EXHIBIT 4.1
FLORIDA PROGRESS FUNDING CORPORATION
Issuer
FLORIDA PROGRESS CORPORATION
Guarantor
and
THE FIRST NATIONAL BANK OF CHICAGO
Trustee
JUNIOR SUBORDINATED INDENTURE
Dated as of _____________ 1, 1999
FLORIDA PROGRESS FUNDING CORPORATION
Reconciliation and tie between the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act") (including cross-references to provisions of
Sections 310 to and including 317 which, pursuant to Section 318(c) of the Trust
Indenture Act are a part of and govern the Junior Subordinated Indenture dated
as of _________ 1, 1999 (the "Junior Subordinated Indenture") whether or not
physically contained therein), and the Junior Subordinated Indenture.
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
(S) 310 (a)(1), (2) and (5)............................ 6.9
(a) (3)................................................. Not Applicable
(a)(4).................................................. Not Applicable
(b)..................................................... 6.8
6.10
(S) 311 (a)............................................ 6.13
(b)..................................................... 6.13
(b) (2)................................................. 7.3(a)
(c)..................................................... Not Applicable
(S) 312 (a)............................................ 7.1
7.2(a)
(b)..................................................... 7.2(b)
(c)..................................................... 7.2(c)
(S) 313 (a)............................................ 7.3(a)
(b)..................................................... 7.3(a), (b)
(c)..................................................... 7.3(a), 7.3(b)
(d)..................................................... 7.3(c)
(S) 314 (a)(1), (2) and (3)............................ 7.4
(a)(4).................................................. 10.5
(b)..................................................... Not Applicable
(c)(1).................................................. 1.2
(c)(2).................................................. 1.2
(c)(3).................................................. Not Applicable
(d)..................................................... Not Applicable
(e)..................................................... 1.2
(f)..................................................... Not Applicable
(S) 315 (a)............................................ 6.1(a)
(b)..................................................... 6.2
7.3(a), (b)
(c)..................................................... 6.1(b)
(d)..................................................... 6.1(c)
(d)(1).................................................. 6.1(a)(1)
(d)(2).................................................. 6.1(c)(2)
(d)(3).................................................. 6.1(c)(3)
(e)..................................................... 5.14
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
(S) 316 (a)............................................ 1.1
(a)(1)(A)............................................... 5.12
(a)(1)(B)............................................... 5.13
(a)(2).................................................. Not Applicable
(b)..................................................... 5.8
(c)..................................................... 1.4(f)
(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.]
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION........................... 1
Section 1.1 Definitions..................................................... 1
Section 1.2 Compliance Certificate and Opinions............................. 9
Section 1.3 Forms of Documents Delivered to Trustee......................... 10
Section 1.4 Acts of Holders................................................. 10
Section 1.5 Notices, Etc. to Trustee, the Company and the Guarantor......... 12
Section 1.6 Notice to Holders; Waiver....................................... 13
Section 1.7 Conflict with Trust Indenture Act............................... 13
Section 1.8 Effect of Headings and Table of Contents........................ 13
Section 1.9 Successors and Assigns.......................................... 13
Section 1.10 Separability Clause............................................. 13
Section 1.11 Benefits of Indenture........................................... 13
Section 1.12 Governing Law................................................... 14
Section 1.13 Non-Business Days............................................... 14
ARTICLE II
SECURITY FORMS.................................................................... 14
Section 2.1 Forms Generally................................................. 14
Section 2.2 Form of Face of Security........................................ 15
Section 2.3 Form of Reverse of Security..................................... 18
Section 2.4 Additional Provisions Required in Global Security............... 21
Section 2.5 Form of Trustee's Certificate of Authentication................. 21
ARTICLE III
THE SECURITIES.................................................................... 22
Section 3.1 Title and Terms................................................. 22
Section 3.2 Denominations................................................... 24
Section 3.3 Execution, Authentication, Delivery and Dating.................. 24
Section 3.4 Temporary Securities............................................ 26
Section 3.5 Registration, Transfer and Exchange............................. 26
Section 3.6 Mutilated, Destroyed, Lost and Stolen Securities................ 28
Section 3.7 Payment of Interest; Interest Rights Preserved.................. 28
Section 3.8 Persons Deemed Owners........................................... 30
Section 3.9 Cancellation.................................................... 30
Section 3.10 Computation of Interest......................................... 30
Section 3.11 Deferrals of Interest Payment Dates............................. 30
Section 3.12 Right of Set-Off................................................ 31
Section 3.13 Agreed Tax Treatment............................................ 31
Section 3.14 Shortening or Extension of Stated Maturity...................... 32
Section 3.15 CUSIP Numbers................................................... 32
ARTICLE IV
SATISFACTION AND DISCHARGE............................................................. 32
Section 4.1 Satisfaction and Discharge of Indenture.............................. 32
Section 4.2 Application of Trust Money........................................... 33
Section 4.3 Satisfaction, Discharge and Defeasance of Securities of Any Series... 34
ARTICLE V
REMEDIES............................................................................... 36
Section 5.1 Events of Default.................................................... 36
Section 5.2 Acceleration of Maturity; Rescission and Annulment................... 37
Section 5.3 Collection of Indebtedness and Suits for Enforcement
by Trustee........................................................... 38
Section 5.4 Trustee May File Proofs of Claim..................................... 38
Section 5.5 Trustee May Enforce Claim Without Possession of Securities........... 39
Section 5.6 Application of Money Collected....................................... 39
Section 5.7 Limitation on Suits.................................................. 40
Section 5.8 Unconditional Right of Holders to Receive Principal, Premium
and Interest; Direct Action by Holders of Preferred Securities....... 41
Section 5.9 Restoration of Rights and Remedies................................... 41
Section 5.10 Rights and Remedies Cumulative....................................... 41
Section 5.11 Delay or Omission Not Waiver......................................... 41
Section 5.12 Control by Holders................................................... 42
Section 5.13 Waiver of Past Defaults.............................................. 42
Section 5.14 Undertaking for Costs................................................ 42
Section 5.15 Waiver of Usury, Stay or Extension Laws.............................. 43
ARTICLE VI
THE TRUSTEE............................................................................ 43
Section 6.1 Certain Duties and Responsibilities.................................. 43
Section 6.2 Notice of Defaults................................................... 44
Section 6.3 Certain Rights of Trustee............................................ 44
Section 6.4 Not Responsible for Recitals or Issuance of Securities............... 45
Section 6.5 May Hold Securities.................................................. 46
Section 6.6 Money Held in Trust.................................................. 46
Section 6.7 Compensation and Reimbursement....................................... 46
Section 6.8 Disqualification; Conflicting Interests.............................. 47
Section 6.9 Corporate Trustee Required; Eligibility.............................. 47
Section 6.10 Resignation and Removal; Appointment of Successor.................... 47
Section 6.11 Acceptance of Appointment by Successor............................... 49
Section 6.12 Merger, Conversion, Consolidation or Succession to Business.......... 50
Section 6.13 Preferential Collection of Claims Against Company.................... 50
Section 6.14 Appointment of Authenticating Agent.................................. 50
-ii-
ARTICLE VII
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY................................. 52
Section 7.1 Company to Furnish Trustee Names and Addresses of Holders....... 52
Section 7.2 Preservation of Information, Communications to Holders.......... 52
Section 7.3 Reports by Trustee.............................................. 53
Section 7.4 Reports by the Guarantor........................................ 53
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE.............................. 53
Section 8.1 Company or Guarantor May Consolidate, Etc., Only on
Certain Terms................................................... 53
Section 8.2 Successor Corporation Substituted............................... 54
ARTICLE IX
SUPPLEMENTAL INDENTURES........................................................... 55
Section 9.1 Supplemental Indentures without Consent of Holders.............. 55
Section 9.2 Supplemental Indentures with Consent of Holders................. 56
Section 9.3 Execution of Supplemental Indentures............................ 57
Section 9.4 Effect of Supplemental Indentures............................... 58
Section 9.5 Conformity with Trust Indenture Act............................. 58
Section 9.6 Reference in Securities to Supplemental Indentures.............. 58
ARTICLE X
COVENANTS......................................................................... 58
Section 10.1 Payment of Principal, Premium and Interest...................... 58
Section 10.2 Maintenance of Office or Agency................................. 58
Section 10.3 Money or Security Payments to be Held in Trust.................. 59
Section 10.4 Statement as to Compliance...................................... 60
Section 10.5 Waiver of Certain Covenants..................................... 60
Section 10.6 Additional Sums................................................. 61
Section 10.7 Additional Covenants............................................ 61
ARTICLE XI
REDEMPTION OF DEBT SECURITIES..................................................... 62
Section 11.1 Applicability of This Article................................... 62
Section 11.2 Election to Redeem; Notice to Trustee........................... 62
Section 11.3 Selection of Debt Securities to be Redeemed..................... 63
Section 11.4 Notice of Redemption............................................ 63
Section 11.5 Deposit of Redemption Price..................................... 64
Section 11.6 Payment of Debt Securities Called for Redemption................ 64
Section 11.7 Right of Redemption of Debt Securities Initially Issued
to an FPC Capital Trust......................................... 65
-iii-
ARTICLE XII
SINKING FUNDS.................................................................... 65
Section 12.1 Applicability of Article.......................................... 65
Section 12.2 Satisfaction of Sinking Fund Payments with Debt Securities........ 65
Section 12.3 Redemption of Debt Securities for Sinking Fund.................... 66
ARTICLE XIII
SUBORDINATION OF SECURITIES........................................................ 67
Section 13.1 Securities Subordinate to Senior Debt............................. 67
Section 13.2 Payment Over of Proceeds Upon Dissolution, Etc.................... 67
Section 13.3 Prior Payment to Senior Debt Upon Acceleration of
Securities........................................................ 69
Section 13.4 No Payment When Senior Debt in Default............................ 69
Section 13.5 Payment Permitted If No Default................................... 70
Section 13.6 Subrogation to Rights of Holders of Senior Debt................... 70
Section 13.7 Provisions Solely to Define Relative Rights....................... 71
Section 13.8 Trustee to Effectuate Subordination............................... 71
Section 13.9 No Waiver of Subordination Provisions............................. 71
Section 13.10 Notice to Trustee................................................. 72
Section 13.11 Reliance on Judicial Order or Certificate of Liquidating
Agent............................................................. 73
Section 13.12 Trustee Not Fiduciary for Holders of Senior Debt.................. 73
Section 13.13 Rights of Trustee as Holder of Senior Debt; Preservation
of Trustee 's Rights.............................................. 73
Section 13.14 Article Applicable to Paying Agents............................... 73
Section 13.15 Certain Conversions or Exchanges Deemed Payment................... 73
ARTICLE XIV
GUARANTEE............................................................................. 74
Section 14.1 Guarantee......................................................... 74
Section 14.2 Waiver of Notice and Demand....................................... 74
Section 14.3 Guarantor Obligations Not Affected................................ 74
Section 14.4 Form of Guarantee................................................. 75
Section 14.5 Execution of Guarantee............................................ 76
Section 14.6 Subrogation....................................................... 77
Section 14.7 Independent Obligations........................................... 77
Section 14.8 Subordination..................................................... 77
Section 14.9 Assumption by Guarantor........................................... 77
-iv-
JUNIOR SUBORDINATED INDENTURE dated as of __________ 1, 1999, among FLORIDA
PROGRESS FUNDING CORPORATION, a Delaware corporation (hereinafter called the
"Company") having its principal office at 000 Xxxxxxxx Xxxxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxxxxxx 00000, FLORIDA PROGRESS CORPORATION, a Florida corporation,
as guarantor (hereinafter called the "Guarantor") having its principal office at
Xxx Xxxxxxxx Xxxxx, Xx. Xxxxxxxxxx, Xxxxxxx 00000 and THE FIRST NATIONAL BANK OF
CHICAGO, a national banking association duly organized and existing under the
laws of the United States, as Trustee (hereinafter called the "Trustee").
RECITALS OF THE COMPANY AND THE GUARANTOR
The Company has duly authorized the execution and delivery of this
Indenture (i) to provide for the issuance from time to time of its unsecured
junior subordinated notes in series (hereinafter called the "Debt Securities")
of substantially the tenor hereinafter provided, including, without limitation,
Debt Securities issued to evidence loans made to the Company of the proceeds
from the issuance from time to time by one or more business trusts (each a "FPC
Capital Trust," and, collectively, the "FPC Capital Trusts") of preferred trust
interests in such Trusts (the "Preferred Securities") and common interests in
such Trusts (the "Common Securities" and, collectively with the Preferred
Securities, the "Trust Securities"), and (ii) to provide the terms and
conditions upon which the Debt Securities are to be authenticated, issued and
delivered.
The Guarantor has duly authorized the execution and delivery of this
Indenture and deems it appropriate from time to time to issue its guarantee of
the Debt Securities on the terms herein provided (the "Guarantees" and, together
with the Debt Securities, the "Securities").
All things necessary to make the Securities, when executed by the Company
and the Guarantor, as applicable, authenticated and delivered hereunder and duly
issued by the Company and the Guarantor, as applicable, the valid obligations of
the Company and the Guarantor, as applicable, and to make this Indenture a valid
agreement of the Company and the Guarantor, as applicable, 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 Securities of any series thereof, as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1 Definitions.
For all purposes of this Indenture (and any indenture supplement hereto),
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;
(3) All accounting terms not otherwise defined herein or in the Trust
Indenture Act, either directly or by reference therein, 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 which 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 Company or the
Guarantor, as applicable; 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 hereof.
"Additional Interest" means the interest, if any, that shall accrue on any
interest on the Debt Securities of any series the payment of which has not been
made on the applicable Interest Payment Date and which shall accrue at the rate
per annum specified or determined as specified in such Debt Security.
"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 a FPC Capital Trust has become subject from time
to time as a result of a Tax Event.
"Administrative Trustee" means, in respect of any FPC Capital Trust, each
Person identified as an "Administrative Trustee" in the related Trust Agreement,
solely in such Person's capacity as Administrative Trustee of such FPC Capital
Trust under such 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, no FPC Capital Trust to
-------- -------
which Debt Securities have been issued shall be deemed to be an Affiliate of the
Company or the Guarantor. 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.
"Allocable Amounts," when used with respect to any Senior Debt, means all
amounts due or to become due on such Senior Debt less, if applicable, any amount
which would have been paid to, and retained by, the holders of such Senior Debt
(whether as a result of the receipt of payments by
2
the holders of such Senior Debt from the Company or the Guarantor, as the case
may be, or any other obligor thereon or from any holders of, or trustee in
respect of, other indebtedness that is subordinate and junior in right of
payment to such Senior Debt pursuant to any provision of such indebtedness for
the payment over of amounts received on account of such indebtedness to the
holders of such Senior Debt or otherwise) but for the fact that such Senior Debt
is subordinate or junior in right of payment to (or subject to a requirement
that amounts received on such Senior Debt be paid over to obligees on) trade
accounts payable or accrued liabilities arising in the ordinary course of
business.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 6.14 to act on behalf of the Trustee to authenticate Securities of
one or more series.
"Board of Directors" means either the board of directors of the Company or
the Guarantor, as the case may be, or any 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 Company or the Guarantor, as the case may be,
to have been duly adopted by the Board of Directors thereof, or such committee
of the Board of Directors or officers of the Company or the Guarantor, as the
case may be, 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 of a
series initially issued to a FPC Capital Trust, the principal office of the
Property Trustee under the related Trust Agreement, is closed for business.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, or if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties on such date.
"Common Securities" has the meaning specified in the first recital of this
Indenture.
"Common Stock" means the common stock, without par value, of the Company or
the common stock, without par value, of the Guarantor, as the case may be.
"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor corporation shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor corporation.
"Company Request" and "Company Order" mean, respectively, the written
request or order signed in the name of the Company and the Guarantor by the
Chairman of the Board of Directors, the Vice Chairman of the Board of Directors,
its President or a Vice President, and by its Treasurer, an Assistant Treasurer,
its Secretary or an Assistant Secretary of the Company, and delivered to the
Trustee.
3
"Corporate Trust Office" means the principal corporate trust office of the
Trustee at which, at any particular time, its corporate trust business shall be
administered, which office at the date hereof is located at Xxx Xxxxx Xxxxxxxx
Xxxxx, Xxxxx XX0-0000, Xxxxxxx, Xxxxxxxx 00000-0000, Attention: Global Corporate
Trust Services, except for purposes of Section 10.2, if required with respect to
a series of Debt Securities, such term shall mean the office or agency of the
Trustee in the Borough of Manhattan the City of New York, which office at the
date hereof is located at First Chicago Trust Company of New York, 00 Xxxx
Xxxxxx, Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 10005..
"Corporation" includes a corporation, association, company, joint-stock
company or business trust.
