EXHIBIT 4(c)
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XXXXX NATIONAL CORPORATION
to
THE BANK OF NEW YORK
Trustee
____________________
JUNIOR SUBORDINATED INDENTURE
Series C
Dated as of March 12, 1997
____________________
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1. Definitions..................................................................... 1
Section 1.2. Compliance Certificate and Opinions............................................. 12
Section 1.3. Forms of Documents Delivered to Trustee......................................... 13
Section 1.4. Acts of Holders................................................................. 13
Section 1.5. Notices, Etc. to Trustee and Corporation........................................ 15
Section 1.6. Notice to Holders; Waiver....................................................... 16
Section 1.7. Conflict with Trust Indenture Act............................................... 16
Section 1.8. Effect of Headings and Table of Contents........................................ 16
Section 1.9. Successors and Assigns.......................................................... 17
Section 1.10. Separability Clause............................................................ 17
Section 1.11 Benefits of Indenture.......................................................... 17
Section 1.12. Governing Law.................................................................. 17
Section 1.13. Non-Business Days.............................................................. 17
ARTICLE II
SECURITY FORMS
Section 2.1. Forms Generally................................................................. 18
Section 2.2. Form of Face of Security........................................................ 18
Section 2.3. Form of Reverse of Security..................................................... 23
Section 2.4. Additional Provisions Required in Global Security............................... 27
Section 2.5. Form of Trustee's Certificate of Authentication................................. 27
ARTICLE III
THE SECURITIES
Section 3.1. Title and Terms................................................................. 28
Section 3.2. Denominations................................................................... 28
Section 3.3. Execution, Authentication, Delivery and Dating.................................. 29
Section 3.4. Global Securities............................................................... 29
Section 3.5. Registration and Registration of Transfer and Exchange Generally;
Certain Transfers and Exchanges; Securities Act Legends.................... 31
Section 3.6. Mutilated, Destroyed, Lost and Stolen Securities................................ 33
Section 3.7. Payment of Interest; Interest Rights Preserved.................................. 34
Section 3.8. Persons Deemed Owners........................................................... 35
Section 3.9. Cancellation.................................................................... 35
Section 3.10. Computation of Interest......................................................... 36
Section 3.11. Deferrals of Interest Payment Dates............................................. 36
Section 3.12. Right of Set-Off................................................................ 37
Section 3.13. Agreed Tax Treatment............................................................ 37
Section 3.14. CUSIP Numbers................................................................... 37
ARTICLE IV
SATISFACTION AND DISCHARGE
Section 4.1. Satisfaction and Discharge of Indenture......................................... 38
Section 4.2. Application of Trust Money...................................................... 39
ARTICLE V
REMEDIES
Section 5.1. Events of Default............................................................... 39
Section 5.2. Acceleration of Maturity; Rescission and Annulment.............................. 40
Section 5.3. Collection of Debt and Suits for Enforcement by Trustee......................... 41
Section 5.4. Trustee May File Proofs of Claim................................................ 42
Section 5.5. Trustee May Enforce Claims Without Possession of Securities..................... 43
Section 5.6. Application of Money Collected.................................................. 43
Section 5.7. Limitation on Suits............................................................. 44
Section 5.8. Unconditional Right of Holders to Receive Principal, Premium and Interest;
Direct Action by Holders of Preferred Securities........................... 44
Section 5.9. Restoration of Rights and Remedies.............................................. 45
Section 5.10. Rights and Remedies Cumulative.................................................. 45
Section 5.11. Delay or Omission Not Waiver.................................................... 45
Section 5.12. Control by Holders.............................................................. 46
Section 5.13. Waiver of Past Defaults......................................................... 46
Section 5.14. Undertaking for Costs........................................................... 47
Section 5.15. Waiver of Usury, Stay or Extension Laws......................................... 47
ARTICLE VI
THE TRUSTEE
Section 6.1. Certain Duties and Responsibilities............................................. 47
Section 6.2. Notice of Defaults.............................................................. 48
Section 6.3. Certain Rights of Trustee....................................................... 49
Section 6.4. Not Responsible for Recitals or Issuance of Securities.......................... 50
Section 6.5. May Hold Securities............................................................. 50
Section 6.6. Money Held in Trust............................................................. 51
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Section 6.7. Compensation and Reimbursement.................................................. 51
Section 6.8. Disqualification; Conflicting Interests......................................... 52
Section 6.9. Corporate Trustee Required; Eligibility......................................... 52
Section 6.10. Resignation and Removal; Appointment of Successor............................... 52
Section 6.11. Acceptance of Appointment by Successor.......................................... 54
Section 6.12. Merger, Conversion, Consolidation or Succession to Business..................... 55
Section 6.13. Preferential Collection of Claims Against Corporation........................... 55
Section 6.14. Appointment of Authenticating Agent............................................. 55
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND CORPORATION
Section 7.1. Corporation to Furnish Trustee Names and Addresses of Holders................... 58
Section 7.2. Preservation of Information, Communications to Holders.......................... 58
Section 7.3. Reports by Trustee.............................................................. 58
Section 7.4. Reports by Corporation.......................................................... 59
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 8.1. Corporation May Consolidate, Etc., Only on Certain Terms........................ 59
Section 8.2. Successor Corporation Substituted............................................... 60
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9.1. Supplemental Indentures without Consent of Holders.............................. 61
Section 9.2. Supplemental Indentures with Consent of Holders................................. 62
Section 9.3. Execution of Supplemental Indentures............................................ 63
Section 9.4. Effect of Supplemental Indentures............................................... 63
Section 9.5. Conformity with Trust Indenture Act............................................. 63
Section 9.6. Reference in Securities to Supplemental Indentures.............................. 64
ARTICLE X
COVENANTS
Section 10.1. Payment of Principal, Premium and Interest...................................... 64
Section 10.2. Maintenance of Office or Agency................................................. 64
Section 10.3. Money for Security Payments to be Held in Trust................................. 65
Section 10.4. Statement as to Compliance...................................................... 66
Section 10.5. Waiver of Certain Covenants..................................................... 66
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Section 10.6. Additional Sums................................................................. 66
Section 10.7. Additional Covenants............................................................ 67
ARTICLE XI
REDEMPTION OF SECURITIES
Section 11.1. Right of Redemption............................................................. 68
Section 11.2. Election to Redeem; Notice to Trustee........................................... 68
Section 11.3. Selection of Securities to be Redeemed.......................................... 69
Section 11.4. Notice of Redemption............................................................ 69
Section 11.5. Deposit of Redemption Price..................................................... 70
Section 11.6. Payment of Securities Called for Redemption..................................... 70
ARTICLE XII
SUBORDINATION OF SECURITIES
Section 12.1. Securities Subordinate to Senior Debt........................................... 71
Section 12.2. Payment Over of Proceeds Upon Dissolution, Etc.................................. 71
Section 12.3. Prior Payment to Senior Debt Upon Acceleration of Securities.................... 72
Section 12.4. No Payment When Senior Debt in Default.......................................... 73
Section 12.5. Payment Permitted If No Default................................................. 73
Section 12.7. Provisions Solely to Define Relative Rights..................................... 74
Section 12.8. Trustee to Effectuate Subordination............................................. 75
Section 12.9. No Waiver of Subordination Provisions........................................... 75
Section 12.10. Notice to Trustee............................................................... 75
Section 12.11. Reliance on Judicial Order or Certificate of Liquidating Agent.................. 76
Section 12.12. Trustee Not Fiduciary for Holders of Senior Debt................................ 76
Section 12.13. Rights of Trustee as Holder of Senior Debt; Preservation of Trustee's Rights.... 77
Section 12.14. Article Applicable to Paying Agents............................................. 77
Annex A TRUST AGREEMENT
Annex B AMENDED AND RESTATED TRUST AGREEMENT
Annex C GUARANTEE AGREEMENT
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XXXXX NATIONAL CORPORATION
Reconciliation and tie between the Trust Indenture Act of 1939 (including
cross-references to provisions of Sections 310 to and including 317 which,
pursuant to Section 318(c) of the Trust Indenture Act of 1939, as amended by the
Trust Reform Act of 1990, are a part of and govern the Indenture whether or not
physically contained therein) and the Junior Subordinated Indenture, dated March
12, 1997.
Trust Indenture Indenture
Act Section Section
----------- ---------
(S) 310 (a)(1), (2) and (5).................................. 6.9
(a)(3)............................................... Not Applicable
(a)(4)............................................... Not Applicable
(b).................................................. 6.8
..................................................... 6.10
(c).................................................. Not Applicable
(S) 311 (a).................................................. 6.13
(b).................................................. 6.13
(b)(2)............................................... 7.3
(c).................................................. Not Applicable
(S) 312 (a).................................................. 7.1
..................................................... 7.2
(b).................................................. 7.2
(c).................................................. 7.2
(S) 313 (a).................................................. 7.3
(b).................................................. 7.3
(c).................................................. 7.3
(d).................................................. 7.3
(S) 314 (a)(1), (2) and (3).................................. 7.4
(a)(4)............................................... 10.4
(b).................................................. Not Applicable
(c)(1)............................................... 1.2
(c)(2)............................................... 1.2
(c)(3)............................................... Not Applicable
(d).................................................. Not Applicable
(e).................................................. 1.2
(f).................................................. Not Applicable
(S) 315 (a).................................................. 6.1(a), 6.1(b)
(b).................................................. 6.2
..................................................... 7.3
(c).................................................. 6.1(b)
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Trust Indenture Indenture
Act Section Section
--------------- ---------
(d).................................................. 6.1(b)
(d)(1)............................................... 6.1(b)
(d)(2)............................................... 6.1(b)(2)
(d)(3)............................................... 6.1(b)(3)
(e).................................................. 5.14
(S) 316 (a).................................................. 5.12
(a)(1)(A)............................................ 5.12
(a)(1)(B)............................................ 5.13
(a)(2)............................................... Not Applicable
(b).................................................. 5.8
(c).................................................. 1.4(f)
(S) 317 (a)(1)............................................... 5.3
(a)(2)............................................... 5.4
(b).................................................. 10.3
(S) 318 (a).................................................. 1.7
________________
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Junior Subordinated Indenture.
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JUNIOR SUBORDINATED INDENTURE, Series C, dated as of March 12, 1997,
between XXXXX NATIONAL CORPORATION, a Delaware corporation (hereinafter called
the "Corporation") having its principal office at 0000 Xxxxxxxxxxxx Xxxxxx,
X.X., Xxxxxxxxxx, X.X. 00000 and THE BANK OF NEW YORK, a New York banking
corporation, as Trustee (hereinafter called the "Trustee").
RECITALS OF THE CORPORATION
The Corporation has duly authorized the execution and delivery of this
Indenture to provide for the issuance of its 8 7/8% Junior Subordinated
Deferrable Interest Debentures, Series C, Due March 15, 2027 (hereinafter called
the "Securities") of substantially the tenor and amount hereinafter provided,
which are to be issued to evidence loans made to the Corporation of the proceeds
from the issuance by a business trust ("Xxxxx Capital II") of preferred trust
interests in Xxxxx Capital II (the "Preferred Securities") and common interests
in Xxxxx Capital II (the "Common Securities" and, collectively with the
Preferred Securities, the "Trust Securities"), and to provide the terms and
conditions upon which the Securities are to be authenticated, issued and
delivered.
All things necessary to make the Securities, when executed by the
Corporation and authenticated and delivered hereunder and duly issued by the
Corporation, the valid obligations of the Corporation, and to make this
Indenture a valid agreement of the Corporation, in accordance with their and its
terms, have been done.
NOW THEREFORE, THIS INDENTURE WITNESSETH: For and in consideration of the
premises and the purchase of the Securities by the Holders thereof, it is
mutually covenanted and agreed, for the equal and proportionate benefit of all
Holders of the Securities, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(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, either directly or by reference therein, have the meanings assigned to them
therein;
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(3) All accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles,
and the term "generally accepted accounting principles" with respect to any
computation required or permitted hereunder shall mean such accounting
principles that are generally accepted at the date or time of such computation;
provided, that when two or more principles are so generally accepted, it shall
mean that set of principles consistent with those in use by the Corporation; and
(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.
"Act" when used with respect to any Holder has the meaning specified in
Section 1.4.
"Additional Interest" has the meaning specified in Section 2.2.
"Additional Sums" has the meaning specified in Section 10.6.
"Additional Taxes" means the sum of any additional taxes, duties and other
governmental charges to which Xxxxx Capital II has become subject from time to
time as a result of a Tax Event.
"Adjusted Treasury Rate" means, with respect to any redemption date, the
Treasury Rate plus (i) 1.60% if such redemption date occurs on or before March
15, 1998 or (ii) .80% if such redemption date occurs after March 15, 1998.
"Administrative Trustee" means, in respect of Xxxxx Capital II, each Person
identified as an "Administrative Trustee" in the Trust Agreement, solely in such
Person's capacity as Administrative Trustee of Xxxxx Capital II under the Trust
Agreement and not in such Person's individual capacity, or any successor
Administrative Trustee appointed as therein provided.
"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; provided, however, that Xxxxx Capital II
shall not be deemed to be an Affiliate of the Corporation. For the purposes of
this definition, "control" when used with respect to any specified Person means
the power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Agent Member" means any member of, or participant in, the Depository.
"Applicable Procedures" means, with respect to any transfer or transaction
involving a Global Security or beneficial interest therein, the rules and
procedures of the Depository for such Security, in each case to the extent
applicable to such transaction and as in effect from time to time.
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"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 6.14 to act on behalf of the Trustee to authenticate the Securities.
"Board of Directors" means either the board of directors of the Corporation
or any executive committee or other committee of that board duly authorized to
act hereunder.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Corporation to have been duly adopted by the
Board of Directors, or officers of the Corporation to which authority to act on
behalf of the Board of Directors has been delegated, and to be in full force and
effect on the date of such certification, and delivered to the Trustee.
"Business Day" means any day other than (i) a Saturday or Sunday, (ii) a
day on which banking institutions in The City of New York are authorized or
required by law or executive order to remain closed or (iii) a day on which the
Corporate Trust Office of the Trustee, or, with respect to the Securities
initially issued in the name of the Property Trustee, the principal office of
the Property Trustee under the related Trust Agreement, is closed for business.
"Capital Treatment Event" means, with respect to the Preferred Securities
under the related Trust Agreement, the reasonable determination by the
Corporation (as evidenced by an Officers' Certificate delivered to the Trustee)
that, as a result of the occurrence of any amendment to, or change (including
any announced prospective change) in, the laws (or any regulations thereunder)
of the United States or any political subdivision thereof or therein, or as a
result of any official or administrative pronouncement or action or judicial
decision interpreting or applying such laws or regulations, which amendment or
change is effective or such pronouncement, action or decision is announced on or
after the date of issuance of such Preferred Securities under the Trust
Agreement, there is more than an insubstantial risk that the Corporation will
not be entitled, subsequent to the to the effectiveness of such amendment or
change or the announcement of such pronouncement, action or decision, to treat
as "Tier I Capital" (or the equivalent thereof) a portion of the Liquidation
Amount of such Preferred Securities substantially equal to or greater than the
portion thereof it was entitled to treat as "Tier I Capital" (or the then
equivalent thereof) immediately prior to the effectiveness of such amendment or
change or the announcement of such pronouncement, action or decision for
purposes of the capital adequacy guidelines of the Federal Reserve, as then in
effect and applicable to the Corporation.
"Commission" means the United States Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or if at any time
after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Securities" has the meaning specified in the first recital of this
Indenture.
"Common Stock" means the common stock, par value $2.50 per share, of the
Corporation.
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"Comparable Treasury Issue" means with respect to any Redemption Date the
United States Treasury security selected by the Quotation Agent as having a
maturity comparable to the Remaining Life that would be utilized, at the time of
selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the Remaining
Life. If no United States Treasury security has a maturity which is within a
period from three months before to three months after March 15, 2007, the two
most closely corresponding United States Treasury securities shall be used as
the Comparable Treasury Issue, and the Treasury Rate shall be interpolated or
extrapolated on a straight-line basis, rounding to the nearest month using such
securities.
"Comparable Treasury Price" means (A) the average of five Reference Dealer
Treasury Quotations for such Redemption Date, after excluding the highest and
lowest such Reference Treasury Dealer Quotations, or (B) if the Trustee obtains
fewer than three such Reference Treasury Dealer Quotations, the average of all
such Quotations.
"Corporation" means the Person named as the "Corporation" in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Corporation" shall mean such successor Person. "Corporation" includes a
corporation, association, company, joint-stock company or business trust.
"Corporation Request" and "Corporation Order" mean, respectively, the
written request or order signed in the name of the Corporation by the Chairman
of the Board of Directors, the Chairman of the Executive Committee of the Board
of Directors, a Vice Chairman of the Board of Directors, the Chief Executive
Officer, the President, the Chief Operating Officer, a Vice Chairman or a Vice
President, and by the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary of the Corporation, and delivered to the Trustee.
"Corporate Trust Office" means the principal office of the Trustee at which
at any particular time its corporate trust business shall be administered, which
office as of the date of this Indenture is located at 000 Xxxxxxx Xxxxxx, 00X,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Trust and Agency Group--Corporate
Market Services.
"Debt" means with respect to any Person, whether recourse is to all or a
portion of the assets of such Person and whether or not contingent: (i) every
obligation of such Person for money borrowed; (ii) every obligation of such
Person evidenced by bonds, debentures, notes or other similar instruments,
(including the Series A Subordinated Debentures) including obligations incurred
in connection with the acquisition of property, assets or businesses; (iii)
every reimbursement obligation of such Person with respect to letters of credit,
bankers' acceptances or similar facilities issued for the account of such
Person; (iv) every obligation of such Person issued or assumed as the deferred
purchase price of property or services (but excluding trade accounts payable or
accrued liabilities arising in the ordinary course of business); (v) every
capital lease obligation of such Person; (vi) all obligations of such Person
whether incurred on or prior to the
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date of the Indenture or thereafter incurred, for claims in respect of
derivative products, including interest rate, currency and foreign exchange rate
and commodity forward contracts, options and swaps and similar arrangements; and
(vii) every obligation of the type referred to in clauses (i) through (vi) of
another Person and all dividends of another Person the payment of which, in
either case, such Person has guaranteed or is responsible or liable, directly or
indirectly, as obligor or otherwise.
