EXHIBIT 4.2
Draft, 1/14/97
BANK UNITED CORP.,
TO
-----------------------------------
Trustee
------------------------
INDENTURE
Dated as of , 1997
------------------------
Certain Sections of this Indenture relating to
Sections 310 through 318, inclusive, of the
Trust Indenture Act of 1939:
TRUST INDENTURE
ACT SECTION Indenture Section
ss. 310 (a)(1) ......................................... 609
(a)(2) ........................................... 609
(a)(3) ........................................... Not Applicable
(a)(4) ........................................... Not Applicable
(a)(5) ........................................... 609
(b) .............................................. 608, 610
ss.311 (a) ............................................. 613
(b) .............................................. 613
(c) .............................................. Not Applicable
ss.312 (a) ............................................. 701, 702(a)
(b) .............................................. 702(b)
(c) .............................................. 702(c)
ss.313 (a) ............................................. 703(a)
(b) .............................................. 703(a)
(c) .............................................. 703(a)
(d) .............................................. 703(b)
ss.314 (a)(1) .......................................... 704
(a)(2) ........................................... 704
(a)(3) ........................................... 704
(a)(4) ........................................... 101, 1004
(b) .............................................. Not Applicable
(c)(1) ........................................... 102
(c)(2) ........................................... 102
(c)(3) ........................................... Not Applicable
(d) .............................................. Not Applicable
(e) .............................................. 102
ss.315 (a) ............................................. 601
(b) .............................................. 602
(c) .............................................. 601
(d) .............................................. 514
(e) .............................................. 514
ss.316 (a) ............................................. 101
(a)(1)(A) ........................................ 502, 512
(a)(1)(B) ........................................ 513
(a)(2) ........................................... Not Applicable
(b) .............................................. 508
i
(c)............................................... 104(c)
ss.317 (a)(1)........................................... 503
(a)(2)............................................ 504
(b)............................................... 1003
ss.318 (a).............................................. 107
..............................................................................
NOTE:This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
ii
TABLE OF CONTENTS
PAGE
PARTIES......................................................................1
RECITALS OF THE COMPANY......................................................1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions.....................................................1
Act.............................................................2
Affiliate.......................................................2
Authenticating Agent............................................2
Bank............................................................2
Board of Directors..............................................2
Board Resolution................................................2
Book-Entry Note.................................................2
Business Day....................................................2
Certificated Notes..............................................2
Commission......................................................2
Company.........................................................3
Company Request or Company Order................................3
Corporate Trust Office..........................................3
Corporation.....................................................3
default.........................................................3
Defaulted Interest..............................................3
Depositary......................................................3
Entitled Persons................................................3
Event of Default................................................3
Excess Proceeds.................................................3
FDIC............................................................3
Global Notes....................................................3
Holder..........................................................3
indebtedness for money borrowed.................................4
Indenture.......................................................4
Interest Payment Date...........................................4
Issue Date......................................................4
Maturity........................................................4
Notes...........................................................4
Officers' Certificate...........................................4
Opinion of Counsel..............................................4
Other Financial Obligations.....................................4
OTS.............................................................4
Outstanding.....................................................5
NOTE: THIS TABLE OF CONTENTS SHALL NOT, FOR ANY PURPOSE, BE DEEMED TO BE A PART
OF THE INDENTURE.