"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 obligations incurred in connection with the acquisition of property,
assets or businesses; (iii) every reimbursement obligation of such Person with
respect to letters of credit, bankers' acceptances or similar facilities issued
for the account of such Person; (iv) every obligation of such Person issued or
assumed as the deferred purchase price of property or services (but excluding
trade accounts payable or accrued liabilities arising in the ordinary course of
business); (v) every capital lease obligation of such Person; (vi) all
indebtedness of such Person, whether incurred on or prior to the date of this
Indenture or thereafter incurred, for claims in respect of derivative products,
including interest rate, foreign exchange rate and commodity forward contracts,
options and swaps and similar arrangements; and (vii) every obligation of the
type referred to in clauses (i) through (vi) of another Person and all dividends
and operating lease payments of another Person the payment of which, in either
case, such Person has guaranteed or is responsible or liable for, directly or
indirectly, as obligor or otherwise.
"Debt Securities" has the meaning specified in the first recital of this
Indenture.
"Defaulted Interest" has the meaning specified in Section 3.7.
"Depositary" means, with respect to the Securities of any series issuable
or issued in whole or in part in the form of one or more Global Securities, the
Person designated as Depositary by the Company pursuant to Section 3.1 with
respect to such series (or any successor to the Depositary).
"Discount Security" means any security which provides for an amount less
than the principal amount thereof to be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 5.2.
"Distributions," with respect to the Trust Securities issued by a FPC
Capital Trust, means amounts payable in respect of such Trust Securities as
provided in the related Trust Agreement and referred to therein as
"Distributions."
"Dollar" means the currency of the United States of America that, at the
time of payment, is legal tender for the payment of public and private debts.
4
"Event of Default," unless otherwise specified in the supplemental
indenture or Officers' Certificate creating a series of Securities, 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.
"Extension Period" has the meaning specified in Section 3.11.
"FPC Capital Guarantee" means the guarantee by the Guarantor of
distributions on the Preferred Securities of an FPC Capital Trust to the extent
provided in the Guarantee Agreement.
"FPC Capital Trust" has the meaning specified in the first recital of this
Indenture.
"Global Security" means a Security in the form prescribed in Section 2.4
evidencing all or part of a series of Securities, issued to the Depositary or
its nominee for such series, and registered in the name of such Depositary or
its nominee.
"Guarantee Agreement" means the Guarantee Agreement between Guarantor and
the trustee certified therein, substantially in such form as may be specified as
contemplated by Section 3.1 with respect to the Debt Securities of any series,
in each case as amended from time to time.
"Guarantee" has the meaning specified in the second recital of this
Indenture.
"Guarantor" means Florida Progress Corporation, a Florida Corporation, or
any successor thereto.
"Holder" means a Person in whose name a Security is registered in the
Securities Register.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof and shall
include the terms of each particular series of Debt Securities established as
contemplated by Section 3.1.
"Interest Payment Date" means as to each series of Debt Securities the
Stated Maturity of an installment of interest on such Debt Securities.
"Investment Company Act Event" means that an FPC Capital Trust shall have
received an Opinion of Counsel (as defined in the relevant FPC Capital Trust
Agreement) experienced in such matters to the effect that, as a result of the
occurrence of a change in law or regulation or a written change in the
interpretation or application of law or regulation by any legislative body,
court, governmental agency or regulatory authority, there is more than an
insubstantial risk that such FPC Capital Trust is or will be considered an
"investment company" that is required to be registered under the Investment
Company Act of 1940, as amended, which change becomes effective on or after the
Original Issue Date.
"Junior Subordinated Payment" has the meaning specified in Section 13.2.
5
"Maturity" when used with respect to any Debt Security means the date on
which the principal of such Debt Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption 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).
"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 Company or the Guarantor, as the case may be, and
delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Company or the Guarantor, as the case may be, and who shall be
acceptable to the Trustee.
"Original Issue Date" means the date of issuance specified as such in each
Security.
"Outstanding" means, when used in reference to any Securities, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(ii) Securities for whose payment money in the necessary amount has been
theretofore deposited with the Trustee or any Paying Agent in trust for the
Holders of such Securities; and
(iii) Securities in substitution for or in lieu of which other
Securities have been authenticated and delivered or which have been paid
pursuant to Section 3.6, 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 Company; provided, however, that in
determining whether the Holders of the requisite principal amount of an
Outstanding Securities have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, Securities owned by the Company or any
other obligor upon the Securities or any Affiliate of the Company 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 the Trustee 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 Company or any other obligor upon the Securities or any Affiliate of
the Company or such other obligor. Upon the written request of the Trustee, the
Company shall furnish to the Trustee promptly an Officers' Certificate listing
and identifying all Securities, if any, known by the Company to be owned or held
by or for the account of the Company, or any other obligor on the Securities or
any Affiliate of the Company 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.
6
"Paying Agent" means the Trustee or any Person authorized by the Company to
pay the principal of or interest on any Debt Securities on behalf of the
Company.
"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 Debt Securities of any
series, the place or places where the principal of (and premium, if any) and
interest on the Securities of such series are payable pursuant to Sections 3.1
and 3.11.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; 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 debt 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 13.2.
"Property Trustee" means, in respect of any FPC Capital Trust, the
commercial bank or trust company identified as the "Property Trustee" in the
related Trust Agreement, solely in its capacity as Property Trustee of such FPC
Capital Trust under such Trust Agreement and not in its individual capacity, or
its successor in interest in such capacity, or any successor property trustee
appointed as therein provided.
"Redemption Date," when used with respect to any Debt Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price," when used with respect to any Debt Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest Payment Date
with respect to the Debt Securities of a series means, unless otherwise provided
pursuant to Section 3.1 with respect to Debt Securities of a series, (i) in the
case of Debt Securities of a series represented by one or more Global
Securities, the Business Day next preceding such Interest Payment Date and (ii)
in the case of Debt Securities of a series not represented by one or more Global
Securities, the date which is fifteen days next preceding such Interest Payment
Date (whether or not a Business Day).
"Responsible Officer," when used with respect to the Trustee, means any
officer of the Trustee assigned by the Trustee from time to time to administer
its corporate trust matters or any other officer to whom such a matter may be
referred.
"Rights Plan" means a plan of the Company or the Guarantor, as the case may
be, providing for the issuance by the Company or the Guarantor, as the case may
be, 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
7
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, a division of The XxXxxx-
Xxxx Companies, Inc.
"Securities" or "Security" means any Debt Securities or Debt Security, as
the case may be, with a Guarantee endorsed thereon authenticated and delivered
under this Indenture.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 3.5.
"Senior Debt" means, with respect to any Person, 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 such
Person, whether or not such claim for post-petition interest is allowed in such
proceeding), on Debt of such Person, whether incurred on or prior to the date of
this Indenture or thereafter incurred, unless, in the instrument creating or
evidencing the same or pursuant to which the same is outstanding, it is provided
that such obligations are not superior in right of payment to the Securities or
to other Debt which is pari passu with, or subordinated to, the Securities,
provided, however, that Senior Debt shall not be deemed to include (a) any Debt
of such Person which, when incurred and without respect to any election under
Section 1111(b) of the Bankruptcy Reform Act of 1978, was without recourse to
such Person, (b) any Debt of such Person, to any of its Subsidiaries, (c) Debt
to any employee of such Person, and (d) any Securities.
"Special Event" means an Investment Company Act Event or a Tax Event.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.7.
"Stated Maturity" when used with respect to any Debt Security or any
installment of principal thereof or interest thereon means the date specified
pursuant to the terms of such Debt Security as the date on which the principal
of such Debt Security or such installment of interest is due and payable, in the
case of such principal, as such date may be shortened or extended as provided
pursuant to the terms of such Debt Security and this Indenture.
"Subsidiary" means, with respect to any Person, a corporation more than 50%
of the outstanding voting stock of which is owned, directly or indirectly, by
such Person or by one or more other Subsidiaries, or by such Person 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.
"Tax Event" means the receipt by an FPC Capital Trust of an Opinion of
Counsel (as defined in the relevant FPC Capital 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
8
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 such FPC Capital Trust, there is more
than an insubstantial risk that (i) such FPC Capital Trust is, or will be within
90 days of the date of such Opinion of Counsel, subject to United States federal
income tax with respect to income received or accrued on the corresponding
series of Debt Securities issued by the Company to such FPC Capital Trust, (ii)
interest payable by the Company on such corresponding series of Debt Securities
is not, or within 90 days of the date of such Opinion of Counsel, will not be,
deductible by the Company, in whole or in part, for United States federal income
tax purposes or (iii) such FPC Capital Trust 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.
"Trust Agreement" means the Trust Agreement, as amended by the form of
Amended and Restated Trust Agreement, substantially in such form as may be
specified as contemplated by Section 3.1 with respect to the Debt Securities of
any series, in each case as amended from time to time.
"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 of
any series, shall mean the Trustee with respect to Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended and
as in effect on the date 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 Company, the Guarantor or
the Trustee, as the case may be, 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 Company or the Guarantor, as the
case may be to the Trustee to take any action under any provision of this
Indenture, the Company or the Guarantor, as the case may be shall furnish to the
Trustee an Officers' Certificate stating that all conditions precedent
(including covenants compliance with which constitutes a condition precedent),
if any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent (including covenants compliance with which
constitutes a condition precedent), if any, have been complied with, except that
in the case of any such application or request as to which the furnishing of
such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (other than the certificates provided
pursuant to Section 10.5) shall include:
9
(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
(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 may certify or give an opinion 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 Company or the Guarantor,
as the case may be, 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 Company or the
Guarantor as the case may be, stating that the information with respect to such
factual matters is in the possession of the Company or the Guarantor, as the
case may be, 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 Company. 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
10
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 Company, if made in the manner provided in this Section.
(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 this 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 the Holder of any Security shall bind every future Holder of
the same Security and the Holder of every Security issued upon the transfer
thereof or in exchange therefor or in lieu thereof in respect of anything done
or suffered to be done by the Trustee or the Company or the Guarantor in
reliance thereon, whether or not notation of such action is made upon such
Security.
(f) The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to
give, make or take any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Indenture to be
given, made or taken by Holders of Securities of such series, provided that the
Company 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 Outstanding
Securities of the relevant series on such record date, and no other Holders,
shall be entitled to take the relevant action, whether or not such Holders
remain Holders after such record date, provided that no such action shall be
effective hereunder unless taken on or prior to the applicable Expiration Date
by Holders of the requisite principal amount of Outstanding Securities of such
series on such record date. Nothing in this paragraph shall be construed to
prevent the Company from setting a new record date for any action for which a
record date has previously been set pursuant to this paragraph (whereupon the
record date previously set shall automatically and with no action by any Person
be canceled and of no effect), and nothing in this paragraph shall be construed
to render ineffective any action taken by Holders of the requisite principal
amount of Outstanding Securities of the relevant series on the date such action
is taken. Promptly after any record date is set pursuant to this paragraph, the
Company, at its own expense, shall cause notice of such record date, the
proposed action by Holders and the applicable Expiration Date to be given to the
Trustee in writing and to each Holder of Securities of the relevant series in
the manner set forth in Section 1.6.
The Trustee may set any day as a record date for the purpose of determining
the Holders of Outstanding Securities of any series entitled to join in the
giving or making of (i) any Notice of Default, (ii) any declaration of
acceleration referred to in Section 5.2, (iii) any request to institute
11
proceedings referred to in Section 5.7(2) or (iv) any direction referred to in
Section 5.12, in each case with respect to Securities of such series. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of such series on such record date, and no other Holders, shall be
entitled to join in such notice, declaration, request or direction, whether or
not such Holders remain Holders after such record date, provided that no such
action shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date. Nothing in this paragraph shall
be construed to prevent the Trustee from setting a new record date for any
action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and with
no action by any Person be canceled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite principal amount of Outstanding Securities of the relevant
series on the date such action is taken. Promptly after any record date is set
pursuant to this paragraph, the Trustee, at the Company's expense, shall cause
notice of such record date, the proposed action by Holders and the applicable
Expiration Date to be given to the Company in writing and to each Holder of
Securities of the relevant series in the manner set forth in Section 1.6.
With respect to any record date set pursuant to this Section, 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 of the relevant series in the manner set forth in
Section 10.6, 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 any particular Security may do so with regard to
all or any part of the principal amount of such Security or by one or more duly
appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.
Section 1.5 Notices, Etc. to Trustee, the Company and the Guarantor.
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,
(1) the Trustee by any Holder, any holder of Preferred Securities, the
Company or the Guarantor 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 Company or the Guarantor 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 Company or the Guarantor, as the case may be,
addressed to it at the address of its principal office specified in the first
paragraph
12
of this instrument or at any other address previously furnished in
writing to the Trustee by the Company or the Guarantor, as the case may be.
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. 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.
Section 1.8 Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 1.9 Successors and Assigns.
All covenants and agreements in this Indenture by the Company and the
Guarantor shall bind each of the Company's and the Guarantor's, as the case may
be, 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 of the Company or the Guarantor, 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.
13
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 the
principles of conflicts 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).
ARTICLE II
SECURITY FORMS
Section 2.1 Forms Generally.
The Securities of each series and the Trustee's certificate of
authentication shall be in substantially the forms set forth in this Article, or
in such other form or forms as shall be established by or pursuant to a Board
Resolution of the Company and as set forth in an Officers' Certificate of the
Company and the Guarantor or in one or more indentures supplemental hereto, in
each case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with applicable tax
laws or the rules of any securities exchange or as may, consistently herewith,
be determined by the officers executing such securities, as evidenced by their
execution of the Securities. If the form of Securities of any series is
established by action taken pursuant to a Board Resolution of the Company, a
copy of an appropriate record of such action shall be certified by the Secretary
or an Assistant Secretary of the Company and delivered to the Trustee at or
prior to the delivery of the Company Order contemplated by Section 3.3 with
respect to the authentication and delivery of such Securities.
The Trustee's certificates 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.
14
Section 2.2 Form of Face of Security.
FLORIDA PROGRESS FUNDING CORPORATION
(TITLE OF SECURITY)
No. $__________
FLORIDA PROGRESS FUNDING CORPORATION, a corporation organized and existing
under the laws of Delaware (hereinafter called the "Company," which term
includes any successor corporation under the Indenture hereinafter referred to),
for value received, hereby promises to pay to _____________________, or
registered assigns, the principal sum of _______________ Dollars ($ ________) on
___________, ____, [if applicable, insert--;provided that the Company may (i)
shorten the Stated Maturity of the principal of this Security to a date not
earlier than ___________, and (ii) extend the Stated Maturity of the principal
of this Security at any time on one or more occasions, subject to certain
conditions specified in Section 3.14 of the Indenture, but in no event to a date
later than __________]. The Company further promises to pay interest on said
principal sum from ____________, _____________ or from the most recent interest
payment date (each such date, an "Interest Payment Date") on which interest has
been paid or duly provided for, [monthly] [quarterly] [semi-annually] [if
applicable, insert--(subject to deferral as set forth herein) in arrears on
_____________, ___________, ____________ and ___________ of each year,
commencing _____________, _____________, at the rate of ___% per annum, until
the principal hereof shall have become due and payable, [if applicable, insert--
plus Additional Interest, if any,] until the principal hereof is paid or duly
provided for or made available for payment [if applicable, insert--and on any
overdue principal and (without duplication and to the extent that payment of
such interest is enforceable under applicable law) on any overdue installment of
interest at the rate of ___% per annum, compounded [monthly] [quarterly] [semi-
annually]]. The amount of interest payable for any period shall be computed on
the basis of twelve 30-day months and a 360-day year. The amount of interest
payable 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. 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 mean 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 [if applicable, insert--, or the principal office of the
Property Trustee under the Trust Agreement hereinafter referred to for FPC
Capital Trust________,] is closed for business. 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, which shall
be the (i) in the case of Securities represented by one or more Global
Securities, the Business Day next preceding such Interest Payment Date and (ii)
in the case of Securities not represented by one or more Global Securities, the
date which is fifteen days next preceding such Interest Payment Date (whether or
not a Business Day). Any such interest
15
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 of this series not less than 10 days prior to
such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in said Indenture.
