such series, provided, that
(1) such direction shall not be in conflict with any rule
of law or with this Indenture;
(2) subject to the provisions of Section 6.1, the Trustee
shall have the right to decline to follow any such direction if the
Trustee in good faith shall, by a Responsible Officer or Responsible
Offices of the Trustee, determine that the proceeding so directed
would be unjustly prejudicial to the Holders of Debt Securities of
such series not joining in any such direction (it being understood
that the Trustee does not have an affirmative duty to ascertain
whether or not such actions or forbearances are unduly prejudicial to
such Holders); and
(3) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
Section 5.13. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of
the Outstanding Debt Securities of any series may on behalf of the Holders of
all the Debt Securities of any such series and any related coupons waive any
past default hereunder with respect to such series and its consequences, except
a default
(1) in the payment of the principal of (or premium, if
any) or interest on any Debt Security of such series, or
(2) in respect of a covenant or provision hereof which
under Article Nine cannot be modified or amended without the consent
of the Holder of each Outstanding Debt Security of such series or
coupon affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
Section 5.14. Undertaking for Costs
All parties to this Indenture agree, and each Holder of any
Debt Security or coupon by his acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in any suit for the
40
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken, suffered or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to pay the costs of
such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply to any
suit instituted by the Trustee, to any suit instituted by any Holder, or group
of Holders, holding in the aggregate more than 10% in principal amount of the
Outstanding Debt Securities of any series, or to any suit instituted by any
Holder for the enforcement of the payment of the principal of (or premium, if
any) or interest on any Debt Security or the payment of any coupon on or after
the respective Stated Maturity or Maturities expressed in such Debt Security or
coupon (or, in the case of redemption or repayment, on or after the Redemption
Date or Repayment Date, as the case may be or for the enforcement of the right
to exchange any Debt Securities for Capital Securities as provided in Article
Fourteen).
Section 5.15. Waiver of Stay or Extension Loans
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law
whenever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company (to the extent
that is may lawfully do so) hereby expressly waives all benefits or advantage of
any such law, and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
Section 6.1. Certain Duties and Responsibilities
(a) With respect to Debt Securities of any series, except
during the continuance of an Event of Default with respect to the Debt
Securities of such series,
(i) the Trustee undertakes to perform 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
(ii) 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 Officers'
Certificates, 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 which 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) In case an Event of Default with respect to Debt
Securities of any series has occurred and is continuing, the Trustee shall, with
respect to the Debt Securities of such series or any coupons, as the case may
be, exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skills in their exercise, as a prudent person
would exercise or use under the circumstances in the conduct of such person's
own affairs.
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(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 willful misconduct, except that
(i) this Subsection shall not be construed to limit the
effect of Subsection (a) of this Section;
(ii) 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
(iii) the Trustee shall not be liable with respect to any
action taken, suffered or omitted to be taken by it with respect to
Debt Securities of any series in good faith in accordance with the
direction of the Holders of a majority in principal amount of the
Outstanding Debt Securities of such series 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 Debt
Securities of such series.
(d) No provisions of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it.
(e) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or effecting the liability
of or affording protection to the Trustee shall be subject to the provisions of
this Section.
Section 6.2. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder
with respect to Debt Securities of any series the Trustee shall transmit by mail
to all Holders of Debt Securities of such series, entitled to receive reports
pursuant to Section 7.3(c), notice of such default hereunder known to the
Trustee, 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 (or
premium, if any) or interest on any Debt Security of such series or any related
coupons or in the payment of any sinking fund installment with respect to Debt
Securities of such series, or in the exchange of Capital Securities for Debt
Securities of such series the Trustee shall be protected in withholding such
notice if and so long as 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 interest of the
Holders of Debt Securities of such series. For the purpose of this Section, the
term "default" means any event which is, or after notice or lapse of time or
both would become, an Event of Default with respect to Debt Securities of such
series.
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Section 6.3. Certain Rights of Trustee
Except as otherwise provided in Section 6.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, coupon or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors shall be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith on
its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the advice of
such counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligations to exercise
any of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders of Debt Securities of such series or any related
coupons pursuant to this Indenture, unless such Holders shall have offered
security or indemnity reasonable to the Trustee against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, coupon, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the Trustee
shall determine to make such further inquiry or investigation it shall be
entitled to examine the books, records and premises of the Company, personally
or by agent or attorney, other than any such books or records containing
information as to the affairs of the customers of the Company or any of its
subsidiaries, provided that the Trustee may examine such books and records
relating to customers to the extent that such books and records contained
information as to any payments made to such customers in their capacity as
Holders of Debt Securities;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or though agents
or attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder, no Exchange Rate Agent, Global Exchange Agent, Depositary or Paying
Agent shall be deemed an agent of the Trustee and the Trustee shall not be
responsible for any act or omission by any of them;
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(h) whenever in the administration of this Indenture the
Trustee shall deem if desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, or where information is
required or necessary to be furnished by the Company in order for the Trustee to
act, the Trustee (unless other evidence be herein specifically prescribed),
shall not be liable for any action it takes or omits to take in good faith in
reliance upon an Officers' Certificate;
(i) the Trustee shall not be bound to ascertain or inquire
as to the performance or observance of any covenants, conditions or agreements
on the part of the Company, except as otherwise specifically set forth in this
Indenture, but the Trustee may require of the Company full information and
advice as to the performance of the covenants, conditions and agreements
contained herein and should be entitled in connection therewith to examine the
books, records and premises of the Company; provided, however, the Trustee
agrees to maintain the confidentiality of any nonpublic information relating to
the Company obtained by the Trustee in its capacity as Trustee and not to reveal
any such confidential information except as necessary to comply with any court
order or discovery request; and further provided that the Trustee shall give
prompt notice to the Company of any such court order or discovery request
received by the Trustee;
(j) the permissive rights of the Trustee to do things
enumerated in this Indenture shall not be construed as a duty;
(k) except for (i) the failure of the Company to file any
financial statements, documents or certificates specifically required to be
filed with the Trustee pursuant to the provisions of this Indenture or (ii) any
other event of which the Trustee has "actual knowledge" and which event, with
the giving of notice or the passage of time or both, would constitute an Event
of Default under this Indenture, the Trustee shall not be deemed to have notice
of any default or event unless specifically notified in writing by the Company
or the Holders of not less than 25% in aggregate principal amount of the Debt
Securities Outstanding; as used herein, the term "actual knowledge" means the
actual fact of knowing, without a duty to make any investigation with regard
thereto; and
(l) the Trustee shall not be required to give any note or
surety in respect of the execution of the trusts and powers under this
Indenture.
Section 6.4. Not Responsible for Recitals or Issuance of Debt Securities
The recitals contained herein and in the Debt Securities,
except the Trustee's certificates of authentication, and in any coupons, and the
information in any registration statement, including all attachments thereto,
except information provided by the Trustee therein, shall be taken as the
statements of the Company, and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Debt Securities of any series or any
coupons or any Capital Securities. The Trustee shall not be accountable for the
use or application by the Company of any Debt Securities or the proceeds
thereof. The Trustee shall not be responsible for and makes no representations
to the Company's ability or authority to issue Bearer Securities or the
lawfulness thereof.
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Section 6.5. Money Held in Trust
The Trustee, any Paying Agent, the Security Registrar or any
other agent of the Company or the Trustee, in its individual or any other
capacity, may become the owner or pledgee of Debt Securities and coupons, and,
subject to Sections 6.8 and 6.13, may otherwise deal with the Company with the
same rights it would have if it were not Trustee, Paying Agent, Security
Registrar or such agent.
Section 6.6. May Hold Debt Securities or Coupons.
Money held by the Trustee or any Paying Agent in trust
hereunder need not be segregated from other funds except to the extent required
by law. Neither the Trustee nor any Paying Agent shall be under any liability
for interest on any money received by it hereunder except as otherwise agreed
with the Company.
Section 6.7. Compensation and Reimbursement
The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard
to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or willful misconduct; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence
or willful misconduct on its part, arising out of or in connection
with the acceptance or administration of this trust or performance of
its duties hereunder, including the costs and expenses of defending
itself against any claim or liability in connection with the exercise
or performance of any of its powers or duties hereunder.
As security for the performance of the obligations of the
Company under this Section the Trustee shall have a claim prior to the Debt
Securities and any coupons upon all property and funds held or collected by the
Trustee as such, except funds held in trust for the payment of principal of (and
premium, if any) or interest on particular Debt Securities or any coupons.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Article Five, the expenses
(including reasonable fees and expenses of its counsel) and the compensation for
the services in connection therewith are intended to constitute expenses of
administration under Bankruptcy Law.
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Section 6.8. Disqualification
This Indenture shall always have a Trustee who satisfies the
requirements of Section 3.10(a)(1) of the Trust Indenture Act. The Trustee is
subject to Section 3.10(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 corporation organized and doing business under the laws of the United States,
any State thereof or the District of Columbia, authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus of at
least $50,000,000, and subject to supervision or examination by Federal or State
authority; provided, however, that if Section 3.10(a) of the Trustee Indenture
Act or the rules and regulations of the Commission under the Trust Indenture Act
at any time permit a corporation organized and doing business under the laws of
any other jurisdiction to serve as trustee of an indenture qualified under the
Trust Indenture Act, this Section 6.9 shall be automatically amended to permit a
corporation organized and doing business under the laws of any such other
jurisdiction to serve as Trustee hereunder. If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid supervising or examining authority, then for the purposes of
this Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. Neither the Company nor any person directly or
indirectly controlling, controlled by or under common control with the Company
may serve as Trustee. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
Section 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 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
Debt Securities of one or more series by giving written notice thereof to the
Company. 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 Debt
Securities of such series.
(c) The Trustee may be removed at any time with respect to
the Debt Securities of any series by Act of the Holders of a majority in
principal amount of the Outstanding Debt Securities of such series, delivered to
the Trustee and to the Company.
(d) If at any time:
(i) the Trustee shall cease to be eligible under Section
6.9 with respect to any series of Debt Securities and shall fail to
resign after written request therefor by the Company or by any such
Holder, or
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(ii) the Trustee shall become incapable of acting with
respect to any series of Debt Securities or a decree or order for
relief by a court having jurisdiction in the premises shall have been
entered in respect of the Trustee in an involuntary case under the
Federal bankruptcy laws, as now or hereafter constituted, or any
other applicable Federal or State bankruptcy, insolvency or similar
law, or a decree or order by a court having jurisdiction in the
premises shall have been entered for the appointment of a receiver,
custodian, liquidator, assignee, trustee, sequestrator or other
similar official of the Trustee or of its property or affairs, or any
public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation,
winding up or liquidation, or
(iii) the Trustee shall commence a voluntary case under
the Federal bankruptcy laws, as now or hereafter constituted, or any
other applicable Federal or State bankruptcy, insolvency or similar
law or shall consent to the appointment of or taking possession by a
receiver, custodian, liquidator, assignee, trustee, sequestrator or
other similar official of the Trustee or its property or affairs, or
shall make an assignment for the benefit of creditors, or shall admit
in writing its inability to pay its debts generally as they become
due, or shall take corporate action in furtherance of any such
action,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to such series or (ii) subject to Section 5.14, any Holder
who has been a bona fide Holder of a Debt Security of any series for at least
six months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the removal of the Trustee for the Debt
Securities of such series and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become
incapable of acting with respect to any series of Debt Securities, or if a
vacancy shall occur in the office of Trustee for any cause, with respect to the
Debt Securities of one or more series, the Company, by a Board Resolution, shall
promptly appoint a successor Trustee or Trustees with respect to the Debt
Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Debt Securities of one or more or
all of such series and that at any time there shall be only one Trustee with
respect to the Debt Securities of any particular series) and shall comply with
the applicable requirements of Section 6.11. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Debt Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Debt Securities of such series delivered to the Company and the
retiring Trustee, the successor Trustee with respect to the Debt Securities of
such series and to that extent supersede the successor Trustee appointed by the
Company. If no successor Trustee with respect to the Debt Securities of any
series shall have been so appointed by the Company or the Holders and accepted
appointment in the manner hereinafter provided, any Holder who has been a bona
fide Holder of a Debt Security of such series for at least six months may,
subject to Section 5.14, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Debt Securities of such series.
(f) The Company shall give notice of each resignation and
each removal of the Trustee with respect to the Debt Securities of any series
and each appointment of a successor Trustee with respect to the Debt Securities
of any series by mailing written notice of such event by first-class mail,
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postage prepaid, to the Holders of Registered Securities, if any, of such series
as their names and addresses appear in the Security Register and, if Debt
Securities of such series are issuable as Bearer Securities, by publishing
notice of such event once in an Authorized Newspaper in each Place of Payment
located outside the United States. Each notice shall include the name of the
successor Trustee with respect to the Debt Securities of such series and the
address of its Corporate Trust Office.
Section 6.11. Acceptance of Appointment by Successor
(a) In the case of an appointment hereunder of a successor
Trustee with respect to all Debt Securities, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on request of the Company 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 Debt Securities of one or more (but not all) series,
the Company, the retiring Trustee upon payment of its charges and each successor
Trustee with respect to the Debt Securities of one or more series shall execute
and deliver an indenture supplemental hereto wherein each successor Trustee
shall accept such appointment and which (1) shall contain such provisions as
shall be necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Debt Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee is
not retiring with respect to all Debt Securities, shall contain such provisions
as shall be deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to the Debt
Securities of that or those series as to which the retiring Trustee is not
retiring shall continue to be vested in the retiring Trustee, and (3) shall add
to or change any of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees co-trustees of the same
trust and that each such Trustee shall be trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered by any other
such Trustee; and upon the execution and delivery of such supplemental
indenture, the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Debt Securities of that or those series to which the appointment of such
successor Trustee relates; but, on the request of the Company or any successor
Trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee hereunder
with respect to the Debt Securities of that or those series to which the
appointment of such successor Trustee relates.
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(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, 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.
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 succeeding to
all or substantially all of the corporate trust business of the Trustee, shall
be the successor of the Trustee hereunder, provided such corporation shall be
otherwise qualified and eligible under this Article, without the executing or
filing of any paper or any further act on the part of any of the parties hereto.
In case any Debt Securities shall have been authenticated, but not delivered, by
the Trustee then in office, any successor by merger, conversion or consolidation
to such authenticating Trustee may adopt such authentication and deliver the
Debt Securities so authenticated with the same effect as if such successor
Trustee had itself authenticated such Debt Securities. In case any Debt
Securities shall not have been authenticated by such predecessor Trustee, any
such successor Trustee may authenticate and deliver such Debt Securities, in
either its own name or that of its predecessor Trustee, with the full force and
effect which this Indenture provides for the certificate of authentication of
the Trustee.
Section 6.13. Preferential Collection of Claims Against Company
(a) Subject to Subsection (b) of this Section, if the
Trustee shall be or shall become a creditor, directly or indirectly, secured or
unsecured, of the Company within three months prior to a default, as defined in
Subsection (c) of this Section, or subsequent to such a default, then, unless
and until such default shall be cured, the Trustee shall set apart and hold in a
special account for the benefit of the Trustee individually, the Holders of the
Debt Securities and coupons and the holders of other indenture securities (as
defined in Subsection (c) of this Section):
(i) an amount equal to any and all reductions in the
amount due and owing upon any claim as such creditor in respect of
principal or interest, effected after the beginning of such
three-month period and valid as against the Company and its other
creditors, except any such reduction resulting from the receipt or
disposition of any property described in paragraph (2) of this
Subsection, or from the exercise of any right of set-off which the
Trustee could have exercised if a voluntary or involuntary case had
been commenced in respect of the Company under the Federal bankruptcy
laws, as now or hereafter constituted, or any other applicable
Federal or State bankruptcy, insolvency or other similar law upon the
date of such default; and
(ii) all property received by the Trustee in respect of
any claim as such creditor, either a security therefor, or in
satisfaction or composition thereof, or otherwise, after the
beginning of such three-month period, or an amount equal to the
proceeds of any such property, if disposed of, subject, however, to
the rights, if any, of the Company and its other creditors in such
property of such proceeds.