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Paying Agent....................................................5
Person..........................................................5
Place of Payment................................................5
Predecessor Security............................................6
Registered Note.................................................6
Regular Record Date.............................................6
Note Register and Security Registrar............................6
Senior Indebtedness.............................................6
Special Record Date.............................................6
Stated Maturity.................................................6
Trust Indenture Act.............................................6
Trustee.........................................................6
Vice President..................................................7
2004 Global Note................................................7
2007 Global Note................................................7
2004 Note.......................................................7
2007 Note.......................................................7
2004 Certificated Note..........................................7
2007 Certificated Note..........................................7
Section 102. Compliance Certificates and Opinions............................7
Section 103. Form of Documents Delivered to Trustee..........................8
Section 104. Acts of Holders; Record Dates...................................8
Section 105. Notices, Etc., to Trustee and Company..........................10
Section 106. Notice to Holders; Waiver......................................10
Section 107. Conflict with Trust Indenture Act..............................11
Section 108. Effect of Headings and Table of Contents.......................11
Section 109. Successors and Assigns.........................................11
Section 110. Severability Clause............................................11
Section 111. Benefits of Indenture..........................................11
Section 112. Governing Law..................................................11
Section 113. Legal Holidays.................................................11
ARTICLE TWO
FORM OF NOTES
Section 201. Form and Dating................................................12
ARTICLE THREE
THE NOTES
Section 301. Title and Terms................................................14
Section 302. Authorized Denominations.......................................14
Section 303. Execution, Authentication, Delivery and Dating.................14
Section 304. Temporary Notes................................................15
Section 305. Registrar and Paying Agent.....................................16
Section 306. Paying Agent to Hold Money in Trust............................17
Section 307. Global Notes...................................................17
NOTE: THIS TABLE OF CONTENTS SHALL NOT, FOR ANY PURPOSE, BE DEEMED TO BE A PART
OF THE INDENTURE.
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Section 308. Transfer and Exchange..........................................17
Section 309. Mutilated, Destroyed, Lost and Stolen Notes....................19
Section 310. Payment of Interest; Interest Rights Preserved.................19
Section 311. Persons Deemed Owners..........................................20
Section 312. Cancellation...................................................21
Section 313. Computation of Interest........................................21
Section 314. CUSIP Number...................................................21
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture........................21
Section 402. Application of Trust Money.....................................22
ARTICLE FIVE
REMEDIES
Section 501. Events of Default..............................................22
Section 502. Acceleration of Maturity; Rescission and Annulment.............24
Section 503. Collection of Indebtedness and Suits for Enforcement by
Trustee........................................................24
Section 504. Trustee May File Proofs of Claim...............................25
Section 505. Trustee May Enforce Claims Without Possession of Notes.........26
Section 506. Application of Money Collected.................................26
Section 507. Limitation on Suits............................................26
Section 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest......................................................27
Section 509. Restoration of Rights and Remedies.............................27
Section 510. Rights and Remedies Cumulative.................................27
Section 511. Delay or Omission Not Waiver...................................28
Section 512. Control by Holders.............................................28
Section 513. Waiver of Past Defaults........................................28
Section 514. Undertaking for Costs..........................................28
Section 515. Waiver of Stay or Extension Laws...............................29
ARTICLE SIX
THE TRUSTEE
Section 601. Certain Duties and Responsibilities............................29
Section 602. Notice of Defaults.............................................29
Section 603. Certain Rights of Trustee......................................29
Section 604. Not Responsible for Recitals or Issuance of Notes..............31
Section 605. May Hold Notes.................................................31
Section 606. Money Held in Trust............................................31
Section 607. Compensation and Reimbursement.................................31
Section 608. Disqualification; Conflicting Interests........................32
Section 609. Corporate Trustee Required; Eligibility........................32
Section 610. Resignation and Removal; Appointment of Successor..............32
Section 611. Acceptance of Appointment by Successor.........................33
NOTE: THIS TABLE OF CONTENTS SHALL NOT, FOR ANY PURPOSE, BE DEEMED TO BE A PART
OF THE INDENTURE.