[If applicable, insert--So long as no Event of Default has occurred and is
continuing, the Company 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 up to ___ consecutive [monthly] [quarterly] [semi-annual] interest
payment periods with respect to each deferral period (each an "Extension
Period"), during which Extension Periods the Company shall have the right to
make partial payments of interest on any Interest Payment Date, and at the end
of which the Company shall pay all interest then accrued and unpaid (together
with Additional Interest thereon to the extent permitted by applicable law);
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 Company shall not nor shall the Guarantor referred to
herein, (i) declare or pay any dividends or distributions or redeem, purchase,
acquire or make a liquidation payment with respect to, any of the its capital
stock or (ii) make any payment of principal of or interest or premium, if any,
on or repay, repurchase or redeem any debt security issued by it that ranks pari
passu with or junior in interest to this Security or the Guarantee referred to
herein or make any guarantee payments with respect to any guarantee by the
Company or the Guarantor of the debt securities of any of their respective
Subsidiaries if such guarantee ranks pari passu with or junior in interest 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 Company or the Guarantor under any Rights Plan or the repurchase of any
rights distributed pursuant to a Rights Plan, and (c) purchases of Common Stock
related to the issuance of Common Stock under any of the Company's or the
Guarantor's benefit plans for their respective directors, officers or
employees). Prior to the termination of any such Extension Period, the Company
may further extend the interest payment period, provided that no Extension
Period shall exceed consecutive [months] [quarters] [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 accrued and
unpaid interest and any Additional Interest then due, the Company 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 Company shall give the Holder of this Security and the Trustee notice of its
election to begin any Extension Period at least one Business Day prior to the
next succeeding Interest Payment Date on which interest on this Security would
be payable but for such deferral [if applicable, insert -- or, with respect to
the Securities issued to a FPC Capital Trust, so long as such Securities are
held by such FPC Capital Trust, prior to the earlier of (i) the next succeeding
date on which Distributions on the Preferred Securities would be payable but for
such deferral or (ii) the date the Administrative Trustee is required to give
notice to any securities exchange or other applicable self regulatory
organization or to holders of such Preferred Securities of the record date or
the date such Distributions are payable, but in any event not less than one
Business Day prior to such record date]].
16
Payment of the principal of (and premium, if any) and interest on this
Security will be made at the office or agency of the Company maintained for that
purpose in 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 debts [if applicable, insert--; provided, however, that at the option of
the Company 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 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 subject in right of payments to the prior payment
in full of all Senior Debt of the Company, and this Security is issued subject
to the provisions of the Indenture with respect thereto. Each Holder of this
Security, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on 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 of the Company, whether now outstanding
or hereafter incurred, and waives reliance by each such holder upon said
provisions.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
FLORIDA PROGRESS FUNDING CORPORATION
By:________________________________
[President or Vice President]
Attest:
__________________________________
[Secretary or Assistant Secretary]
NOTES GUARANTEE
FOR THE VALUE RECEIVED, FLORIDA PROGRESS CORPORATION, a corporation duly
organized and existing under the laws of the State of Florida (the "Guarantor",
which term
17
includes any successor Person under the Indenture referred to herein)
hereby irrevocably and unconditionally guarantees to the Holder of this Security
issued by Florida Progress Funding Corporation (the "Company"), pursuant to the
terms of the Guarantee contained in Article XIV of the Indenture, the due and
punctual payment of the principal of, sinking fund payment, if any, and premium,
if any, and interest [(including Additional Interest)] on this Security, when
and as the same shall become due and payable, whether at the Stated Maturity, by
declaration of acceleration, call for redemption or otherwise, in accordance
with the terms of this Security and the Indenture.
The obligations of the Guarantor to the Holders of this Security and the
Trustee pursuant to the Guarantee and the Indenture are expressly set forth in
Article XIV of the Indenture, and reference is hereby made to such Article and
Indenture for the precise terms of the Guarantee.
Notwithstanding anything to the contrary in this Guarantee, all payments in
respect of the Guarantee are subordinate and subject in right of payment to the
prior payment in full of all Senior Debt (as defined in the Indenture) of the
Guarantor.
The Guarantee shall be governed by and construed in accordance with the
laws of the State of New York without regard to the principles of conflicts
thereof.
The Guarantee shall not be valid or obligatory for any purpose until the
certificate of authentication on this Security upon which this notation of the
Guarantee is endorsed shall have been executed by the Trustee under the
Indenture by the manual signature of one of its authorized officers.
(SEAL) FLORIDA PROGRESS CORPORATION
Attest:
By:_________________________
Name:__________________
Title__________________
Section 2.3 Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under the Junior Subordinated Indenture dated as of ____________ 1, 1999
(herein called the "Indenture") among the Company, the Guarantor and THE FIRST
NATIONAL BANK OF CHICAGO, 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 Company, the Guarantor and the Holders of the Securities, and
of the terms upon which the Securities are, and are to be, authenticated and
delivered. This Security is one of the series designated on the face hereof [if
applicable, insert--, limited in aggregate principal amount to $___________].
18
All terms used in this Security that are defined in the Indenture [if
applicable, insert -- or in the Amended and Restated Trust Agreement dated as of
____________ ____, ____, as amended (the "Trust Agreement"), for FPC Capital
Trust_______, among the Company, as Depositor, and the Trustees named therein,
shall have the meanings assigned to them in the Indenture [if applicable,
insert-- or the Trust Agreement, as the case may be].
[If applicable, insert--The Company may at any time, at its option, on or
after ________, ___, and subject to the terms and conditions of Article XI of
the Indenture, redeem this Security in whole at any time or in part from time to
time, without premium or penalty, at a redemption price equal to 100% of the
principal amount thereof plus accrued and unpaid interest [if applicable,
insert--,including Additional Interest, if any,] to the Redemption Date.]
[If applicable, insert--Upon the occurrence and during the continuation of
a Special Event in respect of an FPC Capital Trust, the Company may, at its
option, at any time within 90 days of the occurrence of such Special Event
redeem this Security, in whole but not in part, subject to the provisions of
Section 11.7 and the other provisions of Article XI of the Indenture, at a
redemption price equal to 100% of the principal amount thereof plus accrued and
unpaid interest, including Additional Interest, if any, to the Redemption Date.]
In the event of redemption of this Security in part only, a new Security or
Securities of this series for the unredeemed portion hereof will be issued in
the name of the Holder hereof upon the cancellation hereof.
The Indenture contains provisions for satisfaction and discharge of the
entire indebtedness of this Security upon compliance by the Company with certain
conditions set forth in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
Company, the Guarantor 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 Company, the Guarantor and of the Holders of the
Securities, with the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series to be affected by
such supplemental indenture. The Indenture also contains provisions permitting
Holders of specified percentages in principal amount of the Securities of each
series at the time Outstanding, on behalf of the Holders of all Securities of
such series, to waive compliance by the Company 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.
[If the Security is not a Discount Security,--As provided in and subject to
the provisions of the Indenture, if an Event of Default with respect to the
Securities of this series at the time Outstanding occurs and is continuing, then
and in every such case the Trustee or the Holders of not less than 25% in
principal amount of the Outstanding Securities of this series may declare the
principal amount of all the Securities of this series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), provided that, in the case of the Securities of this series issued
to a FPC Capital Trust, if upon an Event of Default, the Trustee or the
19
Holders of not less than 25% in principal amount of the Outstanding Securities
of this series fail to declare the principal of all the Securities of this
series to be immediately due and payable, the holders of at least 25% in
aggregate Liquidation Amount of the Preferred Securities then outstanding shall
have such right by a notice in writing to the Company, the Guarantor and the
Trustee; and upon any such declaration the principal amount of and the accrued
interest (including any Additional Interest) on all the Securities of this
series shall become immediately due and payable, provided that the payment of
principal and interest (including any Additional Interest) on such Securities
shall remain subordinated to the extent provided in Article XIII of the
Indenture.]
[If the Security is a Discount Security,--As provided in and subject to the
provisions of the Indenture, if an Event of Default with respect to the
Securities of this series at the time Outstanding occurs and is continuing, then
and in every such case the Trustee or the Holders of not less than such portion
of the principal amount as may be specified in the terms of this series may
declare an amount of principal of the Securities of this series to be due and
payable immediately, by a notice in writing to the Company (and to the Trustee
if given by Holders), provided that, in the case of the Securities of this
series issued to an FPC Capital Trust, if upon an Event of Default, the Trustee
or the Holders of not less than 25% in principal amount of the Outstanding
Securities of this series fails to declare the principal of all the Securities
of this series to be immediately due and payable, the holders of at least 25% in
aggregate Liquidation Amount of the Preferred Securities then outstanding shall
have such right by a notice in writing to the Company, the Guarantor and the
Trustee. Such amount shall be equal to--insert formula for determining the
amount. Upon any such declaration, such amount of the principal of and the
accrued interest (including any Additional Interest) on all the Securities of
this series shall become immediately due and payable, provided that the payment
of principal and interest (including any Additional Interest) on such Securities
shall remain subordinated to the extent provided in Article XIII of the
Indenture. Upon payment (i) of the amount of principal so declared due and
payable and (ii) of interest on any overdue principal and overdue interest (in
each case to the extent that the payment of such interest shall be legally
enforceable), all of the Company's obligations in respect of the payment of the
principal of and interest, if any, on this Security shall terminate.]
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, 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 certain limitations therein set
forth, the transfer of this Security is registerable in the Securities Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company maintained under Section 10.2 of the Indenture duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company 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 this series, 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 Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
20
Prior to due presentment of this Security for registration of transfer, the
Company, the Guarantor, the Trustee and any agent of the Company, the Guarantor
or the Trustee may treat the Person in whose name this Security is registered as
the owner hereof for all purposes, whether or not this Security be overdue, and
neither the Company, the Guarantor, the Trustee nor any such agent shall be
affected by notice to the contrary.
The Securities of this series are issuable only in registered form without
coupons in denominations of $25 and any integral multiple thereof. As provided
in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of such series of a different authorized denomination, as
requested by the Holder surrendering the same.
The Company and the Guarantor, 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 CONFLICTS OF
LAWS PRINCIPLES THEREOF.
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 Depositary or a
nominee of a Depositary. This Security is exchangeable for Securities
registered in the name of a person other than the Depositary or its nominee only
in the limited circumstances described in the Indenture and may not be
transferred except as a whole by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary."
Section 2.5 Form of Trustee's Certificate of Authentication.
This is one of the Securities referred to in the within-mentioned
Indenture.
Dated:
______________________________
as Trustee
______________________________
By:
Authorized officer
21
ARTICLE III
THE SECURITIES
Section 3.1 Title and Terms.
(a) The aggregate principal amount of Debt Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Debt Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution of the Company and set forth in
an Officers' Certificate of the Company, or established in one or more
indentures supplemental hereto, prior to the issuance of Debt Securities of a
series:
(i) the title of the Debt Securities of such series, which shall
distinguish the Debt Securities of the series from all other Debt Securities;
(ii) the limit, if any, upon the aggregate principal amount of the Debt
Securities of such series which may be authenticated and delivered under this
Indenture (except for Debt Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other Debt
Securities of the series pursuant to Section 3.4, 3.5, 3.6, 9.6 or 11.6 and
except for any Debt Securities which, pursuant to Section 3.3, are deemed never
to have been authenticated and delivered hereunder); provided, however, that the
authorized aggregate principal amount of such series may be increased above such
amount by a Board Resolution of the Company to such effect;
(iii) the Stated Maturity or Maturities on which the principal of the
Debt Securities of such series is payable or the method of determination
thereof;
(iv) the rate or rates, if any, at which the Debt Securities of such
series shall bear interest, if any, the rate or rates and extent to which
Additional Interest, if any, shall be payable in respect of any Debt Securities
of such series, the Interest Payment Dates on which such interest shall be
payable, the right, pursuant to Section 3.11 or as otherwise set forth therein,
of the Company to defer or extend an Interest Payment Date, and the Regular
Record Date for the interest payable on any Interest Payment Date or the method
by which any of the foregoing shall be determined;
(v) the place or places where the principal of (and premium, if any)
and interest on the Debt Securities of such series shall be payable, the place
or places where the Debt Securities of such series may be presented for
registration of transfer or exchange, and the place or places where notices and
demands to or upon the Company in respect of the Debt Securities of such series
may be made;
(vi) the period or periods within or the date or dates on which, if any,
the price or prices at which and the terms and conditions upon which the Debt
Securities of such series may be redeemed, in whole or in part, at the option of
the Company;
(vii) the obligation or the right, if any, of the Company to redeem,
repay or purchase the Debt Securities of such series pursuant to any sinking
fund, amortization or analogous provisions, and the period or periods within
which, the price or prices at which, the currency or currencies
22
(including currency unit or units) in which and the other terms and conditions
upon which Debt Securities of the series shall be redeemed, repaid or purchased,
in whole or in part, pursuant to such obligation;
(viii) the denominations in which any Debt Securities of such series
shall be issuable, if other than denominations of $25 and any integral multiple
thereof;
(ix) if other than Dollars, the currency or currencies (including
currency unit or units) in which the principal of (and premium, if any) and
interest, if any, on the Debt Securities of the series shall be payable, or in
which the Debt Securities of the series shall be denominated;
(x) the additions, modifications or deletions, if any, in the Events of
Default or covenants of the Company or the Guarantor set forth herein with
respect to the Debt Securities of such series;
(xi) if other than the principal amount thereof, the portion of the
principal amount of Debt Securities of such series that shall be payable upon
declaration of acceleration of the Maturity thereof;
(xii) the additions or changes, if any, to this Indenture with respect
to the Debt Securities of such series as shall be necessary to permit or
facilitate the issuance of the Debt Securities of such series in bearer form,
registerable or not registerable as to principal, and with or without interest
coupons;
(xiii) any index or indices used to determine the amount of payments of
principal of and premium, if any, on the Debt Securities of such series or the
manner in which such amounts will be determined;
(xiv) whether the Debt Securities of the series, or any portion thereof,
shall initially be issuable in the form of a temporary Global Security
representing all or such portion of the Debt Securities of such series and
provisions for the exchange of such temporary Global Security for definitive
Debt Securities of such series;
(xv) if applicable, that any Debt Securities of the series shall be
issuable in whole or in part in the form of one or more Global Securities and,
in such case, the respective Depositaries for such Global Securities, the form
of any legend or legends which shall be borne by any such Global Security in
addition to or in lieu of that set forth in Section 2.4 and any circumstances in
addition to or in lieu of those set forth in Section 3.5 in which any such
Global Security may be exchanged in whole or in part for Debt Securities
registered, and any transfer of such Global Security in whole or in part may be
registered, in the name or names of Persons other than the Depositary for such
Global Security or a nominee thereof;
(xvi) the appointment of any Paying Agent or Agents for the Debt
Securities of such series;
(xvii) the terms of any right to convert or exchange Debt Securities of
such series into any other securities or property of the Company, and the
additions or changes, if any, to this Indenture with respect to the Debt
Securities of such series to permit or facilitate such conversion or exchange;
23
(xviii) the form or forms of the Trust Agreement, Amended and Restated
Trust Agreement and Guarantee Agreement;
(xix) the relative degree, if any, to which the Debt Securities of the
series shall be senior to or be subordinated to other series of Debt Securities
in right of payment, whether such other series of Debt Securities are
Outstanding or not; and
(xx) any other terms of the Debt Securities of such series (which terms
shall not be inconsistent with the provisions of this Indenture).
All Debt Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided herein or in
or pursuant to such Board Resolution of the Company and set forth in such
Officers' Certificate of the Company, or in any such indenture supplemental
hereto.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution of the Company, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate of the Company setting forth the terms of the series.
The Debt Securities shall be subordinated in right of payment to Senior
Debt of the Company as provided in Article XIII.
(b) Prior to the issuance of any of the Guarantees, the exact form and
terms of such Guarantees, which shall comply with the terms of Article XIV
hereof and contain such additional terms as are permitted by this Indenture,
shall be established by an Officers' Certificate of the Guarantor or in an
indenture supplemental hereto.
Section 3.2 Denominations.
The Debt Securities of each series shall be in registered form without
coupons and shall be issuable in denominations of $25 and any integral multiple
thereof, unless otherwise specified as contemplated by Section 3.1.
Section 3.3 Execution, Authentication, Delivery and Dating.
The Debt Securities shall be executed on behalf of the Company by its
President, one of its Vice Presidents or its 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.
Debt Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Debt Securities or did
not hold such offices at the date of such Debt Securities. At any time and from
time to time after the execution and delivery of this Indenture, the Company may
deliver Debt Securities of any series executed by the Company to the Trustee for
authentication, together
24
with a Company Order for the authentication and delivery of such Debt
Securities, and the Trustee in accordance with the Company Order shall
authenticate and deliver such Debt Securities. If the form or terms of the Debt
Securities of the series have been established by or pursuant to one or more
Board Resolutions of the Company as permitted by Sections 2.1 and 3.1, in
authenticating such Debt Securities, and accepting the additional
responsibilities under this Indenture in relation to such Debt Securities, the
Trustee shall be entitled to receive, and (subject to Section 6.1) shall be
fully protected in relying upon, an Opinion of Counsel stating,
(1) if the form of such Debt Securities has been established by or
pursuant to Board Resolution of the Company as permitted by Section 2.1,
that such form has been established in conformity with the provisions of
this Indenture;
(2) if the terms of such Debt Securities have been established by or
pursuant to Board Resolution of the Company as permitted by Section 3.1,
that such terms have been established in conformity with the provisions of
this Indenture; and
(3) that such Debt Securities, when authenticated and delivered by
the Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company enforceable in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Debt Securities if the issue of such Debt
Securities pursuant to this Indenture will affect the Trustee's own rights,
duties or immunities under the Debt Securities and this Indenture or otherwise
in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.1 and of the preceding
paragraph, if all Debt Securities of a series are not to be originally issued at
one time, it shall not be necessary to deliver the Officers' Certificate of the
Company otherwise required pursuant to Section 3.1 or the Company Order and
Opinion of Counsel of the Company otherwise required pursuant to such preceding
paragraph at or prior to the authentication of each Debt Security of such series
if such documents are delivered at or prior to the authentication upon original
issuance of the first Debt Security of such series to be issued.