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Nothing herein contained, however, shall affect the right of the Trustee:
(A) to retain for its own account (i) payments on account
of any such claim by any Person (other than the Company) who is
liable thereon, and (ii) the proceeds of the bona fide sale of any
such claim by the Trustee to a third Person, and (iii) distribution
made in cash, securities or other property in respect of claims filed
against the Company in bankruptcy or receivership or in proceedings
for reorganization pursuant to the Federal bankruptcy laws, as now or
hereafter constituted, or any other applicable Federal or State
bankruptcy, insolvency or other similar law;
(B) to realize, for its own account, upon any property
held by it as security for any such claim, if such property was so
held prior to the beginning of such three-month period;
(C) to realize, for its own account, upon any property
held by it as security for any such claim, if such claim was created
after the beginning of such three-month period and such property was
received as security therefor simultaneously with the creation
thereof, and if the Trustee shall sustain the burden of proving that
at the time such property was so received the Trustee had no
reasonable cause to believe that a default as defined in Subsection
(c) of this Section would occur within three months; or
(D) to receive payment on any claim referred to in
paragraph (B) or (C), against the release of any property held as
security for such claim as provided in paragraph (B) or (C), as the
case may be, to the extent of the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property
substituted after the beginning of such three-month period for property held as
security at the time of such substitution shall, to the extent of the fair value
of the property released, have the same status as the property released, and, to
the extent that any claim referred to in any of such paragraphs is created in
renewal of or in substitution for or for the purpose of repaying or refunding
any preexisting claim of the Trustee as such creditor, such claim shall have the
same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and
property held in such special account and the proceeds thereof shall be
apportioned among the Trustee, the Holders and the holders of other indenture
securities in such manner that the Trustee, the Holders and the holders of other
indenture securities realize, as a result of payments from such special account
and payments of dividends on claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to the Federal
bankruptcy laws, as now or hereafter constituted, or any other applicable
Federal or State bankruptcy, insolvency or other similar law, the same
percentage of their respective claims, figured before crediting to the claim of
the Trustee anything on account of the receipt by it from the Company of the
funds and property in such special account and before crediting to the
respective claims of the Trustee and the Holders and the holders of other
indenture securities dividends on claims filed against the Company in bankruptcy
or receivership or in proceedings for reorganization pursuant to the Federal
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bankruptcy laws, as now or hereafter constituted, or any other applicable
Federal or State bankruptcy, insolvency or other similar law, but after
crediting thereon receipts on account of the indebtedness represented by their
respective claims from all sources other than from such dividends and from the
funds and property so held in such special account. As used in this paragraph,
with respect to any claim, the term "dividends" shall include any distribution
with respect to such claim, in bankruptcy or receivership or proceedings for
reorganization pursuant to the Federal bankruptcy laws, as now or hereafter
constituted, or any other applicable Federal or State bankruptcy, insolvency or
other similar law, whether such distribution is made in cash, securities, or
other property, but shall not include any such distribution with respect to the
secured portion, if any, of such claim. The court in which such bankruptcy,
receivership or proceedings for reorganization is pending shall have
jurisdiction (i) to apportion among the Trustee and the Holders and the holders
of other indenture securities, in accordance with the provisions of this
paragraph, the funds and property held in such special account and proceeds
thereof, or (ii) in lieu of such apportionment, in whole or in part, to give to
the provisions of this paragraph due consideration in determining the fairness
of the distributions to be made to the Trustee and the Holders and the holders
of other indenture securities with respect to their respective claims, in which
event it shall not be necessary to liquidate or to appraise the value of any
securities or other property held in such special account or as security for any
such claim, or to make a special allocation of such distributions as between the
secured and unsecured portions of such claims, or otherwise to apply the
provisions of this paragraph as a mathematical formula.
Any Trustee which has resigned or been removed after the
beginning of such three-month period shall be subject to the provisions of this
Subsection as though such resignation or removal had not occurred. If any
Trustee has resigned or been removed prior to the beginning of such three-month
period, it shall be subject to the provisions of this Subsection if and only if
the following conditions exist:
(i) the receipt of property or reduction of claim, which
would have given rise to the obligation to account, if such Trustee
had continued as Trustee, occurred after the beginning of such
three-month period; and
(ii) such receipt of property or reduction of claim
occurred within three months after such resignation or removal.
(b) There shall be excluded from the operation of Subsection
(a) of this Section a creditor relationship arising from
(i) the ownership or acquisition of securities issued
under any indenture, or any security or securities having a maturity
of one year or more at the time of acquisition by the Trustee;
(ii) advances authorized by a receivership or bankruptcy
court of competent jurisdiction or by this Indenture, for the purpose
of preserving any property which shall at any time be subject to the
lien of this Indenture or of discharging tax liens or other prior
liens or encumbrances thereon, if notice of such advances and of the
circumstances surrounding the making thereof is given to the Holders
at the time and in the manner provided in this Indenture;
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(iii) disbursements made in the ordinary course of
business in the capacity of trustee under an indenture, transfer
agent, registrar, custodian, paying agent, fiscal agent or
depositary, or other similar capacity;
(iv) an indebtedness created as a result of services
rendered or premises rented; or an indebtedness created as a result
of goods or securities sold in a cash transaction as defined in
Subsection (c) of this Section;
(v) the ownership of stock or of other securities of a
corporation organized under the provisions of Section 25(a) of the
Federal Reserve Act, as amended, which is directly or indirectly a
creditor of the Company; or
(vi) the acquisition, ownership, acceptance or negotiation
of any drafts, bills or exchange, acceptance or obligations which
fall within the classification of self-liquidating paper as defined
in Subsection (c) of this Section.
(c) For the purposes of this Section only:
(i) The term "default" means any failure to make payment
in full of the principal of or interest on any of the Debt Securities
or upon the other indenture securities when and as such principal or
interest becomes due and payable.
(ii) The term "other indenture securities" means
securities upon which the Company is an obligor outstanding under any
other indenture (i) under which the Trustee is also trustee, (ii)
which contains provisions substantially similar to the provisions of
this Section, and (iii) under which a default exists at the time of
the apportionment of the funds and property held in such special
account.
(iii) The term "cash transaction" means any transaction in
which full payment for goods or securities sold is made seven days
after delivery of the goods or securities in currency or in checks or
other orders drawn upon banks and payable upon demand.
(iv) The term "self-liquidating paper" means any draft,
xxxx of exchange, acceptance or obligation which is made, drawn,
negotiated or incurred by the Company for the purpose of financing
the purchase, processing, manufacturing, shipment, storage or sale of
goods, wares or merchandise and which is secured by documents
evidencing title to, possession of, or a lien upon, the goods, wares
or merchandise or the receivables or proceeds arising from the sale
of the goods, wares or merchandise previously constituting the
security, provided the security is received by the Trustee
simultaneously with the creation of the creditor relationship with
the Company arising from the making, drawing, negotiating or
incurring of the draft, xxxx of exchange, acceptance or obligation.
(v) The term "Company" means any obligor upon the Debt
Securities.
Section 6.14. Authenticating Agent.
The Trustee shall upon Company request appoint one or more
authenticating agents (including, without limitation, the Company or any
Affiliate thereof) with respect to one or more series of Debt Securities which
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shall be authorized on behalf of the Trustee in authenticating Debt Securities
of such series in connection with the issue, delivery, registration of transfer,
exchange, partial redemption or repayment of such Debt Securities. Wherever
reference is made in this Indenture to the authentication of Debt Securities by
the Trustee or the Trustee's certificate of authentication, such reference shall
be deemed to include authentication on behalf of the Trustee by an
authenticating agent. Each authenticating agent must be acceptable to the
Company and must be a corporation organized and doing business under the laws of
the United States or of any State, having a principal office in the Commonwealth
of Pennsylvania, or the Borough of Manhattan, the City of New York, having a
combined shareholders' equity of at least $10,000,000, authorized under such
laws to do a trust business and subject to supervision or examination by Federal
or State authorities or the equivalent foreign authority in the case of an
authenticating agent who is not organized and doing business under the laws of
the United States or any State thereof or the District of Columbia.
Any corporation succeeding to the corporate agency business of
an authenticating agent shall continue to be an authenticating agent without the
execution or filing of any paper or any further act on the part of the Trustee
or such authenticating agent.
An authenticating agent may at any time resign with respect to
one or more series of Debt Securities by giving written notice of resignation to
the Trustee and to the Company. The Trustee may at any time terminate the agency
of an authenticating agent with respect to one or more series of Debt Securities
by giving written notice of termination to such authenticating agent and to the
Company. Upon receiving such a notice of resignation or upon such a termination,
or in case at any time an authenticating agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee promptly may appoint
a successor authenticating agent. Any successor authenticating agent upon
acceptance of its appointment hereunder shall become vested with all rights,
powers and duties of its predecessor hereunder, with like effect as if
originally named as an authenticating agent herein. No successor authenticating
agent shall be appointed unless eligible under the provisions of this Section.
The Trustee agree to pay to each authenticating agent from
time to time reasonable compensation for its services under this Section, and
the Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 6.7.
The provisions of Sections 1.4, 1.11, 3.6, 3.9, 6.3, 6.4 and
6.5 shall be applicable to any authenticating agent.
Pursuant to each appointment made under this Section, the Debt
Securities of each series covered by such appointment may have endorsed thereon,
in lieu of the Trustee's certificate of authentication, an alternate certificate
of authentication in substantially the following form:
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This is one of the Debt Securities, of the series designated
herein, described in the within-mentioned Indenture.
BNY MIDWEST TRUST COMPANY
By
-----------------------------------------------------
As Authenticating Agent for
the Trustee
By________________________________
Authorized Signatory
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.1. Company to Furnish Trustee Names and Addresses of Holders
The Company will furnish or cause to be furnished to the
Trustee with respect to Debt Securities of each series for which it acts as
Trustee:
(1) semi-annually, not more than 15 days after the Regular
Record Date in respect of the Debt Securities of such series or on
June 30 and December 31 of each year with respect to each series of
Debt Securities for which there are no Regular Record Dates, a list,
in such form as the Trustee may reasonably require, of the names and
addresses of the Holders of Registered Securities as of such Regular
Record Date or June 15 or December 15, as the case may be, and
(2) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company of any such
request, a list of similar form and content as of a date not more
than 15 days prior to the time such list is furnished;
provided, however, that if and so long as the Trustee shall be the Security
Registrar, no such list need be furnished.
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 of Registered
Securities contained in the most recent list furnished to the Trustee as
provided in Section 7.1 and the names and addresses of Holders of Registered
Securities received by the Trustee in its capacity as Paying Agent or Security
Registrar, if so acting. The Trustee may destroy any list furnished to it as
provided in Section 7.1 upon receipt of a new list so furnished. The Trustee
shall preserve for at least two years the names and addresses of Holders of
Bearer Securities filed with the Trustee pursuant to Section 7.3(c).
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(b) If three or more Holders of Debt Securities of any
series (hereinafter to as "applicants") apply in writing to the Trustee, and
furnish to the Trustee proof that each such applicant has owned a Debt Security
for a period of at least six months preceding the date of such application, and
such application states that the applicants desire to communicate with other
Holders of Debt Securities of such series (in which case the applicants must
hold Debt Securities of such series) or with all Holders of Debt Securities with
respect to their rights under this Indenture or under the Debt Securities and is
accompanied by a copy of the form of proxy or other communication which such
applicants propose to transmit, then the Trustee shall, within five Business
Days after the receipt of such application, at its election, either
(i) afford such applicants access to the information
preserved at the time by the Trustee in accordance with Section
7.2(a), or
(ii) inform such applicants as to the approximate number
of Holders of Debt Securities of such series or of all Debt
Securities, as the case may be, whose names and addresses appear in
the information preserved at the time by the Trustee in accordance
with Section 7.2(a), and as to the approximate cost of mailing to
such Holders the form of proxy or other communication, if any,
specified in such application.
If the Trustee shall elect not to afford such applicants
access to such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder whose name and address appear in the information
preserved at the time by the Trustee in accordance with Section 7.2(a), a copy
of the form of proxy or other communication which is specified in such request,
with reasonable promptness after a tender to the Trustee of the material to be
mailed and of payment, or provision for the payment, of the reasonable expenses
of mailing, unless within five days after such tender, the Trustee shall mail to
such applicants and file with the Commission, together with a copy of the
material to be mailed, a written statement to the effect that, in the opinion of
the Trustee, such mailing would be contrary to the best interests of the Holders
or would be in violation of applicable law. Such written statement shall specify
the basis of such opinion. If the Commission, after opportunity for a hearing
upon the objections specified in the written statement so filed, shall enter an
order refusing to sustain any of such objections or if, after the entry of an
order sustaining one or more of such objections, the Commission shall find,
after notice and opportunity for hearing, that all the objections so sustained
have been met and shall enter an order so declaring, the Trustee shall mail
copies of such material to all such Holders with reasonable promptness after the
entry of such order and the renewal of such tender; otherwise the Trustee shall
be relieved of any obligation or duty to such applicants respecting their
application.
(c) Every Holder of Debt Securities or coupons, by receiving
and holding the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee shall be held accountable by reason of the disclosure of
any such information as to the names and addresses of the Holders in accordance
with Section 7.2(b), regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of mailing
any material pursuant to a request made under Section 7.2(b).
Section 7.3. Reports by Trustee
(a) Within 60 days after May 15 of each year commencing with
the year 2006, the Trustee shall transmit by mail to all Holders of Debt
Securities of any series with respect to which it acts as Trustee, as provided
in Subsection (c) of this Section, a brief report dated as of such May 15
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with respect to any of the following events which may have occurred within the
previous twelve months (but if no such event has occurred within such period, no
report need be transmitted):
(i) any change to its eligibility under Section 6.9 and
its qualifications under Section 6.8.
(ii) the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the making
thereof) made by the Trustee (as such) which remain unpaid on the
date of such report, and for the reimbursement of which it claims or
may claim a lien or charge, prior to that of the Debt Securities of
such series or any related coupons, on any property or funds held or
collected by it as Trustee, except that the Trustee shall not be
required (but may elect) to report such advances if such advances so
remaining unpaid aggregate not more than 1/2 of 1% of the principal
amount of the Outstanding Debt Securities of such series on the date
of such report;
(iii) the amount, interest rate and maturity date of all
other indebtedness owing by the Company (or any other obligor on the
Debt Securities of such series) to the Trustee in its individual
capacity, on the date of such report, with a brief description of any
property held as collateral security therefor, except an indebtedness
based upon a creditor relationship arising in any manner described in
Section 6.13(b)(2), (3), (4) or (6).
(iv) any change to the property and funds, if any,
physically in the possession of the Trustee as such on the date of
such report;
(v) any additional issue of Debt Securities which the
Trustee has not previously reported; and
(vi) any action taken by the Trustee in the performance of
its duties hereunder which it has not previously reported and which
in its opinion materially affects the Debt Securities, except action
in respect of a default, notice of which has been or is to be
withheld by the Trustee in accordance with Section 6.2;
provided, however, that if the Trust Indenture Act is amended subsequent to the
date hereof to eliminate the requirement of the Trustee's brief report, the
report required by this Section need not be transmitted to any Holders.
(b) The Trustee shall transmit by mail to all Holders of
Debt Securities of any series for which it acts as the Trustee, as provided in
Subsection (c) of this Section, a brief report with respect to the character and
amount of any advances (and if the Trustee elects so to state, the circumstances
surrounding the making thereof) made by the Trustee (as such) since the date of
the last report transmitted pursuant to Subsection (a) of this Section (or if no
such report has yet been so transmitted, since the date of execution of this
instrument) for the reimbursement of which it claims or may claim a right or
charge, prior to that of the Debt Securities of such series, on property or
funds held or collected by it as Trustee, and which it has not previously
reported pursuant to this Subsection, except that the Trustee for each series
shall not be required (but may elect) to report such advances if such advances
remaining unpaid at any time aggregate 10% or less of the principal amount of
the Debt Securities of such series Outstanding at such time, such report to be
transmitted within 90 days after such time.
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(c) Reports pursuant to this Section shall be transmitted by
mail:
(i) to all Holders of Registered Securities, as the names
and addresses of such Holders appear in the Security Register;
(ii) to such Holders of Bearer Securities as have, within
the two years preceding such transmission, filed their names and
addresses with the Trustee for that purpose; and
(iii) except in the case of reports pursuant to Subsection
(b) of this Section, to each Holder of a Debt Security whose name and
address is preserved at the time by the Trustee, as provided in
Section 7.2(a).
(d) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which any Debt Securities of such series are listed, with the Commission and
also with the Company. The Company will notify the Trustee when any series of
Debt Securities are listed on any stock exchange.
Section 7.4. Reports by Company.
The Company will:
(1) file with the Trustee, within 15 days after the
Company is required to file the same with the Commission, copies of
the annual reports and of the information, documents and other
reports (or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations prescribe)
which the Company may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934; or, if the Company is not required to file information,
documents or reports pursuant to either of said Sections, then it
will file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission,
such of the supplementary and periodic information, documents and
reports which may be required pursuant to Section 13 of the
Securities Exchange Act of 1934 in respect of a security listed and
registered on a National Securities Exchange as may be prescribed
from time to time in such rules and regulations.
(2) file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by
the Commission, such additional information, documents and reports
with respect to compliance by the Company with the conditions and
covenants of this Indenture as may be required from time to time by
such rules and regulations; and
(3) transmit by mail to all Holders of Debt Securities, in
the manner and to the extent provided in Section 7.3(c) with respect
to reports pursuant to Section 7.3(a), within 30 days after the
filing thereof with the Trustee, such summaries of any information,
documents and reports required to be filed by the Company pursuant to
paragraphs (1) and (2) of this Section as may be required by rules
and regulations prescribed from time to time by the Commission.
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ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 8.1. Company May Consolidate, etc., Only on Certain Terms
The Company shall not consolidate with or merge into any other
corporation or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, unless:
(1) the corporation formed by such consolidation or into
which the Company is merged or the Person which acquires by
conveyance or transfer, or which leases, the properties and assets of
the Company substantially as an entirety shall be a corporation
organized and existing under the laws of the United States of
America, any political subdivision thereof or any State thereof and
shall expressly assume, by an indenture supplemental hereto, executed
and delivered to the Trustee, in form satisfactory to the Trustee,
the due and punctual payment of the principal of (and premium, if
any) and interest (including all additional amounts, if any, payable
pursuant to Section 10.6) on all the Debt Securities and any related
coupons and the performance of every covenant of this Indenture on
the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction,
no Event of Default, and no event which, after notice or lapse of
time, or both, would become an Event of Default, shall have happened
and be continuing;
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance, transfer or lease and, such
supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction
have been met.