"Defaulted Interest" has the meaning specified in Section 3.7.
"Depositary" means the Person designated as Depositary pursuant to Section
3.4.
"Definitive Security" shall have the meaning ascribed to "Definitive
Preferred Security" in the Trust Agreement.
"Distributions", with respect to the Trust Securities issued by Xxxxx
Capital II, means amounts payable in respect of such Trust Securities as
provided in the Trust Agreement and referred to therein as "Distributions".
"Dollar" means the currency of the United States of America that, as at the
time of payment, is legal tender for the payment of public and private
indebtedness.
"DTC" means The Depository Trust Corporation.
"Event of Default" has the meaning specified in Article V.
"Exchange Act" means the Securities Exchange Act of 1934 and any statute
successor thereto, in each case as amended from time to time.
"Expiration Date" has the meaning specified in Section 1.4(f).
"Extension Period" has the meaning specified in Section 3.11.
"Federal Reserve" means the Board of Governors of the Federal Reserve
System, as from time to time constituted, or if at any time after the execution
of this Indenture the Federal Reserve is not existing and performing the duties
now assigned to it, then the Body performing such duties at such time.
"Global Security" means a Security in the form prescribed in Section 2.4
evidencing all or part of the Securities, issued to the Depositary or its
nominee for the Securities, and registered in the name of such Depositary or its
nominee.
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"Global Preferred Security" means a Preferred Security, the ownership and
transfers of which shall be made through book entries by a clearing agency, as
described in the Trust Agreement.
"Guarantee Agreement" means the Guarantee Agreement substantially in the
form attached hereto as Annex C as amended from time to time.
"Holder" means a Person in whose name a Security is registered in the
Securities Register.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof.
"Interest Payment Date" means as to the Securities the Stated Maturity of
an installment of interest on the Securities.
"Like Amount" means (i) with respect to a redemption of the Trust
Securities, Trust Securities having a Liquidation Amount equal to that portion
of the principal amount of the Securities to be contemporaneously redeemed in
accordance with this Indenture, allocated to the Trust Securities pro rata based
upon the relative Liquidation Amounts of such Trust Securities and the proceeds
of which will be used to pay the Redemption Price of such Trust Securities and
(ii) with respect to a distribution of the Securities to holders of the Trust
Securities in exchange therefor in connection with a dissolution or liquidation
of Xxxxx Capital II, Securities having a principal amount equal to the
Liquidation Amount of the Trust Securities of the holder to whom such Securities
would be distributed.
"Make-Whole Amount" means an amount equal to the greater of (i) 100% of the
principal amount of the Securities or (ii) as determined by a Quotation Agent,
the sum of the present values of the principal amount and premium payable as
part of the Optional Redemption Price with respect to an optional redemption of
such Securities on March 15, 2007, together with scheduled payments of interest
from the Redemption Date to March 15, 2007 (the "Remaining Life"), in each case
discounted to the Redemption Date on a semi-annual basis (assuming a 360-day
year consisting of twelve 30-day months) at the Adjusted Treasury Rate.
"Maturity" when used with respect to any Security means the date on which
the principal of such Security becomes due and payable as therein or herein
provided, whether at the Stated Maturity or by declaration of acceleration, call
for redemption or otherwise.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Notice of Default" means a written notice of the kind specified in Section
5.1(3).
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"Officers' Certificate" means a certificate signed by the Chairman of the
Board of Directors, a Vice Chairman of the Board of Directors, the President or
a Vice President, and by the Treasurer, an Assistant Treasurer, the Secretary or
an Assistant Secretary of the Corporation, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Corporation, and who shall be acceptable to the Trustee.
"Original Issue Date" means the date of issuance of the Securities.
"Outstanding" means, when used in reference to any Securities, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(ii) Securities for whose payment money in the necessary amount has been
theretofore deposited with the Trustee or any Paying Agent in trust for the
Holders of such Securities; and
(iii) Securities in substitution for or in lieu of which other Securities
have been authenticated and delivered or which have been paid pursuant to
Section 3.5, unless proof satisfactory to the Trustee is presented that any such
Securities are held by Holders in whose hands such Securities are valid, binding
and legal obligations of the Corporation; provided, however, that in
determining whether the Holders of the requisite principal amount of Outstanding
Securities have given any request, demand, authorization, direction, notice,
consent or waiver hereunder, Securities owned by the Corporation or any other
obligor upon the Securities or any Affiliate of the Corporation or such other
obligor shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities which a Responsible Officer of the Trustee actually knows to be so
owned shall be so disregarded. 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
Securities and that the pledgee is not the Corporation or any other obligor upon
the Securities or any Affiliate of the Corporation or such other obligor. Upon
the written request of the Trustee, the Corporation shall furnish to the Trustee
promptly an Officers' Certificate listing and identifying all Securities, if
any, known by the Corporation to be owned or held by or for the account of the
Corporation, or any other obligor on the Securities or any Affiliate of the
Corporation or such obligor, and, subject to the provisions of Section 6.1, the
Trustee shall be entitled to accept such Officers' Certificate as conclusive
evidence of the facts therein set forth and of the fact that all Securities not
listed therein are Outstanding for the purpose of any such determination.
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"Paying Agent" means the Trustee or any Person authorized by the
Corporation to pay the principal of (and premium, if any) or interest on the
Securities on behalf of the Corporation.
"Person" means any individual, corporation, partnership, joint venture,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment" means, with respect to the Securities, the place or
places where the principal of (and premium, if any) and interest on the
Securities are payable pursuant to Section 3.7.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same indebtedness as that evidenced
by such particular Security; and for the purposes of this definition, any
security authenticated and delivered under Section 3.6 in lieu of a lost,
destroyed or stolen Security shall be deemed to evidence the same indebtedness
as the lost, destroyed or stolen Security.
"Preferred Securities" has the meaning specified in the first recital of
this Indenture.
"Proceeding" has the meaning specified in Section 12.2.
"Property Trustee" means, in respect of Xxxxx Capital II, the commercial
bank or trust company identified as the "Property Trustee" in the related Trust
Agreement, solely in its capacity as Property Trustee of Xxxxx Capital II under
the Trust Agreement and not in its individual capacity, or its successor in
interest in such capacity, or any successor property trustee appointed as
therein provided. Where appropriate, the term "Property Trustee" shall include
any nominee thereof.
"Quotation Agent" means Xxxxxx, Read & Co. Inc. and its respective
successors; provided, however, that if the foregoing shall cease to be a primary
U.S. Government securities dealer in New York City (a "Primary Treasury
Dealer"), the Corporation shall substitute therefor another Primary Treasury
Dealer. "Reference Treasury Dealer" means (i) the Quotation Agent and (ii) any
other Primary Treasury Dealer selected by the Trustee after consultation with
the Corporation.
"Redemption Date", when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Reference Treasury Dealer" means (i) the Quotation Agent and (ii) any
other Primary Treasury Dealer selected by the Trustee after consultation with
the Corporation.
8
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined by
the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m., New York
City time, on the third Business Day preceding such redemption date.
"Regular Record Date" for the interest payable on any Interest Payment Date
with respect to the Securities means the June 15 or December 15 next preceding
such Interest Payment Date (whether or not a Business Day), or in the case of
Securities held in book-entry form only, the Business Day immediately preceding
such Interest Payment Date.
"Responsible Officer" means when used with respect to the Trustee, any
officer assigned to the Corporate Trust Office, including any vice president,
assistant vice president, assistant treasurer or any other officer of the
Trustee customarily performing functions similar to those performed by any of
the above designated officers.
"Xxxxx Capital II" has the meaning specified in the first recital of this
Indenture.
"Xxxxx Capital II Guarantee" means the guarantee by the Corporation of
distributions on the Preferred Securities of Xxxxx Capital II to the extent
provided in the Guarantee Agreement.
"Rights Plan" means a plan of the Corporation providing for the issuance by
the Corporation to all holders of its Common Stock of rights entitling the
holders thereof to subscribe for or purchase shares of Common Stock or any class
or series of preferred stock, which rights (i) are deemed to be transferred with
such shares of Common Stock, (ii) are not exercisable and (iii) are also issued
in respect of future issuances of Common Stock, in each case until the
occurrence of a specified event or events.
"S&P" means Standard & Poor's Ratings Services.
"Securities" or "Security" means any indebtedness securities or
indebtedness security, as the case may be, authenticated and delivered under
this Indenture.
"Securities Act" means the Securities Act of 1933 (or any successor
statute), as it may be amended from time to time.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 3.5.
"Senior Debt" means the principal of (and premium, if any) and interest, if
any (including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to the Corporation whether or not such
claim for post-petition interest is allowed in such
9
proceeding), on Debt, whether incurred on or prior to the date of the Indenture
or thereafter incurred, unless, in the instrument creating or evidencing the
same or pursuant to which the same is outstanding, it is provided that such
obligations are not superior in right of payment to the Securities or to other
Debt which is pari passu with, or subordinated to, the Securities; provided,
however, that Senior Debt shall not be deemed to include: (i) any Debt of the
Corporation which when incurred and without respect to any election under
Section 1111(b) of the United States Bankruptcy Code of 1978, as amended, was
without recourse to the Corporation, (ii) any Debt of the Corporation to any of
its subsidiaries, (iii) Debt to any employee of the Corporation and (iv) the
Series A Subordinated Debentures.
"Series A Subordinated Debentures" means the 8 5/8% Junior Subordinated
Deferrable Interest Debentures, Series A, due 2026, issued by the Corporation.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.7.
"Stated Maturity" means March 15, 2027, which date may be shortened to a
date not earlier than March 12, 2012 in certain circumstances as specified in
the Security.
"Subsidiary" means a corporation more than 50% of the outstanding voting
stock of which is owned, directly or indirectly, by the Corporation or by one or
more other Subsidiaries, or by the Corporation and one or more other
Subsidiaries. For purposes of this definition, "voting stock" means stock which
ordinarily has voting power for the election of directors, whether at all times
or only so long as no senior class of stock has such voting power by reason of
any contingency.
"Successor Security" of any particular Security means every Security issued
after, and evidencing all or a portion of the same indebtedness as that
evidenced by, such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 3.5 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall
be deemed to evidence the same indebtedness as the mutilated, destroyed, lost or
stolen Security.
"Tax Event" means the receipt by Xxxxx Capital II of an Opinion of Counsel
(as defined in the Trust Agreement) experienced in such matters to the effect
that, as a result of any amendment to, or change (including any announced
prospective change) in, the laws (or any regulations thereunder) of the United
States or any political subdivision or taxing authority thereof or therein, or
as a result of any official administrative pronouncement or judicial decision
interpreting or applying such laws or regulations, which amendment or change is
effective or which pronouncement or decision is announced on or after the date
of issuance of the Preferred Securities of Xxxxx Capital II, there is more than
an insubstantial risk that (i) Xxxxx Capital II is, or will be within 90 days of
the date of such Opinion of Counsel, subject
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to United States federal income tax with respect to income received or accrued
on the corresponding Securities issued by the Corporation to Xxxxx Capital II,
(ii) interest payable by the Corporation on the Securities is not, or within 90
days of the date of such Opinion of Counsel, will not be, deductible by the
Corporation, in whole or in part, for United States federal income tax purposes
or (iii) Xxxxx Capital II is, or will be within 90 days of the date of such
Opinion of Counsel, subject to more than a de minimis amount of other taxes,
duties or other governmental charges. With respect to Securities that are no
longer held by the Property Trustee, "Tax Event" means the receipt by the
Corporation of an opinion of counsel experienced in such matters to the effect
that, as a result of any amendment to, or change (including any announced
proposed change) in, the laws (or any regulations thereunder) of the United
States or any political subdivision or taxing authority thereof or therein, or
as a result of any official administrative pronouncement or judicial decision
interpreting or applying such laws or regulations, which amendment or change is
effective or which proposed change, pronouncement or decision is announced on or
after the date of issuance of the Securities hereunder, there is more than an
insubstantial risk that interest payable by the Corporation on the Securities is
not, or within 90 days of the date of such opinion will not be, deductible by
the Corporation, in a whole or in part, for United States federal income tax
purposes (each of the circumstances referred to in clauses (i), (ii) and (iii)
of the preceding sentence and circumstances refereed to in this sentence being
referred to herein as an "Adverse Tax Consequence").
"Treasury Rate" means (i) the yield, under the heading which represents the
average for the immediately prior week, appearing in the most recently published
statistical release designated "H.15(519)" or any successor publication which is
published weekly by the Federal Reserve and which establishes yields on actively
traded United States Treasury securities adjusted to constant maturity under the
caption "Treasury Constant Maturities", for the maturity corresponding to the
Remaining Life (if no maturity is within three months before or after the
Remaining Life, yields for the two published maturities most closely
corresponding to the Remaining Life shall be determined and the Treasury Rate
shall be interpolated or extrapolated from such yields on a straight-line basis,
rounding to the nearest month) or (ii) if such release (or any successor
release) is not published during the week preceding the calculation date or does
not contain such yields, the rate per annum equal to the semi-annually
equivalent yield to maturity of the Comparable Treasury Issue, calculated using
a price for the Comparable Treasury Issue (expressed as a percentage of its
principal amount) equal to the Comparable Treasury Price for such Redemption
Date. The Treasury Rate shall be calculated on the third Business Day preceding
the Redemption Date.
"Trust Agreement" means the Trust Agreement substantially in the form
attached hereto as Annex A, as amended by the form of Amended and Restated Trust
Agreement substantially in the form attached hereto as Annex B in each case as
amended from time to time.
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"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 Securities
shall mean the Trustee with respect to the Securities.
"Trust Indenture Act" means the Trust Indenture Act of 1939 (15 U.S.C.
(S)(S) 77aaa-77bbb), as amended and as in effect on the date as of this
Indenture, except as provided in Section 9.5.
"Trust Securities" has the meaning specified in the first recital of this
Indenture.
"Vice President" when used with respect to the Corporation, means any duly
appointed vice president, whether or not designated by a number or a word or
words added before or after the title "vice president."
Section 1.2. Compliance Certificate and Opinions.
Upon any application or request by the Corporation to the Trustee to take
any action under any provision of this Indenture, the Corporation shall furnish
to the Trustee an Officers' Certificate stating that all conditions precedent
(including covenants, compliance with which constitutes a condition precedent),
if any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent (including covenants compliance with which
constitute a condition precedent), if any, have been complied with, except that
in the case of any such application or request as to which the furnishing of
such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (other than the certificates provided
pursuant to Section 10.4) shall include:
(1) a statement 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 has made
such examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
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(4) a statement as to whether, in the opinion of each such individual, such
condition or covenant has been complied with.
Section 1.3. Forms of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Corporation may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Corporation stating that the
information with respect to such factual matters is in the possession of the
Corporation, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions, or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 1.4. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given to or taken by Holders
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Holders in person or by an agent duly appointed in
writing; and, except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments is or are delivered to the
Trustee, and, where it is hereby expressly required, to the Corporation. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 6.1) conclusive in favor of the Trustee and
the Corporation, if made in the manner provided in this Section.
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(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by
the certificate of any notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a Person acting in other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his authority.
(c) The fact and date of the execution by any Person of any such instrument
or writing, or the authority of the Person executing the same, may also be
proved in any other manner which the Trustee deems sufficient and in accordance
with such reasonable rules as the Trustee may determine.
(d) The ownership of Securities shall be proved by the Securities Register.
(e) Any request, demand, authorization, direction, notice, consent, waiver
or other action by any Holder of the Securities shall bind every future Holder
of the same Securities and the Holder of Securities issued upon the transfer
thereof or in exchange therefor or in lieu thereof in respect of anything done
or suffered to be done by the Trustee or the Corporation in reliance thereon,
whether or not notation of such action is made upon such Securities.
(f) The Corporation may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities entitled to give, make or take
any request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted by this Indenture to be given, made or taken by
Holders of the Securities, provided that the Corporation may not set a record
date for, and the provisions of this paragraph shall not apply with respect to,
the giving or making of any notice, declaration, request or direction referred
to in the next paragraph. If any record date is set pursuant to this paragraph,
the Holders of the Outstanding Securities on such record date, and no other
Holders, shall be entitled to take the relevant action, whether or not such
Holders remain Holders after such record date, provided that no such action
shall be effective hereunder unless taken on or prior to the applicable
Expiration Date (as hereinafter in this Section 1.4(f) provided) by Holders of
the requisite principal amount of Outstanding Securities on such record date.
Nothing in this paragraph shall be construed to prevent the Corporation from
setting a new record date for any action for which a record date has previously
been set pursuant to this paragraph (whereupon the record date previously set
shall automatically and with no action by any Person be canceled and of no
effect), and nothing in this paragraph shall be construed to render ineffective
any action taken by Holders of the requisite principal amount of Outstanding
Securities on the date such action is taken. Promptly after any record date is
set pursuant to this paragraph, the Corporation, at its own expense, shall cause
notice of such record date, the proposed action by Holders and the applicable
Expiration Date to be given to the Trustee in writing and to each Holder of
Securities in the manner set forth in Section 1.6.
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The Trustee may set any day as a record date for the purpose of determining
the Holders of Outstanding Securities entitled to join in the giving or making
of (i) any Notice of Default, (ii) any declaration of acceleration referred to
in Section 5.2, (iii) any request to institute proceedings referred to in
Section 5.7(2) or (iv) any direction referred to in Section 5.12, in each case
with respect to the Securities. If any record date is set pursuant to this
paragraph, the Holders of Outstanding Securities on such record date, and no
other Holders, shall be entitled to join in such notice, declaration, request or
direction, whether or not such Holders remain Holders after such record date,
provided that no such action shall be effective hereunder unless taken on or
prior to the applicable Expiration Date by Holders of the requisite principal
amount of Outstanding Securities on such record date. Nothing in this paragraph
shall be construed to prevent the Trustee from setting a new record date for any
action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and with
no action by any Person be canceled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite principal amount of Outstanding Securities on the date such
action is taken. Promptly after any record date is set pursuant to this
paragraph, the Trustee, at the Corporation's expense, shall cause notice of such
record date, the proposed action by Holders and the applicable Expiration Date
to be given to the Corporation in writing and to each Holder of Securities in
the manner set forth in Section 1.6.