Each Debt Security shall be dated the date of its authentication.
No Debt Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose, unless there appears on such Debt
Security a certificate of authentication substantially in the form provided for
herein executed by the Trustee by the manual signature of one of its authorized
officers, and such certificate upon any Debt Security shall be conclusive
evidence, and the only evidence, that such Debt Security has been duly
authenticated and delivered hereunder. Notwithstanding the foregoing, if any
Debt Security shall have been authenticated and delivered hereunder but never
issued and sold by the Company, and the Company shall deliver such Debt Security
to the Trustee for cancellation as provided in Section 3.9, for all purposes of
this Indenture
25
such Debt Security shall be deemed never to have been authenticated and
delivered hereunder and shall never be entitled to the benefits of this
Indenture.
Section 3.4 Temporary Securities.
Pending the preparation of definitive Securities of any series, the Company
and the Guarantor may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any denomination,
substantially of the tenor of the definitive Securities of such series in lieu
of which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities may
determine, as evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company and the
Guarantor will cause definitive Securities of such series to be prepared without
unreasonable delay. After the preparation of definitive Securities, the
temporary Securities shall be exchangeable for definitive Securities upon
surrender of the temporary Securities at the office or agency of the Company
designated for that purpose without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities, the Company and the
Guarantor shall execute and the Trustee shall authenticate and deliver in
exchange therefor one or more definitive Securities of the same series, of any
authorized denominations having the same Original Issue Date and Stated Maturity
and having the same terms as such temporary Securities. Until so exchanged, the
temporary Securities of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of such series.
Section 3.5 Registration, Transfer and Exchange.
The Company 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 Company 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.
Upon surrender for registration of transfer of any Security at the office
or agency of the Company designated for that purpose the Company and the
Guarantor shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series of any authorized denominations, of a like aggregate principal
amount, of the same Original Issue Date and Stated Maturity and having the same
terms.
At the option of the Holder, Securities may be exchanged for other
Securities of the same series of any authorized denominations, of a like
aggregate principal amount, of the same Original Issue Date and Stated Maturity
and having the same terms, upon surrender of the Securities to be exchanged at
such office or agency. Whenever any securities are so surrendered for exchange,
the Company and the Guarantor shall execute, and the Trustee shall authenticate
and deliver, the Securities which the Holder making the exchange is entitled to
receive.
26
All Securities issued upon any transfer or exchange of Securities shall be
the valid obligations of the Company and the Guarantor, evidencing the same
debt, 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 Company or the Securities Registrar) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to the
Company 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 Company may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any
transfer or exchange of Securities.
The provisions of Clauses (1), (2), (3) and (4) below shall apply only to
Global Securities:
(1) Each Global Security authenticated under this Indenture shall be
registered in the name of 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.
(2) Notwithstanding any other provision in this Indenture, no Global
Security may be exchanged in whole or in part for Securities registered,
and no transfer of a Global Security in whole or in part may be registered,
in the name of any Person other than the Depositary for such Global
Security or a nominee thereof unless (A) such Depositary (i) has notified
the Company 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 each case unless the Company 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, (C) the Company in its sole discretion determines that such
Global Security will be so exchangeable or transferable or (D) there shall
exist such circumstances, if any, in addition to or in lieu of the
foregoing as have been specified for this purpose as contemplated by
Section 3.1.
(3) Subject to Clause (2) above, any exchange of a Global Security
for other Securities may be made in whole or in part, and all Securities
issued in exchange for a Global Security or any portion thereof shall be
registered in such names as the Depositary for such Global Security shall
direct.
(4) 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 3.4, 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 is registered in the name
of a Person other than the Depositary for such Global Security or a nominee
thereof.
Neither the Company nor the Trustee shall be required, pursuant to the
provisions of this Section, (a) to issue, transfer or exchange any Security of
any series during a period beginning at the
27
opening of business 15 days before the day of selection for redemption of
Securities pursuant to Article XI and ending at the close of business on the day
of mailing of 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.
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 Company, the Guarantor or the
Trustee to save each of them harmless, the Company and the Guarantor shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Security of the same issue and series 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 Company, the Guarantor 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 Company, the
Guarantor or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company and the Guarantor shall execute and upon their, or one of
their, request the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security, a new Security of the same issue and series
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 Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) 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 Company or Guarantor, as the case may be, 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 of any series 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
28
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest in respect of Securities of such
series, except that, unless otherwise provided in the Securities of such series,
interest payable on the Stated Maturity of the principal of a Security shall be
paid to the Person to whom principal is paid. The initial payment of interest on
any Security of any series which is issued between a Regular Record Date and the
related Interest Payment Date shall be payable as provided in such Security or
in the Board Resolution of the Company pursuant to Section 3.1 with respect to
the related series of Securities.
Any interest on any Security which is payable, but is not timely paid or
duly provided for, on any Interest Payment Date for Securities of such series
(herein called "Defaulted Interest"), shall forthwith cease to be payable to the
registered Holder on the relevant Regular Record Date by virtue of having been
such Holder, and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities of such series in respect of which
interest is in default (or their respective Predecessor Securities) are
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest, which shall be fixed in the following manner. The
Company 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 Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to be held
in trust for the benefit of the Persons entitled to such Defaulted Interest as
in this Clause provided. Thereupon the Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed payment and not less
than 10 days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such Special Record
Date and, in the name and at the expense of the Company, shall cause notice of
the proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first class, postage prepaid, to each Holder of a
Security of such series at the address of such Holder as it appears in the
Securities Register not less than 10 days prior to such Special Record Date. The
Trustee may, in its discretion, in the name and at the expense of the Company,
cause a similar notice to be published at least once in a newspaper, customarily
published in the English language on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York, but such
publication shall not be a condition precedent to the establishment of such
Special Record Date. Notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the Persons in whose names the Securities of
such series (or their respective Predecessor Securities) are registered on such
Special Record Date and shall no longer be payable pursuant to the following
Clause (2).
(2) The Company may make payment of any Defaulted Interest in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities of the series in respect of which interest is in default
may be listed and, upon such notice as may be required by such exchange (or by
the Trustee if the Securities are not listed), if after notice given by the
Company to the Trustee of the proposed payment pursuant to this Clause, such
payment shall be deemed practicable by the Trustee.
29
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.
Section 3.8 Persons Deemed Owners.
The Company, the Guarantor, the Trustee and any agent of the Company, the
Guarantor 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 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 Company, the Guarantor, the Trustee nor any agent of the Company,
the Guarantor or the Trustee shall be affected by notice to the contrary.
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 Company or
the Guarantor may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Company or
the Guarantor 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. All canceled
Securities shall be destroyed by the Trustee and the Trustee shall, if
requested, deliver to the Company a certificate of such destruction.
Section 3.10 Computation of Interest.
Except as otherwise specified as contemplated by Section 3.1 for Securities
of any series, interest on the Securities of each series for any period shall be
computed on the basis of a 360-day year of twelve 30-day months and interest on
the Securities of each series 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.
If specified as contemplated by Section 2.1 or Section 3.1 with respect to
the Securities of a particular series, so long as no Event of Default has
occurred and is continuing, the Company shall have the right, at any time during
the term of such series, from time to time to defer the payment of interest on
such Securities for such period or periods as may be specified as contemplated
by Section 3.1 (each, an "Extension Period"), during which Extension Periods the
Company 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 Company shall
pay all interest then accrued and unpaid on the Securities (together with
Additional Interest thereon, if any, at the rate specified for the Securities of
such series to the extent permitted by applicable law); provided, however, that
no Extension Period shall extend beyond the Stated Maturity of the principal of
the Securities of such series; provided, further, that during any such Extension
Period, neither the Company or the Guarantor shall, (i) declare or pay any
dividends or
30
distributions on, or redeem, purchase, acquire or make a liquidation payment
with respect to, any of its capital stock, or (ii) make any payment of principal
of or interest or premium, if any, on or repay, repurchase or redeem any debt
security issued by it that ranks pari passu with or junior in interest to the
Securities of such series or make any guarantee payments with respect to any
guarantee by the Company or the Guarantor of the debt securities of any
Subsidiary of the Company or the Guarantor that by their terms rank pari passu
with or junior in interest to the securities of such series (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 Company or the Guarantor
under any Rights Plan or the repurchase of any rights distributed pursuant to a
Rights Plan, and (c) purchases of Common Stock related to the issuance of Common
Stock under any of the Company's or the Guarantor's benefit plans for their
respective directors, officers or employees). Prior to the termination of any
such Extension Period, the Company may further extend the interest payment
period, provided that no Extension Period shall exceed the period or periods
specified in such Securities or extend beyond the Stated Maturity of the
principal of such Securities. Upon termination of any Extension Period and upon
the payment of all accrued and unpaid interest and any Additional Interest then
due on any Interest Payment Date, the Company 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 Company shall give
the Holders of the Securities of such series and the Trustee notice of its
election to begin any such Extension Period at least one Business Day prior to
the next succeeding Interest Payment Date on which interest on Securities of
such series would be payable but for such deferral or, with respect to the
Securities of a series issued to an FPC Capital Trust, so long as such
Securities are held by such FPC Capital Trust, prior to the earlier of (i) the
next succeeding date on which Distributions on the Preferred Securities of such
FPC Capital Trust would be payable but for such deferral or (ii) the date the
Administrative Trustee of such FPC Capital Trust are required to give notice to
any securities exchange or other applicable self regulatory organization or to
holders of such Preferred Securities of the record date or the date such
Distributions are payable, but in any event not less than one Business Day prior
to such record date.
The Trustee shall promptly give notice of the Company's election to begin
any such Extension Period to the Holders of the Outstanding Securities of such
series.
Section 3.12 Right of Set-Off.
With respect to the Securities of a series issued to an FPC Capital Trust,
notwithstanding anything to the contrary in the Indenture, the Company 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 Guarantor has
theretofore made, or is concurrently on the date of such payment making, a
payment with respect to the FPC Capital Guarantee relating to such Security, or
the Company has theretofore made, or is concurrently on the date of such payment
making, a payment under Section 5.8 of the Indenture.
Section 3.13 Agreed Tax Treatment.
Each Security issued hereunder shall provide that the Company and the
Guarantor and, by its acceptance of a Security or a beneficial interest therein,
the Holder of, and any Person that
31
acquires a beneficial interest in, such Security agree that for United States
Federal, state and local tax purposes it is intended that such Security
constitute indebtedness.
Section 3.14 Shortening or Extension of Stated Maturity.
If specified as contemplated by Section 2.1 or Section 3.1 with respect to
the Securities of a particular series, the Company shall have the right to (i)
shorten the Stated Maturity of the principal of the Securities of such series at
any time to any date not earlier than the first date on which the Company has
the right to redeem the Securities of such series, and (ii) extend the Stated
Maturity of the principal of the Securities of such series at any time at its
election for one or more periods, but in no event to a date later than the 49th
anniversary of the first Interest Payment Date following the Original Issue Date
of the Securities of such series; provided that, if the Company elects to
exercise its right to extend the Stated Maturity of the principal of the
Securities of such series pursuant to clause (ii), above, at the time such
election is made and at the time of extension (A) neither the Company nor the
Guarantor is in bankruptcy, otherwise insolvent or in liquidation, (B) the
Company is not in default in the payment of any interest or principal on such
Securities, (C) in the case of any series of Securities issued to an FPC Capital
Trust, such FPC Capital Trust is not in arrears on payments of Distributions on
the Preferred Securities issued by such FPC Capital Trust and no deferred
Distributions are accumulated and (D) such Securities are rated not less than
BBB- by S&P or Baa3 by Moody's, or the equivalent by any other nationally
recognized statistical orating organization. In the event the Company elects to
shorten or extend the Stated Maturity of the Securities of a particular series,
it shall give notice to the Trustee, no less than 30 and no more than 60 days
prior to the effectiveness thereof. The Trustee shall give notice of such
shortening or extension to the Holders promptly upon receipt.
Section 3.15 CUSIP Numbers.
The Company 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 as a convenience to Holders; provided that any such notice 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 a
redemption 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 "CUSIP" numbers.
ARTICLE IV
SATISFACTION AND DISCHARGE
Section 4.1 Satisfaction and Discharge of Indenture.
This Indenture shall, upon Company Request, cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
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 Company or
the Guarantor, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
32
(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 Company or the Guarantor and thereafter repaid to the Company or
the Guarantor or discharged from such trust, as provided in Section 10.3) have
been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one
year of the date of deposit, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the
expense, of the Company or the Guarantor,
and the Company or the Guarantor, 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 of such series are
payable sufficient to pay and discharge the entire indebtedness on
such Securities not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) and interest
(including any Additional Interest) to the date of such deposit (in
the case of Securities which have become due and payable) or to the
Stated Maturity or Redemption Date, as the case may be; and
(2) the Company or the Guarantor has paid or caused to be paid all other
sums payable hereunder by the Company; and
(3) the Company or the Guarantor has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this Indenture
have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company and the Guarantor to the Trustee under Section 6.7,
the obligations of the Trustee to any Authenticating Agent under Section 6.14
and, if money shall have been deposited with the Trustee pursuant to subclause
(B) of clause (1) of this Section, the obligations of the Trustee under Section
4.2 and the last paragraph of Section 10.3 shall survive.
Section 4.2 Application of Trust Money.
Subject to the provisions of the last paragraph of Section 10.3, all money
deposited with the Trustee pursuant to Section 4.1 shall be held in trust and
applied by the Trustee, in accordance with the provisions of the Securities and
this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine,
33
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.
Section 4.3 Satisfaction, Discharge and Defeasance of Securities of Any
Series.
Unless otherwise provided in the Board Resolution adopted pursuant to
Section 3.1 or an indenture supplemental hereto establishing the terms of the
Securities of any series, the Company or the Guarantor shall be deemed to have
paid and discharged the entire indebtedness on all the Outstanding Securities of
any such series and the Trustee, at the expense of the Company or the Guarantor,
shall execute proper instruments acknowledging satisfaction and discharge of
such indebtedness, when
(1) with respect to all Outstanding Securities of such series,
(A) the Company or the Guarantor has irrevocably deposited or caused
to be irrevocably deposited with the Trustee as trust funds in trust for
such purpose an amount sufficient to pay and discharge the entire
indebtedness on all Outstanding Securities of such series for principal
(and premium, if any) and interest (including any Additional Interest) to
the Stated Maturity or any Redemption Date as contemplated by the
penultimate paragraph of this Section 4.3, as the case may be; or
(B) the Company or the Guarantor has irrevocably deposited or caused
to be irrevocably deposited with the Trustee as obligations in trust for
such purpose an amount of trust funds as will, in the written opinion of
independent public accountants delivered to the Trustee, together with
predetermined and certain income to accrue thereon, without consideration
of any reinvestment thereof, be sufficient to pay and discharge when due
the entire indebtedness on all Outstanding Securities of such series for
principal (and premium, if any) and interest (including any Additional
Interest) to the Stated Maturity or any Redemption Date as contemplated by
the penultimate paragraph of this Section 4.3, as the case may be;
(2) the Company or the Guarantor has paid or caused to be paid all other
sums payable with respect to the Outstanding Securities of such series;
(3) the Company or the Guarantor 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
the entire indebtedness on all Outstanding Securities of any such series
have been complied with; and
(4) the Company or the Guarantor has also delivered to the Trustee,
together with such Officers' Certificate, either:
(A) an instrument wherein the Company or the Guarantor,
notwithstanding the satisfaction and discharge of its indebtedness in
respect of the Outstanding Securities of such series, shall assume the
obligation (which shall be absolute and unconditional) to irrevocably
deposit with the Trustee such additional sums of money, if any, or
additional amounts (meeting the requirements of subsection (1) of this
Section 4.3), if any, or any combination
34
thereof, at such time or times, as shall be necessary, together with the
money and/or amounts theretofore so deposited, to pay when due the
principal of and interest due and to become due on such Outstanding
Securities of such series or portions thereof, all in accordance with and
subject to the provisions of this Section 4.3; provided, however, that such
instrument may state that the obligation of the Company or the Guarantor to
make additional deposits as aforesaid shall be subject to the delivery to
the Company or the Guarantor by the Trustee of a notice asserting the
deficiency accompanied by an opinion of an independent public accountant of
nationally recognized standing, selected by the Trustee, showing the
calculation thereof; or
(B) an Opinion of Counsel, based on a change in law, to the effect
that the Holders of such Outstanding Securities of such series, or portions
of the principal amount thereof, will not recognize income, gain or loss
for United States federal income tax purposes as a result of the
satisfaction and discharge of the Company's indebtedness in respect thereof
and will be subject to United States federal income tax on the same
amounts, at the same times and in the same manner as if such satisfaction
and discharge had not been effected.