Section 8.2. Successor Corporation Substituted.
Upon any consolidation with or merger into any other
corporation, or any conveyance, transfer or lease of the properties and assets
of the Company substantially as an entirety in accordance with Section 8.1, the
successor corporation formed by such consolidation or into which the Company is
merged or to which such conveyance, transfer or lease is made shall succeed to,
and be substituted for, and may exercise every right and power of, the Company
under this Indenture with the same effect as if such successor had been named as
the Company herein, and thereafter, except in the case of a lease, the Company
(which term for this purpose shall mean the Person named as the "Company" in the
first paragraph of this instrument or any successor corporation which shall
theretofore have become such in the manner presented in this Article) shall be
relieved of all obligations and covenants under this Indenture and the Debt
Securities and coupons.
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ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 9.1. Supplemental Indentures without Consent of Holders
Without the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to
the Company, and the assumption by such successor of the covenants of
the Company herein and in the Debt Securities contained; or
(2) to add to the covenants of the Company, for the
benefit of the Holders of all or any series of Debt Securities or
coupons (and if such covenants are to be for the benefit of less than
all series of Debt securities, or coupons stating that such covenants
are expressly being included solely for the benefit of such series),
to convey, transfer, assign, mortgage or pledge any property to or
with the Trustee, or to surrender any right or power herein conferred
upon the Company; or
(3) to add to any additional Events of Default (and if
such Events of Default are to be applicable to less than all series
of Debt Securities, stating that such Events of Default are expressly
being included solely to be applicable to such series); or
(4) to add to, change or eliminate any of the provisions
of this Indenture to provide that Bearer Securities may be
registrable as to principal, to change or eliminate any restrictions
on the payment of principal (or premium, if any) on Registered
Securities or of principal (or premium, if any) or any interest on
Bearer Securities, to permit Bearer Securities to be issued in
exchange for Registered Securities, to permit Bearer Securities to be
issued in exchange for Bearer Securities of other authorized
denominations or to permit or facilitate the issuance of Debt
Securities in uncertificated form, provided any such action shall not
adversely affect the interests of the Holders of Debt Securities of
any series or any related coupons in any material respect; or
(5) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination (a) shall
become effective only when there is no Debt Security Outstanding of
any series created prior to the execution of such supplemental
indenture which is entitled to the benefit of such provision or (b)
shall not apply to any Debt Security Outstanding; or
(6) to establish the form or terms of Debt Securities of
any series as permitted by Sections 2.1 and 3.1; or
59
(7) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the Debt
Securities of one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than
one Trustee, pursuant to the requirements of Section 611(b); or
(8) to evidence any changes to Section 6.8, 6.9 or 7.3(a)
permitted by the terms hereof; or
(9) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any
other provision herein, or to make any other provisions with respect
to matters or questions arising under this Indenture which shall not
be inconsistent with any provision of this Indenture, provided such
other provisions shall not adversely affect the interests of the
Holders of Debt Securities of any series or any related coupons in
any material respect; or
(10) to add to or change or eliminate any provision of
this Indenture as shall be necessary or desirable in accordance with
any amendments to the Trustee Indenture Act, provided such action
shall not adversely affect the interest of Holders of Debt Securities
of any series or any appurtenant coupons in any material respect.
Section 9.2. Supplemental Indentures with Consent of Holders
With the consent of the Holders of not less than 66% in
principal amount of the Outstanding Debt Securities of each series affected by
such supplemental indenture, by Act of said Holders delivered to the Company and
the Trustee, the Company, when authorized by a Board Resolution, and the Trustee
may enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders under this Indenture of such Debt Securities of such series and any
related coupons; provided, however, that an indenture supplemental hereto which
changes the required ownership set forth in the definition of Controlled
Subsidiary in Section 1.1 hereof from 80% to a majority but does not change any
other provision of this Indenture or modify in any other manner the rights of
the Holders of all the Debt Securities under this Indenture may be entered into
with the consent of the Holders of at least a majority in principal amount of
the Outstanding Debt Securities of each series; and provided, further, that no
such supplemental indenture shall, without the consent of the Holder of each
Outstanding Debt Security or coupon affected thereby,
(1) change the Stated Maturity of the principal or any
installment of principal of, or any installment of interest on, any
Debt Security, or reduce the principal amount thereof or the interest
thereon or any premium payable upon redemption or repayment thereof,
or change any obligation of the Company to pay additional amounts
pursuant to Section 10.6 (except as contemplated by Section 8.1(1)
and permitted by Section 9.1(1)), or reduce the amount of the
principal of an Original Issue Discount Security that would be due
and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 5.2, or change any Place of Payment, or
the coin or currency in which any Debt Security or the interest
thereon or any coupon is payable, or impair the right to institute
suit of the enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption, repayment, or
exchange on or after the Redemption Date, Repayment Date or Capital
Exchange Date, as the case may be), or
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(2) reduce the percentage in principal amount of the
Outstanding Debt Securities of any series, the consent of whose
Holders is required for any such supplemental indenture, or the
consent of whose Holders is required for any waiver (of compliance
with certain provisions of this Indenture or certain defaults
hereunder and their consequences) provided for in this Indenture, or
reduce the requirements of Section 16.4 for quorum or voting, or
(3) modify any of the provisions of this Section, Section
5.13 or Section 10.8, except to increase any such percentage or to
provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each
Outstanding Debt Security affected thereby; provided, however, that
this clause shall not be deemed to require the consent of any Holder
with respect to changes in the references to "the Trustee" and
concomitant changes in this Section and Section 10.8, or the deletion
of this provision, in accordance with the requirements of Section
6.11(b) and 9.1(7); or
(4) adversely affect the right to repayment, if any, of
Debt Securities of any series at the option of the Holders thereof;
or
(5) impair the right of any Holder of Debt Securities of
any series to receive Capital Securities on any Capital Exchange Date
for Debt Securities of such series with a Market Value equal to the
principal amount of such Holder's Debt Securities of such series or
in an amount sufficient to provide proceeds upon sale by the Company
in the Secondary Offering equal to the principal amount of such
Holder's Debt Securities of such series; or
(6) impair the right of any Holder of Convertible
Securities of any series to convert such Debt Securities pursuant to
Article Eighteen.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Debt Securities, or
which modifies the rights of the Holders of Debt Securities of such series with
respect to such covenant or other provision, shall be deemed not to affect the
rights under this Indenture of the Holders of Debt Securities of any other
series.
It shall not be necessary for any Act of Holders of the Debt
Securities under this Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such Act shall approve the
substance thereof.
Section 9.3. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by,
and supplemental indenture permitted by this Article 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 Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Trustee may, but
shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
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Section 9.4. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and
every Holder of Debt Securities theretofore or thereafter authenticated and
delivered hereunder and of any coupons appertaining thereto shall be bound
thereby.
Section 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 Debt Securities to Supplemental Indentures
Debt Securities of any series authenticated and delivered
after the execution of any supplemental indenture pursuant to this Article may,
and shall if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Debt Securities of any series and any
appurtenant coupons so modified as to conform, in the opinion of the Trustee and
the Board of Directors, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Debt Securities of such series and any appurtenant
coupons.
ARTICLE TEN
COVENANTS
Section 10.1. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each
series of Debt Securities and any appurtenant coupons that it will duly and
punctually pay the principal of (and premium, if any) and interest on the Debt
Securities and any appurtenant coupons in accordance with the terms of the Debt
Securities, any appurtenant coupons and this Indenture. Any interest due on
Bearer Securities on or before Maturity, other than additional amounts, if any,
payable as provided in Section 10.6 in respect of principal of (or premium, if
any, on) such a Debt Security, shall be payable only upon presentation and
surrender of the several coupons for such interest installments as are evidenced
thereby as they severally mature. For all purposes of this Indenture, the
exchange of Capital Securities for Debt Securities of any series pursuant to the
Indenture shall constitute full payment of principal of the Debt Securities of
such series being exchanged on any Capital Exchange Date for Debt Securities of
such series, without prejudice to any Holder's rights pursuant to Section 14.13.
Section 10.2. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any
series of Debt Securities an office or agency where Debt Securities (but, except
as otherwise provided below, unless such Place of Payment is located outside the
United States, not Bearer Securities) may be presented or surrendered for
payment, where Debt Securities may be surrendered for registration of transfer
or exchange and where notices and demands to or upon the Company in respect of
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the Debt Securities and this Indenture may be served. If Debt Securities of a
series are issuable as Bearer Securities, the Company will maintain, subject to
any laws or regulations applicable thereto, an office or agency in a Place of
Payment for such series which is located outside the Untied States where Debt
Securities of such series and the related coupons may be presented and
surrendered for payment (including payment of any additional amounts payable on
Debt Securities of such series pursuant to Section 10.6); provided, however,
that if the Debt Securities of such series are listed on any other stock
exchange located outside the United States and such stock exchange shall so
require, the Company will maintain a Paying Agent in any other required city
located outside the United States, as the case may be, so long as the Debt
Securities of such series are listed on such exchange. The Company will give
prompt written notice to the Trustee of the location, and any change in the
location, of any such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the Corporate Trust Office of the Trustee and the
Company hereby appoints the Trustee its agent to receive all presentations,
surrenders, notices and demands, except that Bearer Securities of that series
and the related coupons may be presented and surrendered for payment (including
payment of any additional amounts payable on Bearer Securities of that series
pursuant to Section 10.6) at the place specified for the purpose pursuant to
Section 3.1(5).
No payment of principal of, premium or interest on Bearer
Securities shall be made at any office or agency of the Company in the United
States or by check mailed to any address in the United States or by transfer to
an account maintained with a bank located in the United States; provided,
however, payment of principal of and any premium and interest denominated in
Dollars (including additional amounts payable in respect thereof) on any Bearer
Security may be made at an office or agency of, and designated by, the Company
located in the United States if (but only if) payment of the full amount of such
principal, premium, interest or additional amounts in Dollars at all offices
outside the United States maintained for that purpose by the Company in
accordance with this Indenture is illegal or effectively precluded by exchange
controls or other similar restrictions and the Trustee receives an Opinion of
Counsel that such payment within the United States is legal. Unless otherwise
provided as contemplated by Section 3.1 with respect to any series of Debt
Securities, at the option of the Holder of any Bearer Security or related
coupon, payment may be made by check in the currency designated for such payment
pursuant to the terms of such Bearer Security presented or mailed to an address
outside the United States or by transfer to an account in such currency
maintained by the payee with a bank located outside the United States.
The Company may also from time to time designate one or more
other offices or agencies (in or outside of such Place of Payment) where the
Debt Securities of one or more series and any appurtenant coupons (subject to
the preceding paragraph) may be presented or surrendered for any or all such
purposes, and may from time to time rescind such designations; provided however,
that no such designation or rescission shall in any manner relieve the Company
of its obligation to maintain an office or agency in each Place of Payment for
any series of Debt Securities, for such purposes. The Company will give prompt
written notice to the Trustee of any such designation and any change in the
location of any such other office or agency.
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Section 10.3. Money for Debt Securities Payments to Be Held in Trust
If the Company shall at any time act as its own Paying Agent
with respect to any series of Debt Securities, it will, on or before each due
date of the principal of (and premium, if any) or interest on any of the Debt
Securities of such series and any appurtenant coupons, segregate and hold in
trust for the benefit of the Persons entitled thereto a sum sufficient to pay
the principal (and premium, if any) or interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein provided, and
will promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents with
respect to any series of Debt Securities, it will, prior to each due date of the
principal of (and premium, if any) or interest on any Debt Securities of such
series and any appurtenant coupons, deposit with a Paying Agent a sum sufficient
to pay the principal (and premium, if any) on interest so becoming due, such sum
to be held in trust for the benefit of the Persons entitled to such principal,
premium or interest, and (unless such paying Agent is the Trustee) the Company
will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent with respect to any
series of Debt Securities other than the Trustee to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with Trustee,
subject to the provisions of this Section, that such Paying Agent will
(1) hold all sums held by it for the payment of the
principal of (and premium, if any) or interest on Debt Securities of
such series and any appurtenant coupons in trust for the benefit of
the Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company
(or any other obligor upon the Debt Securities of such series or any
appurtenant coupons) in the making of any payment of principal of
(and premium, if any) or interest on the Debt Securities of such
series of any appurtenant coupons; and
(3) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith pay to
the Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of terminating
its obligations under this Indenture with respect to Debt Securities of any
series or for any other purpose, pay, or by Company Order direct any Paying
Agent to pay, to the Trustee all sums held in trust by the Company or such
Paying Agent, such sums to be held by the Trustee upon the same trusts as those
upon which such sums were held by the Company or such Paying Agent; and, upon
such payment by any Paying Agent to the Trustee, such Paying Agent shall be
released from all further liability with respect to such money.
Any principal and interest received on the Eligible
Instruments deposited with the Trustee or any money deposited with the Trustee
or any Paying Agent, or then held by the Company, in trust for the payment of
the principal of (and premium, if any) or interest on any Debt Security of any
series or any appurtenant coupons or any money on deposit with the Trustee or
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any Paying Agent representing amounts deducted from the Redemption Price or
Repayment Price with respect to unmatured coupons not presented upon redemption
or exercise of the Holder's option for repayment pursuant to Section 11.6 or
13.3 and remaining unclaimed for two years after such principal (and premium, if
any) or interest has become due and payable shall be paid to the Company on
Company Request, or (if then held by the Company) shall be discharged from such
trust; and the Holder of such Debt Security or any coupon appertaining thereto
shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
Respect to such trust money (including the principal and interest received on
Eligible Instruments deposited with the Trustee), and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in an Authorized
Newspaper of general circulation in each of the Borough of Manhattan, the City
of New York, and each Place of Payment or mailed to each such Holder, or both,
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication
or mailing, any unclaimed balance of such money then remaining will be repaid to
the Company.
Section 10.4. Limitation on Mortgages and Liens.
[RESERVED]
Section 10.5. Limitation on Disposition of Voting Stock of, and Merger and
Sale of Assets by, the Bank
The Company will not:
(1) sell, transfer or otherwise dispose of any shares of
Voting Stock of the Bank or permit the Bank to issue, sell, or
otherwise dispose of any shares of its Voting Stock, unless, after
giving effect to any such transaction, the Bank remains a Controlled
Subsidiary; or
(2) permit the Bank to
(A) merge or consolidate, unless the surviving
corporation is a Controlled Subsidiary; or
(B) convey or transfer its properties and assets
substantially as an entirety to any Person, except to a
Controlled Subsidiary.
Section 10.6. Payment of Additional Amounts
If the Debt Securities of a series provide for the payment of
additional amounts, the Company will pay to the Holder of any Debt Security of
any series or any coupon appertaining thereto additional amounts upon the terms
and subject to the conditions provided therein. Whenever in this Indenture there
is mentioned, in any context, the payment of the principal of (or premium, if
any) or interest on, or in respect of, any Debt Security of any series or any
related coupon or the net proceeds received on the sale or exchange of any Debt
Security of any series, such mention shall be deemed to include mention of the
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payment of additional amounts provided for in the terms of such Debt Securities
and this Section to the extent that, in such context, additional amounts are,
were or would be payable in respect thereof pursuant to the provisions of this
Section and express mention of the payment of additional amounts (if applicable
in any provisions hereof shall not be construed as excluding additional amounts
in those provisions hereof where such express mention is not made.
If the Debt Securities of a series provide for the payment of
additional amounts, at least 10 days prior to the first Interest Payment Date
with respect to that series of Debt Securities (or if the Debt Securities of
that series will not bear interest prior to Maturity, the first day on which a
payment of principal (and premium, if any) is made), and at least 10 days prior
to each date of payment of principal (and premium, if any) or interest if there
has been any change with respect to the matters set forth in the below-mentioned
Officers' Certificate, the Company will furnish the Trustee and the Company's
principal Paying Agent or Paying Agents if other than the Trustee, with an
Officers' Certificate instructing the Trustee and such Paying Agent or Paying
Agents whether such payment of principal of (and premium, if any) or interest on
the Debt Securities of that series shall be made to Holders of Debt Securities
of that series or the related coupons who are United States Aliens without
withholding for or on account of any tax, assessment or other governmental
charge described in the Debt Securities of that series. If any such withholding
shall be required, then such Officers' Certificate shall specify by country the
amount, if any, required to be withheld on such payments to such Holders of Debt
Securities or coupons and the Company will pay to the Trustee or such Paying
Agent the additional amounts, if any, required by the terms of such Debt
Securities and the first paragraph of this Section.
Section 10.7. Officers' Certificate as to Default
The Company will deliver to the Trustee, on or before a date
not more than four months after the end of each fiscal year of the Company
(which on the date hereof is the calendar year) ending after the date hereof, an
Officers' Certificate, stating whether or not to the best knowledge of the
signers thereof the Company is in default in the performance and observance of
any of the terms, provisions and conditions of this Indenture, and, if the
Company shall be in default, specifying all such defaults and the nature thereof
of which they may have knowledge.
The Company will deliver written notice to the Trustee
promptly after any officer of the Company has knowledge of the occurrence of any
event which with the giving of notice or the lapse of time or both would become
an Event of Default under Clause (6) of Section 5.1.