With respect to any record date set pursuant to this Section, the party
hereto which sets such record dates may designate any day as the "Expiration
Date" and from time to time may change the Expiration Date to any earlier or
later day, provided that no such change shall be effective unless notice of the
proposed new Expiration Date is given to the other party hereto in writing, and
to each Holder of Securities in the manner set forth in Section 1.6, on or prior
to the existing Expiration Date. If an Expiration Date is not designated with
respect to any record date set pursuant to this Section, the party hereto which
set such record date shall be deemed to have initially designated the 180th day
after such record date as the Expiration Date with respect thereto, subject to
its right to change the Expiration Date as provided in this paragraph.
Notwithstanding the foregoing, no Expiration Date shall be later than the 180th
day after the applicable record date.
(g) Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to the Securities may do so with regard to all or
any part of the principal amount of such Security or by one or more duly
appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.
Section 1.5. Notices, Etc. to Trustee and Corporation.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
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(1) the Trustee by any Holder, any holder of Preferred Securities or the
Corporation shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Trustee at its Corporate Trust
Office, or
(2) the Corporation by the Trustee, any Holder or any holder of Preferred
Securities shall be sufficient for every purpose (except as otherwise provided
in Section 5.1) hereunder if in writing and mailed, first class, postage
prepaid, to the Corporation addressed to it at the address of its principal
office specified in the first paragraph of this instrument or at any other
address previously furnished in writing to the Trustee by the Corporation.
Section 1.6. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first class postage prepaid, to each Holder affected
by such event, at the address of such Holder as it appears in the Securities
Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. 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 relevant Securities, then any manner of giving such
notice as shall be satisfactory to the Trustee shall be deemed to be a
sufficient giving of such notice. Where this Indenture provides for notice in
any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
Section 1.7. Conflict with Trust Indenture Act.
If any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by any of Sections 310 to 317, inclusive, of the Trust Indenture
Act through operation of Section 318(c) thereof, such imposed duties shall
control. This Indenture, the Corporation and the Trustee shall be deemed for all
purposes hereof to be subject to and governed by the Trust Indenture Act to the
same extent as would be the case if this Indenture were so qualified on the date
hereof.
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Section 1.8. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 1.9. Successors and Assigns.
All covenants and agreements in this Indenture by the Corporation shall
bind its successors and assigns, whether so expressed or not.
Section 1.10. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 1.11 Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto and their successors and
assigns, the holders of Senior Debt, the Holders of the Securities and, to the
extent expressly provided in Sections 5.2, 5.8, 5.9, 5.11, 5.13, 9.1 and 9.2,
the holders of Preferred Securities, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
Section 1.12. Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF
LAW PRINCIPLES THEREOF.
Section 1.13. Non-Business Days.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day, then (notwithstanding any
other provision of this Indenture or the Securities) payment of interest or
principal (and premium, if any) need not be made on such date, but may be made
on the next succeeding Business Day (and no interest shall accrue for the period
from and after such Interest Payment Date, Redemption Date or Stated Maturity,
as the case may be, until such next succeeding Business Day) except that, if
such Business Day is in the next succeeding calendar year, such payment shall be
made on the immediately preceding Business Day (in each case with the same force
and effect as if made on the Interest Payment Date or Redemption Date or at the
Stated Maturity).
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ARTICLE II
SECURITY FORMS
Section 2.1. Forms Generally.
The Securities and the Trustee's certificate of authentication shall be in
substantially the forms set forth in this Article, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with applicable tax laws or the rules of any securities
exchange or as may, consistently herewith, be determined by the officers
executing such Securities, as evidenced by their execution of the Securities.
The Trustee's certificate of authentication shall be substantially in the
form set forth in this Article.
The definitive Securities shall be printed, lithographed or engraved or
produced by any combination of these methods, if required by any securities
exchange on which the Securities may be listed, on a steel engraved border or
steel engraved borders or may be produced in any other manner permitted by the
rules of any securities exchange on which the Securities may be listed, all as
determined by the officers executing such Securities, as evidenced by their
execution of such securities.
Securities distributed to holders of beneficial interests in a Global
Preferred Security upon the dissolution of Xxxxx Capital II shall be distributed
in the form of one or more Global Securities registered in the name of a
Depository or its nominee, and deposited with the Securities Registrar, as
custodian for such Depository, or held by such Depository, for credit by the
Depository to the respective accounts of the beneficial owners of the Securities
represented thereby (or such other accounts as they may direct).
Section 2.2. Form of Face of Security.
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES
ACT OF 1933 (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING THIS
SECURITY, AGREES FOR THE BENEFIT OF XXXXX CAPITAL II THAT (A) THIS SECURITY MAY
NOT BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED OTHER THAN (1) TO XXXXX CAPITAL
II OR ANY AFFILIATE THEREOF, (2) SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON WHO
THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER
18
WITHIN THE MEANING OF RULE 144A, PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (3)
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY
RULE 144 (IF APPLICABLE) UNDER THE SECURITIES ACT OR (4) PURSUANT TO AN
EFFECTIVE REGISTRATION UNDER THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH
ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, OR ANY
APPLICABLE JURISDICTION, AND (B) IT WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED
TO, NOTIFY ANY PURCHASER FROM IT OF THIS SECURITY OF THE RESALE RESTRICTIONS SET
FORTH IN (A) ABOVE. THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, REPRESENTS
AND AGREES FOR THE BENEFIT OF XXXXX CAPITAL II THAT IT IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT.
THIS SECURITY WILL BE ISSUED, AND MAY BE TRANSFERRED, ONLY IN BLOCKS HAVING A
LIQUIDATION AMOUNT OF NOT LESS THAN $100,000. ANY TRANSFER, SALE OR OTHER
DISPOSITION OF THIS SECURITY IN A BLOCK HAVING A LIQUIDATION AMOUNT OF LESS THAN
$100,000 SHALL BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER. ANY SUCH
TRANSFEREE SHALL BE DEEMED NOT TO BE THE HOLDER OF SUCH SECURITIES FOR ANY
PURPOSE, INCLUDING BUT NOT LIMITED TO THE RECEIPT OF INTEREST ON SUCH
SECURITIES, AND SUCH TRANSFEREE SHALL BE DEEMED TO HAVE NO INTEREST WHATSOEVER
IN SUCH SECURITIES.
THE HOLDER, BY PURCHASING THIS SECURITY, IS DEEMED TO REPRESENT THAT IT (X)
IS NOT ITSELF, AND IS NOT ACQUIRING THE SECURITY WITH THE ASSETS OF, (i) AN
"EMPLOYEE BENEFIT PLAN" (WITHIN THE MEANING OF SECTION 3(3) OF ERISA), A "PLAN"
(WITHIN THE MEANING OF SECTION 4975(e)(i) OF THE INTERNAL REVENUE CODE), OR AN
ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN
THE ENTITY BY SUCH AN "EMPLOYEE BENEFIT PLAN" OR "PLAN" AND THE APPLICATION OF
THE PLAN ASSET REGULATION OR (ii) A "GOVERNMENTAL PLAN" (WITHIN THE MEANING OF
SECTION 3(32) OF ERISA) OR (Y)(i) IS ITSELF, OR IS ACQUIRING THE SECURITY WITH
THE ASSETS OF, AN "INVESTMENT FUND" (WITHIN THE MEANING OF PART V(b) OF U.S.
DEPARTMENT OF LABOR PTE 84-14) MANAGED BY A "QUALIFIED PROFESSIONAL ASSET
MANAGER" (WITHIN THE MEANING OF PART V (a) OF PTE 84-14) WHICH HAS MADE OR
PROPERLY AUTHORIZED THE DECISION FOR SUCH FUND TO PURCHASE THE SECURITY, UNDER
CIRCUMSTANCES SUCH THAT PTE 84-14 IS APPLICABLE TO THE PURCHASE AND HOLDING OF
THE SECURITY, (ii) IS AN INSURANCE COMPANY POOLED SEPARATE ACCOUNT PURCHASING
SECURITIES PURSUANT TO PART I OF U.S.
19
DEPARTMENT OF LABOR PTE 90-1 OR A BANK COLLECTIVE INVESTMENT FUND PURCHASING
PURSUANT TO PART I OF U.S. DEPARTMENT OF LABOR PTE 91-38, AND IN EITHER CASE, NO
"PLAN" OR "EMPLOYEE BENEFIT PLAN" NOT PURCHASING PURSUANT TO PTE 84-14 OWNS MORE
THAN 10% OF THE ASSETS OF SUCH ACCOUNT OR COLLECTIVE FUND (WHEN AGGREGATED WITH
OTHER PLANS OF THE SAME EMPLOYER OR EMPLOYEE ORGANIZATION, (iii) IS AN INSURANCE
COMPANY USING THE ASSETS OF THE GENERAL ASSET ACCOUNT OF THE INSURANCE COMPANY
TO PURCHASE THE SECURITY PURSUANT TO PART I OF THE U.S. DEPARTMENT OF LABOR PTE
95-60, IN WHICH CASE THE RESERVES AND LIABILITIES FOR THE GENERAL ACCOUNT
CONTRACTS HELD BY OR ON BEHALF OF ANY PLAN, TOGETHER WITH ANY OTHER PLANS
MAINTAINED BY THE SAME EMPLOYER OR EMPLOYEE ORGANIZATION, DO NOT EXCEED 10% OF
THE TOTAL RESERVES AND LIABILITIES OF THE INSURANCE COMPANY GENERAL ACCOUNT
(EXCLUSIVE OF SEPARATE ACCOUNT LIABILITIES), PLUS SURPLUS AS SET FORTH IN THE
NATIONAL ASSOCIATION OF INSURANCE COMMISSIONERS ANNUAL STATEMENT FILED WITH THE
STATE OF DOMICILE OF THE INSURER OR (iv) IS A PLAN ACQUIRING THE SECURITY WITH
ASSETS OVER WHICH AN IN-HOUSE ASSET MANAGER (WITHIN THE MEANING OF PART IV(a) OF
PTE 96-23) HAS DISCRETIONARY AUTHORITY, UNDER CIRCUMSTANCES SUCH THAT PTE 96-23
IS APPLICABLE TO THE PURCHASE AND HOLDING OF THE SECURITY.
XXXXX NATIONAL CORPORATION
8 7/8% JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURES,
SERIES C, DUE MARCH 15, 2027
CUSIP________
No. $[_]
XXXXX NATIONAL CORPORATION, a corporation organized and existing under the
laws of Delaware (hereinafter called the "Corporation", which term includes any
successor corporation under the Indenture hereinafter referred to), for value
received, hereby promises to pay to _____________________ or registered assigns,
the principal sum of _________________ or such other principal amount as may be
set forth in the records of the Securities Registrar hereinafter referred to in
accordance with the Indenture, plus accrued interest on March 15, 2027 subject
to a Maturity Advancement, as defined herein. The Corporation further promises
to pay interest on said principal sum from March 12, 1997 or from the most
recent date (each such date, an "Interest Payment Date") to which interest has
been paid or duly provided for, semi-annually (subject to deferral as set forth
herein) in arrears on June 30 and December 31 of each year, commencing on June
30, 1997 at the rate of 87/8% per annum, until the principal hereof shall have
become due and payable, plus Additional Interest, if any, until the principal
hereof is paid or duly provided for or made available for payment and on any
overdue principal and (without duplication and to the
20
extent that payment of such interest is enforceable under applicable law) on any
overdue installment of interest at the rate of 8 7/8% per annum, compounded
semi-annually. The amount of interest payable for any period less than a full
interest period shall be computed on the basis of twelve 30-day months and a
360-day year. In the event that any date on which interest is payable on this
Security is not a Business Day, then a payment of the interest payable on such
date will be made on the next succeeding day which is a Business Day (and
without any interest or other payment in respect of any such delay), except
that, if such Business Day is in the next succeeding calendar year, such payment
shall be made on the immediately preceding Business Day, in each case with the
same force and effect as if made on the date the payment was originally payable.
A "Business Day" shall have the meaning assigned thereto in the Indenture. The
interest installment so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in the Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities is
registered at the close of business on the Regular Record Date for such interest
installment. Any such interest installment not so punctually paid or duly
provided for shall forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in whose name this Security (or
one or more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice whereof shall be given to Holders of Securities not less
than 10 days prior to such Special Record Date, or be paid at any time in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture.
So long as no Event of Default has occurred and is continuing, the
Corporation shall have the right at any time during the term of this Security to
defer payment of interest on this Security, at any time or from time to time,
for a period not exceeding 10 consecutive semi-annual interest payment periods
with respect to each deferral period (each an "Extension Period"), and at the
end of which the Corporation shall pay all interest then accrued and unpaid plus
interest thereon at the rate of 8 7/8% per annum, compounded semi-annually, to
the extent permitted by applicable law ("Additional Interest"); provided,
however, that no Extension Period shall extend beyond the Stated Maturity of the
principal of this Security; provided, further, that during any such Extension
Period, the Corporation shall not, and shall not permit any Subsidiary of the
Corporation to, (i) declare or pay any dividends or distributions on, or redeem,
purchase, acquire or make a liquidation payment with respect to, any of the
Corporation's capital stock or (ii) make any payment of principal, interest or
premium, if any, on or repay, repurchase or redeem any debt securities of the
Corporation (including the Series A Subordinated Debentures) that rank pari
passu with or junior in right of payment to this Security or (iii) make any
guarantee payments with respect to any guarantee by the Corporation of the debt
securities of any Subsidiary of the Corporation if such guarantee ranks pari
passu with or junior in right of payment to this Security (other than (a)
dividends or distributions in Common Stock, (b) any declaration of a dividend in
connection with the implementation of a Rights Plan, the issuance of any Common
Stock or any class or series of preferred stock of the Corporation under any
Rights Plan in the future or the
21
redemption or repurchase of any rights distributed pursuant thereto, (c)
payments under the Xxxxx Capital II Guarantee, and (d) purchases of Common Stock
related to the issuance of Common Stock or rights under any of the Corporation's
benefit plans for its directors, officers or employees that were entered into
prior to the commencement of such Extension Period). Prior to the termination of
any such Extension Period, the Corporation may further defer the payment of
interest on the Securities, provided that no Extension Period shall exceed 10
consecutive semi-annual periods or extend beyond the Stated Maturity of the
principal of this Security. Upon the termination of any such Extension Period
and upon the payment of all interest then accrued and unpaid (together with any
Additional Interest) on any Interest Payment Date, the Corporation may elect to
begin a new Extension Period, subject to the above requirements. No interest
shall be due and payable during an Extension Period except at the end thereof.
The Corporation shall give the Property Trustee, the Administrative Trustee and
the Trustee notice of its election to begin any Extension Period at least one
Business Day prior to the earlier of (i) the date interest on the Securities
would have been payable except for the election to begin such Extension Period
or (ii) the date the Administrative Trustees are required to give notice to DTC
or an applicable self-regulatory organization or to holders of the Preferred
Securities as of the record date or the date Distributions on the Preferred
Securities are payable, but in any event not less than one Business Day prior to
such record date. Subject to the above requirements, there is no limitation on
the number of times the Corporation may elect to begin an Extension Period.
Payment of the principal of (and premium, if any) and interest on this
Security will be made at the office or agency of the Trustee in The City of New
York or at the offices of such Paying Agents or Agents as the Corporation may
designate from time to time outside the United States, in such coin or currency
of the United States of America as at the time of payment is legal tender for
payment of public and private indebtedness; provided, however, that at the
option of the Corporation payment of interest may be made (i) except in the
event that this Security is held in the name of the Property Trustee, by check
mailed to the address of the Person entitled thereto as such address shall
appear in the Securities Register or (ii) by wire transfer in immediately
available funds at such place and to such account as may be designated in
writing at least 15 days prior to the relevant Interest Payment Date by the
Person entitled thereto as specified in the Securities Register.
The indebtedness evidenced by this Security is, to the extent provided in
the Indenture, subordinate and junior in right of payment to the prior payment
in full of all Senior Debt, and this Security is issued subject to the
provisions of the Indenture with respect thereto. Each Holder hereof by
accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Trustee on his behalf to take such actions as may be
necessary or appropriate to effectuate the subordination so provided and (c)
appoints the Trustee his attorney-in-fact for any and all such purposes. Each
Holder hereof, by his acceptance hereof, waives all notice of the acceptance of
the subordination provisions contained herein and in the Indenture by each
holder of Senior Debt, whether now outstanding or hereafter incurred, and waives
reliance by each such holder upon said provisions.
22
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Corporation has caused this instrument to be duly
executed under its corporate seal.
XXXXX NATIONAL CORPORATION
By:_________________________________________
[President, Vice President, Treasurer or
Assistant Treasurer]
Attest:
Section 2.3. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the
Corporation designated as its 8 7/8% Junior Subordinated Deferrable Interest
Debentures, Series C, Due March 15, 2027 (herein called the "Securities"),
limited in aggregate principal amount to $206,186,000 issued and to be issued
under a Junior Subordinated Indenture, dated as of March 12, 1997 (herein called
the "Indenture"), between the Corporation and The Bank of New York, as Trustee
(herein called the "Trustee"), which term includes any successor trustee under
the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Trustee, the Corporation and
the Holders of the Securities, and of the terms upon which the Securities are,
and are to be, authenticated and delivered.
All terms used in this Security that are defined in the Indenture or in the
Amended and Restated Trust Agreement, dated as of March 12, 1997, as amended
(the "Trust Agreement"), for Xxxxx Capital II, entered into among Xxxxx National
Corporation, as Depositor, and the Trustees named therein and the Holders from
time to time thereunder, shall have the meanings assigned to them in the
Indenture or the Trust Agreement, as the case may be. In the case of conflict
23
between the Indenture and the Trust Agreement, the meanings assigned in the
Indenture shall apply.