Any deposits with the Trustee referred to in Section 4.3(1) above shall be
irrevocable and shall be made under the terms of an escrow trust agreement in
form and substance reasonably satisfactory to the Trustee. If any Outstanding
Securities of such series are to be redeemed prior to their Stated Maturity,
whether pursuant to any optional redemption provisions or in accordance with any
mandatory sinking fund requirement, the applicable escrow trust agreement shall
provide therefor and the Company or the Guarantor, as the case may be, shall
make such arrangements as are satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the expense, of the
Company or the Guarantor. If the Securities of such series are not to become due
and payable at their Stated Maturity or upon call for redemption within one (1)
year of the date of deposit, then the Company or the Guarantor shall give, not
later than the date of such deposit, notice of such deposit to the Holders of
Securities of such series.
Upon satisfaction of the conditions set forth in this Section 4.3 with
respect to all the Outstanding Securities of any series, the terms and
conditions of such series, including the terms and conditions with respect
thereto set forth in this Indenture, shall no longer be binding upon, or
applicable to, the Company or the Guarantor; provided, that neither the Company
nor the Guarantor shall be discharged from any payment obligations in respect of
Securities of such series which are deemed not to be Outstanding under clause
(iii) of the definition thereof if such obligations continue to be valid
obligations of the Company or the Guarantor under applicable law and provided
further that neither the Company nor the Guarantor shall be discharged from its
obligation to the Trustee under Section 6.7.
35
ARTICLE V
REMEDIES
Section 5.1 Events of Default.
"Event of Default," wherever used herein with respect to the Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) the Company or the Guarantor defaults in the payment of any interest
upon any Security of that series, 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 due date in the case of an
Extension Period); or
(2) the Company or the Guarantor defaults in the payment of the principal
of (or premium, if any, on) any Security of that series at its Maturity; or
(3) the Company or the Guarantor defaults in the performance, or breach, in
any material respect, of any of its covenants or warranties in this Indenture
(other than a covenant or warranty 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 Company by the Trustee or to
the Company and the Trustee by the Holders of at least 25% in principal amount
of the Outstanding Securities of that series a written notice specifying such
default or breach and requiring it to be remedied; or
(4) the entry of a decree or order by a court having jurisdiction in the
premises adjudging the Company or the Guarantor a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company or the Guarantor under
any applicable United States federal or state bankruptcy, insolvency,
reorganization or other similar law, or appointing a receiver, liquidator,
assignee, trustee, sequestration (or other similar official) of the Company or
the Guarantor or of any substantial part of its property or ordering the winding
up or liquidation of its affairs, and the continuance of any such decree or
order unstayed and in effect for a period of 60 consecutive days; or
(5) the institution by the Company or the Guarantor of proceedings to be
adjudicated a bankrupt or insolvent, or the consent by it to the institution of
bankruptcy or insolvency proceedings against it, or the filing by it of a
petition or answer or consent seeking reorganization or relief under any
applicable Federal or State bankruptcy, insolvency, reorganization or other
similar law, or the consent by it to the filing of any such petition or to the
appointment of a receiver, liquidator, assignee, trustee, sequestration (or
other similar official) of the Company or the Guarantor or of any substantial
part of its property, or the making by it of an assignment of the benefit of
creditors, or the admission by it in writing of its inability to pay its debts
generally as they become due and its willingness to be adjudicated a bankrupt,
or the taking of corporate action by the Company or the Guarantor in furtherance
of any such action; or
36
(6) any other Event of Default provided with respect to Securities of that
series.
Section 5.2 Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in Section
5.1(4) or 5.1(5)) with respect to Securities of any series at the time
Outstanding occurs and is continuing, then and in every such case the Trustee or
the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal amount (or, if the
Securities of that series are Discount Securities, such portion of the principal
amount as may be specified in the terms of that series) of all the Securities of
that series to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by Holders), provided that, in the case of
the Securities of a series issued to an FPC Capital Trust, if, upon an Event of
Default, the Trustee or the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series fail to declare the principal of all
the Securities of that series to be immediately due and payable, the holders of
at least 25% in aggregate liquidation amount of the corresponding series of
Preferred Securities then outstanding shall have such right by a notice in
writing to the Company, the Guarantor and the Trustee; and upon any such
declaration such principal amount (or specified portion thereof) of and the
accrued interest (including any Additional Interest) on all the Securities of
such series shall become immediately due and payable. Payment of principal and
interest (including any Additional Interest) on such Securities shall remain
subordinated to the extent provided in Article XIII notwithstanding that such
amount shall become immediately due and payable as herein provided. If an Event
of Default specified in Section 5.1(4) or 5.1(5) with respect to Securities of
any series at the time Outstanding occurs, the principal amount of all the
Securities of that series (or, if the Securities of that series are Discount
Securities, such portion of the principal amount of such Securities as may be
specified by the terms of that series) 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
Securities of any series has been made and before judgment or decree for payment
of the money due has been obtained by the Trustee as hereinafter in this Article
provided, the Holders of not less than a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if:
(1) the Company or the Guarantor has paid or deposited with the Trustee a
sum sufficient to pay:
(A) all overdue installments of interest (including any Additional
Interest) on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of that
series which have become due otherwise than by such declaration of acceleration
and interest thereon at the rate borne by the Securities, and
(C) all sums paid or advanced by the Trustee hereunder and the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel; and
37
(2) all Events of Default with respect to Securities of that series, other
than the non-payment of the principal of Securities of that series which has
become due solely by such acceleration, have been cured or waived as provided in
Section 5.13.
In the case of Securities of a series issued to an FPC Capital Trust, the
holders of not less than a majority in aggregate Liquidation Amount (as defined
in the Trust Agreement under which such FPC Capital Trust is formed) of the
related series of Preferred Securities issued by such FPC Capital Trust shall
also have the right to rescind and annul such declaration and its consequences
by written notice to the Company and the Trustee, subject to the satisfaction of
the conditions set forth in Clauses (1) and (2) above of this Section 5.2.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 5.3 Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company and the Guarantor covenant 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 Company or the Guarantor 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, including any sinking fund payment or analogous obligations (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 Company or the Guarantor fail 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 Company, the Guarantor 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 Company, the Guarantor or any
other obligor upon the Securities, wherever situated.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
Section 5.4 Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the
38
Company, the Guarantor or any other obligor upon the Securities or the property
of the Company, the Guarantor or of such other obligor or their creditors,
(a) the Trustee (irrespective of whether the principal of the Securities
of any series shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have made
any demand on the Company 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 of the Securities and to file such other papers or documents
as may be necessary or advisable and to take any and all actions as are
authorized under the Trust Indenture Act in order to have the claims of the
Holders and any predecessor to the Trustee under Section 6.7 allowed in any such
judicial proceedings; and
(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
(iii) any custodian, receiver, assignee, trustee, liquidator, sequesterator
(or other similar official) in any such judicial proceeding is hereby authorized
by each Holder to make such payments to the Trustee for distribution in
accordance with Section 5.6, and in the event that the Trustee shall consent to
the making of such payments directly to the Holders, to pay to the Trustee any
amount due to it and any predecessor Trustee under Section 6.7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding; provided, however,
that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditors' or
other similar committee.
Section 5.5 Trustee May Enforce Claim Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of all the amounts owing the Trustee and any predecessor Trustee
under Section 6.7, its agents and counsel, be for the ratable benefit of the
Holders of the Securities in respect of which such judgment has been recovered.
Section 5.6 Application of Money Collected.
Any money or property collected or to be applied by the Trustee with
respect to a series of Securities pursuant to this Article 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
39
premium, if any) or interest (including any Additional Interest), upon
presentation of the Securities and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any predecessor
Trustee under Section 6.7;
SECOND: Subject to Article XIII, to the payment of the amounts then due
and unpaid upon such series of 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 such series of
Securities for principal (and premium, if any) and interest (including any
Additional Interest), respectively; and
THIRD: The balance, if any, to the Person or Persons entitled thereto.
Section 5.7 Limitation on Suits.
No Holder of any Securities of any series shall have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture or for the
appointment of a receiver, assignee, trustee, liquidator, sequesterator (or
other similar official) or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to the Securities of that series;
(2) the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable indemnity
against the costs, expenses and liabilities to be incurred in compliance with
such request;
(4) the Trustee for 60 days after its receipt of such notice, request and
offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to
the Trustee during such 60-day period by the Holders of a majority in principal
amount of the Outstanding Securities of that series; it being understood and
intended that no one or more of such Holders shall have any right in any manner
whatever by virtue of, or by availing itself of, any provision of this Indenture
to affect, disturb or prejudice the rights of any other Holders of Securities,
or to obtain or to seek to obtain priority or preference over any other of such
Holders or to enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all such Holders.
40
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 respective
Stated Maturities expressed in such Security (or, in the case of redemption, on
the Redemption Date) and to institute suit for the enforcement of any such
payment, and such right shall not be impaired without the consent of such
Holder. In the case of Securities of a series issued to an FPC Capital Trust,
any holder of the corresponding series of Preferred Securities issued by such
FPC Capital Trust shall have the right, upon the occurrence of an Event of
Default described in Section 5.1(1) or 5.1(2), to institute a suit directly
against the Company or the Guarantor for enforcement of payment to such holder
of principal of (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
under which such FPC Capital Trust is formed) of such Preferred Securities of
the corresponding series held by such holder.
Section 5.9 Restoration of Rights and Remedies.
If the Trustee, any Holder or any 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 Company, the Guarantor,
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.
Section 5.10 Rights and Remedies Cumulative.
Except as otherwise provided in the last paragraph of Section 3.6, no right
or remedy herein conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 5.11 Delay or Omission Not Waiver.
No delay or omission of the Trustee, 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
41
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 not less than a majority in principal amount of the
Outstanding Securities of any series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on the Trustee, with respect
to the Securities of such series, provided that:
(1) such direction shall not be in conflict with any rule of law or with
this Indenture,
(2) the Trustee may take any other action deemed proper by the Trustee
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.
Section 5.13 Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series and, in the case of any Securities of a
series issued to an FPC Capital Trust, the holders of not less than a majority
in aggregate liquidation amount Preferred Securities issued by such FPC Capital
Trust may waive any past default hereunder and its consequences with respect to
such series except a default:
(1) in the payment of the principal of (or premium, if any) or interest
(including any Additional Interest) on any Security of such series, 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 such series affected.
Any such waiver shall be deemed to be on behalf of the Holders of all the
Securities of such series or, in the case of a waiver by holders of Preferred
Securities issued by such FPC Capital Trust, by all holders of Preferred
Securities issued by such FPC Capital Trust.
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
42
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken or omitted by it as Trustee, the filing by any
party litigant in such suit of an undertaking to pay the costs of such suit, and
that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit, having due
regard to the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section 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 of any series, or to any suit instituted by any Holder
for the enforcement of the payment of the principal of (or premium, if any) or
interest (including any Additional Interest) on any Security on or after the
respective Stated Maturities expressed in such Security.
Section 5.15 Waiver of Usury, Stay or Extension Laws.
The Company and the Guarantor each covenant (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 Company and
the Guarantor each (to the extent that it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law, and covenants that it will not
hinder, delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such power as though
no such law had been enacted.
ARTICLE VI
THE TRUSTEE
Section 6.1 Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture; but in the case of
any such certificates or opinions which by any provisions hereof are
specifically required to be furnished to the Trustee, the Trustee shall be under
a duty to examine the same to determine whether or not they conform to the
requirements of this Indenture.
(b) In case an Event of Default 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.
43
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct except that:
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer; unless it shall be proved that the Trustee
was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction of
Holders pursuant to Section 5.12 relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this Indenture with respect
to the Securities of such series.
(d) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur any financial liability in the performance
of any of its duties hereunder, or in the exercise of any of its rights or
powers, if there shall be reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
(e) Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
Section 6.2 Notice of Defaults.
Within 90 days after actual knowledge by a Responsible Officer of the
Trustee of the occurrence of any default hereunder with respect to the
Securities of any series, the Trustee shall transmit by mail to all Holders of
Securities of such series, as their names and addresses appear in the Securities
Register, notice of such default, unless such default shall have been cured or
waived; provided, however, that, except in the case of a default in the payment
of the principal of (or premium, if any) or interest (including any Additional
Interest) on any Security of such series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee or a trust committee of directors and/or Responsible Officers of the
Trustee in good faith determines that the withholding of such notice is in the
interests of the Holders of Securities of such series; and provided, further,
that, in the case of any default of the character specified in Section 5.1(3),
no such notice to Holders of Securities of such series shall be given until at
least 30 days after the occurrence thereof. For the purpose of this Section, 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 Securities of such
series.
Section 6.3 Certain Rights of Trustee.
Subject to the provisions of Section 6.1:
44
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, Security or
other paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company or the Guarantor mentioned
herein shall be sufficiently evidenced by a Company Request or Company Order and
any resolution of the Board of Directors of the Company or the Guarantor may be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall deem
it desirable that a matter be proved or established prior to taking, suffering
or omitting any action hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its part, rely upon
an Officers' Certificate of the Company or the Guarantor;
(d) the Trustee may consult with counsel and the advice of such counsel or
any Opinion of Counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Holders pursuant to this Indenture, unless such Holders shall have offered
to the Trustee reasonable security or indemnity against the costs, expenses and
liabilities 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 Company and the
Guarantor, personally or by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder.
Section 6.4 Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company
and the Guarantor, 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, the Guarantee or of the
Securities. Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company or the Guarantor of the
Securities or the proceeds thereof.
45
Section 6.5 May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Securities
Registrar or any other agent of the Company or the Guarantor, 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 Company and the
Guarantor 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 with the Company and the Guarantor.
Section 6.7 Compensation and Reimbursement.
The Company and the Guarantor agree:
(1) to pay to the Trustee from time to time reasonable compensation for all
services rendered by it hereunder in such amounts as the Company, the Guarantor
and the Trustee shall agree from time to time (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust);
(2) to reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any provision of this Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad faith;
and
(3) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense (including the reasonable compensation and the
expenses and disbursements of its agents and counsel) incurred without
negligence or bad faith, arising out of or in connection with the acceptance or
administration of this trust or the performance of its duties hereunder,
including the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its powers or
duties hereunder. This indemnification shall survive the termination of this
Indenture and the resignation or removal of the Trustee.
To secure the Company's and the Guarantor's payment obligations in this
Section, the Company, the Guarantor 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.
46
Section 6.8 Disqualification; Conflicting Interests.
The Trustee for the Securities of any series issued hereunder shall be
subject to the provisions of Section 310(b) of the Trust Indenture Act. Nothing
herein shall prevent the Trustee from filing with the Commission the application
referred to in the second to last paragraph of said Section 310(b). The Trust
Agreement and the FPC Capital Guarantee are hereby excluded from the provision
of Section 310(b)(1) of the Trust Indenture Act.
Section 6.9 Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be
(a) a corporation organized and doing business under the laws of the United
States of America or of any State or Territory or the District of Columbia,
authorized under such laws to exercise corporate trust powers and subject to
supervision or examination by United States federal, state, territorial or
District of Columbia authority, or
(b) a corporation or other Person organized and doing business under the
laws of a foreign government that is permitted to act as Trustee pursuant to a
rule, regulation or order of the Commission, authorized under such laws to
exercise corporate trust powers, and subject to supervision or examination by
authority of such foreign government or a political subdivision thereof
substantially equivalent to supervision or examination applicable to United
States institutional trustees,
in either case having a combined capital and surplus of at least $50,000,000,
subject to supervision or examination by United States 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 Company, the
Guarantor nor any Person directly or indirectly controlling, controlled by or
under common control with the Company or the Guarantor shall serve as Trustee
for the Securities of any series issued hereunder.
Section 6.10 Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 6.11.