Section 10.8. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with
any covenant or condition set forth in Sections 10.4 and 10.5, with respect to
the Debt Securities of any series if, before the time for such compliance, the
Holders of at least 66 2/3% in principal amount of the Debt Securities of such
series at the time Outstanding 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 Company and the duties of the Trustee
in respect of any such covenant or condition shall remain in full force and
effect.
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ARTICLE ELEVEN
REDEMPTION OF DEBT SECURITIES
Section 11.1. Applicability of Article.
Debt Securities of any series which are redeemable before
their Stated Maturity shall be redeemable in accordance with their terms and
(except as otherwise specified as contemplated by Section 3.1 for Debt
Securities of any series) in accordance with this Article.
Section 11.2. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Debt Securities
shall be evidenced by an Officers' Certificate authorized by or pursuant to a
Board Resolution. In case of any redemption at the election of the Company of
less than all of the Debt Securities of any series, the Company shall, at least
45 days prior to the Redemption Date fixed by the Company (unless a shorter
notice shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date and of the principal amount and the tenor and terms of the Debt
Securities of any series to be redeemed. In the case of any redemption of Debt
Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Debt Securities or elsewhere in this Indenture,
the Company shall furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction.
Section 11.3. Selection by Trustee of Debt Securities to Be Redeemed
Except as otherwise specified as contemplated by Section 3.1
for Debt Securities of any series, if less than all the Debt Securities of any
series with like tenor and terms are to be redeemed, the particular Debt
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Debt Securities of such
series with like tenor and terms not previously called for redemption, by such
method as the Trustee shall deem fair and appropriate and which may provide for
the selection for redemption of portions (equal to the minimum authorized
denomination for Debt Securities of such series or any integral multiple thereof
which is also an authorized denomination) of the principal amount of Registered
Securities or Bearer Securities (if issued in more than one authorized
denomination) of such series of a denomination larger than the minimum
authorized denomination for Debt Securities of such series.
The Trustee shall promptly notify the Company in writing of
the Debt Securities selection for redemption and, in the case of any Debt
Securities selected for partial redemption, the principal amount thereof to be
redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Debt Securities
shall relate, in the case of any Debt Security redeemed or to be redeemed only
in part, to the portion of the principal amount of such Debt Security which has
been or is to be redeemed.
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Section 11.4. Notice of Redemption
Notice of redemption shall be given in the manner provided in
Section 1.6 not less than 30 nor more than 60 days prior to the Redemption Date,
to each Holder of Debt Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) The Redemption Price,
(3) if less than all Outstanding Debt Securities of any
series are to be redeemed, the identification (and, in the case of
partial redemption, the principal amounts) of the particular Debt
Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Debt Security to be redeemed,
and that interest thereon shall cease to accrue on and after said
date,
(5) the Place or Places of Payment where such Debt
Securities, together in the case of Bearer Securities with all
coupons, if any, appertaining thereto maturing after the Redemption
Date, are to be surrendered for payment of the Redemption Price,
(6) that Bearer Securities may be surrendered for payment
only at such place or places which are outside the United States,
except as otherwise provided in Section 10.2,
(7) that the redemption is for a sinking fund, if such is
the case, and
(8) the CUSIP number, if any.
A notice of redemption published as contemplated by Section
1.6 need not identify particular Registered Securities to be redeemed.
Notice of redemption of Debt Securities to be redeemed at the
election of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company.
Section 11.5. Deposit of Redemption Price
On or prior to any Redemption Date, the Company shall deposit
with the Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 10.3) an amount
of money and/or, to the extent the Debt Securities to be redeemed are
denominated and payable in Dollars only, Eligible Instruments the payments of
principal and interest on which when due (and without reinvestment and providing
no tax liability will be imposed upon the Trustee or the Holders of the Debt
Securities to be redeemed) will provide money on or prior to the Redemption Date
in such amounts as will (together with any money irrevocably deposited in trust
with the Trustee, without investment) be sufficient to pay the Redemption Price
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of, and (except if the Redemption Date shall be an Interest Payment Date)
accrued interest on, all the Debt Securities or portions thereof which are to be
redeemed on that date; provided, however, that deposits with respect to Bearer
Securities shall be made with a Paying Agent or Paying Agents located outside
the United States except as otherwise provided in Section 10.2, unless otherwise
specified as contemplated by Section 3.1.
Section 11.6. Debt Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Debt
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified and from and after such date
(unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Debt Securities shall cease to bear interest and the
coupons for such interest appertaining to any Bearer Securities so to be
redeemed, except to the extent provided below, shall be void. Upon surrender of
any such Debt Security for redemption in accordance with said notice, such Debt
Security shall be paid by the Company at the Redemption Price, together with
accrued interest to the Redemption Date; provided, however, that installments of
interest on Bearer Securities whose Stated Maturity is on or prior to the
Redemption Date shall be payable only upon presentation and surrender of coupons
for such interest (at an office or agency located outside the United States
except as otherwise provided in Section 10.2), and provided further, that
installments of interest on Registered Securities whose Stated Maturity is on or
prior to the Redemption Date shall be payable to the Holders of such Debt
Securities, or one or more Predecessor Securities, registered as such on the
relevant Record Dates according to their terms and the provision of Section 3.7.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Bearer Security may be paid after deducting from the Redemption Price an amount
equal to the face amount of all such missing coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and the Trustee if there
be furnished to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder of such Bearer
Security shall surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made from the Redemption
Price, such Holder shall be entitled to receive the amount so deducted without
interest thereon; provided, however, that interest represented by coupons shall
be payable only upon presentation and surrender of those coupons at an office or
agency located outside of the United States except as otherwise provided in
Section 10.2.
If any Debt Security called for redemption shall not be so
paid upon surrender thereof for redemption, the principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Debt Security.
Section 11.7. Debt Securities Redeemed in Part
Any Registered Security which is to be redeemed only in part
shall be surrendered at a Place of Payment therefor (with, if the Company, the
Security Registrar or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company, the Security
Registrar and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
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shall authenticate and deliver to the Holder of such Debt Security without
service charge, a new Registered Security or Registered Securities of the Same
series and of like tenor and terms, of any authorized denominations as requested
by such Holder in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Debt Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
Section 12.1. Applicability of Article.
The provisions of this Article shall be applicable to any
sinking fund for the retirement of Debt Securities of a series except as
otherwise specified as contemplated by Section 3.1 for Debt Securities of such
series.
The minimum amount of any sinking fund payment provided for by
the terms of Debt Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount provided
for by the term of Debt Securities of any series is herein referred to as an
"optional sinking fund payment". If provided for by the terms of Debt Securities
of any series, the amount of any sinking fund payment may be subject to
reduction as provided in Section 12.2. Each sinking fund payment shall be
applied to the redemption of Debt Securities of any series as provided for by
the terms of Debt Securities of such series.
Section 12.2. Satisfaction of Sinking Fund Payments with Debt Securities.
The Company (1) may deliver Outstanding Debt Securities of a
series (other than any previously called for redemption), together in the case
of any Bearer Securities of such series with all unmatured coupons appertaining
thereto, and (2) may apply as a credit Debt Securities of a series which have
been redeemed either at the election of the Company pursuant to the terms of
such Debt Securities or through the application of permitted optional sinking
fund payments pursuant to the terms of such Debt Securities, in each case in
satisfaction of all or any part of any sinking fund payment with respect to the
Debt Securities of such series required to be made pursuant to the terms of such
Debt Securities as provided for by the terms of such series; provided that such
Debt Securities have not been previously so credited. Such Debt Securities shall
be received and credited for such purpose by the Trustee at the Redemption Price
specified in such Debt Securities for redemption through operation of the
sinking fund and the amount of such sinking fund payment shall be reduced
accordingly. If as a result of the delivery or credit of Debt Securities in lieu
of cash payments pursuant to this Section 12.2, the principal amount of Debt
Securities to be redeemed in order to exhaust the aforesaid cash payment shall
be less than $100,000, the Trustee need not call Debt Securities for redemption,
except upon Company Request, and such cash payment shall be held by the Trustee
or a Paying Agent and applied to the next succeeding sinking fund payment,
provided, however, that the Trustee or such Paying Agent shall at the request of
the Company from time to time pay over and deliver to the Company any cash
payment so being held by the Trustee or such Paying Agent upon delivery by the
Company to the Trustee of Debt Securities purchased by the Company having an
unpaid principal amount equal to the cash payment requested to be released to
the Company.
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Section 12.3. Redemption of Debt Securities for Sinking Fund
Not less than 60 days prior to each sinking fund payment date
for any series of Debt Securities (unless a shorter period shall be satisfactory
to the Trustee), the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash, the portion thereof, if any, which
is to be satisfied by crediting Debt Securities of that series pursuant to
Section 12.2 and the basis for any such credit and, prior to or concurrently
with the delivery of such Officers' Certificate, will also deliver to the
Trustee any Debt Securities to be so credited and not theretofore delivered to
the Trustee. Not less than 30 days (unless a shorter period shall be
satisfactory to the Trustee) before each such sinking fund payment date the
Trustee shall select the Debt Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 11.3 and cause notice of the
redemption thereof to be given in the name of an at the expense of the Company
in the manner provided in Section 11.4. Such notice having been duly given, the
redemption of such Debt Securities shall be made upon the terms and in the
manner stated in Sections 11.5, 11.6 and 11.7.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
Section 13.1. Applicability of Article
Debt Securities of any series which are repayable at the
option of the Holders thereof before their Stated Maturity shall be repaid in
accordance with their terms and (except as otherwise specified pursuant to
Section 3.1 for Debt Securities of such series) in accordance with this article.
Section 13.2. Repayment of Debt Securities
Each Debt Security which is subject to repayment in whole or
in part at the option of the Holder thereof on a Repayment Date shall be repaid
at the applicable Repayment Price together with interest accrued to such
Repayment Date as specified pursuant to Section 3.1.
Section 13.3. Exercise of Option; Notice.
Each Holder desiring to exercise such Holder's option for
repayment shall, as conditions to such repayment, surrender the Debt Security to
be repaid in whole or in part together with written notice of the exercise of
such option at any office or agency of the Company in a Place of Payment, not
less than 30 nor more than 45 days prior to the Repayment Date; provided,
however, that surrender of Bearer Securities together with written notice of
such exercise of such option shall be made at an office or agency located
outside the United States except as otherwise provided in Section 10.2. Such
notice, which shall be irrevocable, shall specify the principal amount of such
Debt Security to be repaid, which shall be equal to the minimum authorized
denomination for such Debt Security or an integral multiple thereof, and shall
identify the Debt Security to be repaid and, in the case of a partial repayment
of the Debt Security, shall specify the denomination or denominations of the
Debt Security or Debt Securities of the same series to be issued to the Holder
for the portion of the principal of the Debt Security surrendered which is not
to be repaid.
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If any Bearer Security surrendered for repayment shall not be
accompanied by all unmatured coupons and all matured coupons in default, such
Bearer Security may be paid after deducting from the Repayment Price an amount
equal to the face amount of all such missing coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and the Trustee if there
be furnished to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder of such Bearer
Security shall surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made from the Repayment
Price, such Holder shall be entitled to receive the amount so deducted without
interest thereon; provided, however that interest represented by coupons shall
be payable only at an office or agency located outside the United States except
as otherwise provided in Section 10.2.
The Company shall execute and the Trustee shall authenticate
and deliver without service charge to the Holder of any Registered Security so
surrendered a new Registered Security or Securities of the same series, of any
authorized denomination specified in the foregoing notice, in an aggregate
principal amount equal to any portion of the principal of the Registered
Security so surrendered which is not to be repaid.
The Company shall execute and the Trustee shall authenticate
and deliver without service charge to the Holder of any Bearer Security so
surrendered a new Registered Security or Securities or new Bearer Security or
Securities (and shall appurtenant unmatured coupons and matured coupons in
default) or any combination thereof of the same series of any authorized
denomination or denominations specified in the foregoing notice, in an aggregate
principal amount equal to any portion of the principal of the Debt Security so
surrendered which is not to be paid; provided, however, that the issuance of a
Registered Security therefor shall be subject to applicable laws and
regulations, including provisions of the United States federal income tax laws
and regulations in effect at the time of the exchange; neither the Company, the
Trustee nor the Security Registrar shall issue Registered Securities for Bearer
Securities if it has received an Opinion of Counsel that as a result of such
issuance the Company would suffer adverse consequences under the United States
federal income tax laws then in effect and the Company has delivered to the
Trustee a Company Order directing the Trustee not to make such issuances
thereafter unless and until the Trustee receives a subsequent Company Order to
the contrary. The Company shall deliver copies of such Company Order to the
Security Registrar.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the repayment of Debt Securities
shall relate, in the case of any Debt Security repaid or to be repaid only in
part, to the portion of the principal of such Debt Security which has been or is
to be repaid.
Section 13.4. Election of Repayment by Remarketing Entities
The Company may elect, with respect to Debt Securities of any
series which are repayable at the option of the Holders thereof before their
stated Maturity, at any time prior to any Repayment Date to designate one or
more Remarketing Entities to purchase, at a price equal to the Repayment Price,
Debt Securities of such series from the Holders thereof who give notice and
surrender their Debt Securities in accordance with Section 13.3.
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Section 13.5. Securities Payable on the Repayment Date
Notice of exercise of the Option of repayment having been
given and the Debt Securities so to be repaid having been surrendered as
aforesaid, such Debt Securities shall, unless purchased in accordance with
Section 13.4, on the Repayment Date become due and payable at the price therein
specified and from and after the Repayment Date such Debt Securities shall cease
to bear interest and shall be paid on the Repayment Date, and the coupons for
such interest appertaining to Bearer Securities so to be repaid, except to the
extent provided above, shall be void, unless the Company shall default in the
payment of such price, in which case the Company shall continue to be obligated
for the principal amount of such Debt Securities and shall be obligated to pay
interest on such principal amount at the rate borne by such Debt Securities from
time to time until payment in full of such principal amount.
ARTICLE FOURTEEN
EXCHANGE OF CAPITAL SECURITIES FOR DEBT SECURITIES
Section 14.1. Applicability of Article
If an Officers' Certificate or supplemental indenture pursuant
to Section 3.1 provides for the exchange of Capital Securities for Debt
Securities of any series at the election of the Company or otherwise, Debt
Securities of such series shall be exchanged for Capital Securities in
accordance with their terms and (except as otherwise specified in such Officers'
Certificate or supplemental indenture) in accordance with this Article.
Section 14.2. Exchange of Capital Securities for Debt Securities at Stated
Maturity.
At the Stated Maturity of Debt Securities of any series which
may be exchanged, subject to prepayment prior to such Stated Maturity on the
Capital Exchange Date selected by the Company for Debt Securities of such
series, as described below, early exchange pursuant to Section 14.3 or payment
in cash pursuant to Section 5.2, 14.16 or 14.17, the Company shall exchange
Capital Securities with a Market Value equal to the principal amount of the
Outstanding Debt Securities of such series for the Debt Securities of such
series in whole.
The Company shall give notice in the manner provided in
Section 1.6 to Holders of the Debt Securities of any series to be exchanged, the
Trustee and the Capital Exchange Agent as to the type of Capital Securities to
be exchanged for the Debt Securities of such series on the Capital Exchange Date
for Debt Securities of such series. Such notice shall include a form of Capital
Security Election Form substantially as set forth in Section 14.9, shall make
the statements and contain the information included in Section 14.4(a), and
shall be given no less than 90 days prior to the Stated Maturity of such Debt
Securities. Notice of such Capital Exchange Date, together with the amount of
Capital Securities being exchanged for each $1,000 principal amount of Debt
Securities of such series, or the minimum denomination of the Debt Securities of
such series, if larger, shall also be given by the Company in the manner
required by Section 14.4(b) not less than three Business Days prior to such
Capital Exchange Date.
The Capital Exchange Date for any prepayment of Debt
Securities of each series may be selected by the Company to be any date between
a date 60 days prior to the Stated Maturity of such Debt Securities and such
Stated Maturity, inclusive, and to be the date of the closing of the Secondary
Offering for Debt Securities of such series. In the event the Company fails to
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effect such Secondary Offering, the Capital Exchange Date will be the Stated
Maturity of the Debt Securities of such series. Notice of each such Capital
Exchange Date, together with the amount of Capital Securities being exchanged
for each $1,000 principal amount of Debt Securities of such series, or the
minimum denomination of the Debt Securities of such series, if larger, shall
also be given by the Company in the manner required by Section 14.4(b) not less
than three Business Days prior to such Capital Exchange Date.
The Company will effect each Secondary Offering such that the
closing of the Secondary Offering will occur on the Capital Exchange Date.
Section 14.3. Right of Early Exchange of Capital Securities for Debt
Securities.
The Debt Securities of any series to be exchanged may be
exchanged at the election of the Company, as a whole or from time to time in
part, prior to the Stated Maturity thereof for Capital Securities with a Market
Value equal to the principal amount of such Debt Securities on any early Capital
Exchange Date, together with accrued interest to such Capital Exchange Date.
The Company shall give notice in the manner provided in
Section 1.6 to Holders of the Debt Securities of any series to be exchanged, the
Trustee and the Capital Exchange Agent not less than 90 days nor more than 120
days prior to any early Capital Exchange Date for Debt Securities of such
series, which notice shall include a form of Capital Security Election Form
substantially as set forth in Section 14.9 and make the statements and contain
the information included in Section 14.4(a). Notice of each such early Capital
Exchange Date, together with the amount of Capital Securities being exchanged
for each $1,000 principal amount of Debt Securities of such series, or the
minimum denomination of such series, if larger, shall also be given by the
Company in the manner required by Section 14.4(b) not less than three Business
Days prior to such early Capital Exchange Date.