The Corporation may, at its option, on or after March 15, 2007, subject to
the Corporation having received prior approval of the Federal Reserve if then
required under applicable capital guidelines or policies and subject to the
terms and conditions of Article XI of the Indenture, redeem this Security in
whole at any time or in part from time to time, at the following Redemption
Prices (expressed as percentages of the principal amount), plus, in each case,
accrued interest thereon to the date of redemption. If redeemed during the
twelve-month period beginning March 15 in the year indicated,
Date Redemption Price
---- ----------------
2007 104.438%
2008 103.994%
2009 103.550%
2010 103.106%
2011 102.663%
2012 102.219%
2013 101.775%
2014 101.331%
2015 100.888%
2016 100.444%
2017 and thereafter 100.000%
If a Tax Event occurs and is continuing and (i) in the opinion of counsel
to the Corporation experienced in such matters, there would in all cases, after
effecting the termination of Xxxxx Capital II and the distribution of the
Securities to the holders of the Preferred Securities in exchange therefor upon
liquidation of Xxxxx Capital II, as contemplated by Section 9.2 of the Trust
Agreement, be more than an insubstantial risk that an Adverse Tax Consequence
would continue to exist, or; (ii) the Securities are not held by the Property
Trustee, then the Corporation shall have the right (a) to shorten the Stated
Maturity of the Securities to the minimum extent required, but in any event to a
date not earlier than March 12, 2012 (the action referred to in this clause (a)
being referred to herein as a "Maturity Advancement"), such that, in the opinion
of counsel to the Corporation experienced in such matters, after effecting an
Maturity Advancement, interest paid on the Securities would be deductible for
United States federal income tax purposes, or (b) if in the opinion of counsel
to the Corporation experienced in such matters, there would in all cases, after
effecting a Maturity Advancement be more than an insubstantial risk that an
Adverse Tax Consequence would continue to exist, to redeem the Securities, in
whole but not in part, at any time within 90 days following the occurrence of
the Tax Event at a redemption price equal to 100% of the principal amount
thereof plus accrued and unpaid interest thereon to the Redemption Date.
24
If a Capital Treatment Event occurs and is continuing, the Corporation
shall have the right to redeem the Securities, in whole but not in part, at any
time within 90 days following the occurrence of the Capital Treatment Event at a
redemption price equal to the Make-Whole Amount plus accrued and unpaid interest
on the Securities to the date fixed for redemption.
In the event of redemption of this Security in part only, a new Security or
Securities for the unredeemed portion hereof will be issued in the name of the
Holder hereof upon the cancellation hereof.
This Security and the obligations represented hereby are not senior or
superior in right of payment to the Series A Subordinated Debentures but rank
pari passu therewith.
The Indenture contains provisions for satisfaction and discharge of the
entire indebtedness of this Security upon compliance by the Corporation with
certain conditions set forth in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
Corporation and the Trustee at any time to enter into a supplemental indenture
or indentures for the purpose of modifying in any manner the rights and
obligations of the Corporation and of the Holders of the Securities, with the
consent of the Holders of not less than a majority in principal amount of the
Outstanding Securities to be affected by such supplemental indenture. The
Indenture also contains provisions permitting Holders of specified percentages
in principal amount of the Securities at the time Outstanding, on behalf of the
Holders of all Securities, to waive compliance by the Corporation with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Security
shall be conclusive and binding upon such Holder and upon all future Holders of
this Security and of any Security issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, if an Event
of Default with respect to the Securities 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 the Outstanding Securities may declare the
principal amount of all the Securities to be due and payable immediately, by a
notice in writing to the Corporation (and to the Trustee if given by Holders),
provided that, so long as the Securities are held by the Property Trustee, if
upon an Event of Default, the Trustee or the Holders of not less than 25% in
principal amount of the Outstanding Securities fails to declare the principal of
all the Securities to be immediately due and payable, the holders of at least
25% in aggregate Liquidation Amount of the Preferred Securities of Xxxxx Capital
II then outstanding shall have such right by a notice in writing to the
Corporation and the Trustee; and upon any such declaration the principal amount
of and the accrued interest (including any Additional Interest) on all the
Securities shall become immediately due and payable, provided
25
that the payment of principal and interest (including any Additional Interest)
on such Securities shall remain subordinated to the extent provided in Article
XII of the Indenture.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Corporation, which
is absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to the limitations therein set
forth, the transfer of this Security is registrable in the Securities Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Corporation maintained under Section 10.2 of the Indenture duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Corporation and the Securities Registrar duly executed by,
the Holder hereof or his attorney duly authorized in writing, and thereupon one
or more new Securities, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees. No
service charge shall be made for any such registration of transfer or exchange,
but the Corporation may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the
Corporation, the Trustee and any agent of the Corporation or the Trustee shall
treat the Person in whose name this Security is registered as the owner hereof
for all purposes, whether or not this Security be overdue, and neither the
Corporation, the Trustee nor any such agent shall be affected by notice to the
contrary.
The Securities are issuable only in registered form without coupons in
minimum denominations of $100,000 and any integral multiples of $1,000 in excess
thereof. As provided in the Indenture and subject to certain limitations therein
set forth, Securities are exchangeable for a like aggregate principal amount of
Securities of a different authorized denomination, as requested by the Holder
surrendering the same.
The Corporation and, by its acceptance of this Security or a beneficial
interest therein, the Holder of, and any Person that acquires a beneficial
interest in, this Security agree that for United States federal, state and local
tax purposes it is intended that this Security constitute indebtedness.
THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT
OF LAW PRINCIPLES THEREOF.
26
Section 2.4. Additional Provisions Required in Global Security.
Any Global Security issued hereunder shall, in addition to the provisions
contained in Sections 2.2 and 2.3, bear a legend in substantially the following
form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE OF A DEPOSITORY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED
IN THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE ONLY IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A
NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE
DEPOSITORY.
Section 2.5. Form of Trustee's Certificate of Authentication.
This is one of the Securities referred to in the within mentioned
Indenture.
Dated:
The Bank of New York
as Trustee
By:________________________________
Authorized Signatory
ARTICLE III
THE SECURITIES
Section 3.1. Title and Terms.
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is limited to $206,186,000 except for Securities
authenticated and delivered upon registration of, transfer of, or in exchange
for, or in lieu of, other Securities pursuant to Section 3.4, 3.5, 3.6, 9.6 or
11.6.
The Securities shall be known and designated as the 8 7/8 Junior
Subordinated Deferrable Interest Debentures, Series C, due 2027, of the
Corporation. Their Stated Maturity shall be March 15, 2027, and they shall bear
interest at the rate of 8 7/8% per annum, from March 12, 1997 or from the most
recent Interest Payment Due to which interest has been paid or duly provided
for,
27
as the case may be, payable semi-annually in arrears on June 30 and December 31,
commencing June 30, 1997, until the principal thereof is paid or made available
for payment.
The principal of (and premium, if any) and interest on the Securities shall
be payable at the office or agency of the Corporation in New York, New York
maintained for such purpose and at any other office or agency maintained by the
Corporation for such purpose; provided, however, that at the option of the
Corporation payment of interest may be made (i) by check mailed to the address
of the Person entitled thereto as such address shall appear in the Securities
Register or (ii) by wire transfer in immediately available funds at such place
and to such account as may be designated in writing at least 15 days prior to
the relevant Interest Payment Date by the person entitled thereto as specified
in the Securities Register.
The Securities shall be redeemable as provided in Article XI.
The Securities shall be subordinated in right of payment to Senior Debt as
provided in Article XII.
All Securities shall be substantially identical except as to denomination
and except as may otherwise be provided herein.
Section 3.2. Denominations.
The Securities shall be in registered form without coupons and shall be
issuable in denominations of $100,000 and any integral multiple of $1,000 in
excess thereof.
Section 3.3. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Corporation by its
President, one of its Vice Presidents, its Treasurer or an Assistant Treasurer
under its corporate seal reproduced or impressed thereon and attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Corporation shall bind the
Corporation, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities. At any time and from
time to time after the execution and delivery of this Indenture, the Corporation
may deliver the Securities executed by the Corporation to the Trustee for
authentication, together with a Corporation Order for the authentication and
delivery of such Securities, and the Trustee in accordance with the Corporation
Order shall authenticate and deliver such Securities as in this Indenture
provided and not otherwise.
28
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose, unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by the manual signature of one of its authorized
signatories, and such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly authenticated
and delivered hereunder. Notwithstanding the foregoing, if any Security shall
have been authenticated and delivered hereunder but never issued and sold by the
Corporation, and the Corporation shall deliver such Security to the Trustee for
cancellation as provided in Section 3.9, for all purposes of this Indenture such
Security shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.
Section 3.4. Global Securities.
The Securities shall be delivered initially in the form of a Global
Security in the name of the Property Trustee (or its nominee on behalf of the
holders of the Trust Securities). Each Global Security issued under this
Indenture shall be registered in the name of the Property Trustee initially and
thereafter the Depositary designated for such Global Security or a nominee
thereof and delivered to such Depositary or a nominee thereof or custodian
therefor, and each such Global Security shall constitute a single Security for
all purposes of this Indenture.
Notwithstanding any other provision in this Indenture, a Global Security is
not exchangeable in whole or in part for Securities registered, and no transfer
of a Global Security in whole or in part may be registered, in the name of any
Person other than the Depositary for such Global Security or a nominee thereof
unless (A) such Depositary (i) has notified the Corporation that it is unwilling
or unable to continue as Depositary for such Global Security or (ii) has ceased
to be a clearing agency registered under the Exchange Act at a time when the
Depositary is required to be so registered to act as Depositary, in either case
unless the Corporation has approved a successor Depositary within 90 days, (B)
there shall have occurred and be continuing an Event of Default with respect to
such Global Security or, (C) the Corporation executes and delivers to the
Trustee a Corporation Order stating that the Corporation elects to terminate the
book-entry system through the Depositary.
If any Global Security is to be exchanged for other Securities or canceled
in whole, it shall be surrendered by or on behalf of the Depositary or its
nominee to the Trustee, as Securities Registrar, for exchange or cancellation as
provided in this Article III. If any Global Security is to be exchanged for
other Securities or canceled in part, or if another Security is to be exchanged
in whole or in part for a beneficial interest in any Global Security, then
either (i) such Global Security shall be so surrendered for exchange or
cancellation as provided in this Article III or (ii) the principal amount
thereof shall be reduced or increased by an amount equal to the portion
29
thereof to be so exchanged or canceled, or equal to the principal amount of such
other Security to be so exchanged for a beneficial interest therein, as the case
may be, by means of an appropriate adjustment made on the records of the
Securities Registrar, whereupon the Trustee, in accordance with the Applicable
Procedures, shall instruct the Depositary or its authorized representative to
make a corresponding adjustment to its records. Upon any such surrender or
adjustment of a Global Security, the Trustee shall, subject to Section 3.5(b)
and as otherwise provided in this Article III, authenticate and deliver any
Securities issuable in exchange for such Global Security (or any portion
thereof) to or upon the order of, and registered in such names as may be
directed by, the Depositary or its authorized representative. Upon the request
of the Trustee in connection with the occurrence of any of the events specified
in Section 3.5(b), the Company shall promptly make available to the Trustee a
reasonable supply of Securities that are not in the form of Global Securities.
The Trustee shall be entitled to rely upon any order, direction or request of
the Depositary or its authorized representative which is given or made pursuant
to this Article III if such order, direction or request is given or made in
accordance with the Applicable Procedures.
Every Security authenticated and delivered upon registration of transfer
of, or in exchange for or in lieu of, a Global Security or any portion thereof,
whether pursuant to this Section, Section 3.6, 9.6 or 11.6 or otherwise, shall
be authenticated and delivered in the form of, and shall be, a Global Security,
unless such Security will be upon such issuance registered in the name of a
Person other than the Depositary for such Global Security or a nominee thereof
in accordance with the preceeding paragraph. In the event of a distribution of
the Securities in connection with the termination or liquidation of Xxxxx
Capital II as contemplated by Section 9.2 of the Trust Agreement, the Depositary
shall be as designated in writing from time to time by the Corporation to the
Trustee.
Section 3.5. Registration and Registration of Transfer and Exchange
Generally; Certain Transfers and Exchanges; Securities Act Legends.
(a) Registration and Registration of Transfer and Exchange Generally. The
----------------------------------------------------------------
Corporation shall cause to be kept at the Corporate Trust Office of the Trustee
a register in which, subject to such reasonable regulations as it may prescribe,
the Corporation shall provide for the registration of Securities and of
transfers of Securities. Such register is herein sometimes referred to as the
"Securities Register". The Trustee is hereby appointed "Securities Registrar"
for the purpose of registering Securities and transfers of Securities as herein
provided.
Subject to the limitations in Section 3.4, upon surrender for registration
of transfer of any Security at the office or agency of the Corporation
designated for that purpose, the Corporation shall execute, and the Trustee
shall authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Securities of any authorized denominations, of a
like
30
aggregate principal amount, of the same Original Issue Date and Stated Maturity
and having the same terms and bearing such restrictive legends as may be
required by this Indenture.
At the option of the Holder and subject to Section 3.4, Securities may be
exchanged for other Securities of any authorized denominations, of a like
aggregate principal amount, of the same Original Issue Date and Stated Maturity
and having the same terms and bearing such restrictive legends as may be
required by this Indenture, upon surrender of the Securities to be exchanged at
such office or agency. Whenever any securities are so surrendered for exchange,
the Corporation shall execute, and the Trustee shall authenticate and deliver,
the Securities which the Holder making the exchange is entitled to receive.
All Securities issued upon any transfer or exchange of Securities shall be
the valid obligations of the Corporation, evidencing the same indebtedness, and
entitled to the same benefits under this Indenture, as the Securities
surrendered upon such transfer or exchange.
Every Security presented or surrendered for transfer or exchange shall (if
so required by the Corporation or the Securities Registrar) be duly endorsed, or
be accompanied by a written instrument of transfer in form satisfactory to the
Corporation and the Securities Registrar, duly executed by the Holder thereof or
his attorney duly authorized in writing.
No service charge shall be made to a Holder for any transfer or exchange of
Securities, but the Corporation may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with any
transfer or exchange of Securities.
Neither the Corporation nor the Trustee shall be required, pursuant to the
provisions of this Section, (a) to issue, transfer or exchange any Security
during a period beginning at the opening of business 15 days before the day of
mailing of a notice of for redemption of Securities pursuant to Article XI and
ending at the close of business on the day of mailing of such notice of
redemption or (b) to transfer or exchange any Security so selected for
redemption in whole or in part, except, in the case of any Security to be
redeemed in part, any portion thereof not to be redeemed.
(b) Certain Transfers and Exchanges. In the event Securities are
-------------------------------
distributed to Holders of Preferred Securities other than the Property Trustee
in exchange therefor in connection with a termination or liquidation of Xxxxx
Capital II, as contemplated by Section 9.2 of the Trust Agreement, the
restrictions upon transfer and exchange of Preferred Securities set forth in
Section 5.5(b) and (c) of the Trust Agreement shall apply to transfers and
exchanges of the Securities, mutatis mutandis, unless the Corporation determines
that any such restrictions are not required.
(c) Securities Act Legends. In the event Securities are distributed to
----------------------
Holders of Preferred Securities other than the Property Trustee in exchange
therefor, as contemplated by Section 9.2
31
of the Trust Agreement, the requirements for the Securities Act Legends provided
for in Section 5.5(c) of the Trust Agreement shall apply to the Securities,
mutatis mutandis, unless the Corporation determines that any such Securities Act
Legends are not required.
The Trustee shall not be required to insure or verify compliance with
securities laws, including the Securities Act, Exchange Act and 1940 Act, in
connection with transfers and exchanges of the Securities.
(d) No Obligation of the Trustee.
-----------------------------
(i) The Trustee shall have no responsibility or obligation to any owner of
beneficial interest in a Global Security, a Participant in the Depositary
or other Person with respect to the accuracy of the records of the
Depositary or its nominee or of any Participant thereof, with respect to
any ownership interest in the Securities or with respect to the delivery to
any Participant, beneficial owner or other Person (other than the
Depositary) of any notice (including any notice of redemption) or the
payment of any amount, under or with respect to such Securities. All
notices and communications to be given to the Holders and all payments to
be made to Holders under the Securities shall be given or made only to or
upon the order of the registered Holders (which shall be the Depositary or
its nominee in the case of a Global Security). The rights of beneficial
owners in any Global Security shall be exercised only through the
Depositary subject to the applicable rules and procedures of the
Depositary. The Trustee may conclusively rely and shall be exercised only
through the Depositary subject to the applicable rules and procedures of
the Depositary. The Trustee may conclusively rely and shall be fully
protected in relying upon information furnished by the Depositary or any
agent thereof with respect to its Participants and any beneficial owners.
(ii) The Trustee and Registrar shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer
imposed under this Indenture or under applicable law with respect to any
transfer of any interest in any Security (including any transfers between
or among Depositary Participants or owners of beneficial interests in any
Global Security) other than to require delivery of such certificates and
other documentation or evidence as are expressly required by, and to do so
if and when expressly required by, the terms of this Indenture, and to
examine the same to determine substantial compliance as to form with the
express requirements hereof.
Section 3.6. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee together with such
security or indemnity as may be required by the Corporation or the Trustee to
save each of them harmless, the Corporation shall execute and the Trustee shall
authenticate and deliver in exchange therefor
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a new Security of the same issue of like tenor and principal amount, having the
same Original Issue Date and Stated Maturity, and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Corporation and to the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security, and (ii) such security or indemnity as may be required by them to save
each of them harmless, then, in the absence of notice to the Corporation or the
Trustee that such Security has been acquired by a bona fide purchaser, the
Corporation shall execute and upon its request the Trustee shall authenticate
and deliver, in lieu of any such destroyed, lost or stolen Security, a new
Security of like tenor and principal amount, having the same Original Issue Date
and Stated Maturity as such destroyed, lost or stolen Security, and bearing a
number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Corporation in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Corporation
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Corporation, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities 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 Securities.
Section 3.7. Payment of Interest; Interest Rights Preserved.
Interest on any 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 Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest in respect of the
Securities, except that, interest payable on the Stated Maturity of the
principal of a Security shall be paid to the Person to whom principal is paid.