(b) The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company and the
Guarantor. If an instrument of acceptance by a successor Trustee shall not have
been delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
47
(c) The Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Company and the Guarantor.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 6.8 after written
request therefor by the Company, the Guarantor 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 Company, the Guarantor or
by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged a
bankrupt or insolvent or a receiver of the Trustee or of its property shall be
appointed or any public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (i) the Company or the Guarantor, acting pursuant to the
authority of a Board Resolution of its Board of Directors, may remove the
Trustee with respect to all 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 all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause with respect
to the Securities of one or more series, the Company or the Guarantor, by a
Board Resolution of its Board of Directors, shall promptly appoint a successor
Trustee with respect to the Securities of that or those series. If, within one
year after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Securities of any series shall
be appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company, the Guarantor
and the retiring Trustee, the successor Trustee so appointed shall, forthwith
upon its acceptance of such appointment, become the successor Trustee with
respect to the Securities of such series and supersede the successor Trustee
appointed by the Company or the Guarantor. If no successor Trustee with respect
to the Securities of any series shall have been so appointed by the Company, the
Guarantor 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 of such
series.
(f) The Company or the Guarantor shall give notice of each resignation and
each removal of the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee with respect to the Securities of any
series by mailing written notice of such event by first-class mail, postage
prepaid, to the Holders of Securities of such series as their names and
48
addresses appear in the Securities Register. Each notice shall include the name
of the successor Trustee with respect to the Securities of such series and the
address of its Corporate Trust Office.
Section 6.11 Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and the Guarantor 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 Company, the Guarantor or the successor Trustee, such
retiring Trustee shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee
hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
Guarantor, the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment
and which (1) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates, (2) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee; and upon the execution and delivery of
such supplemental indenture the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts, and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company, the Guarantor or any
successor Trustee, such retiring Trustee shall duly assign, transfer and deliver
to such successor Trustee all property and money held by such retiring Trustee
hereunder with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company and the
Guarantor 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.
49
(d) No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
Section 6.12 Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation 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 qualified and 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, 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 Company.
If and when the Trustee shall be or become a creditor of the Company or the
Guarantor (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 Company or the Guarantor (or any such other obligor).
Section 6.14 Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect to
one or more series of Securities which shall be authorized to act on behalf of
the Trustee to authenticate Securities of such series issued upon original issue
and upon exchange, registration of transfer or partial redemption thereof or
pursuant to Section 3.6, 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
Company and the Guarantor 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, except for Affiliates of the Trustee, and subject to supervision or
examination by United States 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
50
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.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee, the Company and the Guarantor. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent, the Company and the Guarantor. 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 Company and the Guarantor
and shall give notice of such appointment in the manner provided in Section 1.6
to all Holders of Securities of the series with respect to which such
Authenticating Agent will serve. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all the rights,
powers and duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent. No successor Authenticating Agent
shall be appointed unless eligible under the provision of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section, and the Trustee
shall be entitled to be reimbursed for such payments, subject to the provisions
of Section 6.7.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
51
This is one of the Securities referred to in the within-mentioned
Indenture.
Dated:___________________________
As Trustee
By:______________________________
As Authenticating Agent
By:______________________________
Authorized Officer
ARTICLE VII
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.1 Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not more than 15 days after January 15 and July 15 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 January 1 and July 1, and
(b) at such other times as the Trustee may request in writing, within 30
days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished,
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.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 7.1 and the names and
addresses of Holders received by the Trustee in its capacity as Securities
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 7.1 upon receipt of a new list so furnished.
52
(b) The rights of Holders to communicate with other Holders with respect to
their rights under this Indenture or under the Securities, and the corresponding
rights and privileges of the Trustee, shall be as provided in the Trust
Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same, agrees
with the Company, the Guarantor and the Trustee that neither the Company, the
Guarantor, the Trustee nor any agent of either of them shall be held accountable
by reason of the disclosure of information as to the names and addresses of the
Holders made pursuant to the Trust Indenture Act.
Section 7.3 Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act, at the times and in the manner provided pursuant thereto.
(b) Reports so required to be transmitted at stated intervals of not more
than 12 months shall be transmitted no later than 60 days following May 15 in
each calendar year, commencing after the first issuance of Securities under this
Indenture.
(c) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed and also with the Commission. The Company will notify the
Trustee when any Securities are listed on any stock exchange.
Section 7.4 Reports by the Guarantor.
The Guarantor 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 Guarantor may not be required to remain
subject to the reporting requirements of Section 13 or 15(d) of the Exchange
Act, the Guarantor 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 Guarantor
also shall comply with the other provisions of Section 314(a) of the Trust
Indenture Act.
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 8.1 Company or Guarantor May Consolidate, Etc., Only on Certain
Terms.
Neither the Company nor the Guarantor shall 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
53
no Person shall consolidate with or merge into the Company or the Guarantor or
convey, transfer or lease its properties and assets substantially as an entirety
to the Company or the Guarantor, unless:
(1) in case the Company or the Guarantor shall consolidate with or merge
into another Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, the corporation formed by such
consolidation or into which the Company or the Guarantor is merged or the Person
which acquires by conveyance or transfer, or which leases, the properties and
assets of the Company or the Guarantor substantially as an entirety shall be a
corporation, partnership or trust and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form satisfactory
to the Trustee, the due and punctual payment of the principal of (and premium,
if any) and interest (including any Additional Interest) on all the Securities
and the performance of every covenant of this Indenture on the part of the
Company or the Guarantor, as the case may be, to be performed or observed;
(2) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time, or both, would
become an Event of Default, shall have happened and be continuing;
(3) in the case of the Securities of a series issued to an FPC Capital
Trust, such consolidation, merger, conveyance, transfer or lease is permitted
under the related Trust Agreement and FPC Capital Guarantee and does not give
rise to any breach or violation of the related Trust Agreement or FPC Capital
Guarantee; and
(4) the Company or the Guarantor 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 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 Company or the Guarantor with or
into any other Person, or any conveyance, transfer or lease by the Company or
the Guarantor 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 Company or the Guarantor is merged or to which
such conveyance, transfer or lease is made shall succeed to, and be substituted
for, and may exercise every right and power of; the Company or the Guarantor, as
the case may be, under this Indenture with the same effect as if such successor
Person had been named as the Company or the Guarantor, as the case may be,
herein; and in the event of any such conveyance, transfer or lease the Company
or the Guarantor, as the case may be, 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 Company or the Guarantor, as the case may be, any
or all of the Securities issuable hereunder which theretofore shall not have
been signed by the Company or the Guarantor and delivered to the Trustee; and,
upon the order of such successor Person instead of the Company or
54
the Guarantor, as the case may be, 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 Company or the Guarantor 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 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 Company and the Guarantor, when
authorized by a Board Resolution of their respective Boards of Directors, and
the Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form satisfactory to the Trustee, for any of
the following purposes:
(1) to evidence the succession of another Person to the Company or the
Guarantor, and the assumption by any such successor of the covenants of the
Company or the Guarantor 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 Company
or the Guarantor; or
(3) to establish the form or terms of Securities of any series as permitted
by Sections 2.1 or 3.1; or
(4) to add to the covenants of the Company or the Guarantor for the benefit
of the Holders of all or any series of Securities (and if such covenants are to
be for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such series) or
to surrender any right or power herein conferred upon the Company or the
Guarantor; or
(5) to add any additional Events of Default for the benefit of the Holders
of all or any series of Securities (and if such additional Events of Default are
to be for the benefit of less than all series of Securities, stating that such
additional Events of Default are expressly being included solely for the benefit
of such series); or
55
(6) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only when
there is no Security Outstanding of any series created prior to the execution of
such supplemental indenture which is entitled to the benefit of such provision;
or
(7) 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 (7) shall not
adversely affect the interest of the Holders of Securities of any series in any
material respect or, in the case of the Securities of a series issued to an FPC
Capital Trust and for so long as any of the corresponding series of Preferred
Securities issued by such FPC Capital Trust shall remain outstanding, the
holders of such Preferred Securities; or
(8) to evidence and provide for the acceptance of appointment hereunder by
a successor Trustee with respect to the Securities of one or more series and to
add to or change any of the provisions of this Indenture as shall be necessary
to provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, pursuant to the requirements of Section 6.11(b); or
(9) to comply with the requirements of the Commission in order to effect or
maintain the qualification of this Indenture under the Trust Indenture Act.
Section 9.2 Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company, the
Guarantor and the Trustee, the Company and the Guarantor, when authorized by a
Board Resolution of their respective Board of Directors, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(1) except to the extent permitted by Section 3.11 or as otherwise
specified as contemplated by Section 2.1 or Section 3.1 with respect to the
deferral of the payment of interest on the Securities of any series, change the
Stated Maturity of the principal of; or any installment of interest (including
any Additional Interest) on, any Security, or reduce the principal amount
thereof or the rate of interest thereon or reduce any premium payable upon the
redemption thereof; or reduce the amount of principal of a Discount Security
that would be due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 5.2, or change the place of payment where, or the
coin or currency in which, any Security or interest 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
of any series, the consent of whose Holders is required for any such
supplemental indenture, or the consent of
56
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, 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; or
(4) modify the provisions in Article XIII of this Indenture with respect to
the subordination of Outstanding Securities of any series in a manner adverse to
the Holders thereof; or
(5) reduce any amount payable under, delay or defer the required time of
payment under, or impair the right to institute suit to enforce any payment
under the Guarantees;
provided, further, that, in the case of the Securities of a series issued to an
FPC Capital Trust, so long as any of the corresponding series of Preferred
Securities issued by such FPC Capital Trust remains 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 preference of such
Preferred Securities then outstanding unless and until the principal (and
premium, if any) of the Securities of such series 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 holders of each Preferred
Security then outstanding unless and until the principal (and premium, if any)
of the Securities of such series and all accrued and (subject to Section 3.7)
unpaid interest (including any Additional Interest) thereon have been paid in
full.
A supplemental indenture that changes or eliminates any covenant or other
provision of this Indenture that has expressly been included solely for the
benefit of one or more particular series of Securities or Preferred Securities,
or which modifies the rights of the Holders of Securities or holders of
Preferred Securities of such series with respect to such covenant or other
provision, shall be deemed not to affect the rights under this Indenture of the
Holders of Securities or holders of Preferred Securities of any other series.
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 additional trusts created by any supplemental
indenture permitted by this Article or the modifications thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and
(subject to Section 6.1) shall be fully protected in relying upon, an Officers'
Certificate and an Opinion of Counsel of the Company and the Guarantor 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
57
to, enter into any such supplemental indenture which affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
Section 9.4 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section 9.5 Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the mist Indenture Act as then in effect.
Section 9.6 Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Company and the Guarantor, bear a notation in form approved by the Company
and the Guarantor as to any matter provided for in such supplemental indenture.
If the Company and the Guarantor shall so determine, new Securities of any
series so modified as to conform, in the opinion of the Company and the
Guarantor, to any such supplemental indenture may be prepared and executed by
the Company and the Guarantor and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
ARTICLE X
COVENANTS
Section 10.1 Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any) and interest and any other amounts payable on the Securities of that
series in accordance with the terms of such Securities and this Indenture.
Whenever in this Indenture or the Securities there is a reference in any context
to the payment of interest on the Securities, such mention shall be deemed to
include mention of the payments of the Additional Interest to the extent that
Additional Interest is payable on the Securities and express mention of the
payment of Additional Interest (if applicable) in any provisions hereof shall
not be construed as excluding Additional Interest in those provisions hereof
where such express mention is not made.
Section 10.2 Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Securities, an office or agency where Securities of that series may be presented
or surrendered for payment and an office or agency where Securities of that
series may be surrendered for transfer or exchange and where
58
notices and demands to or upon the Company in respect of the Securities of that
series and this Indenture may be served. The Company initially appoints the
Trustee, acting through its Corporate Trust Office, as its agent for said
purposes. The Company 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 Company
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 Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The Company 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
Company of its obligation to maintain an office or agency in each Place of
Payment for Securities of any series for such purposes. The Company will give
prompt written notice to the Trustee of any such designation and any change in
the location of any such office or agency.
Section 10.3 Money or Security Payments to be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect
to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest on any of the Securities of such
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal (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 Company shall have one or more Paying Agents, it will, prior
to 10:00 a.m. New York City time on each due date of the principal of or
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
Company will promptly notify the Trustee of its failure so to act.
The Company 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 Company (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
59
(4) comply with the provisions of the Trust Indenture Act applicable to it
as a Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of (and premium, if any)
or interest on any Security and remaining unclaimed for two years after such
principal (and premium, if any) or interest has become due and payable shall
(unless otherwise required by mandatory provision of applicable escheat or
abandoned or unclaimed property law) be paid on Company Request to the Company,
or (if then held by the Company) 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 Company for payment thereof; and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof; shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in 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 Company.
Section 10.4 Statement as to Compliance.
The Company and the Guarantor shall deliver to the Trustee, within 120 days
after the end of each calendar year of the Company ending after the date hereof;
an Officers' Certificate complying with Section 314(a)(4) of the Trust Indenture
Act and covering the preceding calendar year, stating whether or not to the best
knowledge of the signers thereof the Company or the Guarantor 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
Company or the Guarantor shall be in default, specifying all such defaults and
the nature and status thereof of which they may have knowledge. For the purpose
of this Section 10.4, compliance shall be determined without regard to any grace
period or requirement of notice provided pursuant to the terms of this
Indenture.
Section 10.5 Waiver of Certain Covenants.
The Company and the Guarantor may omit in any particular instance to comply
with any covenant or condition provided pursuant to Section 3.1, 9.1(3) or
9.1(4) with respect to the Securities of any series, if before or after the time
for such compliance the Holders of at least a majority in principal amount of
the Outstanding Securities of such series shall, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with such
covenant or condition, but no such waiver shall extend to or affect such
covenant or condition except to the
60
extent so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the Guarantor 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 of a series issued to an FPC Capital Trust,
so long as no Event of Default has occurred and is continuing and except as
otherwise specified as contemplated by Section 2.1 or Section 3.1, in the event
that (i) an FPC Capital Trust is the Holder of all of the Outstanding Securities
of such series, (ii) a Tax Event in respect of such FPC Capital Trust shall have
occurred and be continuing and (iii) neither the Company nor the Guarantor shall
have (A) redeemed the Securities of such series pursuant to Section 11.7(b) or
(B) terminated such FPC Capital Trust pursuant to Section 9.2(b) of the related
Trust Agreement, the Company or the Guarantor shall pay to such FPC Capital
Trust (and its permitted successors or assigns under the related Trust
Agreement) for so long as such FPC Capital Trust (or its permitted successor or
assignee) is the registered holder of any Securities of such series, such
additional amounts as may be necessary in order that the amount of Distributions
(including any Additional Amounts (as defined in such Trust Agreement)) then due
and payable by such FPC Capital Trust 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, 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; provided, however, that the deferral of the payment
of interest pursuant to Section 3.11 or the Securities shall not defer the
payment of any Additional Sums that may be due and payable.
Section 10.7 Additional Covenants.
The Company and the Guarantor covenant and agree with each Holder of
Securities of each series that it shall not, (a) declare or pay any dividends or
distributions on, or redeem purchase, acquire or make a liquidation payment with
respect to, any shares of the its 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 issued by it that rank pari passu with or junior in interest
to the Securities of such series or make any guarantee payments with respect to
any guarantee by the Company or the Guarantor of debt securities of any
subsidiary of the Company or the Guarantor if such guarantee ranks pari passu
with or junior in interest 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, the issuance of any rights, of any
Common Stock or any class or series of preferred stock of the Company or the
Guarantor or of any other property under any Rights Plan or the repurchase of
any rights distributed pursuant to a Rights Plan, (c) payments under any FPC
Capital Guarantee, and (d) purchases of Common Stock related to the issuance of
Common Stock under any of the Guarantor's or the Company's benefit plans for
their respective directors, officers or employees), if at such time (i) there
shall have occurred any event of which the Company or the
61
Guarantor 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 of such series and (B) in respect of which the neither the Company
nor the Guarantor shall have taken reasonable steps to cure, (ii) if the
Securities of such series are held by a FPC Capital Trust, the Company shall be
in default with respect to its payment of any obligations under the FPC Capital
Guarantee relating to the Preferred Securities issued by such FPC Capital Trust
or (iii) the Company shall have given notice of its election to begin an
Extension Period with respect to the Securities of such series as provided
herein and shall not have rescinded such notice, or such Extension Period, or
any extension thereof, shall be continuing.
The Company also covenants with each Holder of Securities of a series
issued to an FPC Capital Trust (i) to maintain directly or indirectly 100%
ownership of the Common Securities of such FPC Capital Trust; provided, however,
that any permitted successor of the Company hereunder may succeed to the
Company's ownership of such Common Securities, (ii) not to voluntarily
terminate, wind-up or liquidate such FPC Capital Trust, except (a) in connection
with a distribution of the Securities of such series to the holders of Preferred
Securities in liquidation of such FPC Capital Trust or (b) in connection with
certain mergers, consolidations or amalgamations permitted by the related Trust
Agreement and (iii) to use its reasonable efforts, consistent with the terms and
provisions of such Trust Agreement, to cause such FPC Capital Trust 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 DEBT SECURITIES
Section 11.1 Applicability of This Article.