The Company may at its option accelerate any such Capital
Exchange Date within the 60-day period prior to such Capital Exchange Date by
giving notice of such accelerated Capital Exchange Date, together with the
amount of Capital Securities being exchanged for each $1,000 principal amount of
Debt Securities of such series, or the minimum denomination of such series, if
larger, in the manner required by Section 14.4(b) not less than three Business
Days prior to such accelerated Capital Exchange Date.
The Company will effect each Secondary Offering such that the
closing of such Secondary Offering will occur on the Capital Exchange Date.
Section 14.4. Notices of Exchange
(a) All notices of exchange subject to this paragraph shall
state:
(i) the types of Capital Securities to be exchanged for
the Debt Securities of such series on the Capital Exchange Date for
Debt Securities of such series;
(ii) the proposed Capital Exchange Date;
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(iii) that each Holder of Debt Securities of such series
being exchanged will receive on such Capital Exchange Date accrued
and unpaid interest in cash and may elect to receive on such Capital
Exchange Date Capital Securities with a Market Value equal to the
principal amount of the Debt Securities of such series owned by such
Holder and that, in the absence of any such election by the Holder,
such Holder will be deemed to have received on such Capital Exchange
Date Capital Securities having such Market Value and to have elected
to have such Capital Securities sold for such Holder by the Company
in the related Secondary Offering for cash proceeds to such Holder on
such Capital Exchange Date equal to the aggregate principal amount of
all Debt Securities of such series being exchanged owned by such
Holder;
(iv) that on such Capital Exchange Date the Capital
Exchange Price will become due and payable upon each such Debt
Security to be exchanged and that interest thereon will cease to
accrue on and after said date;
(v) if less than all Outstanding Debt Securities of any
series are to be exchanged, the identification and principal amount
of the particular Debt Securities to be exchanged;
(vi) that each Holder for whom Capital Securities are
being offered in the Secondary Offering shall be deemed to have
appointed the Company its attorney-in-fact to execute any and all
documents and agreements the Company deems necessary or appropriate
to effect such Secondary Offering;
(vii) (A) that the Company will assume, unless advised to
the contrary in writing within 30 days after the date of the notice
of exchange, that the Capital Securities are to be offered for the
account of the Holder, that such Holder has not held any position,
office of other material relationship with the Company within three
years preceding the Secondary Offering, that the Holder owns no other
Capital Securities, and that after completion of the Secondary
Offering the Holder will own less than one percent of the class of
such Capital Securities, and (B) that if any of these assumptions is
not correct, the Holder shall promptly so advise the Company;
(viii) the Place or Places of Capital Exchange;
(ix) that Bearer Securities may be surrendered for payment
or exchange only at a Place or Places of Capital Exchange which are
outside the United States, except as otherwise provided in Section
10.2; and
(x) the CUSIP number, if any.
(b) Each notice of exchange subject to this paragraph shall
be given in the manner provided in Section 1.6 to each Holder of Debt Securities
to be exchanged, and the Company shall forthwith give such notice by telephone
to the Trustee and the Capital Exchange Agent, promptly confirmed in writing.
(c) (i) Except as may otherwise be specified pursuant to
Section 3.1 for Debt Securities of any series, if less than all the Debt
Securities of any series are to be exchanged, the Company shall at least 135
days prior to the related Capital Exchange Date (unless a shorter period
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shall be satisfactory to the Trustee) notify the Trustee of such Capital
Exchange Date and of the principal amount of Debt Securities of such series to
be exchanged and the particular Debt Securities to be exchanged shall be
selected not more than 135 days prior to the related Capital Exchange Date by
the Trustee, from the Outstanding Debt Securities of such series not previously
exchanged, by such method as the Trustee shall deem fair and appropriate and
which may provide for the selection for exchange of portions (equal to the
minimum authorized denomination for Debt Securities of such series or any
integral multiple thereof) of the principal amount of Registered or Bearer
Securities of such series of a denomination larger than the minimum authorized
denomination for Debt Securities of such series.
In any case where Debt Securities of such series are
registered in the same name, the Trustee in its discretion may treat the
aggregate principal amount so registered as if it were represented by one Debt
Security of such series.
(ii) The Trustee shall promptly notify the Company in
writing of the Debt Securities selected for exchange and, in the case
of any Debt Securities selected for partial exchange, the principal
amount thereof to be exchanged.
(iii) For all purposes of this Indenture, unless the
context otherwise requires, all provisions relating to the exchange
of Debt Securities shall relate, in the case of any Debt Securities
exchanged or to be exchanged only in part, to the portion of the
principal amount of such Debt Security which has been or is to be
exchanged.
Section 14.5. Rights and Duties of Holders of Debt Securities to be
Exchanged for Capital Securities.
(a) Subject to Section 5.3, and without prejudice to the
rights pursuant to Section 14.13 of Holders of Debt Securities of any series to
be exchanged, no Holder of Debt Securities of such series shall be entitled to
receive any cash from the Company on any Capital Exchange Date or at the Stated
Maturity of any Debt Security of such series except from the proceeds of the
sale of such Holder's Capital Securities in the related Secondary Offering and
except as provided herein with respect to fractional Capital Securities, amounts
equal to expenses of the sale in the related Secondary Offering of such Capital
Securities, accrued and unpaid interest and acceleration upon an Event of
Default. In the event that the Company does not effect such Secondary Offering,
such Holder will receive Capital Securities with a Market Value equal to the
principal amount of Debt Securities of such series owned by such Holder which
are subject to such exchange and not cash other than in lieu of any fractional
Capital Securities and for accrued and unpaid interest, without prejudice to
such Holder's rights pursuant to Section 14.13.
(b) Each Holder for whom Capital Securities are being
offered in the Secondary Offering shall be deemed to have appointed the Company
its attorney-in-fact to execute any and all documents and agreements the Company
deems necessary or appropriate to effect such Secondary Offering.
(c) Unless advised to the contrary in writing within 30 days
following the date of the notice described in Section 14.4(a) by any Holder for
whom Capital Securities are being offered in the Secondary Offering, the Company
shall assume for the purposes of any Secondary Offering that the Capital
Securities are to be offered for the account of such Holder, that such Holder
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has not held any position, office or other material relationship with the
Company within three years preceding the Secondary Offering, that such Holder
owns no other Capital Securities, and that after completion of the Secondary
Offering such Holder will own less than one percent of the class of such Capital
Securities.
(d) Each Holder for whom Capital Securities are being
offered in the Secondary Offering agrees to indemnify and hold harmless the
Company, any other Holder, and any underwriter, agent or other similar person
from and against any and all losses, claims, damages and liabilities resulting
from or based upon any untrue statement or alleged untrue statement of any
material fact contained in any notice of exchange, any offering memorandum or
selling document or registration statement relating to the Secondary Offering,
any preliminary prospectus or prospectus contained therein, or any amendment
thereof or supplement thereto, or resulting from or based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, which untrue
statement, alleged untrue statement, omission or alleged omission is made
therein (i) in reliance upon and in conformity with any written information
furnished to the Company by or on behalf of any such Holder specifically for use
in connection with the preparation thereof or (ii) because of such Holder's
failure to advise the Company in writing that any of the assumptions described
in Section 14.4(a)(7)(A) and Subsection (c) of this Section is incorrect;
(e) In order for any Holder who has duly returned a Capital
Security Election Form to receive Capital Securities on any Capital Exchange
Date for any Debt Security of any series, (1) the Holder of any Registered
Security to be exchanged shall surrender such Debt Security (with, if the
Company or the Trustee so requires, due endorsement by, or a written instrument
of transfer in form satisfactory to the Company and the Trustee duly executed
by, the Holder of any Registered Security or his attorney duly authorized in
writing), to the Capital Exchange Agent on the Capital Exchange Date, and (2)
the Holder of any Bearer Security to be exchanged shall surrender such Debt
Security and all unmatured coupons and all matured coupons in default with the
Capital Security Election Form at a Place of Capital Exchange outside the United
States designated pursuant to Section 14.4(a)(8) except as otherwise provided in
Section 10.2. If the Holder of a Bearer Security is unable to produce any such
Debt Security or coupons, the surrender of such Debt Security or coupons may be
waived by the Company and the Trustee, if there be furnished to them such
security or indemnity as they may require to save each of them and any Capital
Exchange Agent harmless in respect of such Debt Security or coupons. Except as
provided in Section 3.7, no payment or adjustment shall be made upon any
exchange on account of any interest accrued on any Debt Securities surrendered
for exchange or on account of any dividends or interest on the Capital
Securities issued upon exchange.
(f) Debt Securities of any series to be exchanged shall be
deemed to have been exchanged on the Capital Exchange Date therefor in
accordance with the foregoing provision, and at such time the rights of the
Holders of such Debt Securities as Holder shall cease (subject to the provisions
of Section 3.7 and without prejudice to the rights of Holders of Debt Securities
of such series pursuant to Section 14.13), and the Person or Persons entitled to
receive the Capital Securities issuable upon such exchange shall be treated for
all purposes as the record holder or holders of such Capital Securities at such
time.
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Section 14.6. Election to Exchange
The election of the Company to exchange Capital Securities for
Debt Securities pursuant to Section 14.3 shall be evidenced by a Board
Resolution.
Section 14.7. Deposit of Capital Exchange Price
On any Capital Exchange Date for Debt Securities of any series
which may be exchanged, the Company shall deposit with the Trustee or with a
Capital Exchange Agent in the Borough of Manhattan, the City of New York (or, if
the Company is acting as Capital Exchange Agent, segregate and hold in trust as
provided in Section 10.3) Capital Securities and an amount of money which
together are sufficient to pay the Capital Exchange Price of, and (except if
such Capital Exchange Date shall be an Interest Payment Date) accrued interest
on, all the Debt Securities of such series or portions thereof which are to be
exchanged on that date; provided, however, that deposits with respect to Bearer
Securities shall be made with a Capital Exchange Agent or Capital Exchange
Agents, located outside the United States except as otherwise provided in
Section 10.2, unless otherwise specified as contemplated by Section 3.1.
Section 14.8. Debt Securities Due on Capital Exchange Date; Debt Securities
Exchanged in Part
Notice of exchange having been given as aforesaid, the Debt
Securities of any series so to be exchanged shall, on the Capital Exchange Date
for such Debt Securities, become due and payable at the Capital Exchange Price
therein specified, and from and after such date (unless the Company shall
default in the payment of the Capital Exchange Price and accrued interest) Debt
Securities of such series to be exchanged shall cease to bear interest and the
coupons for such interest appertaining to any Bearer Securities so to be
exchanged, except to the extent provided below, shall be void. Upon surrender of
any Debt Security of such series for exchange in accordance with said notice,
such Debt Security shall be paid by the Company at the Capital Exchange Price,
together with accrued interest to the Capital Exchange Date; provided, however,
that if such Capital Exchange Date is an Interest Payment Date, the interest
payable on such date shall be paid to the Holder of Debt Securities of such
series according to the terms of the Debt Securities of such series and the
provisions of Section 3.7; and provided further, that exchanges of Bearer
Securities shall be made only and installments of interest on Bearer Securities
whose Stated Maturity is on or prior to the Capital Exchange Date shall be
payable only at an office or agency located outside the United States except as
otherwise provided in Section 10.2 and, unless otherwise specified as
contemplated by Section 3.1, only upon presentation and surrender of those
Bearer Securities and coupons.
If any Bearer Security surrendered for exchange shall not be
accompanied by all unmatured coupons and all matured coupons in default such
Bearer Security may be paid after deducting from the Capital Exchange Price an
amount equal to the face amount of all missing coupons, or the surrender of such
missing coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Capital Exchange Agent harmless. If thereafter the Holder of such
Bearer Security shall surrender to the Trustee or Capital Exchange Agent any
such missing coupon in respect of which a deduction shall have been made from
the Capital Exchange Price, such Holder shall be entitled to received the amount
so deducted; provided, however, that interest on Bearer Securities shall be
payable only at an office or agency located outside of the United States except
as otherwise provided in Section 10.2.
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If any Debt Security of any series called for exchange shall
not be so paid or exchanged upon surrender thereof for exchange, the principal
shall, until paid, bear interest from such Capital Exchange Date at the rate or
rates prescribed therefor in such Debt Security; provided, however, that in the
case of Bearer Securities, any such principal and interest thereon shall be paid
at an office or agency located outside the United States except as otherwise
provided in Section 10.2.
Any Registered Security which is to be exchanged only in part
shall be surrendered as provided herein (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder or his
attorney duly authorized in writing) and the Company shall execute, the Trustee
shall authenticate and there shall be delivered to the Holder of such Debt
Security without service charge a new Registered Security or Securities of the
same series, of any authorized denomination or denominations as requested by
such Holder in aggregate principal amount equal to and in exchange for the
unexchanged portion of principal of the Debt Security so surrendered.
Any Bearer Security which is to be exchanged only in part
shall be surrendered as provided herein and the Company shall execute, the
Trustee shall authenticate and there shall be delivered to the Holder of such
Debt Security without service charge a new Registered Security or Securities or
new Bearer Security or Securities (and all appurtenant unmatured coupons and
coupons in default) or any combination thereof of the same series, of any
authorized denomination or denominations as requested by such Holder in
aggregate principal amount equal to and in exchange for the unexchanged portion
of principal of the Debt Security so surrendered; provided, however, the
issuance of a Registered Security therefor shall be subject to applicable laws
and regulations, including provisions of the United States federal income tax
laws and regulations in effect at the time of the exchange; neither the Company,
the Trustee nor the Security Registrar shall issue Registered Securities in
exchange for Bearer Securities if it has received an Opinion of Counsel that as
a result of such exchanges the Company would suffer adverse consequences under
the United States federal income tax laws then in effect and the Company has
delivered to the Trustee a Company Order directing the Trustee not to make such
exchanges thereafter unless and until the Company delivers to the Trustee a
subsequent Company Order to the contrary. The Company shall deliver copies of
such Company Orders to the Security Registrar.
Section 14.9. Form of Capital Security Election Form
The form of Capital Security Election Form shall be
substantially as follows with such additions, deletions, or changes thereto as
may be approved by the Company:
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CAPITAL SECURITY ELECTION FORM
To: [Insert Names and Addresses of
Capital Exchange Agents]
The undersigned Holder of [insert title of Debt Security]
("Debt Securities") of Sovereign Bancorp, Inc. hereby elects to receive on the
Capital Exchange Date determined pursuant to the Indenture dated as of November
1, 2005 ("Indenture"), between Sovereign Bancorp, Inc. and BNY Midwest Trust
Company, as Trustee, and referred to in the notice of exchange published or
delivered to the undersigned with this Capital Security Election Form, Capital
Securities of Sovereign Bancorp, Inc. with a Market Value equal to the principal
amount of the Debt Securities being exchanged owned by the undersigned Holder
and, in the case of Bearer Securities, delivered herewith together with all
coupons appertaining thereto. Unless this Capital Security Election Form
together with, in the case of Bearer Securities, such Bearer Securities and
coupons, is received by any Capital Exchange Agent named above at an address
shown above on or prior to ___________, the Holder will be deemed to have
elected to participate in the sale of the Holder's Capital Securities in the
Secondary Offering and will receive cash on the Capital Exchange Date in an
amount equal to the principal amount of all Debt Securities being exchanged
owned by the Holder. All terms used herein and not otherwise defined herein
shall have the meanings specified in the Indenture.
Dated
---------------------------------- ------------------------------------
Name of Holder
Section 14.10. Fractional Capital Securities.
No fractional Capital Securities shall be issued upon exchange
for any Debt Securities. If more than one Debt Security of any series shall be
surrendered for exchange at one time by the same Holder, the amount of all
Capital Securities which shall be issuable upon exchange thereof shall be
computed on the basis of the aggregate principal amount of Debt Securities of
such series so surrendered. In lieu of issuing any fractional Capital Security,
the Company shall pay a cash adjustment in respect of such fraction in an amount
equal to the same fraction of the Market Value of the Capital Security.
Section 14.11. Company to Obtain Governmental and Regulatory Approvals
The Company covenants that if any Capital Securities required
to be exchanged for Debt Securities hereunder require registration with or
approval or any governmental authority under any federal or state law, or any
national securities exchange, before such Capital Securities may be issued, the
Company will in good faith and as expeditiously as possible endeavor to cause
such Capital Securities to be duly registered or approved, as the case may be;
provided, however, that nothing in this Section shall be deemed to affect in any
way the obligation of the Company to exchange Capital Securities for Debt
Securities as provided in this Article.
Section 14.12. Taxes on Exchange.
The Company will pay any and all transfer, stamp or similar
taxes that may be payable in respect of the issue or delivery of Capital
Securities in exchange for Debt Securities pursuant hereto.
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Section 14.13. Covenants as to Capital Securities and Secondary Offering.
(a) The Company covenants that it will issue, or cause to be
issued, Capital Securities of the type, in the amounts and at the times required
by this Indenture.
(b) The Company covenants that all Capital Securities which
may be issued in exchange for Debt Securities will upon issuance be duly and
validly issued and, if applicable, fully paid and nonassessable.