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Section 612. Merger, Conversion, Consolidation or Succession to Business....34
Section 613. Preferential Collection of Claims Against Company..............35
Section 614. Appointment of Authenticating Agent............................35
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and Addresses of Holders......36
Section 702. Preservation of Information; Communications to Holders.........36
Section 703. Reports by Trustee.............................................36
Section 704. Reports by Company.............................................37
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801. Company May Consolidate, Etc., Only on Certain Terms...........37
Section 802. Successor Substituted..........................................37
Section 803. Opinion of Counsel to Trustee..................................38
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of Holders.............38
Section 902. Supplemental Indentures with Consent of Holders................39
Section 903. Execution of Supplemental Indentures...........................40
Section 904. Effect of Supplemental Indentures..............................40
Section 905. Conformity with Trust Indenture Act............................40
Section 906. Reference in Notes to Supplemental Indentures..................40
Section 907. Subordination Unimpaired.......................................40
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium and Interest....................41
Section 1002. Maintenance of Office or Agency...............................41
Section 1003. Money for Notes Payments to be Held in Trust..................41
Section 1004. Statement by Officers as to Default...........................42
Section 1005. Corporate Existence...........................................42
Section 1006. Waiver of Certain Covenants...................................43
Section 1007. Maintenance of Status of Subsidiaries as Insured Depository
Institution...................................................43
Section 1008. Capital and Dividends.........................................43
ARTICLE ELEVEN
SUBORDINATION OF NOTES
Section 1101. Notes Subordinated to Extent Provided........................44
Section 1102. Payment Over of Proceeds Upon Dissolution, Etc................44
Section 1103. Prior Payment to Senior Indebtedness Upon Acceleration
of Notes......................................................45
NOTE: THIS TABLE OF CONTENTS SHALL NOT, FOR ANY PURPOSE, BE DEEMED TO BE A PART
OF THE INDENTURE.
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Section 1104. No Payment When Senior Indebtedness in Default................45
Section 1105. Payment Permitted If No Default...............................46
Section 1106. Subrogation to Rights of Holders of Senior Indebtedness.......46
Section 1107. Obligations of Company Unconditional; Provisions Solely to
Define Relative Rights........................................47
Section 1108. Authorization of Trustee to Effectuate Subordination of
Notes.........................................................47
Section 1109. No Waiver of Subordination Provisions.........................47
Section 1110. Notice to Trustee; Trustee Not Charged with Knowledge of
Prohibition...................................................48
Section 1111. Reliance on Judicial Order or Certificate of Liquidating
Agent.........................................................48
Section 1112. No Fiduciary Duty to Holders of Senior Indebtedness or Other
Financial Obligations.........................................49
Section 1113. Right of Trustee to Hold Senior Indebtedness of Company.......49
Section 1114. Article Applicable to Paying Agents...........................49
Section 1115. 2004 Notes and 2007 Notes to Rank Pari Passu with Each Other;
Payment of Proceeds in Certain Cases..........................49
ARTICLE TWELVE
MISCELLANEOUS
Section 1201. Rules by Trustee, Paying Agent and Registrar.................51
Section 1203. No Recourse Against Others...................................51
Section 1203. Counterparts.................................................51
Section 1204. Further Instruments and Acts.................................51
NOTE: THIS TABLE OF CONTENTS SHALL NOT, FOR ANY PURPOSE, BE DEEMED TO BE A PART
OF THE INDENTURE.
vii
INDENTURE, dated as of _____ __, 1997, between Bank United Corp., a
corporation duly organized and existing under the laws of the State of Delaware
(herein called the "Company"), having its principal office at 0000 Xxxxxxxxx
Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000, and ____________, a national banking
association duly organized and existing under the laws of the United States, as
Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of its __% Subordinated
Notes due 2004 (the "2004 Notes") and its __% Subordinated Notes due 2007 (the
"2007 Notes", and together with the 2004 Notes, the "Notes") of substantially
the tenor and amount hereinafter set forth, and to provide therefor, the Company
has duly authorized the execution and delivery of this Indenture.
All things necessary to make the Notes, when executed by the Company
and authenticated and delivered by the Trustee hereunder and duly issued by the
Company, the valid obligations of the Company and to make this Indenture a valid
agreement of the Company in accordance with its terms have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Notes by the Holders (as hereinafter defined) thereof, it is mutually agreed,
for the equal and proportionate benefit of all Holders of the Notes, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles; 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 104.
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 614 to act on behalf of the Trustee to authenticate any of
the 2004 Notes or the 2007 Notes. Each reference herein to authentication by the
Trustee includes authentication by an Authenticating Agent.
"Bank" means Bank United, a federally chartered savings bank that is
an indirect wholly-owned subsidiary of the Company.
"Board of Directors" means the board of directors of the Company or
the Executive Committee or any other committee of the Board of Directors duly
authorized to act on behalf of such Board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Book-Entry Note" means a Registered Note bearing the legend
specified in Section 203, and registered in the name of a Depository or its
nominee.