Redemption of Debt Securities of any series (whether by operation of a
sinking fund or otherwise) as permitted or required by any form of Debt Security
issued pursuant to this Indenture shall be made in accordance with such form of
Debt Security and this Article; provided, however, that if any provision of any
such form of Debt Security shall conflict with any provision of this Article,
the provision of such form of Debt Security shall govern. Except as otherwise
set forth in the form of Debt Security for such series, each Debt Security of
such series shall be subject to partial redemption only in the amount of $25 or,
in the case of the Debt Securities of a series issued to an FPC Capital Trust,
$25, or integral multiples thereof.
Section 11.2 Election to Redeem; Notice to Trustee.
The election of the Company or Guarantor to redeem any Debt Securities
shall be evidenced by or pursuant to a Board Resolution. In case of any
redemption at the election of the Company or Guarantor of less than all of the
Debt Securities of any particular series and having the same terms, the Company
or Guarantor 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 of such date and of the principal amount of Debt Securities
of that series to be redeemed. In the case of any redemption of Debt Securities
prior to the expiration of any restriction on such redemption provided
62
in the terms of such Debt Securities, the Company or Guarantor shall furnish the
Trustee with an Officers' Certificate and an Opinion of Counsel evidencing
compliance with such restriction.
Section 11.3 Selection of Debt Securities to be Redeemed.
If less than all the Debt Securities of any series are to be redeemed
(unless all the Debt Securities of such series and of a specified tenor are to
be redeemed or unless such redemption affects only a single Debt Security), the
particular Debt Securities to be redeemed shall be selected not more than 60
days prior to the Redemption Date by the Trustee, from the Outstanding Debt
Securities of such series not previously called for redemption, by such method
as the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of a portion of the principal amount of any Debt
Security of such series, provided that the unredeemed portion of the principal
amount of any Debt Security shall be in an authorized denomination (which shall
not be less than the minimum authorized denomination) for such Debt Security. If
less than all the Debt Securities of such series and of a specified tenor are to
be redeemed (unless such redemption affects only a single Debt Security), 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 Debt
Securities of such series and specified tenor not previously called for
redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of the Debt
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 Debt Securities shall
relate, in the case of any Debt Security redeemed or to be redeemed only in
part, to the portion of the principal amount of such Debt Security which has
been or is to be redeemed. If the Company shall so direct, Debt Securities
registered in the name of the Company, any Affiliate or any Subsidiary thereof
shall not be included in the Debt 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 Debt Securities to be redeemed,
at the address of such Holder as it appears in the Securities Register.
With respect to Debt Securities of each series to be redeemed, each notice
of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all Outstanding Debt Securities of such particular series
and having the same terms are to be redeemed, the identification (and, in the
case of partial redemption, the respective principal amounts) of the particular
Debt Securities to be redeemed;
63
(d) that on the Redemption Date, the Redemption Price will become due and
payable upon each such Debt 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 Debt Securities are to be surrendered
for payment of the Redemption Price; and
(f) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Debt Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company and shall not be
revocable. 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 Debt Security designated for
redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Debt 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 Company will
deposit with the Trustee or with one or more Paying Agents (or if the Company is
acting as its own Paying Agent, the Company 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 Debt Securities Called for Redemption.
If any notice of redemption has been given as provided in Section 11.4, the
Debt Securities or portion of Debt 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. On presentation
and surrender of such Debt 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 Company at the applicable Redemption Price, together with
accrued interest (including any Additional Interest) to the Redemption Date;
provided, however, that, unless otherwise specified as contemplated by Section
3.1, installments of interest whose Stated Maturity is on or prior to the
Redemption Date will be payable to the Holders of such Debt Securities, or one
or more Predecessor Securities, registered as such at the close of business on
the relevant Record Dates according to their terms and the provisions of Section
3.7.
Upon presentation of any Security redeemed in part only, the Company shall
execute and the Trustee shall authenticate and deliver to the Holder thereof; at
the expense of the Company, a new Security or Securities of the same series, of
authorized denominations, in aggregate principal amount equal to the unredeemed
portion of the Security so presented and having the same Original Issue Date,
Stated Maturity and terms. If a Global Security is so surrendered, such new
Security will also be a new Global Security.
64
If any Debt 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.
Section 11.7 Right of Redemption of Debt Securities Initially Issued to
an FPC Capital Trust.
In the case of the Debt Securities of a series initially issued to an FPC
Capital Trust, except as otherwise specified as contemplated by Section 3.1, the
Company, at its option, may redeem such Debt Securities (i) on or after the date
five years after the Original Issue Date of such Debt Securities, in whole at
any time or in part from time to time, or (ii) upon the occurrence and during
the continuation of a Special Event, at any time within 90 days following the
occurrence of such Special Event in respect of such FPC Capital Trust, in whole
(but not in part), in each case at a Redemption Price equal to 100% of the
principal amount thereof.
ARTICLE XII
SINKING FUNDS
Section 12.1 Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Debt Securities of any series except as otherwise specified as
contemplated by Section 3.1 for such Debt Securities.
The minimum amount of any sinking fund payment provided for by the terms of
any Debt Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any sinking fund payment in excess of such minimum amount
which is permitted to be made by the terms of such Debt Securities of any series
is herein referred to as an "optional sinking fund payment". If provided for by
the terms of any Debt Securities of any series, the cash amount of any sinking
fund payment may be subject to reduction as provided in Section 12.2. Each
sinking fund payment shall be applied to the redemption of Debt Securities of
any series as provided for by the terms of such Debt Securities.
Section 12.2 Satisfaction of Sinking Fund Payments with Debt Securities.
In lieu of making all or any part of a mandatory sinking fund payment with
respect to any Debt Securities of a series in cash, the Company may at its
option, at any time no more than 16 months and no less than 30 days prior to the
date on which such sinking fund payment is due, deliver to the Trustee Debt
Securities of such series (together with the unmatured coupons, if any,
appertaining thereto) theretofore purchased or otherwise acquired by the
Company, or credit securities previously cancelled or otherwise delivered to the
Trustee for cancellation, except Debt Securities of such series that have been
redeemed through the application of mandatory or optional sinking fund payments
pursuant to the terms of the Debt Securities of such series, accompanied by a
Company Order instructing the Trustee to cancel such Debt Securities if not
previously cancelled or credit such obligations and stating that the Debt
Securities of such series were originally issued
65
by the Company by way of bona fide sale or other negotiation for value; provided
that the Debt Securities to be so credited have not been previously so credited.
The Debt Securities to be so credited shall be received and credited for such
purpose by the Trustee at the Redemption Price for such Debt Securities, as
specified in the Debt Securities so to be redeemed, for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.
Section 12.3 Redemption of Debt Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
series of Debt Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
such Debt Securities pursuant to the terms of such Debt Securities, the portion
thereof; if any, which is to be satisfied by payment of cash in the currency in
which the Debt Securities of such series are payable (except as provided
pursuant to Section 3.1) and the portion thereof; if any, which is to be
satisfied by delivering and crediting Debt Securities pursuant to Section 12.2
and will also deliver to the Trustee any Securities to be so delivered. Such
Officers' Certificate shall be irrevocable and upon its delivery the Company and
the Guarantor shall be obligated to make the cash payment or payments therein
referred to, if any, on or before the succeeding sinking fund payment date. In
the case of the failure of the Company to deliver such Officers' Certificate
(or, as required by this Indenture, the Debt Securities and coupons, if any,
specified in such Officers' Certificate), the sinking fund payment due on the
succeeding sinking fund payment date for such series shall be paid entirely in
cash and shall be sufficient to redeem the principal amount of the Debt
Securities of such series subject to a mandatory sinking fund payment without
the right to deliver or credit securities as provided in Section 12.2 and
without the right to make the optional sinking fund payment with respect to such
series at such time.
Any sinking fund payment or payments (mandatory or optional) made in cash
plus any unused balance of any preceding sinking fund payments made with respect
to the Debt Securities of any particular series shall be applied by the Trustee
(or by the Company if the Company is acting as its own Paying Agent) on the
sinking fund payment date on which such payment is made (or, if such payment is
made before a sinking fund payment date, on the sinking fund payment date
immediately following the date of such payment) to the redemption of Debt
Securities of such series at the Redemption Price specified in such Debt
Securities with respect to the sinking fund. Any sinking fund moneys not so
applied or allocated by the Trustee (or, if the Company is acting as its own
Paying Agent, segregated and held in trust by the Company as provided in Section
10.3) for such series and together with such payment (or such amount so
segregated) shall be applied in accordance with the provisions of this Section
12.3. Any and all sinking fund moneys with respect to the Debt Securities of any
particular series held by the Trustee (or if the Company is acting as its own
Paying Agent, segregated and held in trust as provided in Section 10.3) on the
last sinking fund payment date with respect to Debt Securities of such series
and not held for the payment or redemption of particular Debt Securities of such
series shall be applied by the Trustee (or by the Company if the Company is
acting as its own Paying Agent), together with other moneys, if necessary, to be
deposited (or segregated) sufficient for the purpose, to the payment of the
principal of the Debt Securities of such series at Maturity. The Trustee shall
select the Debt Securities to be redeemed upon such sinking fund payment date in
the manner specified in Section 11.3 and cause notice of the redemption thereof
to be given in the name of and at the expense of the Company in the manner
provided in Section 11.4. Such notice having been duly given, the redemption of
such Debt
66
Securities shall be made upon the terms and in the manner stated in Section
11.6. On or before each sinking fund payment date, the Company shall pay to the
Trustee (or, if the Company is acting as its own Paying Agent, the Company shall
segregate and hold in trust as provided in Section 10.3) in cash a sum in the
currency in which Debt Securities of such series are payable (except as provided
pursuant to Section 3.1) equal to the principal and any interest accrued to the
Redemption Date for Debt Securities or portions thereof to be redeemed on such
sinking fund payment date pursuant to this Section 12.3.
Neither the Trustee nor the Company shall redeem any Debt Securities of a
series with sinking fund moneys or mail any notice of redemption of Debt
Securities of such series by operation of the sinking fund for such series
during the continuance of a default in payment of interest, if any, on any Debt
Securities of such series or of any Event of Default (other than an Event of
Default occurring as a consequence of this paragraph) with respect to the Debt
Securities of such series, except that if the notice of redemption shall have
been provided in accordance with the provisions hereof; the Trustee (or the
Company, if the Company is then acting as its own Paying Agent) shall redeem
such Debt Securities if cash sufficient for that purpose shall be deposited with
the Trustee (or segregated by the Company) for that purpose in accordance with
the terms of this Article XII. Except as aforesaid, any moneys in the sinking
fund for such series at the time when any such default or Event of Default shall
occur and any moneys thereafter paid into such sinking fund shall, during the
continuance of such default or Event of Default, be held as security for the
payment of the Debt Securities and coupons, if any, of such series; provided,
however, that in case such default or Event of Default shall have been cured or
waived herein, such moneys shall thereafter be applied on the next sinking fund
payment date for the Debt Securities of such series on which such moneys may be
applied pursuant to the provisions of this Section 12.3.
ARTICLE XIII
SUBORDINATION OF SECURITIES
Section 13.1 Securities Subordinate to Senior Debt.
The Company covenants and agrees, and each Holder of a Debt 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 Debt Securities are hereby expressly made
subordinate and subject in right of payment to the prior payment in full of all
Senior Debt of the Company. The Guarantor covenants and agrees, and each Holder
of a Guarantee, by its acceptance thereof, likewise covenants and agrees, that
to the extent and in the manner hereinafter set forth in this Article, the
obligation of the Guarantor under each and all of the Guarantees are expressly
made subordinate and subject in right of payment of the prior payment in full of
all Senior Debt of the Guarantor.
Section 13.2 Payment Over of Proceeds Upon Dissolution, Etc.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or the Guarantor, as the case may be
(each such event, if any, herein sometimes referred
67
to as a "Proceeding"), then the holders of Senior Debt of the Company or the
Guarantor, as the case may be, shall be entitled to receive payment in full of
all Allocable Amounts of such Senior Debt, or provision shall be made for such
payment in cash or cash equivalents or otherwise in a manner satisfactory to the
holders of Senior Debt of the Company or the Guarantor, as the case may be,
before the Holders of the Securities are entitled to receive or retain any
payment or distribution of any kind or character, whether in cash, property or
securities (including any payment or distribution which may be payable or
deliverable by reason of the payment of any other Debt of the Company or the
Guarantor, as the case may be (including any series of the Securities),
subordinated to the payment of the Securities, such payment or distribution
being hereinafter referred to as a "Junior Subordinated Payment"), on account of
principal of (or premium, if any) or interest (including any Additional
Interest) on the Debt Securities or the obligation of the Guarantor under the
Guarantees or on account of the purchase or other acquisition of Securities by
the Company or the Guarantor and to that end the holders of Senior Debt of the
Company or the Guarantor, as the case may be, shall be entitled to receive, for
application to the payment thereof; any payment or distribution of any kind or
character, whether in cash, property or securities, including any Junior
Subordinated Payment, which may be payable or deliverable in respect of the
Securities in any such Proceeding.
In the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or the Holder of any Security shall have received any
payment or distribution of assets of the Company or the Guarantor of any kind or
character, whether in cash, property or securities, including any Junior
Subordinated Payment, before all Allocable Amounts of all Senior Debt of the
Company or the Guarantor, as the case may be, are paid in full or payment
thereof is provided for in cash or cash equivalents or otherwise in a manner
satisfactory to the holders of Senior Debt of the Company or the Guarantor, as
the case may be, 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 Company or the Guarantor, as the case may be, for
application to the payment of all Allocable Amounts of all Senior Debt of the
Company or the Guarantor, as the case may be, remaining unpaid, to the extent
necessary to pay all Allocable Amounts of all Senior Debt of the Company or the
Guarantor, as the case may be, in full, after giving effect to any concurrent
payment or distribution to or for the holders of Senior Debt of the Company or
the Guarantor, as the case may be.
For purposes of this Article only, the words "any payment or distribution
of any kind or character, whether in cash, property or securities" shall not be
deemed to include shares of stock of the Company or the Guarantor as reorganized
or readjusted, or securities of the Company or the Guarantor or any other
corporation provided for by a plan of reorganization or readjustment which
securities are subordinated in right of payment to all then outstanding Senior
Debt of the Company or the Guarantor, as the case may be, to substantially the
same extent as the Securities are so subordinated as provided in this Article.
The consolidation of the Company or the Guarantor with, or the merger of the
Company or the Guarantor into, another Person or the liquidation or dissolution
of the Company or the Guarantor following the sale of all or substantially all
of its properties and assets as an entirety to another Person upon the terms and
conditions set forth in Article VIII shall not be deemed a Proceeding for the
purposes of this Section if the Person formed by such consolidation or into
which the Company or the Guarantor is merged or the Person which acquires
68
by sale such properties and assets as an entirety, as the case may be, shall, as
a part of such consolidation, merger, or sale comply with the conditions set
forth in Article VIII.
Section 13.3 Prior Payment to Senior Debt Upon Acceleration of
Securities.
In the event that any Debt Securities are declared due and payable before
their Stated Maturity, then and in such event the holders of the Senior Debt of
the Company or the Guarantor, as the case may be, outstanding at the time such
Debt Securities so become due and payable shall be entitled to receive payment
in full of all Allocable Amounts due on or in respect of such Senior Debt
(including any amounts due upon acceleration), or provision shall be made for
such payment in cash or cash equivalents or otherwise in a manner satisfactory
to the holders of Senior Debt of the Company or the Guarantor, as the case may
be, before the Holders of the Securities are entitled to receive any payment or
distribution of any kind or character, whether in cash, properties or securities
(including any Junior Subordinated Payment) by the Company or the Guarantor on
account of the principal of (or premium, if any) or interest (including any
Additional Interest) on the Debt Securities or the obligations of the Guarantor
under the Guarantees or on account of the purchase or other acquisition of
Securities by the Company or the Guarantor; provided, however, that nothing in
this Section shall prevent the satisfaction of any sinking fund payment in
accordance with this Indenture or as otherwise specified as contemplated by
Section 3.1 for the Debt Securities of any series by delivering and crediting
pursuant to Section 12.2 or as otherwise specified as contemplated by Section
3.1 for the Debt Securities of any series Debt Securities which have been
acquired (upon redemption or otherwise) prior to such declaration of
acceleration.
In the event that, notwithstanding the foregoing, the Company or the
Guarantor shall make any payment to the Trustee or 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 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 Company or the Guarantor, as the case
may be.
The provisions of this Section shall not apply to any payment with respect
to which Section 13.2 would be applicable.