(c) The Company unconditionally undertakes to sell Capital
Securities in each Secondary Offering (and to bear all expenses of each
Secondary Offering, including underwriting discounts and commissions) at the
times and in the manner required by this Indenture unless all Holders have duly
elected to receive Capital Securities on the related Capital Exchange Date.
(d) The Company agrees to indemnify and hold harmless in
connection with any Secondary Offering any Holder for the account of whom
Capital Securities are being offered and sold from and against any and all
losses, claims, damages and liabilities resulting from or based upon any untrue
statement or alleged untrue statement of any material fact contained in any
notice of exchange, any offering memorandum or selling document or registration
statement relating to the Secondary Offering, any preliminary prospectus or
prospectus contained therein, or any amendment thereof or supplement thereto, or
resulting from or based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or resulting from the Company's failure to comply with
Section 14.11; provided, however, the Company will not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon any such untrue statement, alleged untrue statement, omission
or alleged omission made therein (i) in reliance upon and in conformity with
written information furnished to the Company by or on behalf of any such Holder
specifically for use in connection with the preparation thereof or (ii) because
of such Holder's failure to advise the Company in writing that any of the
assumptions described in Section 14.4(a)(7)(A) is incorrect. In connection with
any Secondary Offering, the Company agrees to obtain appropriate indemnification
of any Holder for the account of whom Capital Securities are being offered and
sold in any Secondary Offering from any underwriter, agent or other similar
person.
Section 14.14. Provision in Case of Consolidation, Merger or Transfer of
Assets
In case of any consolidation of the Company with, or merger of
the Company into, any other corporation (other than a consolidation or merger in
which the Company is the continuing corporation), or in case of any conveyance
or transfer of the properties and assets of the Company substantially as an
entirety, the corporation formed by such consolidation or the corporation into
which the Company shall have been merged or the corporation with shall have
acquired such assets of the Company, as the case may be, shall execute and
deliver to the Trustee a supplemental indenture providing that the Holder of
each Debt Security then Outstanding shall have the right thereafter to receive
securities of such successor on the Capital Exchange Date for such Debt Security
with a Market Value equal to the principal amount of such Debtor Security. The
above provisions of this Section shall similarly apply to successive
consolidations, mergers, conveyances or transfers.
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Section 14.15. Responsibility of Trustee
The Trustee shall not at any time be under any duty or
responsibility to any Holder of Debt Securities of any series to be exchanged to
determine the Market Value of any Capital Securities delivered in exchange for
Debt Securities of such series and may rely on and shall be entitled to receive
prior to any Capital Exchange Date for Debt Securities of such series an
Officers' Certificate of the Company as to the Market Value of the Capital
Securities being exchanged for the Debt Securities of such series and the amount
of Capital Securities being exchanged for each $1,000 principal amount of Debt
Securities of such series or the minimum denomination of such series, if larger,
and that such Capital Securities qualify as Capital Securities under the
definition thereof contained herein. The Trust shall not be accountable with
respect to the validity or value (or the kind or amount) of any Capital
Securities which may at any time be issued or delivered in exchange for any Debt
Security; and the Trustee does not make any representation with respect thereto.
The Trustee shall not be responsible for any failure of the Company to issue,
transfer or deliver any Capital Securities or Capital Security certificates or
other securities or property upon the surrender of any Debt Security for the
purpose of exchange or to comply with any of the covenants of the Company
contained in this Article.
Section 14.16. Revocation of Obligation to Exchange Capital Securities for
Debt Securities.
The Company's obligation to exchange Capital Securities for
Debt Securities of any series as provided in Section 14.2 is absolute and
unconditional; provided, however, that such obligation may be revoked at the
option of the Company at any time on not less than 60 days' prior notice given
in the manner provided in Section 1.6 to the Holders of Debt Securities of such
series, the Trustee and the Capital Exchange Agent, if the Company shall
determine that under then regulations of the Company's Primary Federal Regulator
either the Debt Securities are no longer includable as capital or it is no
longer necessary for the Company to be obligated to exchange Capital Securities
for Debt Securities in order for the Debt Securities to maintain the same
capital treatment as they are then receiving under such regulations or if
approval of the primary Federal Regulator is obtained for such revocation.
In the event such obligation is revoked
(a) the Company will pay the Debt Securities of such series
in cash at 100% of the principal amount thereof on the Stated Maturity thereof,
and
(b) the Company may, at any time on or after a date selected
by the Company, on not less than 60 days' prior notice given in the manner
provided in Section 1.6 to the Holders of Debt Securities of such series and the
Trustee, redeem the Debt Securities of such series, in whole or in part, for
cash at 100% of the principal amount thereof, plus accrued interest to the
Redemption Date.
Section 14.17. Optional Securities Funds.
(a) (i) With respect to Debt Securities of any series for
which an Officers' Certificate or supplemental indenture pursuant to Section 3.1
provides that the Debt Securities of such series are exchangeable for Capital
Securities, the Company may elect to establish a fund (referred to herein as the
"Optional Securities Funds") to which funds may at any time be designated
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by the Company as provided in Section 15.2 as if such Optional Securities Funds
were Securities Funds (as defined in Article Fifteen) to be used to pay the
principal of the Debt Securities of such series.
(ii) Notwithstanding any provisions to the contrary
contained in this Indenture or in the Debt Securities of any series,
neither funds designated as Optional Securities Funds nor any other
property from time to time held as Optional Securities Funds shall be
deemed to be for any purpose property of the Holders or trust funds
for the benefit of the Holders, and the Optional Securities Funds
shall not constitute security for the payment of the Debt Securities.
(b) In lieu of, or in addition to, any exchange of Capital
Securities for Debt Securities of any series which may be made in accordance
with the provisions of Sections 14.2 and 14.3, the Company may elect to redeem
the Debt Securities of such series in accordance with the provisions of Section
11.6 and the terms of the Debt Securities of each series, in whole or in part,
by paying the principal of such Debt Securities with funds designated as
Optional Securities Funds at a price equal to the percentage of the principal
amount established in the terms of the Debt Securities of such series on the
Redemption Date of the Debt Securities to be so redeemed, and (except if such
Redemption Date shall be an Interest Payment Date) by paying accrued interest on
such Debt Securities. If such Redemption Date is an Interest Payment Date, the
interest payable on such date shall be paid to the Holder of Debt Securities of
such series according to the terms of the Debt Securities of such series and the
provisions of Section 3.7.
(c) The Company shall give notice of such proposed
redemption in the manner provided in Section 1.6 to the Holders of the Debt
Securities of such series within the time prescribed for the giving of the
initial notice in Section 14.2 or 14.3, depending upon the Redemption Date
selected by the Company. Such notice shall state the Redemption Date and the
place or places where the Debt Securities of the series to be paid are to be
surrendered for payment; provided, however, if such redemption is of less than
all of the Debt Securities of such series and is to be made on a Capital
Exchange Date specified in accordance with Section 14.2 or 14.3, then such
notice may be incorporated into any initial notice of such Capital Exchange Date
and provided that no notice of any redemption may be given unless there are
sufficient Optional Securities Funds to pay the principal amount of the Debt
Securities to be redeemed.
(d) If less than all the Debt Securities of any series are
to be so redeemed, then Sections 14.4(c) and 14.8 shall apply to the redemption
in the same manner as if such Debt Securities were to be exchanged for Capital
Securities.
(e) Funds designated as Optional Securities Funds shall be
released from such designation under the circumstances described in Section
15.3.
ARTICLE FIFTEEN
SECURITIES FUNDS
Section 15.1. Creation of Securities Funds
A fund (the "Securities Funds") will be established when
specified in an Officers' Certificate or supplemental indenture pursuant to
Section 15.2, to be used to pay the principal of the Debt Securities of that
series.
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Notwithstanding any provision to the contrary contained in
this Indenture or in the Debt Securities of any series, neither funds designated
as Securities Funds nor any other property from time to time held as Securities
Funds shall be deemed to be for any purpose property of the Holders or trust
funds for the benefit of the Holders, and the securities Funds shall not
constitute security for the payment of the Debt Securities.
Section 15.2. Designations of Securities Funds.
The Securities Funds will consist of amounts equal to (i) the
net proceeds of the sale of Capital Securities for cash from time to time after
the date of initial issuance of the Debt Securities of any series for which
funds may be designated by the Company as provided in this Section, and (ii) the
market value, as deterred by the Company, of Capital Securities sold form time
to time after the date of initial issuance of the Debt Securities of such series
in exchange for other property, less the expenses to effect any such exchanges,
and (iii) other funds which the regulations of the Primary Federal Regulator
then permit for the payment of principal of "mandatory convertible securities
(equity commitment notes or equity contract notes)" as defined in such
regulations; provided that (x) the Company has designated such amounts as
Securities Funds on its books and records in the manner required by the Primary
Federal Regulator, and (y) there shall be deducted from the Securities Funds an
amount equal to the amount of any funds used to redeem or repay the Debt
Securities of such series for which Securities Funds are required to be
designated or any similar securities.
Section 15.3. Covenant of the Company to Obtain Securities Funds.
Notwithstanding anything else contained herein, the Company
hereby covenants and agrees that with regard to the Debt Securities of any
series which by its terms required the designation of Securities Funds (i) by
the Interest Payment Date which occurs on or next preceding the date when
one-third of the period from the date of issuance of the Debt Securities of such
series to their Stated Maturity has elapsed, it will have obtained Securities
Funds in an amount that will equal at least one-third of the original aggregate
principal amount of the Debt Securities of such series (or such lesser amount as
the Primary Federal Regulator may permit from time to time) and will have
prepared and delivered to the Trustee an Officer's Certificate to the foregoing
effect, (ii) by the Interest Payment Date which occurs on or next preceding the
date when two-thirds of the period from the date of issuance of the Debt
Securities of such series to their Stated Maturity has elapsed, it will have
obtained Securities Funds in the amount that will equal at least two-thirds of
the original aggregate principal amount of the Debt Securities of such series
(or such lesser amount as the Primary Federal Regulator may permit from time to
time) and will have prepared and delivered to the Trustee an Officers'
Certificate to the foregoing effect, and (iii) by 60 days prior to the Stated
Maturity of the Debt Securities of such series, it will have obtained Securities
Funds in an amount that will equal not less than the original aggregate
principal amount of the Debt Securities of such series (or such lesser amount as
the Primary Federal Regulator may permit from time to time) and will have
prepared and delivered to the Trustee an Officers' Certificate to the foregoing
effect; provided, however, that such covenant and agreement of the Company shall
be canceled, and amounts therefore designated as Securities Funds will be
released from such designation in the event and to the extent that the Company
shall determine that under then regulations of the Company's Primary Federal
Regulator either the Debt Securities are no longer includable as capital or it
is no longer necessary for the Company to be obligated to pay the principal of
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the Debt Securities out of Securities Funds in order for the Debt Securities to
maintain the same capital treatment as they are then receiving under such
regulations, in the event and to the extent that approval of the Primary Federal
Regulator is obtained for such cancellation and release or in the event and to
the extent that the Company shall have exchanged or redeemed such Debt
Securities pursuant to the terms of such Debt Securities of such series from a
source other than amounts designated as Securities Funds.
ARTICLE SIXTEEN
MEETINGS OF HOLDERS OF DEBT SECURITIES
Section 16.1. Purposes for Which Meetings May Be Called.
If Debt Securities of a series are issuable in whole or in
part as Bearer Securities, a meeting of Holders of Debt Securities of such
series may be called at any time and from time to time pursuant to this Article
to make, give or take any request, demand, authorization, direction, notice,
consent, waiver or other Act provided by this Indenture to be made, given or
taken by Holders of Debt Securities of such series.
Section 16.2. Call, Notice and Place of Meetings
(a) The Trustee may at any time call a meeting of Holders of
Debt Securities of any series issuable as Bearer Securities for any purpose
specified in Section 16.1, to be held at such time and at such place in the
Borough of Manhattan, the City of New York, or in London as the Trustee shall
determine. Notice of every meeting of Holders of Debt Securities of any series,
setting forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be given, in the manner
provided in Section 1.6, not less than 21 not more than 180 days prior to the
date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 10% in principal amount of the
Outstanding Debt Securities of any series shall have requested the Trustee to
call a meeting of the Holders of Debt Securities of such series for any purpose
specified in Section 16.1, by written request setting forth in reasonable detail
the action proposed to be taken at the meeting, and the Trustee shall not have
made the first publication of the notice of such meeting within 21 days after
receipt of such request or shall thereafter proceed to cause the meeting to be
held as provided herein, then the Company or the Holders of Debt Securities of
such series in the amount above specified, as the case may be, may determine the
time and the place in the Borough of Manhattan, the City of New York, or in
London for such meeting and may call such meeting for such purposes by giving
notice thereof as provided in subsection (a) of this Section.
Section 16.3. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Debt
Securities of any series, a Person shall be (1) a Holder of one or more
Outstanding Debt Securities of such series, or (2) a Person appointed by an
instrument in writing as proxy for a Holder or Holders of one or more
Outstanding Debt Securities of such series by such Holder or Holders. The only
persons who shall be entitled to be present or to speak at any meeting of
Holders of Debt Securities of any series shall be the Persons entitled to vote
at such meeting and their counsel, any representatives of the Trustee and its
counsel and any representatives of the Company and its counsel.
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Section 16.4. Quorum; Action
The Persons entitled to vote a majority in principal amount of
the Outstanding Debt Securities of a series shall constitute a quorum for a
meeting of Holders of Debt Securities of such series; provided, however, that if
any action is to be taken at such meeting with respect to a consent or waiver
which this Indenture expressly provides may be given by the Holders of not less
than 66% in principal amount of the Outstanding Debt Securities of a series, the
Persons entitles to vote 66% in principal amount of the Outstanding Debt
Securities of such series shall constitute a quorum. In the absence of a quorum
within 30 minutes of the time appointed for any such meeting, the meeting shall,
if convened at the request of Holders of Debt Securities of such series, be
dissolved. In the absence of a quorum in any other case the meeting may be
adjourned for a period of not less than 10 days as determined by the chairman of
the meeting prior to the adjournment of such meeting. In the absence of a quorum
at any such adjourned meeting, such adjourned meeting may be further adjourned
for a period of not less than 10 days as determined by the chairperson of the
meeting prior to the adjournment of such adjourned meeting. Notice of the
reconvening of any adjourned meeting shall be given as provided in Section
16.2(a), except that such notice need be given only once not less than five days
prior to the date on which the meeting is scheduled to be reconvened. Notice of
the reconvening of an adjourned meeting shall state expressly the percentage, as
provided above, of the principal amount of the Outstanding Debt Securities of
such series which shall constitute a quorum.
Except as limited by the provisos to Section 9.2, any
resolution presented to a meeting or adjourned meeting duly reconvened at which
a quorum is present as aforesaid may be adopted only by the affirmative vote of
the Holders of a majority in principal amount of the Outstanding Debt Securities
of that series; provided, however, that, except as limited by the provisos to
Section 9.2, any resolution with respect to any consent or waiver which this
Indenture expressly provides may be given by the Holders of not less than 66% in
principal amount of the Outstanding Debt Securities of a series may be adopted
at a meeting or an adjourned meeting duly reconvened and at which a quorum is
present as aforesaid only by the affirmative vote of the Holders of 66% in
principal amount of the Outstanding Debt Securities of that series; and
provided, further, that, except as limited by the provisos to Section 9.2, any
resolution with respect to any request, demand, authorization, direction,
notice, consent, waiver or other Act which this Indenture expressly provides may
be made, given or taken by the Holders of a specified percentage, which is less
than a majority, in principal amount of the Outstanding Debt Securities of a
series may be adopted at a meeting or an adjourned meeting duly reconvened and
at which a quorum is present as aforesaid by the affirmative vote of the Holders
of such specified percentage in principal amount of the Outstanding Debt
Securities of that series.
Any resolution passed or decision taken at any meeting of
Holders of Debt Securities of any series duly held in accordance with this
Section shall be binding on all the Holders of Debt Securities of such series
and the related coupons, whether or not present or represented at the meeting.
Section 16.5. Determination of Voting Rights; Conduct and Adjournment of
Meetings.
(a) Notwithstanding any other provisions of this Indenture,
the Trustee may make such reasonable regulations as it may deem advisable for
any meeting of Holders
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of Debt Securities of such series in regard to proof of the holding of Debt
Securities of such series and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall deem appropriate.
Except as otherwise permitted or required by any such regulations, the holding
of Debt Securities shall be proved in the manner specified in Section 1.4 and
the appointment of any proxy shall be proved in the manner specified in Section
1.4 or, in the case of Bearer Securities, by having the signature of the person
executing the proxy witnessed or guaranteed by a trust company, bank or banker
authorized by Section 1.4 to certify to the holding of Bearer Securities. Such
regulations may provide that written instruments appointing proxies, regular on
their face, may be presumed valid and genuine without the proof specified in
Section 1.4 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint
a temporary chairperson of the meeting, unless the meeting shall have been
called by the Company or by Holders of Debt Securities as provided in Section
16.2(b), in which case the Company or the Holders of Debt Securities of the
series calling the meeting, as the case may be, shall in like manner appoint a
temporary chairperson. A permanent chairperson and a permanent secretary of the
meeting shall be elected by vote of the Persons entitled to vote a majority in
principal amount of the Outstanding Debt Securities of such series represented
at the meeting.