"Business Day", when used with respect to any Place of Payment,
unless otherwise specified in a Board Resolution and in an Officers'
Certificate, or in a supplemental indenture hereto, means each Monday, Tuesday,
Wednesday, Thursday and Friday that is not a day on which banking institutions
in an applicable Place of Payment or the city in which the Trustee's Corporate
Trust Office is located or in the Borough of Manhattan in The City and State of
New York are authorized or obligated by law, executive order or regulation to
remain closed.
"Certificated Notes" has the meaning set forth in Section 201(c)
hereof.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, or,
if at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
2
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its Vice
Chairman of the Board, its President or a Vice President, and by its Treasurer,
an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered
to the Trustee.
"Corporate Trust Office" means the principal office of the Trustee at
which at any particular time its corporate trust business shall be principally
administered, which office is, at the date of execution of this instrument,
located at _______________________.
"Corporation" means a corporation, association, company, joint-stock
company or business trust.
"default" for purposes of Sections and Section 310(b) and 315 of the
Trust Indenture Act is defined to mean an "Event of Default" as specified in
Section 501 hereof.
"Defaulted Interest" has the meaning specified in Section 310.
"Depositary" means, with respect to the Notes issuable or issued in
the form of a Global Security, the Person designated as a Depositary by the
Company pursuant to Section 301 until a successor Depositary shall have become
such pursuant to the applicable provision of this Indenture, and thereafter
"Depositary" shall mean or include each Person who is then a Depositary
hereunder and if at any time there is more than one such person acting
separately in respect of the 2004 Notes and the 2007 Notes, "Depositary" as used
with respect to the Notes shall mean each such Depositary.
"Entitled Persons" means any person entitled to payment pursuant to
the terms of Other Financial Obligations.
"Event of Default" has the meaning specified in Section 501.
"Excess Proceeds" has the meaning specified in Section 1115(c).
"FDIC" means the Federal Deposit Insurance Corporation, as from time
to time constituted, created under the Federal Deposit Insurance Improvement Act
of 1991, or if at any time after the execution of this instrument, such
corporation is not existing and performing the duties now assigned to it, then
the body performing such duties on such date, or any other successor to the
FDIC.
"Global Notes" means the 2004 Global Note and the 2007 Global Notes
together.
"Holder" means (i) in the case of any Certificated Note, the person
in whose name such Certificated Note is registered on the Note Registry, and
(ii) in the case of any Global Note, the Depositary.
3
"indebtedness for money borrowed" as used in the definitions of
"Senior Indebtedness" and "Other Financial Obligations" means any obligation of,
or any obligation guaranteed by, the Company for the repayment of borrowed
money, whether or not evidenced by bonds, debentures, notes or other written
instruments, and any deferred obligation for the payment of the purchase price
of property or assets.
"Indenture" means this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more indentures
supplemental hereto, entered into pursuant to the applicable provisions hereof.
"Interest Payment Date" means, when used with respect to any of the
2004 Notes or the 2007 Notes, the Stated Maturity of an installment of interest
on such Note.
"Issue Date" means with respect to the 2004 Notes or the 2007 Notes,
the date of initial issuance of such Notes.
"Maturity" means, when used with respect to any of the 2004 Notes or
the 2007 Notes, the date on which the principal of such Note or an installment
of principal becomes due and payable as therein or herein provided, whether at
the Stated Maturity or by declaration of acceleration or otherwise.
"Notes" has the meaning stated in the first recital of this
Indenture and more particularly means the 2004 Notes or the 2007 Notes
authenticated and delivered under this Indenture.
"Officers' Certificate" means a certificate signed by the Chairman
of the Board, a Vice Chairman of the Board, the President or a Vice President,
and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary, of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of legal counsel, who
may be either counsel to the Company or an employee of the Company, which
Opinion shall be reasonably satisfactory to the Trustee and which is delivered
to the Trustee.