Section 13.4 No Payment When Senior Debt in Default.
(a) 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 of the
Company or the Guarantor, or in the event that any event of default with respect
to any Senior Debt of the Company or the Guarantor 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 such acceleration shall have
been rescinded or annulled, or (b) in the event any judicial proceeding shall be
pending with respect to any such default in payment or such event or default,
then no payment or distribution of any kind or character, whether in cash,
properties or securities (including any Junior Subordinated Payment) shall be
made by the Company or the Guarantor, as the case may be, on account of
principal of (or premium, if any) or interest (including any Additional
Interest), if any, on the Debt Securities or the obligations of the Guarantor
under the Guarantees or on account of the purchase or other acquisition of
Securities by the Company or the Guarantor, in each case unless and
69
until all Allocable Amounts of such Senior Debt are paid in full; provided,
however, that nothing in this Section shall prevent the satisfaction of any
sinking fund payment in accordance with this Indenture or as otherwise specified
as contemplated by Section 3.1 for the Debt Securities of any series by
delivering and crediting pursuant to Section 12.2 or as otherwise specified as
contemplated by Section 3.1 for the Debt Securities of any series Debt
Securities which have been acquired (upon redemption or otherwise) prior to such
default in payment or event of default.
In the event that, notwithstanding the foregoing, the Company or the
Guarantor shall make any payment to the Trustee or 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 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 Company or the Guarantor, as the case
may be.
The provisions of this Section shall not apply to any payment with respect
to which Section 13.2 would be applicable.
Section 13.5 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 Company or the Guarantor, as the case
may be, at any time except during the pendency of any Proceeding with respect to
it referred to in Section 13.2 or under the conditions described in Sections
13.3 and 13.4, from making payments at any time of principal of (and premium, if
any) or interest (including Additional Interest) on the Debt Securities or the
obligations of the Guarantor under the Guarantees, 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 (including any Additional
Interest) on the Debt Securities or the retention of such payment by the
Holders, if; at the time of such application by the Trustee, it did not have
knowledge that such payment would have been prohibited by the provisions of this
Article.
Section 13.6 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 of the Company or the Guarantor, as the case may be, or the
provision for such payment in cash or cash equivalents or otherwise in a manner
satisfactory to the holders of Senior Debt of the Company or the Guarantor, as
the case may be, 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 Company or the Guarantor, as the case may be, which
by its express terms is subordinated to Senior Debt of the Company or the
Guarantor, as the case may be, to substantially the same extent as the
Securities are subordinated to the Senior Debt of the Company or the Guarantor,
as the case may be, 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 of the Company or
the Guarantor, as the case may be, until the principal of (and premium, if any)
and interest on the Debt Securities shall be paid in full. For purposes of such
subrogation, no payments or distributions to the holders of the Senior Debt of
the Company or the Guarantor, as the case may be, of any cash, property or
securities to which the Holders of the Securities or the Trustee would be
entitled except for the provisions of
70
this Article, and no payments over pursuant to the provisions of this Article to
the holders of Senior Debt of the Company or the Guarantor, as the case may be,
by Holders of the Securities or the Trustee, shall, as among the Company or the
Guarantor, as the case may be, its creditors other than holders of its Senior
Debt, and the Holders of the Securities, be deemed to be a payment or
distribution by the Company or the Guarantor to or on account of its Senior
Debt.
Section 13.7 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 of the Company or the Guarantor, as the case may
be, 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 Company or the Guarantor and the Holders of the Securities, the obligations
of the Company and the Guarantor, 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 Company and the Guarantor of the Holders of the
Securities and creditors of the Company and the Guarantor other than their
rights in relation to the holders of Senior Debt or the Guarantor, as the case
may be; or (c) prevent the Trustee or the Holder of any Security from exercising
all remedies otherwise permitted by applicable law upon default under this
Indenture including, without limitation, filing and voting claims in any
Proceeding with respect to the Company or the Guarantor, as the case may be,
subject to the rights, if any, under this Article of the holders of Senior Debt
with respect to the Company or the Guarantor, as the case may be, to receive
cash, property and securities otherwise payable or deliverable to the Trustee or
such Holder.
Section 13.8 Trustee to Effectuate Subordination.
Each Holder of a Security 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 13.9 No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior Debt with respect to
the Company or the Guarantor, as the case may be, to enforce subordination as
herein provided shall at any time in any way be prejudiced or impaired by any
act or failure to act on the part of the Company or the Guarantor, as the case
may be, or by any act or failure to act, in good faith, by any such holder, or
by any noncompliance by the Company or the Guarantor, as the case may be, with
the terms, provisions and covenants of this Indenture, regardless of any
knowledge thereof that any such holder may have or be otherwise charged with.
Without in any way limiting the generality of the immediately preceding
paragraph, the holders of Senior Debt with respect to the Company or the
Guarantor, as the case may be, 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
71
of the Securities to the holders of such 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 with respect to the Company or the
Guarantor, as the case may be, or otherwise amend or supplement in any manner
Senior Debt with respect to the Company or the Guarantor, as the case may be, or
any instrument evidencing the same or any agreement under which Senior Debt with
respect to the Company or the Guarantor, as the case may be, is outstanding;
(ii) sell, exchange, release or otherwise deal with any property pledged,
mortgaged or otherwise securing Senior Debt with respect to the Company or the
Guarantor, as the case may be; (iii) release any Person liable in any manner for
the collection of Senior Debt with respect to the Company or the Guarantor, as
the case may be; and (iv) exercise or refrain from exercising any rights against
the Company, the Guarantor and any other Person.
Section 13.10 Notice to Trustee.
The Company and the Guarantor shall each give prompt written notice to the
Trustee of any fact known to it 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 Company or the Guarantor or a holder of Senior Debt thereof 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 Debt Security), then, anything herein contained to
the contrary notwithstanding, the Trustee shall have full power and authority to
receive such monies and to apply the same to the purpose for which they were
received and shall not be affected by any notice to the contrary 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 on the delivery to it of a written notice by a Person representing himself
to be a holder of Senior Debt of the Company or the Guarantor, as the case may
be (or a trustee therefor), to establish that such notice has been given by a
holder of Senior Debt of the Company or the Guarantor, as the case may be (or a
trustee 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 of the Company or the Guarantor, as the case may be, 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 of the Company or the Guarantor, as
the case may be, 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.
72
Section 13.11 Reliance on Judicial Order or Certificate of Liquidating
Agent.
Upon any payment or distribution of assets of the Company or the Guarantor
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 Company or the Guarantor, as the case may be, 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 13.12 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 of the Company or
the Guarantor, as the case may be, 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 Company, the Guarantor or to any other Person cash,
property or securities to which any holders of Senior Debt of the Company or the
Guarantor, as the case may be, shall be entitled by virtue of this Article or
otherwise.
Section 13.13 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 of the Company or the
Guarantor, as the case may be, which may at any time be held by it, to the same
extent as any other holder of such Senior Debt, and nothing in this Indenture
shall deprive the Trustee of any of its rights as such holder. Nothing in this
Article shall be construed to apply to claims of the Trustee or any predecessor
Trustee under Section 5.6 or 6.7.
Section 13.14 Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall have been
appointed by the Company 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.
Section 13.15 Certain Conversions or Exchanges Deemed Payment.
For the purposes of this Article only, (a) the issuance and delivery of
junior securities upon conversion or exchange of Debt Securities shall not be
deemed to constitute a payment or distribution on account of the principal of
(or premium, if any) or interest (including any Additional Interest) on Debt
Securities or on account of the purchase or other acquisition of Debt
Securities, and (b) the payment, issuance or delivery of cash, property or
securities (other than junior securities) upon conversion or exchange of a Debt
Security shall be deemed to constitute payment on account
73
of the principal of such security. For the purposes of this Section, the term
"junior securities" means (i) shares of any stock of any class of the Company or
the Guarantor and (ii) securities of the Company or the Guarantor which are
subordinated in right of payment to all Senior Debt thereof which may be
outstanding at the time of issuance or delivery of such securities to
substantially the same extent as, or to a greater extent than, the Securities
are so subordinated as provided in this Article.
ARTICLE XIV
GUARANTEE
Section 14.1 Guarantee.
The Guarantor hereby irrevocably and unconditionally guarantees to each
Holder of a Debt Security of each series the due and punctual payment of the
principal of and any premium and interest (including Additional Interest) on
such Debt Security when and as the same shall become due and payable, whether at
the Stated Maturity, by declaration of acceleration, call for redemption or
otherwise, in accordance with the terms of such Debt Security and this
Indenture, regardless of any defense, right of set-off or counterclaim that the
Guarantor may have or assert, except the defense of payment. The Guarantor's
obligation to make a payment under this Article XIV may be satisfied by direct
payment of the required amounts by the Guarantor to the Holders or by causing
the Company to pay such amounts to the Holders.
The Guarantee set forth in this Section 14.1 shall not be valid or become
obligatory for any purpose with respect to a Debt Security until the certificate
of authentication on such Debt Security shall have been authenticated by or on
behalf of the Trustee by manual signature.
Section 14.2 Waiver of Notice and Demand.
The Guarantor hereby waives notice of acceptance of the Guarantee and of
any liability to which it applies or may apply, presentment, demand for payment,
any right to require a proceeding first against the Company or any other Person
before proceeding against the Guarantor, protest, notice of nonpayment, notice
of dishonor, notice of redemption and all other notices and demands.
Section 14.3 Guarantor Obligations Not Affected.
The obligations of the Guarantor under this Article XIV shall in no way be
affected or impaired by reason of the happening from time to time of any of the
following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Company of any express or implied
agreement, covenant, term or condition relating to the Debt Securities to
be performed or observed by the Company;
(b) the extension of time for the payment by the Company of all or any
portion of the interest on the Debt Securities, the Redemption Price or any
other sums payable under the terms of the Debt Securities or the extension
of time for the performance of any other
74
obligation under, arising out of, or in connection with, the Debt
Securities (other than an extension of time for payment of interest or any
other sums payable that results from the extension of any interest payment
period on the Debt Securities of any series permitted by this Indenture).
(c) any failure, omission, delay or lack of diligence on the part of
the Trustee or the Holders to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Trustee or the Holders pursuant
to the terms of the Indenture or the Debt Securities, or any action on the
part of the Company or the Trustee granting indulgence or extension of any
kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings affecting, the
Company or any of the assets of the Company;
(e) any invalidity of, or defect or deficiency in, the Debt
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby
or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute
a legal or equitable discharge or defense of a guarantor (other than
payment of the underlying obligation), it being the intent of this Article
XIV that the obligations of the Guarantor hereunder shall be absolute and
unconditional under any and all circumstances.
There shall be no obligation of the Trustee or the Holders to give notice
to, or obtain the consent of, the Guarantor with respect to the happening of any
of the foregoing.
Section 14.4 Form of Guarantee.
A notation of the Guarantee shall be set forth on each Debt Security in
substantially the following form:
FOR VALUE RECEIVED, FLORIDA PROGRESS CORPORATION, a corporation duly
organized and existing under the laws of the State of Florida (the "Guarantor",
which term includes any successor Person under the Indenture referred to herein)
hereby irrevocably and unconditionally guarantees to the Holder of this Security
issued by Florida Progress Funding Corporation (the "Company"), pursuant to the
terms of the Guarantee contained in Article XIV of the Indenture, the due and
punctual payment of the principal of, sinking fund payment, if any, premium, if
any, and interest (including Additional Interest) on this Junior Subordinated
Note, when and as the same shall become due and payable, whether at the Stated
Maturity, by declaration of acceleration, call for redemption or otherwise, in
accordance with the terms of this Security and the Indenture.
The obligations of the Guarantor to the Holders of the Securities and to
the Trustee pursuant to the Guarantee and the Indenture are expressly set forth
in Article XIV of the Indenture and reference is hereby made to such Article and
Indenture for the precise terms of the Guarantee.
75
Notwithstanding anything to the contrary in this Guarantee, all payments in
respect of the Guarantee are subordinate and subject in right of payment to the
prior payment in full of all Senior Debt (as defined in the Indenture) of the
Guarantor.
THIS NOTES GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS
THEREOF.
The Guarantee shall not be valid or obligatory for any purpose until the
certificate of authentication on the Security upon which this notation of the
Guarantee is endorsed shall have been executed by the Trustee under the
Indenture by the manual signature of one of its authorized officers.
(SEAL) FLORIDA PROGRESS CORPORATION
Attest:
By:____________________________________
Name:__________________________________
Title:_________________________________
Section 14.5 Execution of Guarantee.
To evidence the Guarantee to the Holders specified in Section 14.1, the
Guarantor hereby agrees to execute the notation of the Guarantee, in
substantially the form set forth in Section 14.4, to be endorsed on each
Security authenticated and delivered by the Trustee. The Guarantor hereby agrees
that the Guarantee set forth in Section 14.1 shall remain in full force and
effect notwithstanding any failure to endorse on each Security a notation of the
Guarantee. Each such notation of the Guarantee shall be signed on behalf of the
Guarantor, by a director or officer, prior to the authentication of the Security
on which it is endorsed, and the delivery of such Security by the Trustee, after
the due authentication thereof by the Trustee hereunder, shall constitute due
delivery of the Guarantee on behalf of the Guarantor. Such signature upon the
notation of the Guarantee may be a manual or facsimile signature of any such
director or officer and may be imprinted or otherwise reproduced below the
notation of the Guarantee, and in case any such director or officer who shall
have signed the notation of the Guarantee shall cease to be such director or
officer before the Security on which such notation is endorsed shall have been
authenticated and delivered by the Trustee or disposed of by the Company, such
Security nevertheless may be authenticated and delivered or disposed of as
though the person who signed the notation of the Guarantee had not ceased to be
such director or officer of the Guarantor.
76
Section 14.6 Subrogation.
The Guarantor shall be subrogated to all rights (if any) of the Holders
against the Company in respect of any amounts paid to the Holders by the
Guarantor under this Article XIV with respect to any series of Securities;
provided, however, that the Guarantor shall not (except to the extent required
by mandatory provisions of law) be entitled to enforce or exercise any rights
which it may acquire by way of subrogation or any indemnity, reimbursement or
other agreement, in all cases as a result of payment under this Article XIV with
respect to a series of Securities if, at the time of any such payment, any
amounts are due and unpaid under such series of Securities. If any amount shall
be paid to the Guarantor in violation of the preceding sentence, the Guarantor
agrees to hold such amount in trust for the Holders and to pay over such amount
to the Holders.
Section 14.7 Independent Obligations.
The Guarantor acknowledges that its obligations hereunder are independent
of the obligations of the Company with respect to the Securities and that the
Guarantor shall be liable as principal and as debtor hereunder to make payments
pursuant to the terms of the Guarantee notwithstanding the occurrence of any
event referred to in subsections (a) through (g), inclusive, of Section 14.3
hereof.
Section 14.8 Subordination.
The Guarantor covenants and agrees, and each Holder of a Security, by his
acceptance thereof, likewise covenants and agrees, that, to the same extent and
in the same manner set forth in Article XIII with respect to subordination and
relative rights of the Securities, all payments in respect of the Guarantee are
hereby expressly made subordinate and subject in right of payment to the prior
payment in full in cash of all Senior Debt of the Guarantor.
Section 14.9 Assumption by Guarantor.
(a) The Guarantor may, without the consent of the Holders of the Security
of any series, assume all of the rights and obligations of the Company hereunder
with respect to a series of Securities and under the Securities of such series
if, after giving effect to such assumption, no Event of Default shall have
occurred and be continuing. Upon such an assumption, the Guarantor shall execute
a supplemental indenture evidencing its assumption of all such rights and
obligations of the Company and the Company shall be released from its
liabilities hereunder and under such Securities as obligor on the Securities of
such series.
(b) The Guarantor shall assume all of the rights and obligations of the
Company hereunder with respect to a series of Securities and under the
Securities of such series if, upon a default by the Company in the due and
punctual payment of the principal, sinking fund payment, if any, premium, if
any, or interest on such Securities, the Guarantor is prevented by any court
order or judicial proceeding from fulfilling its obligations under the Guarantee
with respect to such series of Securities. Such assumption shall result in the
Securities of such series becoming the direct obligations of the Guarantor and
shall be effected without the consent of the holders of the Securities
77
of any series. Upon such an assumption, the Guarantor shall execute a
supplemental indenture evidencing its assumption of all such rights and
obligations of the Company, and the Company shall be released from its
liabilities hereunder and under such Securities as obligor on the Securities of
such.
* * * *
78
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.
FLORIDA PROGRESS FUNDING CORPORATION
By:_________________________________
Attest:
____________________________________
FLORIDA PROGRESS CORPORATION
as Guarantor
By:_________________________________
Attest:
____________________________________
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By:_________________________________
Attest:
____________________________________
79