Any interest on any Security which is payable, but is not timely paid or
duly provided for, on any Interest Payment Date for the Securities (herein
called "Defaulted Interest"), shall forthwith cease to be payable to the
registered Holder on the relevant Regular Record Date by virtue of
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having been such Holder, and such Defaulted Interest may be paid by the
Corporation, at its election in each case, as provided in Clause (1) or (2)
below:
(1) The Corporation may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities in respect of which interest is in
default (or their respective Predecessor Securities) are registered at the close
of business on a Special Record Date for the payment of such Defaulted Interest,
which shall be fixed in the following manner. The Corporation shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid on
each Security and the date of the proposed payment, and at the same time the
Corporation shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit prior to
the date of the proposed payment, such money when deposited to be held in trust
for the benefit of the Persons entitled to such Defaulted Interest as 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 Corporation of such Special Record Date and,
in the name and at the expense of the Corporation, shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record Date therefor
to be mailed, first class, postage prepaid, to each Holder of a Security at the
address of such Holder as it appears in the Securities Register not less than 10
days prior to such Special Record Date. The Trustee may, in its discretion, in
the name and at the expense of the Corporation, cause a similar notice to be
published at least once in a newspaper, customarily published in the English
language on each Business Day and of general circulation in the Borough of
Manhattan, The City of New York, but such publication shall not be a condition
precedent to the establishment of such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record Date therefor
having been mailed as aforesaid, such Defaulted Interest shall be paid to the
Persons in whose names the Securities (or their respective Predecessor
Securities) are registered on such Special Record Date and shall no longer be
payable pursuant to the following Clause (2).
(2) The Corporation may make payment of any Defaulted Interest in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities in respect of which interest is in default may be listed
and, upon such notice as may be required by such exchange (or by the Trustee if
the Securities are not listed), if, after notice given by the Corporation to the
Trustee of the proposed payment pursuant to this Clause, such payment shall be
deemed practicable by the Trustee. Any interest on any Security which is
deferred or extended pursuant to Section 3.11 shall not be Defaulted Interest
for the purposes of this Section 3.7.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon transfer of or in exchange for or in lieu of
any other Security shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security.
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Section 3.8. Persons Deemed Owners.
The Corporation, the Trustee and any agent of the Corporation or the
Trustee may treat the Person in whose name any Security is registered as the
owner of such Security for the purpose of receiving payment of principal of
(premium, if any) and (subject to Section 3.7) any interest on such Security and
for all other purposes whatsoever, whether or not such Security be overdue, and
neither the Corporation, the Trustee nor any agent of the Corporation or the
Trustee shall be affected by notice to the contrary.
No holder of any beneficial interest in any Global Security held on its
behalf by a Depository shall have any rights under this Indenture with respect
to such Global Security, and such Depository may be treated by the Corporation,
the Trustee and any agent of the Corporation or the Trustee as the owner of such
Global Security for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent the Corporation, the Trustee or any agent of the
Corporation or the Trustee from giving effect to any written certification,
proxy or other authorization furnished by a Depository or impair, as between a
Depository and such holders of beneficial interests, the operation of customary
practices governing the exercise of the rights of the Depository (or its
nominee) as Holder of any Security.
Section 3.9. Cancellation.
All Securities surrendered for payment, redemption, transfer or exchange
shall, if surrendered to any Person other than the Trustee, be delivered to the
Trustee, and any such Securities and Securities surrendered directly to the
Trustee for any such purpose shall be promptly canceled by it. The Corporation
may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Corporation may have
acquired in any manner whatsoever, and all Securities so delivered shall be
promptly canceled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities canceled as provided in this Section,
except as expressly permitted by this Indenture.
Section 3.10. Computation of Interest.
Interest on the Securities for any period less than a full interest period
shall be computed on the basis of a 360-day year of twelve 30-day months. The
amount of Distributions for any partial period shall be computed on the basis of
the number of days elapsed in a 360-day year of twelve 30-day months.
Section 3.11. Deferrals of Interest Payment Dates.
So long as no Event of Default has occurred and is continuing, the
Corporation shall have the right, at any time during the term of the Securities,
from time to time to defer the payment of interest on the Securities for a
period not exceeding 10 consecutive semi-annual periods (each, an
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"Extension Period") during which Extension Periods the Corporation shall have
the right to make partial payments of interest on any Interest Payment Date. No
Extension Period shall end on a date other than an Interest Payment Date. At the
end of any such Extension Period the Corporation shall pay all interest then
accrued and unpaid on the Securities (together with Additional Interest, if
any); provided, however, that no Extension Period shall extend beyond the Stated
Maturity of the principal of the Securities; provided, further, that during any
such Extension Period, the Corporation shall not, and shall not permit any
Subsidiary to, (i) declare or pay any dividends or distributions on, or redeem,
purchase, acquire or make a liquidation payment with respect to, any of the
Corporation's capital stock, or (ii) make any payment of principal, interest or
premium, if any, on or repay, repurchase or redeem any debt securities of the
Corporation (including Series A Subordinated Debentures) that rank pari passu in
all respects with or junior in interest to the Securities or make any guarantee
payments with respect to any guarantee by the Corporation of the debt securities
of any Subsidiary of the Corporation if such guarantee ranks pari passu with or
junior in right of payment to the securities (other than (a) dividends or
distributions in Common Stock, (b) any declaration of a dividend in connection
with the implementation of a Rights Plan, or the issuance of any Common Stock of
any class or series of preferred stock of the Corporation under any Rights Plan
in the future or the redemption or repurchase of any rights pursuant thereto,
(c) payments under the Xxxxx Capital II Guarantee, and (d) purchases of Common
Stock related to the issuance of Common Stock or rights under any of the
Corporation's benefit plans for its directors, officers or employees that was
entered into prior to the commencement of such Extension Period). Prior to the
termination of any such Extension Period, the Corporation may further defer the
payment of interest on the Securities, provided that no Extension Period shall
exceed 10 consecutive semi-annual periods or extend beyond the Stated Maturity
of the principal of such Securities. Upon the termination of any Extension
Period and upon the payment of all amounts then due on any Interest Payment
Date, the Corporation may elect to begin a new Extension Period, subject to the
above requirements. No interest shall be due and payable during an Extension
Period, except at the end thereof. The Corporation shall give the Property
Trustee, the Administrative Trustee and the Trustee written notice of its
election to begin any such Extension Period at least one Business Day prior to
the earlier of (i) the date interest on the Securities would have been payable
except for the election to begin such Extension Period or (ii) the date the
Administrative Trustees are required to give notice to DTC or applicable self-
regulatory organization or to holders of the Preferred Securities as of the
record date or the date such Distributions on the Preferred Securities are
payable, but in any event not less than one Business Day prior to such record
date.
The Trustee, in the name of and at the expense of the Corporation, shall
promptly give notice of the Corporation's election to begin any such Extension
Period to the Holders of the Outstanding Securities. Payments of any amounts of
deferred interest and Additional Interest accrued during an Extension Period
shall be made to the Holder of the Securities on the next Record Date for the
Interest Payment Date following the termination of such Extension Period.
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Section 3.12. Right of Set-Off.
So long as the Securities are held by the Property Trustee, notwithstanding
anything to the contrary herein, the Corporation shall have the right to set-off
any payment it is otherwise required to make thereunder in respect of any such
Security to the extent the Corporation has theretofore made, or is concurrently
on the date of such payment making, a payment under the Xxxxx Capital II
Guarantee relating to such Security or under Section 5.8 hereof or, to the
extent not otherwise accounted for, any payment to holders of Preferred
Securities as contemplated by Section 5.8.
Section 3.13. Agreed Tax Treatment.
Each Security issued hereunder shall provide that the Corporation and, by
its acceptance of a Security or a beneficial interest therein, the Holder of,
and any Person that acquires a beneficial interest in, such Security agree that
for United States federal, state and local tax purposes it is intended that such
Security constitutes indebtedness.
Section 3.14. CUSIP Numbers.
The Corporation in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption or other related material as a convenience to Holders; provided
that any such notice or other related material may state that no representation
is made as to the correctness of such numbers either as printed on the
Securities or as contained in any notice of redemption or other related material
and that reliance may be placed only on the other identification numbers printed
on the Securities, and any such redemption shall not be affected by any defect
in or omission of such numbers. The Corporation will promptly notify the Trustee
of any changes in the CUSIP numbers.
ARTICLE IV
SATISFACTION AND DISCHARGE
Section 4.1. Satisfaction and Discharge of Indenture.
This Indenture shall, upon Corporation Request, cease to be of further
effect (except as to any surviving rights of registration of transfer or
exchange of Securities herein expressly provided for and as otherwise provided
in this Section 4.1) and the Trustee, on demand of and at the expense of the
Corporation, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
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(A) all Securities theretofore authenticated and delivered (other than (i)
Securities which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 3.6 and (ii) Securities for whose
payment money has theretofore been deposited in trust or segregated and held in
trust by the Corporation and thereafter repaid to the Corporation or discharged
from such trust, as provided in Section 10.3) have been delivered to the Trustee
for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one
year of the date of deposit, or
(iii) are to be called for redemption within one year by the Trustee
in the name, and at the expense, of the Corporation,
and the Corporation, in the case of Clause (B) (i), (ii) or (iii)
above, has deposited or caused to be deposited with the Trustee as
trust funds in trust for such purpose an amount in the currency or
currencies in which the Securities are payable sufficient to pay and
discharge the entire indebtedness on such Securities not theretofore
delivered to the Trustee for cancellation, for principal (and premium,
if any) and interest (including any Additional Interest) to the date
of such deposit (in the case of Securities which have become due and
payable) or to the Stated Maturity or Redemption Date, as the case may
be;
(2) the Corporation has paid or caused to be paid all other sums payable
hereunder by the Corporation; and
(3) the Corporation has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have
been complied with.
Notwithstanding the satisfaction and discharge or termination of this Indenture,
or the earlier resignation or removal of the Trustee or any Authenticating
Agent, the obligations of the Corporation to the Trustee under Section 6.7, the
obligations of the Corporation to any Authenticating Agent under Section 6.14
and, if money shall have been deposited with the Trustee pursuant to subclause
(B) of clause (1) of this Section, the obligations of the Trustee under Section
4.2 and the last paragraph of Section 10.3 shall survive.
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Section 4.2. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 10.3, all money
deposited with the Trustee pursuant to Section 4.1 shall be held in trust and
applied by the Trustee, in accordance with the provisions of the Securities and
this Indenture, to the payment, either directly or through any Paying Agent
(including the Corporation acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for the payment of which such money or obligations have been
deposited with or received by the Trustee.
ARTICLE V
REMEDIES
Section 5.1. Events of Default.
"Event of Default", wherever used herein with respect to the Securities,
means any one of the following events that has occurred and is continuing
(whatever the reason for such Event of Default and whether it shall be voluntary
or involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) failure to pay any interest upon any Security, including any Additional
Interest in respect thereof, when it becomes due and payable, and continuance of
such default for a period of 30 days (subject to the deferral of any Interest
Payment Date in the case of an Extension Period); or
(2) failure to pay the principal of (or premium, if any, on) any Security
when due, whether at maturity, upon redemption by declaration or otherwise; or
(3) failure to observe or perform, in any material respect, any covenant of
the Corporation in this Indenture (other than a covenant a default in the
performance of which or the breach of which is elsewhere in this Section
specifically dealt with), and continuance of such default or breach for a period
of 90 days after there has been given, by registered or certified mail, to the
Corporation by the Trustee or to the Corporation and the Trustee by the Holders
of at least 25% in principal amount of the Outstanding Securities a written
notice specifying such failure to observe or perform and requiring it to be
remedied; or
(4) the entry of a decree or order for relief in respect of the Corporation
by a court having jurisdiction in the premises in an involuntary case under
federal or state bankruptcy laws, as now or hereafter constituted, and the
continuance of any such decree or order unstayed and in effect for a period of
60 consecutive days; or
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(5) the commencement by the Corporation of a voluntary case under federal
or state bankruptcy laws, as now or hereafter constituted, or the consent by the
Corporation to the entry of a decree or order for relief in an involuntary case
under any such laws.
Section 5.2. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in Section
5.1(4) or 5.1(5)) with respect to the Securities 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 the Outstanding Securities may immediately
declare the principal amount of all the Securities to be due and payable
immediately, by a notice in writing to the Corporation (and to the Trustee if
given by Holders), provided that, so long as the Securities are held by the
Property Trustee if, upon an Event of Default, the Trustee or the Holders of not
less than 25% in principal amount of the Outstanding Securities fail to declare
the principal of all the Securities to be immediately due and payable, the
holders of at least 25% in aggregate Liquidation Amount (as defined in the
related Trust Agreement) of the corresponding Preferred Securities then
outstanding shall have such right by a notice in writing to the Corporation and
the Trustee; and upon any such declaration such principal amount (or specified
portion thereof) of and the accrued interest (including any Additional Interest)
on all the Securities shall become immediately due and payable. Payment of
principal (premium, if any) and interest (including any Additional Interest) on
such Securities shall remain subordinated to the extent provided in Article XII
notwithstanding that such amount shall become immediately due and payable as
herein provided. If an Event of Default specified in Section 5.1(4) or 5.1(5)
with respect to the Securities at the time Outstanding occurs, the principal
amount of all the Securities shall automatically, and without any declaration or
other action on the part of the Trustee or any Holder, become immediately due
and payable.
At any time after such a declaration of acceleration with respect to the
Securities 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
Securities, by written notice to the Corporation and the Trustee, may rescind
and annul such declaration and its consequences if:
(1) the Corporation has paid or deposited with the Trustee a sum
sufficient to pay:
(A) all overdue installments of interest (including any Additional
Interest) on all the Securities,
(B) the principal of (and premium, if any, on) any Securities which
have become due otherwise than by such declaration of acceleration and interest
thereon at the rate borne by the Securities, and
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(C) all sums paid or advanced by the Trustee hereunder and the reasonable
compensation, expenses, fees, disbursements and advances of the Trustee, its
agents and counsel; and
(2) all Events of Default with respect to the Securities, other than the non-
payment of the principal of the Securities which has become due solely by such
acceleration, have been cured or waived as provided in Section 5.13.
In the case of Securities held by the Property Trustee, the holders of a
majority in aggregate Liquidation Amount (as defined in the related Trust
Agreement) of the related Preferred Securities issued by Xxxxx Capital II shall
also have the right to rescind and annul such declaration and its consequences
by written notice to the Corporation and the Trustee, subject to the
satisfaction of the conditions set forth in Clauses (1) and (2) above of this
Section 5.2.
No such rescission shall affect any subsequent default or impair any right
consequent thereon
Section 5.3. Collection of Debt and Suits for Enforcement by Trustee.
The Corporation covenants that if:
(1) default is made in the payment of any installment of interest (including
any Additional Interest) on any Security 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 (and premium, if any,
on) any Security at the Maturity thereof,
the Corporation will, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities, the whole amount then due and payable
on such Securities for principal, (and premium, if any) and interest (including
any Additional Interest); and, in addition thereto, all amounts owing the
Trustee under Section 6.7.
If the Corporation fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Corporation or any other obligor upon the Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Corporation or any other obligor upon the Securities,
wherever situated.
If an Event of Default with respect to the Securities occurs and is
continuing, the Trustee may in its discretion proceed to protect and enforce its
rights and the rights of the Holders of Securities 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
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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 proceeding relative to the Corporation or any other obligor upon the
Securities or the property of the Corporation or of such other obligor or their
creditors,
(a) the Trustee (irrespective of whether the principal of the Securities shall
then be due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on the
Corporation for the payment of overdue principal (and premium, if any) or
interest (including any Additional Interest)) shall be entitled and empowered,
by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of principal (and
premium, if any) and interest (including any Additional Interest) owing and
unpaid in respect to the Securities and to file such other papers or documents
as may be necessary or advisable and to take any and all actions as are
authorized under the Trust Indenture Act in order to have the claims of the
Holders and any predecessor to the Trustee under Section 6.7 allowed in any such
judicial proceedings; and
(ii) in particular, the Trustee shall be authorized to collect and receive
any moneys or other property payable or deliverable on any such claims and to
distribute the same in accordance with Section 5.6; and
(b) any custodian, receiver, assignee, trustee, liquidator, sequestrator (or
other similar official) in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee for distribution in accordance
with Section 5.6, and in the event that the Trustee shall consent to the making
of such payments directly to the Holders, to pay to the Trustee any amount due
to it and any predecessor Trustee under Section 6.7.
Nothing herein contained shall be deemed to authorize the Trustee to authorize
or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding; provided, however,
that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditors' or
other similar committee.
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Section 5.5. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may be
prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of all the amounts owing the Trustee and any predecessor Trustee
under Section 6.7, its agents and counsel, be for the ratable benefit of the
Holders of the Securities in respect of which such judgment has been recovered.
Section 5.6. Application of Money Collected.
Any money or property collected or to be applied by the Trustee with respect
to the Securities 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 or property on account of principal (or premium, if
any) or interest (including any Additional Interest), upon presentation of the
Securities and the notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any predecessor
Trustee;
SECOND: Subject to Article XII, to the payment of the amounts then due and
unpaid upon the Securities for principal (and premium, if any) and interest
(including any Additional Interest), in respect of which or for the benefit of
which such money has been collected, ratably, without preference or priority of
any kind, according to the amounts due and payable on the Securities for
principal (and premium, if any) and interest (including any Additional
Interest), respectively; and
THIRD: The balance, if any, to the Person or Persons entitled thereto.
Section 5.7. Limitation on Suits.
No Holder of Securities shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture or for the appointment of
a receiver, assignee, trustee, liquidator, sequestrator (or other similar
official) or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to the Securities;
(2) the Holders of not less than 25% in principal amount of the Outstanding
Securities 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;
43
(3) such Holder or Holders have offered to the Trustee reasonable indemnity
against the costs, expenses and liabilities to be incurred in compliance with
such request;
(4) the Trustee for 60 days after its receipt of such notice, request and
offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to the
Trustee during such 60-day period by the Holders of a majority in principal
amount of the Outstanding Securities;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing itself of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other Holders of Securities, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all such Holders.
Section 5.8. Unconditional Right of Holders to Receive Principal, Premium
and Interest; Direct Action by Holders of Preferred Securities.
Notwithstanding any other provision in this Indenture, the Holder of any
Security 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 (including any Additional Interest) on such Security on the Stated
Maturity date (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such right shall not
be impaired without the consent of such Holder. So long as the Securities are
held by the Property Trustee, any registered holder of the corresponding
Preferred Securities issued by Xxxxx Capital II shall have the right, upon the
occurrence of an Event of Default described in Section 5.1(1) or 5.1(2), to
institute a legal proceeding directly against the Corporation for enforcement of
payment to such holder of principal of (and premium, if any) and (subject to
Section 3.7) interest (including any Additional Interest) on the Securities
having a principal amount equal to the aggregate Liquidation Amount (as defined
in the Trust Agreement) of such Preferred Securities held by such holder.