(c) At any meeting each Holder of a Debt Security of such
series or proxy shall be entitled to one vote for each $1,000 principal amount
(or the equivalent in ECU, any other composite currency or a Foreign Currency)
of Debt Securities of such series held or represented by him, provided, however,
that no vote shall be cast or counted at any meeting in respect of any Debt
Security challenged as not Outstanding and ruled by the Chairperson of the
meeting not to be Outstanding. The chairperson of the meeting shall have no
right to vote, except as a Holder of a Debt Security of such series or proxy.
(d) Any meeting of Holders of Debt Securities of any series
duly called pursuant to Section 16.2 at which a quorum is present may be
adjourned from time to time by Persons entitled to vote a majority in principal
amount of the Outstanding Debt Securities of such series represented at the
meeting; and the meeting may be held as so adjourned without further notice.
Section 16.6. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of
Holders of Debt Securities of any series shall be by written ballots on which
shall be subscribed the signatures of the Holders of Debt Securities of such
series or of their representatives by proxy and the principal amounts and serial
numbers of the Outstanding Debt Securities of such series held or represented by
them. The permanent chairperson of the meeting shall appoint two inspectors of
votes who shall count all votes cast at the meeting for or against any
resolution and who shall make and file with the secretary of the meeting their
verified written reports in triplicate of all votes cast at the meeting. A
record, at least in triplicate, of the proceedings of each meeting of Holders of
Debt Securities of any series shall be prepared by the secretary of the meeting
and there shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavits by one or
more persons having knowledge of the facts setting forth a copy of the notice of
the meeting and showing that said notice was given as provided in Section 16.2
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and, if applicable, Section 16.4. Each copy shall be signed and verified by the
affidavits of the permanent chairperson and secretary of the meeting and one
such copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
ARTICLE SEVENTEEN
DEFEASANCE
Section 17.1. Termination of Company's Obligations
With respect to any series of Debt Securities, if the Company
deposits irrevocably in trust with the Trustee money and/or, to the extent such
Debt Securities are denominated and payable in Dollars only, Eligible
Instruments the payments of principal and interest on which when due (and
without reinvestment and providing no tax liability will be imposed upon the
Trustee or the Holders of such Debt Securities) will provide money in such
amounts as will (together with any money irrevocably deposited in trust with the
Trustee, without investment) be sufficient to pay principal (and premium, if
any) and interest when due on the Debt Securities of such series and any coupons
appertaining thereto and any mandatory sinking fund, repayment or analogous
payments thereon on the scheduled due dates therefor at the Stated Maturity
thereof, the Company's obligations under Sections 10.4 and 10.5 shall terminate
with respect to the Debt Securities of the series for which such deposit was
made; provided, however, that (i) no Event of Default with respect to the Debt
Securities of such series under Section 5.1(5) or 5.1(6) or event that with
notice or lapse of time or both would constitute such an Event of Default shall
have occurred and be continuing on such date and (ii) such termination shall not
relieve the Company of its obligations under the Debt Securities of such series
and this Indenture to pay when due the principal of (and premium, if any) and
interest and additional amounts on such Debt Securities and any coupons
appertaining thereto if such Debt Securities or coupons are not paid (or payment
is not provided for) when due from the money and Eligible Instruments (and the
proceeds thereof) so deposited.
It shall be a condition to the deposit of cash and/or Eligible
Instruments and the termination of the Company's obligations with respect to the
Debt Securities of any series under Sections 10.4 and 10.5 pursuant to the
provisions of this Section that the Company deliver to the Trustee (i) an
opinion of nationally recognized independent tax counsel to the effect that: (a)
Holders of Debt Securities of such series and any coupons appertaining thereto
will not recognize income, gain or loss for Federal income tax purposes as a
result of such deposit and termination and (b) such Holders (and future Holders)
will be subject to tax in the same amount, manner and timing as if such deposit
and termination has not occurred and (ii) an Officers' Certificate to the effect
that under the laws in effect on the date such money and/or Eligible Instruments
are deposited with the Trustee, the amount thereof will be sufficient, after
payment of all Federal, state and local taxes in respect thereof payable to the
Trustee, to pay principal (and premium, if any) and interest when due on the
Debt Securities of such series and any coupons appertaining thereto.
It shall be an additional condition to the deposit of cash
and/or Eligible Instruments and the termination of the Company's obligations
under Sections 10.4 and 10.5 pursuant to the provisions of this Section, with
respect to the Debt Securities of any series then listed on the New York Stock
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Exchange, that the Company deliver an Opinion of Counsel that the Debt
Securities of such series will not be delisted from the New York Stock Exchange
as a result of such deposit and termination.
After a deposit as provided herein, the Trustee shall, upon
Company request, acknowledge in writing the discharge of the Company's
obligations with respect to the Debt Securities of such series under Sections
10.4 and 10.5 pursuant to the provisions of this Section.
Section 17.2. Repayment to Company
The Trustee and any Paying Agent shall promptly pay to the
Company upon Company Request any money or Eligible Instruments not required for
the payment of the principal of (and premium, if any) and interest on the Debt
Securities of any series and any related coupons for which money of Eligible
Instruments have been deposited pursuant to Section 17.1 held by them at any
time.
The Trustee and Paying Agent shall pay to the Company upon
Company Request any money held by them for the payment of principal (and
premium, if any) and interest that remains unclaimed for two years after the
Maturity of the Debt Securities for which a deposit has been made pursuant to
Section 17.1. After such payment to the Company, the Holders of the Debt
Securities of such series and any related coupons shall thereafter, as unsecured
general creditors, look only to the Company for the payment thereof.
Section 17.3. Indemnity for Eligible Instruments
The Company shall pay and shall indemnify the Trustee against
any tax, fee or other charge imposed on or assesses against the deposited
Eligible Instruments or the principal or interest received on such Eligible
Instruments.
ARTICLE EIGHTEEN
CONVERSION OF CONVERTIBLE SECURITIES
Section 18.1. Applicability of Article.
If an Officers' Certificate or supplemental indenture pursuant
to Section 3.1 provides that the Debt Securities of a series shall be
Convertible Securities, Debt Securities of such series shall be convertible in
accordance with their terms and (except as otherwise specified in such Officers'
Certificate or supplemental indenture) in accordance with this Article.
Section 18.2. Right to Convert.
Subject to and upon compliance with the provisions of this
Article, the Holder of any Convertible Security shall have the right, at such
Holder's option, at any time prior to the close of business on the date set
forth in the Officers' Certificate delivered pursuant to Section 3.1 hereof (or
if such Convertible Security is called for redemption or submitted for
repayment, then in respect of such Convertible Security to and including but not
after the close of business on the Redemption or Repayment Date, as the case may
be, unless the Company shall default in the payment due) to convert the
principal amount of any such Convertible Security, or, in the case of any
Convertible Security of a denomination greater than $1,000, any portion of such
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principal which is $1,000 or an integral multiple thereof, into that number of
fully paid and nonassessable shares of Common Stock (as such shares shall then
be constituted) obtained by dividing the principal amount of the Convertible
Security or portion thereof surrendered for conversion by the Conversion Price,
by surrender of the Convertible Security so to be converted in whole or in part
in the manner provided in Section 19.3. Such conversion shall be effected by the
Company.
Section 18.3. Exercise of Conversion Privilege; Delivery of Common Stock on
Conversion; No Adjustment for Interest or Dividends
In order to exercise the conversion privilege, the Holder of
any Convertible Security to be converted in whole or in part shall surrender
such Convertible Security at an office or agency maintained by the Company
pursuant to Section 10.2, accompanied by the funds, if any, required by the last
paragraph of this Section, together with written notice of conversion in the
form provided on the Convertible Securities, that the Holder elects to convert
such Convertible Security or the portion thereof specified in said notice. Such
notice shall also state the name or names (with address) in which the
certificate or certificates for shares of Common Stock which shall be
deliverable on such conversion shall be registered, and shall be accompanied by
transfer taxes, if required pursuant to Section 19.8. Each Convertible Security
surrendered for conversion shall, unless the shares deliverable on conversion
are to be registered in the same name as the registration of such Convertible
Security, be duly endorsed by, or accompanied by instruments of transfer in form
satisfactory to the Company duly executed by, the Holder or such Holder's duly
authorized attorney.
As promptly as practicable after the surrender of such
Convertible Security and the receipt of such notice and funds, if any, as
aforesaid, the Company shall deliver at such office or agency to such Holder, or
on such Holder's written order, a certificate or certificates for the number of
full shares deliverable upon the conversion of such Convertible Security or
portion thereof in accordance with the provisions of this Article and a check or
cash in respect of any fractional interest in respect of a share of Common Stock
arising upon such conversion as provided in Section 19.4. In case any
Convertible Security of a denomination greater than $1,000 shall be surrendered
for partial conversion and subject to Section 3.2, the Company shall execute and
the Trustee shall authenticate and deliver to or upon the written order of the
Holder of the Convertible Security so surrendered, without charge to such
Holder, a new Convertible Security or Convertible Securities in authorized
denominations in an aggregate principal amount equal to the unconverted portion
of the surrendered Convertible Security.
Each conversion shall be deemed to have been effected on the
date on which such Convertible Security shall have been surrendered (accompanied
by the funds, if any, required by the last paragraph of this Section) and such
notice shall have been received by the Company, as aforesaid, and the person in
whose name any certificate or certificates for shares of Common Stock shall be
registrable upon such conversion shall be deemed to have become on said date the
holder of record of the shares represented thereby; provided, however, that any
such surrender on any date when the stock transfer books of the Company shall be
closed shall constitute the person in whose name the certificates are to be
registered as the record holder thereof for all purposes on the next succeeding
day on which stock transfer books are open, but such conversion shall be at the
Conversion Price in effect on the date upon which such Convertible Security
shall have been surrendered.
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Any Convertible Security or portion thereof surrendered for
conversion during the period from the close of business on the Regular Record
Date for any Interest Payment Date shall (unless such Convertible Security or
portion thereof being converted shall have been called for redemption or
submitted for repayment on a date in such period) be accompanied by payment, in
legal tender or other funds acceptable to the Company, of an amount equal to the
interest otherwise payable on such Interest Payment Date on the principal amount
being converted; provided, however, that no such payment need be made if there
shall exist at the time of conversion a default on the payment of interest on
the Convertible Securities. An amount equal to such payment shall be paid by the
Company on such Interest Payment Date to the Holder of such Convertible Security
on such Regular Record Date, provided, however, that if the Company shall
default in the payment of interest on such Interest Payment Date, such amount
shall be paid to the person who made such required payment. Except as provided
above in this Section, no adjustment shall be made for interest accrued on any
Convertible Security converted or for dividends on any shares issued upon the
conversion of such Convertible Security as provided in this Article.
Section 18.4. Cash Payments in Lieu of Fractional Shares
No fractional shares of Common Stock or scrip representing
fractional shares shall be delivered upon conversion of Convertible Securities.
If more than one Convertible Security shall be surrendered for conversion at one
time by the same Holder, the number of full shares which shall be deliverable
upon conversion shall be computed on the basis of the aggregate principal amount
of the Convertible Securities (or specified portions thereof to the extent
permitted hereby) so surrendered. If any fractional share of stock would be
deliverable upon the conversion of any Convertible Security or Convertible
Securities, the Company shall make an adjustment therefor in cash at the current
market value of such fractional share of stock. The market value of a share of
Common Stock shall be the Closing Price on the Business Day immediately
preceding the day on which the Convertible Securities (or specified portions
thereof) are deemed to have been converted.
Section 18.5. Conversion Price.
The Conversion Price shall be as specified in the form of
Convertible Security hereinafter set forth, subject to adjustment as provided in
this Article.
Section 18.6. Adjustment to Conversion Price
The Conversion Price shall be adjusted from time to time as
follows:
(a) In case the Company shall (i) pay a dividend or make a
distribution on the Common Stock in shares of its capital stock (whether shares
of Common Stock or of capital stock of any other class), (ii) subdivide or
reclassify its outstanding Common Stock into a greater number of securities
(including Common Stock), or (iii) combine or reclassify its outstanding Common
Stock into a smaller number of securities (including Common Stock), the
Conversion Price in effect immediately prior thereto shall be adjusted so that
the Holder of any Convertible Security thereafter surrendered for conversion
shall be entitled to receive the number of shares of capital stock of the
Company which such Holder would have owned or have been entitled to receive
after the happening of any of the events described above had such Convertible
Security been converted immediately prior to the happening of such event. An
adjustment made pursuant to
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this subsection (a) shall become effective immediately after the record date in
the case of a dividend and shall become effective immediately after the
effective date in the case of a subdivision or combination. If, as a result of
an adjustment made pursuant to this subsection (a), the Holder of any
Convertible Security thereafter surrendered for conversion shall become entitled
to receive shares of two or more classes of capital stock of the Company, the
Board of Directors of the Company (whose determination shall be conclusive and
shall be described in a written statement filed with the Trustee and any
conversion agent) shall determine the allocation of the adjusted Conversion
Price between or among shares of such classes of capital stock.
In the event that at any time, as a result of an adjustment
made pursuant to this subsection (a) of this Section 19.5, the Holder of any
Convertible Security thereafter converted shall become entitled to receive any
shares or other securities of the Company other than shares of Common Stock,
thereafter the number of such other shares so received upon conversion of any
Convertible Security shall be subject to adjustment from time to time in any
manner and on terms as nearly equivalent as practicable to the provisions with
respect to the shares of Common Stock contained in this Section 19.6, and other
provisions of this Article Nineteen with respect to the shares of Common Stock
shall apply on like terms to any such other shares or other securities.
(b) In case the Company shall fix a record date for the
issuance of rights or warrants to all holders of its Common Stock (or securities
convertible into Common Stock) entitling them (for a period expiring within 45
days after such record date) to subscribe for or purchase Common Stock at a
price per share (or a conversion price per share)less than the current market
price per share of Common Stock (as defined in subsection (d) below) at such
record date, the Conversion Price in effect immediately prior thereto shall be
adjusted so that the same shall equal the price determined by multiplying the
Conversion Price in effect immediately prior to such record date by a fraction
of which the numerator shall be the number of shares of Common Stock outstanding
on such record date plus the number of shares which the aggregate offering price
of the total number of shares so offered (or the aggregate initial conversion
price of the convertible securities so offered) would purchase at such current
market price, and of which the denominator shall be the number of shares of
Common Stock outstanding on such record date plus the number of additional
shares of Common Stock offered for subscription or purchase (or into which the
convertible securities so offered are initially convertible). Such adjustment
shall be made successively whenever such a record is fixed, and shall become
effective immediately after such record date. In determining whether any rights
or warrants entitle the holders to subscribe for or purchase shares of Common
Stock at less than such current market price, and in determining the aggregate
offering price of such shares, there shall be taken into account any
consideration determined by the Board of Directors of the Company. Common Stock
owned by or held for the account of the Company or any majority owned subsidiary
shall not be deemed outstanding for the purpose of any adjustment required under
this subsection (b).
(c) In case the Company shall fix a record date for making a
distribution to all holders of its Common Stock evidences of its indebtedness or
assets (excluding regular quarterly or other periodic or recurrent cash
dividends or distributions paid from retained earnings of the Company or
dividends or distributions referred to in subsection (a) above) or rights or
warrants to subscribe or purchase (excluding those referred to in subsection (b)
above), then in each case the Conversion Price shall be adjusted so that the
same shall equal the price determined by multiplying the Conversion Price in
effect immediately prior to such record date by a fraction of which the
numerator shall be the current
92
market price per share (as defined in subsection (d) below) of the Common Stock
on such record date less the then fair market value (as determined by the Board
of Directors of the Company whose determination shall be conclusive, and
described in a certificate filed with the Trustee) of the portion of the assets
or evidences of indebtedness so distributed or of such rights or warrants
applicable to one share of Common Stock, and the denominator shall be the
current market price per share (as defined in subsection (d) below) of the
Common Stock. Such adjustment shall be made successively when ever such a record
date is fixed and shall become effective immediately after such record date.
Notwithstanding the foregoing, in the event that the Company shall distribute
any rights or warrants to acquire capital stock ("Rights") pursuant to this
subsection (c), the distribution of separate certificates representing such
Rights subsequent to their initial distribution (whether or not such
distribution shall have occurred prior to the date of the issuance of such
Convertible Securities) shall be deemed to be the distribution of such Rights
for purposes of this subsection (c); provided that the Company may, in lieu of
making any adjustment pursuant to this subsection (c) upon a distribution of
separate certificates representing such Rights, make proper provision so that
each Holder of such Convertible Security who converts such Convertible Security
(or any portion thereof) (i) before the record date for such distribution of
separate certificates shall be entitled to receive upon such conversion shares
of Common Stock issued with Rights and (ii) after such record date and prior to
the expiration, redemption or termination of such Rights shall be entitled to
receive upon such conversion, in addition to the shares of Common Stock issuable
upon such conversion, the same number of such Rights as would a holder of the
number of shares of Common Stock that such Convertible Security so converted
would have entitled the holder thereof to purchase in accordance with the terms
and provisions of and applicable to the Rights if such Convertible Security were
converted immediately prior to the record date for such distribution. Common
Stock owned by or held for the account of the Company or any majority owned
subsidiary shall not be deemed outstanding for the purpose of any adjustment
required under this subsection (c).
(d) For the purpose of any computation under subsection (b)
and (c) above, the current market price per share of Common Stock at any date
shall be deemed to be the average of the daily Closing Prices for the thirty
days (which are not legal holidays as defined in Section 1.13) commencing
forty-five days (which are not legal holidays as defined in Section 1.13) before
the day in question. The Closing Price for any day shall be (i) if the Common
Stock is listed or admitted for trading on any national securities exchange or
the National Market System of the National Association of Securities Dealers,
Inc. Automated Quotation System ("NASDAQ"), the last sale price (regular way),
or the average of the closing bid and ask prices if no sale occurred, of Common
Stock on the principal securities exchange on which the Common Stock is listed,
(ii) if not listed as described in (i), the mean between the closing high bid
and low asked quotations of Common Stock on NASDAQ or any similar system or
automated dissemination of quotations of securities prices then in common use,
if so quoted, or (iii) if not quoted as described in clause (ii), the mean
between the high bid and low asked quotations for Common Stock as reported by
the National Quotation Bureau Incorporated if at least tow securities dealers
have inserted both bid and asked quotations for Common Stock on at least 5 of
the 10 preceding days. If none of the conditions set forth above is met, the
Closing Price of Common Stock on any day or the average of such Closing Prices
for any period shall be the fair market value of Common Stock as determined by a
member firm of the New York Stock Exchange, Inc. selected by the Company.
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(e) (i) No adjustment in the Conversion price shall be
required unless such adjustment would require an increase or decrease of at
least 1% in such price; provided, however, that any adjustments which by reason
of this subsection (e)(i) are not required to be made shall be carried forward
and taken into account in any subsequent adjustment; further provided, however,
that any adjustments which by reason of this subsection (e)(ii) are not
otherwise required to be made shall be made no later than 3 years after the date
on which occurs an event that requires an adjustment to be made or carried
forward.
(ii) All calculations under this Article Nineteen shall be
made to the nearest cent or to the nearest one-hundredth of a share,
as the case may be. Anything in this Section 19.6 to the contrary
notwithstanding, the Company shall be entitled to make such
reductions in the Conversion Price, in addition to those required by
this Section 19.6, as it in its discretion shall determine to be
advisable in order that any stock dividends, subdivision of shares,
distribution of rights to purchase stock or securities, or
distribution of securities convertible into or exchangeable for stock
hereafter made by the Company to its shareholders shall not be
taxable.
(f) Whenever the Conversion Price is adjusted, as herein
provided, the Company shall promptly file with the Trustee and any conversion
agent other than the Trustee an Officers' Certificate setting forth the
Conversion Price after such adjustment and setting forth a brief statement of
the facts requiring such adjustment. Promptly after delivery of such
certificate, the Company shall prepare a notice of such adjustment of the
Conversion Price setting forth the adjusted Conversion Price and the date on
which such adjustment becomes effective and shall mail such notice of such
adjustment of the Conversion Price to the Holder of each Convertible Security at
such Holder's last address appearing on the Security Register provided for in
Section 3.5 of this Indenture.
(g) In any case in which this Section 19.6 provides that an
adjustment shall become effective immediately after a record date for an event,
the Company may defer until the occurrence of such event (i) delivering to the
Holder of any Convertible Security converted after such record date and before
the occurrence of such event the additional shares of Common Stock deliverable
upon such conversion by reason of the adjustment required by such event over and
above the Common Stock deliverable upon such conversion before giving effect to
such adjustment and (ii) paying to such Holder any amount in cash in lieu of any
fraction pursuant to Section 19.4, provided, however, that the Company shall
deliver to such Holder a due xxxx or other appropriate instrument evidencing
such Holder's rights to receive such additional shares, and such cash, upon the
occurrence of the event requiring such adjustment. If such event does not occur,
no adjustments shall be made pursuant to this Section 19.6.
Section 18.7. Effect of Reclassification, Consolidation, Merger or Sale
If any of the following events occur, namely (i) any
reclassification or change of outstanding shares of Common Stock deliverable
upon conversion of the Convertible Securities (other than a change in par value,
or from par value to no par value, or from no par value to par value, or as a
result of a subdivision or combination, but including any change in the shares
of Common Stock into two or more classes or series of securities), (ii) any
consolidation or merger to which the Company is a party (other than a
consolidation or merger in which the Company is the continuing corporation and
which does not result in any reclassification of, or change (other than a change
94
in par value, or from par value to no par value, or from no par value to par
value, or as a result of a subdivision or combination) in, outstanding shares of
its Common Stock) or (iii) any sale or conveyance of the properties and assets
of the Company as, or substantially as, an entirety to any other corporation;
then the Company or such successor or purchasing corporation, as the case may
be, shall execute with the Trustee a supplemental indenture (which shall conform
to the Trust Indenture Act as in force at the date of execution of such
supplemental indenture and comply with the provisions of Article Nine) providing
that each Convertible Security shall be convertible into the kind and amount of
shares of stock and other securities or property, including cash, receivable
upon such reclassification, change, consolidation, merger, sale or conveyance by
a holder of a number of shares of Common Stock deliverable upon conversion of
such Convertible Securities immediately prior to such reclassification, change,
consolidation, merger, sale or conveyance. Such supplemental indenture shall
provide for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Article. The Company shall
cause notice of the execution of such supplemental indenture to be mailed to
each Holder of Convertible Securities, at his address appearing on the Security
Register provided for in Section 3.5 of this Indenture.
The above provisions of this Section shall similarly apply to
successive reclassifications, consolidations, mergers and sales.
Section 18.8. Taxes on Shares Issued
The delivery of stock certificates on conversions of
Convertible Securities shall be made without charge to the Holder converting a
Convertible Security for any tax in respect of the issue thereof. The Company
shall not, however, be required to pay any tax which may be payable in respect
of any transfer involved in the delivery of stock registered in any name other
than of the Holder of any Convertible Security converted, and the Company shall
not be required to deliver any such stock certificate unless and until the
person or persons requesting the delivery thereof shall have paid to the Company
the amount of such tax or shall have established to the satisfaction of the
Company that such tax has been paid.
Section 18.9. Shares to be Fully Paid; Compliance with Governmental
Requirements; Listing of Common Stock
The Company covenants that all shares of Common Stock which
may be delivered upon conversion of Convertible Securities will upon delivery be
fully paid and nonassessable by the Company and free from all taxes, liens and
charges with respect to the issue thereof.
The Company covenants that if any shares of Common Stock to be
provided for the purpose of conversion of Convertible Securities hereunder
require registration with or approval of any governmental authority under any
Federal or state law before such shares may be validly delivered upon
conversion, the Company will in good faith and as expeditiously as possible
endeavor to secure such registration or approval, as the case may be.
The Company further covenants that it will, if permitted by
the rules of the National Association of Securities Dealers, Inc. qualify for
trading on NASDAQ upon official notice of issuance, all Common Stock deliverable
upon conversion of the Convertible Securities.
95
Section 18.10. Responsibility of Trustee
Neither the Trustee nor any authenticating agent nor any
conversion agent shall at any time be under any duty or responsibility to any
Holder of Convertible Securities to determine whether any facts exist which may
require any adjustment of the Conversion Price, or with respect to the nature or
extent of any such adjustment when made, or with respect to the method employed,
or herein or in any supplemental indenture provided to be employed, in making
the same. Neither the Trustee nor any authenticating agent nor any conversion
agent shall be accountable with respect to the validity or value (or the kind or
amount) of any shares of Common Stock, or of any securities or property, which
may at any time be delivered upon the conversion of any Convertible Security;
and neither the Trustee nor any authenticating agent nor any conversion agent
makes any representation with respect thereto. Subject to the provisions of
Section 6.1, neither the Trustee nor any authenticating agent nor any conversion
agent shall be responsible for any failure of the Company to deliver any shares
of Common Stock or stock certificates or other securities or property or cash
upon the surrender of any Convertible Security for the purpose of conversion or
for any failure of the Company to comply with any of the covenants contained in
this Article.
Section 18.11. Notice to Holders Prior to Certain Actions
In case:
(a) the Company shall declare a dividend (or any other
distribution) on the Common Stock (other than in cash out of its current or
retained earnings); or
(b) the Company shall authorize the granting to the holders
of the Common Stock of rights or warrants to subscribe for or purchase any share
of any class or any other rights or warrants; or
(c) of any reclassification or change of the Common Stock
(other than a subdivision or combination of its outstanding Common Stock, or a
change in par value, or from par value to no par value, or from no par value to
par value) or, of any consolidation or merger to which the Company is a party
and for which approval of any stockholders of the Corporation is required or for
the sale or transfer of all or substantially all of the assets of the Company;
or
(d) of the voluntary or involuntary dissolution, liquidation
or winding up of the Company; the Company shall cause to be filed with the
Trustee and the Company shall cause to be mailed to each holder of Convertible
Securities at his address appearing on the Security Register, provided for in
Section 3.5 of this Indenture, as promptly as possible but in any event no less
than fifteen days prior to the applicable date hereinafter specified, a notice
stating (x) the date on which a record is to be taken for the purpose of such
dividend, distribution or rights or warrants, or, if a record is not to be
taken, the date as of which the holders of Common Stock of record to be entitled
to such dividend, distribution or rights are to be determined, or (y) the date
on which such reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding up is expected to become effective, and the
date as of which it is expected that holders of Common Stock of record shall be
entitled to exchange their Common Stock for securities or other property
deliverable upon such reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding up. Failure to give such notice, or any
defect therein, shall not affect the legality or validity of such dividend,
distribution, reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding up or any adjustment in the Conversion Price
required by this Article Eighteen.
96
Section 18.12. Covenant to Reserve Shares
The Company covenants that it will at all times reserve and
keep available, free from pre-emptive rights, out of its authorized but unissued
Common Stock, such number of shares of Common Stock as shall then be deliverable
upon the conversion of all outstanding Convertible Securities.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
SOVEREIGN BANCORP, INC.
By
------------------------------------------------
[CORPORATE SEAL]
Attest:
--------------------------
Secretary
BNY MIDWEST TRUST COMPANY
By
------------------------------------------------
[CORPORATE SEAL]
Attest:
--------------------------
Assistant Secretary
97
COMMONWEALTH OF PENNSYLVANIA :
:ss.
COUNTY OF BERKS :
On this _______ day of _____________________, before me, a
notary public, the undersigned officer, personally appeared , who
acknowledged himself to be of SOVEREIGN BANCORP, INC., a Pennsylvania
corporation, and thathe as such officer, being authorized to do so, executed the
foregoing instrumentfor the purposes therein contained by signing the name of
the corporation byhimself as such officer.
IN WITNESS WHEREOF, I have hereunto set my hand and official
seal.
-----------------------------------
Notary Public
98
STATE OF ILLINOIS :
:ss.
COUNTY OF :
On this _______ day of ____________________, before me, a
notary public, the undersigned officer, personally appeared
______________________________, who acknowledged himself to be
_____________________ of BNY MIDWEST TRUST COMPANY, a _____________ corporation,
and that he as such officer, being authorized to do so, executed the foregoing
instrument for the purposes therein contained by signing the name of the
corporation by himself as such officer.
IN WITNESS WHEREOF, I have hereunto set my hand and official
seal.
-----------------------------------
Notary Public
99
EXHIBIT A-1
[Form of Certificate of Beneficial Ownership by a
Non-United States Person or by Certain Other Persons]
Certificate
SOVEREIGN BANCORP, INC.
[Insert title or sufficient description of
Debt Securities to be delivered]
Reference is hereby made to the Indenture dated as of November
1, 2005 (the "Indenture") between Sovereign Bancorp, Inc. and BNY Midwest Trust
Company, as trustee (the "Trustee") covering the above-captioned Debt
Securities. This is to certify that as of the date hereof, _________ principal
amount of Debt Securities credited to you for our account (i) is owned by
persons that are not United States Persons, as defined below; (ii) is owned by
United States Persons that are (a) foreign branches of United States financial
institutions) as defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v))
("financial institutions") purchasing for their own account or for resale, or
(b) United States Persons who acquired the Notes through foreign branches of
United States financial institutions and who hold the Notes through such United
States financial institutions on the date hereof (and in either case (a) or (b),
each such United States financial institution encloses herewith a certificate in
the form of Exhibit A-2 to the Indenture); or (iii) is owned by United States or
foreign financial institutions for purposes of resale during the restricted
period (as defined in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7),
which United States or foreign financial institutions described in clause (iii)
above (whether or not also described in clause (i) or (ii) certify that they
have not acquired the Notes for purposes of resale directly or indirectly to a
United Stated Person or to a person within the United States or its possessions.
[Insert if certificate does not relate to an interest
payment-We undertake to advise you by telecopy followed by written confirmation
if the above statement as to beneficial ownership is not correct on the date of
delivery of the above-captioned Debt Securities in bearer form as to all such
Debt Securities with respect to such of said Debt Securities as then appear in
your books as being held for our account.] We understand that this certificate
is required in connection with United States tax laws. We irrevocably authorize
you to produce this certificate or a copy hereof to any interested party in any
administrative or legal proceedings with respect to the matters covered by this
certificate. "United States Person" shall mean a citizen or resident of the
United States of America (including the District of Columbia), a corporation,
partnership or other entity created or organized in or under the laws of the
United States or any political subdivision thereof or an estate or trust that is
subject to United States federal income taxation regardless of the source of its
income.
100
[This certificate excepts and does not relate to __________
principal amount of Debt Securities credited to you for our account and to which
we are now able to make the certification set forth above. We understand that
definitive Debt Securities cannot be delivered and interest cannot be paid until
we are able to so certify with respect to such principal amount of Debt
Securities.]*
Dated:
----------------------------------
[To be dated on or after
________________________ (the
date determined as provided in
the Indenture)]
[Name of Person Entitled to Receive Bearer
Security]
--------------------------------------------
(Authorized Signatory)
Name:
---------------------------------------
Title:
---------------------------------------
--------------------------
*Delete if inapplicable.
101
EXHIBIT A-2
[Form of Certificate of States as a
Foreign Branch of a United States Financial Institution]
Certificate
SOVEREIGN BANCORP, INC.
[Insert title or sufficient description of
Debt Securities to be delivered]
Reference is hereby made to the Indenture dated as of November
1, 2005 (the "Indenture"), between Sovereign Bancorp, Inc. and BNY Midwest Trust
Company, as trustee, relating to the offering of the above-captioned Debt
Securities (the "Debt Securities"). Unless herein defined, terms used herein
have the same meaning as given to them in the Indenture.
The undersigned represents that it is a branch located outside
the United States of the United States securities clearing organization, bank or
other financial institution (as defined in U.S. Treasury Regulations Section
1.165-12(c)(1)(v) that holds customers' securities in the ordinary course of its
trade or business and agrees, and authorized you to advise the issuer or the
issuer's agent, that it will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986 and the
regulations thereunder and is not purchasing for resale directly or indirectly
to a United Stated Person or to a person within the United States or its
possessions. We undertake to advise you by telecopy followed by written
confirmation if the statement in the immediately preceding sentence is not
correct on the date of delivery of the above-captioned Debt Securities in bearer
form.
102
We understand that his certificate is required in connection
with the United States tax laws. We irrevocably authorize you to produce this
certificate or a copy hereof to any interested party in any administrative or
legal proceedings with respect to the matters covered by this certificate.
Dated:
----------------------------------
[To be dated on or after
________________________ (the
date determined as provided in
the Indenture)]
[Name of Person Entitled to Receive Bearer
Security]
--------------------------------------------
(Authorized Signatory)
Name:
---------------------------------------
Title:
---------------------------------------
103
EXHIBIT B
[Form of Certificate to be Given by Euroclear
and Clearstream in Connection with the Exchange
of All or a Portion of a Temporary Global Security
or to Obtain Interest Prior to Exchange]
Certificate
SOVEREIGN BANCORP, INC.
[Insert title or sufficient description
of Debt Securities to be delivered]
We refer to that portion, ______________, of the Global
Security representing the above-captioned issue [which is herewith submitted to
be exchanged for definitive Debt Securities]*[for which we are seeking to obtain
payment of interest]*(the "Submitted Portion"). This is to certify, pursuant to
the Indenture dated as of November 1, 2005 (the "Indenture") between Sovereign
Bancorp, Inc. and BNY Midwest Trust Company, as trustee (the "Trustee"), that we
have received in writing, by telecopy or by electronic transmission from member
organizations with respect to each of the persons appearing in our records as
being entitled to a beneficial interest in the Submitted Portion a Certificate
of Beneficial Ownership by a Non-United States Person or by Certain Other
Persons [and, in some cases, a Certificate of Status as a Foreign Branch of a
United Stated Financial Institution, authorizing us to inform the issuer or the
issuer's agent that it will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986 and the
regulations thereunder]* substantially in the form of Exhibit A-1 [and A-2]* to
the Indenture.
We hereby request that you deliver to the office of
______________ in ______________ definitive Bearer Securities in the
denominations on the attached Schedule A.
We further certify that as of the date hereof we have not
received any notification from any of the persons giving such certificates to
the effect that the statements made by them with respect to any part of the
Submitted Portion are no longer true and cannot be relied on as of the date
hereof.
Dated:
------------
[XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, BRUSSELS
OFFICE, as Operator of the Euroclear System] [Clearstream]
By
-----------------------------------------------------------
*Delete if inappropriate
104