Section 5.9. Restoration of Rights and Remedies.
If the Trustee, any Holder or any registered holder of Preferred Securities
has instituted any proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or abandoned for any reason,
or has been determined adversely to the Trustee, such Holder or such holder of
Preferred Securities, then and in every such case the Corporation, the Trustee,
the Holders and such holder of Preferred Securities shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of the
Trustee, the Holders and the holders of Preferred Securities shall continue as
though no such proceeding had been instituted.
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Section 5.10. Rights and Remedies Cumulative.
Except as otherwise provided in the last paragraph of Section 3.5, 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, any Holder of any Security or any holder
of any Preferred Security 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 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 and the right and remedy given to the holders of Preferred
Securities by Section 5.8 may be exercised from time to time, and as often as
may be deemed expedient, by the Trustee, the Holders or the holders of Preferred
Securities, as the case may be.
Section 5.12. Control by Holders.
The Holders of a majority in principal amount of the Outstanding Securities
shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on the Trustee, with respect to the Securities, provided that:
(1) such direction shall not be in conflict with any rule of law or with this
Indenture,
(2) the Trustee may take any other action deemed proper by the Trustee which
is not inconsistent with such direction, and
(3) subject to the provisions of Section 6.1, the Trustee shall have the right
to decline to follow such direction if a Responsible Officer or Officers of the
Trustee shall, in good faith, determine that the proceeding so directed would be
unjustly prejudicial to the Holders not joining in any such direction or would
involve the Trustee in personal liability.
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Section 5.13. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the Outstanding
Securities and, in the case of any Securities held by the Property Trustee, the
holders of majority in aggregate Liquidation Amount (as defined in the related
Trust Agreement) of Preferred Securities issued by Xxxxx Capital II, to the
extent the Holders of Outstanding Securities have failed to do so may waive any
past default hereunder and its consequences with respect to the Securities
except a default:
(1) in the payment of the principal of (or premium, if any) or interest
(including any Additional Interest) on any Security, or
(2) in respect of a covenant or provision hereof which under Article IX cannot
be modified or amended without the consent of the Holder of each Outstanding
Security of affected.
Any such waiver shall be deemed to be on behalf of the Holders of all the
Securities or, in the case of a waiver by holders of Preferred Securities issued
Xxxxx Capital II by all holders of Preferred Securities issued by Xxxxx Capital
II.
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 Security by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees and
expenses, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party litigant; but
the provisions of this Section 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 Securities,
or to any suit instituted by any Holder for the enforcement of the payment of
the principal of (or premium, if any) or interest (including any Additional
Interest) on any Security on or after the respective Stated Maturities expressed
in such Security.
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Section 5.15. Waiver of Usury, Stay or Extension Laws.
The Corporation covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Corporation (to the extent that it
may lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE VI
THE TRUSTEE
Section 6.1. Certain Duties and Responsibilities.
Except during the continuance of an Event of Default,
(a) the Trustee undertakes to perform such duties and only such duties as
are specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(b) in the absence of bad faith on its part, the Trustee may conclusively
rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the case of any such
certificates or opinions 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.
In case an Event of Default has occurred and is continuing, the Trustee shall
exercise such of the rights and powers vested in it by this Indenture, and use
the same degree of care and skill in their exercise, as a prudent person would
exercise or use under the circumstances in the conduct of his own affairs.
No provision of this Indenture shall be construed to relieve the Trustee from
liability for its own negligent action, its own negligent failure to act, or its
own willful misconduct except that:
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
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(2) the Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction of
Holders pursuant to Section 5.12 relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this Indenture with respect
to the Securities.
No provision of this Indenture shall require the Trustee to expend or risk its
own funds or otherwise incur any financial liability in the performance of any
of its duties hereunder, or in the exercise of any of its rights or powers, if
there shall be reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it.
Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
Section 6.2. Notice of Defaults.
Within 90 days after actual knowledge by a Responsible Officer of the Trustee
of the occurrence of any default hereunder with respect to the Securities, the
Trustee shall transmit by mail to all Holders of Securities, as their names and
addresses appear in the Securities Register, notice of such default, unless such
default shall have been cured or waived; provided, however, that, except in the
case of a default in the payment of the principal of (or premium, if any) or
interest (including any Additional Interest) on any Security, the Trustee shall
be protected in withholding such notice if and so long as the board of
directors, the executive committee or a trust committee of directors and/or
Responsible Officers of the Trustee in good faith determines that the
withholding of such notice is in the interests of the Holders of Securities; and
provided, further, that, in the case of any default of the character specified
in Section 5.1(3), no such notice to Holders of Securities shall be given until
at least 30 days after the occurrence thereof. 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 the Securities.
Section 6.3. Certain Rights of Trustee.
Subject to the provisions of Section 6.1:
(a) the Trustee may rely conclusively and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction,
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consent, order, bond, debenture, Security or other paper or document believed by
it to be genuine and to have been signed or presented by the proper party or
parties;
(b) any request or direction of the Corporation mentioned herein shall be
sufficiently evidenced by a Corporation Request or Corporation Order and any
resolution of the Board of Directors may be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture the Trustee shall deem it
desirable that a matter be proved or established prior to taking, suffering or
omitting any action hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its part, rely
conclusively upon an Officers' Certificate;
(d) the Trustee may consult with counsel of its choice and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights or
powers vested in it by this Indenture at the request or direction of any of the
Holders pursuant to this Indenture, unless such Holders shall have offered to
the Trustee reasonable security or indemnity against the costs, expenses and
liabilities 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, indenture, Security or
other paper or document, but the Trustee in its discretion may make such inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Corporation,
personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or perform
any duties hereunder either directly or by or through agents or attorneys and
the Trustee shall not be responsible for any misconduct or negligence on the
part of any agent or attorney appointed with due care by it hereunder;
(h) the Trustee shall not be under any obligation to take any action that is
discretionary under the provisions of this Indenture;
(i) the Trustee shall not be charged with knowledge of any Event of Default
unless either (i) a Responsible Officer of the Trustee shall have actual
knowledge thereof or (2) the Trustee shall have received notice thereof in
accordance with Section 1.5(1) hereof from the Corporation or a Holder; and
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(j) no permissive power or authority available to the Trustee shall be
construed as a duty.
(k) the Trustee shall not be liable for any action taken, suffered or omitted
to be taken by it in good faith and reasonably believed by it to be authorized
or within the discretion or rights or powers conferred upon it by this
Indenture.
Section 6.4. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the
Corporation, and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities. Neither the
Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Corporation of the Securities or the proceeds thereof.
Section 6.5. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Securities
Registrar or any other agent of the Corporation, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
6.8 and 6.13, may otherwise deal with the Corporation with the same rights it
would have if it were not Trustee, Authenticating Agent, Paying Agent,
Securities Registrar or such other agent.
Section 6.6. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from other
funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed in writing with the Corporation.
Section 6.7. Compensation and Reimbursement.
The Corporation agrees:
(1) to pay to the Trustee from time to time such compensation as shall be
agreed to in writing between the Corporation and the Trustee for all services
rendered by it hereunder in such amounts as the Corporation and the Trustee
shall agree from time to time (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust);
(2) to reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any provision of this Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and
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counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(3) to indemnify each of the Trustee and any predecessor Trustee for, and to
hold it harmless against, any and all loss, liability, damage, claim or expense
(including the reasonable compensation and the expenses and disbursements of its
agents and counsel) incurred without negligence or bad faith, arising out of or
in connection with the acceptance or administration of this trust or the
performance of its duties hereunder, including the costs and expenses of
defending itself against any claim or liability in connection with the exercise
or performance of any of its powers or duties hereunder.
The obligations of the Corporation under this Section 6.7 shall survive the
termination of the Indenture or the earlier resignation or removal of the
Trustee.
To secure the Corporation's payment obligations in this Section, the
Corporation and the Holders agree that the Trustee shall have a lien prior to
the Securities on all money or property held or collected by the Trustee. Such
lien shall survive the satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of Default
specified in Section 5.1(4) or (5) occurs, the expenses and the compensation for
the services are intended to constitute expenses of administration under the
Bankruptcy Reform Act of 1978 or any successor statute.
Section 6.8. Disqualification; Conflicting Interests.
The Trustee for the Securities issued hereunder shall be subject to the
provisions of Section 310(b) of the Trust Indenture Act. Nothing herein shall
prevent the Trustee from filing with the Commission the application referred to
in the second to last paragraph of said Section 310(b).
Section 6.9. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be:
(a) a corporation organized and doing business under the laws of the United
States of America or of any State or Territory or the District of Columbia,
authorized under such laws to exercise corporate trust powers and subject to
supervision or examination by federal, state, territorial or District of
Columbia authority, or
(b) a corporation or other Person organized and doing business under the laws
of a foreign government that is permitted to act as Trustee pursuant to a rule,
regulation or order of the Commission, authorized under such laws to exercise
corporate trust powers, and subject to
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supervision or examination by authority of such foreign government or a
political subdivision thereof substantially equivalent to supervision or
examination applicable to United States institutional trustees, in either case
having a combined capital and surplus of at least $50,000,000, subject to
supervision or examination by Federal or State authority. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then, for the
purposes of this Section, the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. 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. Neither the Corporation nor any Person directly or indirectly
controlling, controlled by or under common control with the Corporation shall
serve as Trustee for the Securities issued hereunder.
Section 6.10. Resignation and Removal; Appointment of Successor.
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.
The Trustee may resign at any time with respect to the Securities by giving
written notice thereof to the Corporation. If an instrument of acceptance by a
successor Trustee shall not have been delivered to the Trustee within 30 days
after the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities.
The Trustee may be removed at any time with respect to the Securities by Act
of the Holders of a majority in principal amount of the Outstanding Securities,
delivered to the Trustee and to the Corporation. If an instrument of acceptance
by a successor Trustee shall not have been delivered to the Trustee within 30
days after such removal, the Trustee being removed may petition any court of
competent jurisdiction for appointment of a successor Trustee with respect to
the Securities.
If at any time:
(1) the Trustee shall fail to comply with Section 6.8 after written request
therefor by the Corporation or by any Holder who has been a bona fide Holder of
a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 6.9 and shall fail to
resign after written request therefor by the Corporation or by any such Holder,
or
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(3) the Trustee shall become incapable of acting or shall be adjudged a
bankrupt or insolvent or a receiver of the Trustee or of its property shall be
appointed or any public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation, conservation or
liquidation, then, in any such case, (i) the Corporation, acting pursuant to the
authority of a Board Resolution, may remove the Trustee with respect to the
Securities, or (ii) subject to Section 5.14, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee with respect to the Securities and the appointment of a
successor Trustee or Trustees.
If the Trustee shall resign, be removed or become incapable of acting, or if a
vacancy shall occur in the office of Trustee for any cause with respect to the
Securities, the Corporation, by a Board Resolution, shall promptly appoint a
successor Trustee with respect to the Securities. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities shall be appointed by Act of
the Holders of a majority in principal amount of the Outstanding Securities
delivered to the Corporation and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment, become the
successor Trustee with respect to the Securities and supersede the successor
Trustee appointed by the Corporation. If no successor Trustee with respect to
the Securities shall have been so appointed by the Corporation or the Holders
and accepted appointment in the manner hereinafter provided, any Holder who has
been a bona fide Holder of a Security 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 Securities.
The Corporation shall give notice of each resignation and each removal of the
Trustee with respect to the Securities and each appointment of a successor
Trustee with respect to the Securities by mailing written notice of such event
by first-class mail, postage prepaid, to the Holders of the Securities as their
names and addresses appear in the Securities Register. Each notice shall include
the name of the successor Trustee with respect to the Securities and the address
of its Corporate Trust Office.
Section 6.11. Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Trustee with respect to
the Securities, every such successor Trustee so appointed shall execute,
acknowledge and deliver to the Corporation and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Corporation or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring
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Trustee and shall duly assign, transfer and deliver to such successor Trustee
all property and money held by such retiring Trustee hereunder.
In case of the appointment hereunder of a successor Trustee with respect to
the Securities, the Corporation, the retiring Trustee and each successor Trustee
with respect to the Securities shall execute and deliver an instrument in
writing or an indenture supplemental hereto wherein each successor Trustee shall
accept such appointment and which (1) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities, (2) if the retiring Trustee is not
retiring with respect to all Securities, shall contain such provisions as shall
be deemed necessary or desirable to confirm that all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities 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
trust hereunder by more than one Trustee, it being understood that nothing
herein or in such instrument in writing or supplemental indenture shall
constitute such Trustees co-trustees of the trust and that each such Trustee
shall be trustee of a trust hereunder separate and apart from any trust or
trusts hereunder administered by any other such Trustee; and upon the execution
and delivery of such instrument in writing or supplemental indenture the
resignation or removal of the retiring Trustee shall become effective to the
extent provided therein and each such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers,
trusts, and duties of the retiring Trustee with respect to the Securities; but,
on request of the Corporation or any successor Trustee, such retiring Trustee
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder with respect to the Securities
to which the appointment of such successor Trustee relates.
Upon request of any such successor Trustee, the Corporation shall execute any
and all instruments for more fully and certainly vesting in and confirming to
such successor Trustee all rights, powers and trusts referred to in paragraph
(a) or (b) of this Section, as the case may be.
No successor Trustee shall accept its appointment unless at the time of such
acceptance such successor Trustee shall be 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 resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
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conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated, and in case any
Securities shall not have been authenticated, any successor to the Trustee may
authenticate such Securities either in the name of any predecessor Trustee or in
the name of such successor Trustee, and in all cases the certificate of
authentication shall have the full force which it is provided anywhere in the
Securities or in this Indenture that the certificate of the Trustee shall have.
Section 6.13. Preferential Collection of Claims Against Corporation.
If and when the Trustee shall be or become a creditor of the Corporation (or
any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Corporation (or any such other obligor).
Section 6.14. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect to the
Securities which shall be authorized to act on behalf of the Trustee to
authenticate the Securities issued upon original issue and upon exchange,
registration of transfer or partial redemption thereof or pursuant to Section
3.5, and Securities so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if authenticated
by the Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Corporation and shall at
all times be a corporation organized and doing business under the laws of the
United States of America, or of any State or Territory or the District of
Columbia, authorized under such laws to act as Authenticating Agent, having a
combined capital and surplus of not less than $50,000,000 and subject to
supervision or examination by Federal or State authority. If such Authenticating
Agent publishes reports of condition at least annually, pursuant to law or to
the requirements of said supervising or examining authority, then for the
purposes of this Section the combined capital and surplus of such Authenticating
Agent shall be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published. If at any time an Authenticating
Agent shall cease to be eligible in accordance with the provisions of this
Section, such Authenticating Agent shall resign immediately in the manner and
with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which such Authenticating Agent shall be
a party, or any corporation succeeding to all or substantially all of the
corporate trust business of an Authenticating Agent shall be the successor
Authenticating Agent hereunder, provided such corporation shall be otherwise
eligible under this Section, without the execution or filing of any paper or any
further act on the part of the Trustee or the Authenticating Agent.
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An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Corporation. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Corporation. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Corporation and shall give notice of such
appointment in the manner provided in Section 1.6 to all Holders of Securities
with respect to which such Authenticating Agent will serve. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder, with
like effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the provision of
this Section.
The Corporation agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section.
If an appointment with respect to the Securities is made pursuant to this
Section, the Securities may have endorsed thereon, in addition to the Trustee's
certificate of authentication, an alternative certificate of authentication in
the following form:
This is one of the Securities referred to in the within mentioned Indenture.
Dated:
The Bank of New York
As Trustee
By:________________________________________
As Authenticating Agent
By:________________________________________
Authorized Signatory
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ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND CORPORATION
Section 7.1. Corporation to Furnish Trustee Names and Addresses of Holders.
The Corporation will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not more than 15 days after each Regular Record Date in
each year, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders as of such Regular Record Date, and
(b) at such other times as the Trustee may request in writing, within 30 days
after the receipt by the Corporation of any such request, a list of similar form
and content as of a date not more than 15 days prior to the time such list is
furnished, excluding from any such list names and addresses received by the
Trustee in its capacity as Securities Registrar.
Section 7.2. Preservation of Information, Communications to Holders.
The Trustee shall preserve, in as current a form as is reasonably practicable,
the names and addresses of Holders contained in the most recent list furnished
to the Trustee as provided in Section 7.1 and the names and addresses of Holders
received by the Trustee in its capacity as Securities Registrar. The Trustee may
destroy any list furnished to it as provided in Section 7.1 upon receipt of a
new list so furnished.
The rights of Holders to communicate with other Holders with respect to their
rights under this Indenture or under the Securities, and the corresponding
rights and privileges of the Trustee, shall be as provided in the Trust
Indenture Act.
Every Holder of Securities, by receiving and holding the same, agrees with the
Corporation and the Trustee that neither the Corporation nor the Trustee nor any
agent of either of them shall be held accountable by reason of the disclosure of
information as to the names and addresses of the Holders made pursuant to the
Trust Indenture Act.
Section 7.3. Reports by Trustee.
The Trustee shall transmit to Holders such reports concerning the Trustee and
its actions under this Indenture as may be required pursuant to the Trust
Indenture Act, at the times and in the manner provided pursuant thereto.
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Reports so required to be transmitted at stated intervals of not more than 12
months shall be transmitted no later than 60 days after December 31 in each
calendar year, commencing 60 days after the first December 31 after the first
issuance of Securities under this Indenture.
A copy of each such report shall, at the time of such transmission to Holders,
be filed by the Trustee with each securities exchange upon which any Securities
are listed and also with the Commission. The Corporation will promptly notify
the Trustee when any Securities are listed on any securities exchange.
Section 7.4. Reports by Corporation.
The Corporation shall file with the Trustee and with the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided in the Trust Indenture Act; provided that any
such information, documents or reports required to be filed with the Commission
pursuant to Section 13 or Section 15(d) of the Exchange Act shall be filed with
the Trustee within 15 days after the same is required to be filed with the
Commission. Notwithstanding that the Corporation may not be required to remain
subject to the reporting requirements of Section 13 or 15(d) of the Exchange
Act, the Corporation shall continue to file with the Commission and provide the
Trustee with the annual reports and the information, documents and other reports
which are specified in Sections 13 and 15(d) of the Exchange Act. The
Corporation also shall comply with the other provisions of Trust Indenture Act
Section 314(a).
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 8.1. Corporation May Consolidate, Etc., Only on Certain Terms.
The Corporation shall not consolidate with or merge into any other Person or
convey, transfer or lease its properties and assets substantially as an entirety
to any Person, and no Person shall consolidate with or merge into the
Corporation or convey, transfer or lease its properties and assets substantially
as an entirety to the Corporation, unless:
(1) in case the Corporation shall consolidate with or merge into another
Person or convey, transfer or lease its properties and assets substantially as
an entirety to any Person, the Person formed by such consolidation or into which
the Corporation is merged or the Person which acquires by conveyance, transfer
or lease the properties and assets of the Corporation substantially as an
entirety shall be organized and existing under the laws of the United States of
America or any State or the District of Columbia and shall expressly assume, by
an indenture supplemental
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hereto, executed and delivered to the Trustee, in form satisfactory to the
Trustee, the due and punctual payment of the principal of (and premium, if any)
and interest (including any Additional Interest) on all the Securities and the
performance of every covenant of this Indenture on the part of the Corporation
to be performed or observed;
(2) immediately after giving effect to such transaction, no Event of Default,
and no event which, after notice or lapse of time, or both, would become an
Event of Default, shall have occurred and be continuing;
(3) So long as the Securities are held by the Property Trustee, such
consolidation, merger, conveyance, transfer or lease is permitted under the
Trust Agreement and Xxxxx Capital II Guarantee and does not give rise to any
breach or violation of the Trust Agreement or Xxxxx Capital II Guarantee; and
(4) the Corporation has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that such consolidation, merger, conveyance,
transfer or lease and any such supplemental indenture comply with this Article
and that all conditions precedent herein provided for relating to such
transaction have been complied with; and the Trustee, subject to Section 6.1,
may rely upon such Officers' Certificate and Opinion of Counsel as conclusive
evidence that such transaction complies with this Section 8.1.
Section 8.2. Successor Corporation Substituted.
Upon any consolidation or merger by the Corporation with or into any other
Person, or any conveyance, transfer or lease by the Corporation of its
properties and assets substantially as an entirety to any Person in accordance
with Section 8.1, the successor corporation formed by such consolidation or into
which the Corporation is merged or to which such conveyance, transfer or lease
is made shall succeed to, and be substituted for, and may exercise every right
and power of, the Corporation under this Indenture with the same effect as if
such successor Person had been named as the Corporation herein; and in the event
of any such conveyance, transfer or lease the Corporation shall be discharged
from all obligations and covenants under the Indenture and the Securities and
may be dissolved and liquidated.
Such successor Person may cause to be signed, and may issue either in its own
name or in the name of the Corporation, any or all of the Securities issuable
hereunder which theretofore shall not have been signed by the Corporation and
delivered to the Trustee; and, upon the written order of such successor Person
instead of the Corporation and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Securities which previously shall have been signed and
delivered by the officers of the Corporation to the Trustee for authentication
pursuant to such provisions and any Securities which such successor Person
thereafter shall cause to be signed and delivered to the Trustee on its behalf
for the purpose pursuant to such provisions. All the Securities so issued shall
in all respects have the
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same legal rank and benefit under this Indenture as the Securities theretofore
or thereafter issued in accordance with the terms of this Indenture as though
all of such Securities had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, conveyance or lease, such
changes in phraseology and form may be made in the Securities thereafter to be
issued as may be appropriate.
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9.1. Supplemental Indentures without Consent of Holders.
Without the consent of any Holders, the Corporation, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more amendments, waivers or indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Corporation, and the
assumption by any such successor of the covenants of the Corporation herein and
in the Securities contained; or
(2) to convey, transfer, assign, mortgage or pledge any property to or with
the Trustee or to surrender any right or power herein conferred upon the
Corporation; or
(3) to add to the covenants of the Corporation for the benefit of the Holders
of the Securities or to surrender any right or power herein conferred upon the
Corporation; or
(4) to add any additional Events of Default for the benefit of the Holders of
the Securities; 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 Security Outstanding 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 Outstanding Securities; or
(6) 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, provided that such action pursuant to this clause (6) shall not
adversely affect the interest of the Holders of the Securities in any material
respect or, for so long as the Preferred Securities shall remain outstanding,
the holders of such Preferred Securities; or
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(7) to evidence and provide for the acceptance of appointment hereunder by
a successor Trustee with respect to the Securities and to add to or change any
of the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 6.11(b); or
(8) to comply with the requirements of the Commission in order to effect or
maintain the qualification of this Indenture under the Trust Indenture Act if
this Indenture is required to be so qualified.
Section 9.2. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities affected by such supplemental indenture, by
Act of said Holders delivered to the Corporation and the Trustee, the
Corporation, when authorized by a Board Resolution, and the Trustee may enter
into an indenture or indentures supplemental hereto for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of this Indenture or of modifying in any manner the rights of the Holders of
Securities under this Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding Security
affected thereby,
(1) except to the extent permitted by Section 3.10 with respect to the
deferral of the payment of interest on the Securities, change the Stated
Maturity of the principal of, or any installment of interest (including any
Additional Interest) on, the Securities, or reduce the principal amount thereof
or the rate of interest thereon or reduce any premium payable upon the
redemption thereof, or change the place of payment where, or the coin or
currency in which, the Securities or interest thereon is payable, or impair the
right to institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date), or
(2) reduce the percentage in principal amount of the Outstanding Securities,
the consent of whose Holders is required for any such supplemental indenture, or
the consent of whose Holders is required for any waiver (of compliance with
certain provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section 9.2, Section 5.13 or Section
10.5, except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the consent of
the Holder of each Security affected thereby;
(4) modify the provisions of Article XII of this Indenture with respect to the
subordination of outstanding Securities in a manner adverse to the Holders
thereof;
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provided, further, that, so long as the Preferred Securities remain outstanding,
(i) no such amendment shall be made that adversely affects the holders of such
Preferred Securities in any material respect, and no termination of this
Indenture shall occur, and no waiver of any Event of Default or compliance with
any covenant under this Indenture shall be effective, without the prior consent
of the holders of at least a majority of the aggregate Liquidation Amount of
such Preferred Securities then outstanding unless and until the principal (and
premium, if any) of the Securities and all accrued and, subject to Section 3.7,
unpaid interest (including any Additional Interest) thereon have been paid in
full and (ii) no amendment shall be made to Section 5.8 of this Indenture that
would impair the rights of the holders of Preferred Securities provided therein
without the prior consent of the registered holders of each Preferred Security
then outstanding unless and until the principal (and premium, if any) of the
Securities and all accrued and (subject to Section 3.7) unpaid interest
(including any Additional Interest) thereon have been paid in full.
It shall not be necessary for any Act of Holders 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 modifications thereby of the trust created by
this Indenture, the Trustee shall be entitled to receive, and (subject to
Section 6.1) shall be fully protected in relying upon, an Officers' Certificate
and an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture, and that all conditions
precedent have been complied with. 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 or that may
subject it to any liability.
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 Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section 9.5. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall, to the
extent this Indenture is required to be qualified under the Trust Indenture Act,
conform to the requirements of the Trust Indenture Act as then in effect.
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Section 9.6. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall if required by the
Corporation, bear a notation in form approved by the Corporation as to any
matter provided for in such supplemental indenture. If the Corporation shall so
determine, new Securities so modified as to conform, in the opinion of the
Corporation, to any such supplemental indenture may be prepared and executed by
the Corporation and authenticated and delivered by the Trustee in exchange for
the Outstanding Securities.
ARTICLE X
COVENANTS
Section 10.1. Payment of Principal, Premium and Interest.
The Corporation covenants and agrees that it will duly and punctually pay the
principal of (and premium, if any) and interest (including any Additional
Interest) on the Securities in accordance with the terms of such Securities and
this Indenture.
Section 10.2. Maintenance of Office or Agency.
The Corporation will maintain in the Place of Payment for the Securities, an
office or agency where the Securities may be presented or surrendered for
payment and an office or agency where the Securities may be surrendered for
transfer or exchange and where notices and demands to or upon the Corporation in
respect of the Securities and this Indenture may be served. The Corporation
initially appoints the Trustee, acting through its Corporate Trust Office, as
its agent for said purposes. The Corporation will give prompt written notice to
the Trustee of any change in the location of any such office or agency. If at
any time the Corporation shall fail to maintain such office or agency or shall
fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Corporation hereby appoints the Trustee as its
agent to receive all such presentations, surrenders, notices and demands.
The Corporation may also from time to time designate one or more other offices
or agencies where the Securities may be presented or surrendered for any or all
of such purposes, and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Corporation of its obligation to maintain an office or agency in the Place of
Payment for the Securities for such purposes. The Corporation will give prompt
written notice to the Trustee of any such designation and any change in the
location of any such office or agency.
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Section 10.3. Money for Security Payments to be Held in Trust.
If the Corporation shall at any time act as its own Paying Agent with respect
to the Securities, it will, on or before each due date of the principal of (and
premium, if any) or interest on any of the Securities, 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 failure so to act.
Whenever the Corporation shall have one or more Paying Agents, it will, prior
to 10:00 a.m. New York City time on each due date of the principal of and
premium if any or interest on any Securities, deposit with a Paying Agent a sum
sufficient to pay the principal (and premium, if any) or interest so becoming
due, such sum to be held in trust for the benefit of the Persons entitled to
such principal and premium (if any) or interest, and (unless such Paying Agent
is the Trustee) the Corporation will promptly notify the Trustee of its failure
so to act.
The Corporation will cause each Paying Agent other than the Trustee to execute
and deliver to the Trustee an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section, 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 Securities in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or otherwise
disposed of as herein provided;
(2) give the Trustee notice of any default by the Corporation (or any other
obligor upon the Securities) in the making of any payment of principal (and
premium, if any) or interest;
(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; and
(4) comply with the provisions of the Trust Indenture Act applicable to it as
a Paying Agent.
The Corporation may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Corporation
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Corporation or such Paying Agent, such sums to be held by the Trustee upon
the same trusts as those upon which such sums were held by the Corporation or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held by the
Corporation, in trust for the payment of the principal of (and premium, if any)
or interest on any Security and remaining unclaimed for two years after such
principal (and premium, if any) or interest has become due and payable shall be
paid on Corporation Request to the Corporation, or (if then held
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by the Corporation) shall (unless otherwise required by mandatory provision of
applicable escheat or abandoned or unclaimed property law) be discharged from
such trust; and the Holder of such Security shall thereafter, as an unsecured
general creditor, look only to the Corporation for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Corporation as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being required
to make any such repayment, may at the expense of the Corporation cause to be
published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in the Borough of
Manhattan, The City of New York, 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, any unclaimed balance of such money then remaining
will be repaid to the Corporation.
Section 10.4. Statement as to Compliance.
The Corporation shall deliver to the Trustee, within 120 days after the end of
each fiscal year of the Corporation ending after the date hereof, an Officers'
Certificate executed by the principal executive officer, principal financial
officer or principal accounting officer of the Corporation covering the
preceding calendar year, stating whether or not to the best knowledge of the
signers thereof the Corporation is in default in the performance, observance or
fulfillment of or compliance with any of the terms, provisions, covenants and
conditions of this Indenture, and if the Corporation shall be in default,
specifying all such defaults and the nature and status thereof of which they may
have knowledge. For the purpose of this Section 10.4, compliance shall be
determined without regard to any grace period (other than an Extension Period)
or requirement of notice provided pursuant to the terms of this Indenture.
Section 10.5. Waiver of Certain Covenants.
The Corporation may omit in any particular instance to comply with any
covenant or condition provided pursuant to Section 9.1(3) with respect to the
Securities, if before or after the time for such compliance the Holders of at
least a majority in principal amount of the Outstanding Securities shall, by Act
of such Holders, either waive such compliance in such instance or generally
waive compliance with such covenant or condition, but no such waiver shall
extend to or affect such covenant or condition except to the extent so expressly
waived, and, until such waiver shall become effective, the obligations of the
Corporation in respect of any such covenant or condition shall remain in full
force and effect.
Section 10.6. Additional Sums.
In the case of the Securities issued the Property Trustee, so long as no Event
of Default has occurred and is continuing, in the event that (i) the Property
Trustee is the Holder of all of the Outstanding Securities and (ii) a Tax Event
in respect of Xxxxx Capital II shall have occurred and
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be continuing and (iii) the Company shall not have (A) redeemed the Securities
pursuant to Section 10.7(b) or (B) terminated such Trust pursuant to Section
9.2(b) of the Trust Agreement, the Corporation shall pay to the Property Trustee
(and its permitted successors or assigns under the related Trust Agreement) as
Holder of the Securities for so long as the Property Trustee (or its nominee or
permitted successor or assignee) is the registered holder of any Securities,
such additional sums as may be necessary in order that the amount of
Distributions (including any Additional Amounts (as defined in such Trust
Agreement)) payable by Xxxxx Capital II on the related Preferred Securities and
Common Securities that at any time remain outstanding in accordance with the
terms thereof shall not be reduced as a result of any Additional Taxes (the
"Additional Sums"). Whenever in this Indenture or the Securities there is a
reference in any context to the payment of principal of (or premium, if any) or
interest on the Securities, such mention shall be deemed to include mention of
the payments of the Additional Sums provided for in this paragraph to the extent
that, in such context, Additional Sums are, were or would be payable in respect
thereof pursuant to the provisions of this paragraph and express mention of the
payment of Additional Sums (if applicable) in any provisions hereof shall not be
construed as excluding Additional Sums in those provisions hereof where such
express mention is not made.
Section 10.7. Additional Covenants.
The Corporation covenants and agrees with each Holder of Securities that it
shall not, and it shall not permit any Subsidiary of the Corporation to, (a)
declare or pay any dividends or distributions on, or redeem, purchase, acquire
or make a liquidation payment with respect to, any of the Corporation's capital
stock, or (b) make any payment of principal of, or interest or premium, if any,
on or repay, repurchase or redeem any debt securities of the Corporation
(including the Series A Subordinated Debenture) that rank pari passu with or
junior in interest to the Securities or (c) make any guarantee payments with
respect to any guarantee by the Corporation of the debt securities of any
subsidiary of the Corporation if such guarantee ranks pari passu with or junior
in interest to the Securities (other than (a) dividends or distributions in
Common Stock of the Corporation, (b) any declaration of a dividend in connection
with the implementation of a Rights Plan, the issuance of any Common Stock of
any class or series of preferred stock of the Corporation under any Rights Plan
in the future or the redemption or repurchase of any such rights pursuant
thereto, (c) payments under the Xxxxx Capital II Guarantee, and (d) purchases of
Common Stock related to the issuance of Common Stock or rights under any of the
Corporation's benefit plans for its directors, officers or employees that was
entered into prior to the commencement of any of the events described in clauses
(i) through (iii) below) if at such time (i) there shall have occurred any event
of which the Corporation has actual knowledge that (A) with the giving of notice
or the lapse of time, or both, would constitute an Event of Default with respect
to the Securities and (B) in respect of which the Corporation shall not have
taken reasonable steps to cure, (ii) if the Securities are held the Property
Trustee, the Corporation shall be in default with respect to its payment of any
obligations under the Xxxxx Capital II Guarantee relating to the Preferred
Securities issued by Xxxxx Capital II or (iii) the Corporation shall have given
notice of its election to begin an Extension Period with respect to the
Securities
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as provided herein and shall not have rescinded such notice, or such Extension
Period, or any extension thereof, shall be continuing.
The Corporation also covenants with each Holder of the Securities issued to
the Property Trustee (i) to maintain directly or indirectly 100% ownership of
the Common Securities of Xxxxx Capital II; provided, however, that any permitted
successor of the Corporation hereunder may succeed to the Corporation's
ownership of such Common Securities, (ii) as holder of the Common Securities not
to voluntarily terminate, wind-up or liquidate Xxxxx Capital II, except (a) if
then required under applicable capital guidelines or policies, and (b) in
connection with a distribution of the Securities to the holders of Preferred
Securities in liquidation of Xxxxx Capital II or (c) in connection with certain
mergers, consolidations or amalgamations permitted by the related Trust
Agreement and (iii) to use its reasonable efforts, consistent with the terms and
provisions of such Trust Agreement, to cause Xxxxx Capital II to remain
classified as a grantor trust and not an association taxable as a corporation
for United States federal income tax purposes.
ARTICLE XI
REDEMPTION OF SECURITIES
Section 11.1. Right of Redemption.
Subject to the Corporation having received prior approval of the Federal
Reserve if then required under applicable capital guidelines or policies, the
Corporation, at its option, may redeem the Securities (i) on or after March 15,
2007 in whole at any time or in part from time to time, or (ii) upon the
occurrence and during the continuation of a Tax Event or Capital Treatment
Event, in whole (but not in part) at any time within 90 days following the
occurrence of such Tax Event or Capital Treatment Event in each case at a
Redemption Price specified in the form of Security set forth in Section 2.1.
Redemption of the Securities as permitted or required pursuant to this
Indenture shall be made in accordance with such form of Security and this
Article; provided, however, that if any provision of the form of Security shall
conflict with any provision of this Article, the provision of the form of
Security shall govern. Each Security shall be subject to partial redemption only
in the amount equal to $1,000 or integral multiples of $1,000 in excess thereof.
Section 11.2. Election to Redeem; Notice to Trustee.
The election of the Corporation to redeem any Securities shall be evidenced by
or pursuant to a Board Resolution. In case of any redemption at the election of
the Corporation of any of the Securities, the Corporation shall, not less than
30 nor more than 60 days prior to the Redemption Date (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee and, in the
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case of Securities held by the Property Trustee, the Property Trustee of such
date and of the principal amount of the Securities to be redeemed and provide
the additional information required to be included in the notice or notices
contemplated by Section 11.4. In the case of any redemption of Securities prior
to the expiration of any restriction on such redemption provided in the terms of
such Securities, the Corporation shall furnish the Trustee with an Officers'
Certificate and an Opinion of Counsel evidencing compliance with such
restriction.
Section 11.3. Selection of Securities to be Redeemed.
If less than all the Securities are to be redeemed, the particular Securities
to be redeemed shall be selected not more than 60 days prior to the Redemption
Date by the Trustee, from the Outstanding Securities not previously called for
redemption, by lot or such other method as the Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of a portion
of the principal amount of any Security, provided that the unredeemed portion of
the principal amount of any Security shall be in an authorized denomination
(which shall not be less than the minimum authorized denomination) for such
Security.
The Trustee shall promptly notify the Corporation in writing of the Securities
selected for partial redemption and the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires, all
provisions relating to the redemption of Securities shall relate, in the case of
any Security redeemed or to be redeemed only in part, to the portion of the
principal amount of such Security which has been or is to be redeemed. If the
Corporation shall so direct, Securities registered in the name of the
Corporation, any Affiliate or any Subsidiary thereof shall not be included in
the Securities selected for redemption.
Section 11.4. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not later than the thirtieth day, and not earlier than the sixtieth day,
prior to the Redemption Date, to each Holder of Securities to be redeemed, at
the address of such Holder as it appears in the Securities Register.
With respect to Securities to be redeemed, each notice of redemption shall
state:
(a) the Redemption Date;
(b) the Redemption Price or if the Redemption Price cannot be calculated prior
to the time the notice is required to be sent, the estimate of the Redemption
Price provided pursuant to the Indenture together with a statement that it is an
estimate and that the actual Redemption Price will be calculated on the third
Business Day prior to the Redemption Date (if such an estimate of the Redemption
Price is given, a subsequent notice shall be given as set forth above setting
forth the Redemption Price promptly following the calculation thereof);
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(c) if less than all Outstanding Securities are to be redeemed, the
identification (and, in the case of partial redemption, the respective principal
amounts) of the particular Securities to be redeemed;
(d) that on the Redemption Date, the Redemption Price will become due and
payable upon each such Security or portion thereof, and that interest thereon,
if any, shall cease to accrue on and after said date;
(e) the place or places where such Securities are to be surrendered for
payment of the Redemption Price; and
(f) such other provisions as may be required in respect of the terms of the
Securities.
Notice of redemption of the Securities to be redeemed at the election of the
Corporation shall be given by the Corporation or, at the Corporation's request,
by the Trustee in the name and at the expense of the Corporation and shall not
be irrevocable. The notice if mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the Holder
receives such notice. In any case, a failure to give such notice by mail or any
defect in the notice to the Holder of any Security designated for redemption as
a whole or in part shall not affect the validity of the proceedings for the
redemption of any other Security.
Section 11.5. Deposit of Redemption Price.
Prior to 10:00 a.m. New York City time on the Redemption Date specified in the
notice of redemption given as provided in Section 11.4, the Corporation will
deposit with the Trustee or with one or more Paying Agents (or if the
Corporation is acting as its own Paying Agent, the Corporation will segregate
and hold in trust as provided in Section 10.3) an amount of money sufficient to
pay the Redemption Price of, and any accrued interest (including Additional
Interest) on, all the Securities which are to be redeemed on that date.
Section 11.6. Payment of Securities Called for Redemption.
If any notice of redemption has been given as provided in Section 11.4, the
Securities or portion of Securities with respect to which such notice has been
given shall become due and payable on the date and at the place or places stated
in such notice at the applicable Redemption Price, together with accrued
interest (including any Additional Interest) to the Redemption Date. On
presentation and surrender of such Securities at a Place of Payment in said
notice specified, the said Securities or the specified portions thereof shall be
paid and redeemed by the Corporation at the applicable Redemption Price,
together with accrued interest (including any Additional Interest) to the
Redemption Date; provided, however, that, installments of interest whose Stated
Maturity is on or prior to the Redemption Date will be payable to the Holders of
such Securities,
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or one or more Predecessor Securities, registered as such at the close of
business on the relevant record dates according to their terms and the
provisions of Section 3.7.
Upon presentation of any Security redeemed in part only, the Corporation shall
execute and the Trustee shall authenticate and deliver to the Holder thereof, at
the expense of the Corporation, a new Security or Securities, of authorized
denominations, in aggregate principal amount equal to the unredeemed portion of
the Security so presented and having the same Original Issue Date, Stated
Maturity and terms. If a Global Security is so surrendered, such new Security
(subject to Section 3.4) will also be a new Global Security.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal of and premium, if any, on such Security
shall, until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
ARTICLE XII
SUBORDINATION OF SECURITIES
Section 12.1. Securities Subordinate to Senior Debt.
The Corporation covenants and agrees, and each Holder of a Security, by its
acceptance thereof, likewise covenants and agrees, that, to the extent and in
the manner hereinafter set forth in this Article, the payment of the principal
of (and premium, if any) and interest (including any Additional Interest) on
each and all of the Securities are hereby expressly made subordinate and subject
in right of payment to the prior payment in full of all Senior Debt.
Section 12.2. Payment Over of Proceeds Upon Dissolution, Etc.
In the event of (a) any insolvency or bankruptcy case or proceeding, or any
receivership, liquidation, reorganization, debt restructuring or other similar
case or proceeding in connection therewith, relative to the Corporation or to
its creditors, as such, or to its assets, or (b) any liquidation, dissolution or
other winding up of the Corporation, whether voluntary or involuntary and
whether or not involving insolvency or bankruptcy, or (c) any assignment for the
benefit of creditors or any other marshaling of assets and liabilities of the
Company (each such event, if any, herein sometimes referred to as a
"Proceeding"), then and in any such event the holders of Senior Debt shall be
first entitled to receive payment in full of all amounts due or to become due on
or in respect of all Senior Debt, or provision shall be made for such payment in
cash or cash equivalents, before the Holders of the Securities are entitled to
receive or retain any payment on account of principal of (or premium, if any) or
interest on the Securities or on account of the purchase or other acquisition of
Securities, and to that end the holders of Senior Debt shall be entitled to
receive, for application to the payment thereof, any payment or distribution of
any kind
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or character, whether in cash, property or securities, which may be payable or
deliverable in respect of the Securities in any such case, proceeding,
dissolution, liquidation or other winding up or event.
In the event that, notwithstanding the foregoing provisions of this Section,
the Trustee or the Holder of any Security (or any Person on its behalf) shall
have received any payment or distribution of assets of the Corporation of any
kind or character, whether in cash, property or securities, before all Senior
Debt is paid in full or payment thereof provided for, and if such fact shall, at
or prior to the time of such payment or distribution have been made known to the
Trustee or, as the case may be, such Holder, then and in such event such payment
or distribution shall be paid over or delivered forthwith to the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other
Person making payment or distribution of assets of the Corporation for
application to the payment of all Senior Debt remaining unpaid, to the extent
necessary to pay all Senior Debt in full, after giving effect to any concurrent
payment or distribution to or for the holders of Senior Debt.
For purposes of this Article only, the words "cash property or securities"
shall not be deemed to include shares of stock of the Corporation as reorganized
or readjusted, or securities of the Corporation or any other corporation
provided for by a plan of reorganization or readjustment, in each case, which
are subordinated in right of payment to all Senior Debt which may at the time be
outstanding to the same extent as, or to a greater extent than, the Securities
are so subordinated as provided in this Article. The consolidation of the
Corporation with, or the merger of the Corporation into, another Person or the
liquidation or dissolution of the Corporation following the conveyance or
transfer of its properties and assets substantially as an entirety to another
Person upon the terms and conditions set forth in Article VIII shall not be
deemed a dissolution, winding up, liquidation, reorganization, assignment for
the benefit of creditors or marshaling of assets and liabilities of the
Corporation for the purposes of this Section if the Person formed by such
consolidation or into which the Corporation is merged or the Person which
acquires by conveyance, transfer or lease such properties and assets
substantially as an entirety, as the case may be, shall, as a part of such
consolidation, merger, conveyance, transfer or lease, comply with the conditions
set forth in Article VIII.
Section 12.3. Prior Payment to Senior Debt Upon Acceleration of Securities.
In the event that any Securities are declared due and payable before their
Stated Maturity, then and in such event the holders of Senior Debt shall be
entitled to receive payment in full of all amounts due or to become due on or in
respect of all Senior Debt (including any amounts due upon acceleration), or
provision shall be made for such payment in cash or cash equivalents, before the
Holders of the Securities are entitled to receive any payment of the principal
of, premium, if any, or interest on the Securities or on account of the purchase
or other acquisition of Securities.
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In the event that, notwithstanding the foregoing, the Corporation shall make
any payment to the Trustee or to or on behalf of the Holder of any Security
prohibited by the foregoing provisions of this Section, and if such fact shall,
at or prior to the time of such payment, have been made actually known to the
Trustee or, as the case may be, such Holder, then and in such event such payment
shall be paid over and delivered forthwith to the Corporation.
The provisions of this Section shall not apply to any payment with respect to
which Section 12.2 would be applicable.
Section 12.4. No Payment When Senior Debt in Default.
In the event and during the continuation of any default in the payment of
principal of (or premium, if any) or interest on any Senior Debt beyond any
applicable grace period with respect thereto, or in the event that any event of
default with respect to any Senior Debt shall have occurred and be continuing
and shall have resulted in such Senior Debt becoming or being declared due and
payable prior to the date on which it would otherwise have become due and
payable, unless and until such event of default shall have been cured or waived
or shall have ceased to exist and any such acceleration shall have been
rescinded or annulled or in the event any judicial proceeding shall be pending
with respect to any such default in payment, or event of default, then no
payment shall be made by the Corporation on account of principal of (or premium,
if any) or interest on the Securities or on account of the purchase or other
acquisition of Securities.
In the event that, notwithstanding the foregoing, the Corporation shall make
any payment to the Trustee or to or on behalf of the Holder of any Security
prohibited by the foregoing provisions of this Section, and if such fact shall,
at or prior to the time of such payment, have been made actually known to the
Trustee or, as the case may be, such Holder, then and in such event such payment
shall be paid over and delivered forthwith to the Corporation.
The provisions of this Section shall not apply to any payment with respect to
which Section 12.2 would be applicable.
Section 12.5. Payment Permitted If No Default.
Nothing contained in this Article or elsewhere in this Indenture or in any of
the Securities shall prevent (a) the Corporation, at any time except during the
pendency of any case, proceeding, dissolution, liquidation or other winding up,
assignment for the benefit of creditors or other marshaling of assets and
liabilities of the Corporation referred to in Section 12.2 or under the
conditions described in Section 12.3 or 12.4, from making payments at any time
of principal of (and premium, if any) or interest on the Securities, or (b) the
application by the Trustee of any money deposited with it hereunder to the
payment of or on account of the principal of (and premium, if any) or interest
on the Securities of any series or the retention of such payment by
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the Holder, if, at the time of such application by the Trustee, it did not have
actual knowledge that such payment would have been prohibited by the provisions
of this Article.
Section 12.6. Subrogation to Rights of Holders of Senior Debt.
Subject to the payment in full of all amounts due or to become due on all
Senior Debt, or the provision for such payment in cash or cash equivalents or
otherwise in a manner satisfactory to the holders of Senior Debt, the Holders of
the Securities shall be subrogated to the extent of the payments or
distributions made to the holders of such Senior Debt pursuant to the provisions
of this Article (equally and ratably with the holders of all indebtedness of the
Corporation which by its express terms is subordinated to Senior Debt of the
Corporation to substantially the same extent as the Securities are subordinated
to the Senior Debt and is entitled to like rights of subrogation by reason of
any payments or distributions made to holders of such Senior Debt) to the rights
of the holders of such Senior Debt to receive payments and distributions of
cash, property and securities applicable to the Senior Debt until the principal
of (and premium, if any) and interest on the Securities shall be paid in full.
For purposes of such subrogation, no payments or distributions to the holders of
the Senior Debt of any cash, property or securities to which the Holders of the
Securities or the Trustee would be entitled except for the provisions of this
Article, and no payments over pursuant to the provisions of this Article to the
holders of Senior Debt by Holders of the Securities or the Trustee, shall, as
among the Corporation, its creditors other than holders of Senior Debt, and the
Holders of the Securities, be deemed to be a payment or distribution by the
Corporation to or on account of the Senior Debt.
Section 12.7. Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended solely for the purpose of
defining the relative rights of the Holders of the Securities on the one hand
and the holders of Senior Debt on the other hand. Nothing contained in this
Article or elsewhere in this Indenture or in the Securities is intended to or
shall (a) impair, as between the Corporation and the Holders of the Securities,
the obligations of the Corporation, which are absolute and unconditional, to pay
to the Holders of the Securities the principal of (and premium, if any) and
interest (including any Additional Interest) on the Securities as and when the
same shall become due and payable in accordance with their terms; or (b) affect
the relative rights against the Corporation of the Holders of the Securities and
creditors of the Corporation other than their rights in relation to the holders
of Senior Debt; or (c) prevent the Trustee or any Holder of the Securities from
exercising all remedies otherwise permitted by applicable law upon default under
this Indenture including, without limitation, filing and voting claims in any
Proceeding, subject to the rights, if any, under this Article of the holders of
Senior Debt to receive cash, property and securities otherwise payable or
deliverable to the Trustee or such Holder.
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Section 12.8. Trustee to Effectuate Subordination.
Each Holder of the Securities by his or her acceptance thereof authorizes and
directs the Trustee on his or her behalf to take such action as may be necessary
or appropriate to acknowledge or effectuate the subordination provided in this
Article and appoints the Trustee his or her attorney-in-fact for any and all
such purposes.
Section 12.9. No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior Debt to enforce
subordination as herein provided shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the Corporation or by any
act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Corporation with the terms, provisions and covenants of
this Indenture, regardless of any knowledge thereof that any such holder may
have or be otherwise charged with.
Without in any way limiting the generality of the immediately preceding
paragraph, the holders of Senior Debt may, at any time and from to time, without
the consent of or notice to the Trustee or the Holders of the Securities,
without incurring responsibility to the Holders of the Securities and without
impairing or releasing the subordination provided in this Article or the
obligations hereunder of the Holders of the Securities to the holders of Senior
Debt, do any one or more of the following: (i) change the manner, place or
terms of payment or extend the time of payment of, or renew or alter, Senior
Debt, or otherwise amend or supplement in any manner Senior Debt or any
instrument evidencing the same or any agreement under which Senior Debt is
outstanding; (ii) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Senior Debt; (iii) release any Person
liable in any manner for the collection of Senior Debt; and (iv) exercise or
refrain from exercising any rights against the Corporation and any other Person.
Section 12.10. Notice to Trustee.
The Corporation shall give prompt written notice to the Trustee of any fact
known to the Corporation which would prohibit the making of any payment to or by
the Trustee in respect of the Securities. Notwithstanding the provisions of this
Article or any other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which would prohibit the
making of any payment to or by the Trustee in respect of the Securities, unless
and until the Trustee shall have received written notice thereof from the
Corporation or a holder of Senior Debt or from any trustee, agent or
representative therefor; provided, however, that if the Trustee shall not have
received the notice provided for in this Section at least two Business Days
prior to the date upon which by the terms hereof any monies may become payable
for any purpose (including, without limitation, the payment of the principal of
(and premium, if any) or interest (including any Additional Interest) on any
Security), then, anything herein contained to the contrary notwithstanding, the
Trustee shall have full power and authority to receive such
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monies and to apply the same to the purpose for which they were received and
shall not be affected by any notice to the contrary which may be received by it
within two Business Days prior to such date.
Subject to the provisions of Section 6.1, the Trustee shall be entitled to
rely conclusively on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Debt (or a trustee or attorney-in-
fact therefor) to establish that such notice has been given by a holder of
Senior Debt (or a trustee or attorney-in-fact therefor). In the event that the
Trustee determines in good faith that further evidence is required with respect
to the right of any Person as a holder of Senior Debt to participate in any
payment or distribution pursuant to this Article, the Trustee may request such
Person to furnish evidence to the reasonable satisfaction of the Trustee as to
the amount of Senior Debt held by such Person, the extent to which such Person
is entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article, and if such evidence
is not furnished, the Trustee may defer any payment to such Person pending
judicial determination as to the right of such Person to receive such payment.
Section 12.11. Reliance on Judicial Order or Certificate of Liquidating
Agent.
Upon any payment or distribution of assets of the Corporation referred to in
this Article, the Trustee, subject to the provisions of Section 6.1, and the
Holders of the Securities shall be entitled to rely upon any order or decree
entered by any court of competent jurisdiction in which such Proceeding is
pending, or a certificate of the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee for the benefit of creditors, agent or other Person
making such payment or distribution, delivered to the Trustee or to the Holders
of Securities, for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of the Senior Debt and
other indebtedness of the Corporation, the amount thereof or payable thereon,
the amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article.
Section 12.12. Trustee Not Fiduciary for Holders of Senior Debt.
The Trustee, in its capacity as trustee under this Indenture, shall not be
deemed to owe any fiduciary duty to the holders of Senior Debt and shall not be
liable to any such holders if it shall in good faith mistakenly pay over or
distribute to Holders of Securities or to the Corporation or to any other Person
cash, property or securities to which any holders of Senior Debt shall be
entitled by virtue of this Article or otherwise. With respect to the holders of
Senior Debt, the Trustee undertakes to perform or to observe only such of its
covenants or obligations as are specifically set forth in this Article, and no
implied covenants or obligations with respect to holders of Senior Debt shall be
read into this Indenture against the Trustee.
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Section 12.13. Rights of Trustee as Holder of Senior Debt; Preservation of
Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all the rights set
forth in this Article with respect to any Senior Debt which may at any time be
held by it, to the same extent as any other holder of Senior Debt, and nothing
in this Indenture shall deprive the Trustee of any of its rights as such holder.
Nothing in this Article shall apply to claims of, or payments to, the Trustee
under or pursuant to Section 6.7.
Section 12.14. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall have been
appointed by the Corporation and be then acting hereunder, the term "Trustee" as
used in this Article shall in such case (unless the context otherwise requires)
be construed as extending to and including such Paying Agent within its meaning
as fully for all intents and purposes as if such Paying Agent were named in this
Article in addition to or in place of the Trustee.
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* * * *
This instrument may be executed in any number of counterparts, each of which
so executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
XXXXX NATIONAL CORPORATION
By: /s/ Xxxxx Xxxxxx
------------------------------
Attest: __________________
THE BANK OF NEW YORK
as Trustee
By: /s/ Xxxxx Xxxxxx
------------------------------
Assistant Treasurer
Notary: /s/ Xxxxxxx X. Xxxxxxx
--------------------------
Notary Public,
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