"Other Financial Obligations" means all obligations of the Company
to make payment pursuant to the terms of financial instruments, such as (i)
securities contracts and foreign currency exchange contracts, (ii) derivative
instruments, such as swap agreements (including interest rate and foreign
exchange rate swap agreements), cap agreements, floor agreements, collar
agreements, interest rate agreements, foreign exchange rate agreements, options,
commodity futures contracts, commodity options contracts, and (iii) in the case
of both (i) and (ii) above, similar financial instruments, other than (A)
obligations on account of Senior Indebtedness and (B) obligations on account of
indebtedness for money borrowed ranking PARI PASSU with or subordinate to the
Securities.
"OTS" " means the Office of Thrift Supervision, as from time to time
constituted, created under the Home Owners' Loan Act, or if at any time after
the execution of instrument
4
such office is not existing and performing the duties now assigned to it, then
the body performing such duties on such date or any other successor to the OTS.
"Outstanding", when used with respect to the 2004 Notes or the 2007
Notes, means, as of the date of determination, all such Notes theretofore
authenticated and delivered under this Indenture, EXCEPT:
(i) Notes theretofore cancelled by the Trustee or delivered to the
Trustee for cancellation;
(ii) Notes or portions thereof for whose payment money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company or an Affiliate of the Company) in
trust or set aside and segregated in trust by the Company (if the Company
shall act as its own Paying Agent) for the Holders of such Notes; and
(iii) Notes in exchange for or in lieu of which other Notes have been
authenticated and delivered pursuant to this Indenture;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of the Outstanding Notes have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Notes owned by
the Company or any other obligor upon the Notes or any Affiliate of the Company
or of such other obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Notes which the Trustee knows to be so owned shall be so
disregarded. Notes 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 Notes and that the
pledgee is not the Company or any other obligor upon the Notes or any Affiliate
of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or premium, if any, or interest on any of the 2004 Notes or the
2007 Notes on behalf of the Company.
"Person" means any individual, corporation, partnership,
association, joint venture, joint stock company, Depositary institution, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Place of Payment", when used with respect to the Notes, unless
otherwise specified in a Board Resolution and in an Officers' Certificate, or in
a supplemental indenture hereto, means the office or agency of the Company in
the Borough of Manhattan, in the City of New York and State of New York, and
such other place or places, if any, where the principal of (and premium, if any)
and interest on the Notes are payable, as contemplated by Section 301.
5
"Predecessor Security" of any particular Note means every previous
Note evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 309 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Note shall be deemed to evidence the same
debt as the mutilated, destroyed, lost or stolen Note.
"Registered Note" means any Note that is registered as to principal
and interest, if any.
"Regular Record Date" for the interest payable on any Interest
Payment Date on any of the 2004 Notes or on the 2007 Notes means the date
specified in Section 310.
"Note Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Indebtedness" of the Company means the principal of,
premium, if any, and interest (including interest accruing subsequent to the
commencement of any proceeding for the bankruptcy or reorganization of the
Company under applicable bankruptcy, insolvency or similar law now or hereafter
in effect) on (a) all indebtedness of the Company for money borrowed, whether
outstanding on the date of execution of this Indenture or thereafter created,
assumed or incurred, except such indebtedness as is by its terms expressly
stated to be not superior in right of payment to the Notes or to rank PARI PASSU
with or subordinate to the Notes, and (b) any deferrals, renewals or extensions
of any such indebtedness for money borrowed.
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 310.
"Stated Maturity" means, when used with respect to any of the 2004
Notes or the 2007 Notes or any installment of principal thereof or interest
thereon, the date specified in such Note as the fixed date on which the
principal of such Note or such installment of principal or interest is due and
payable.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended by the Trust Indenture Reform Act of 1990 as in force at the date as of
which this instrument was executed; PROVIDED, HOWEVER, that in the event the
Trust Indenture Act is amended after such date, "Trust Indenture Act" means, to
the extent required by any such amendment, the Trust Indenture Act as so
amended.
"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 either the 2004 Notes or the 2007 Notes, shall mean the Trustee with
respect to such Notes.
6
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
"2004 Global Note" has the meaning set forth in Section 201(c)(i)
hereof.
"2007 Global Note" has the meaning set forth in Section 201(c)(ii)
hereof.
"2004 Note" has the meaning set forth in the first recital hereof.
"2007 Note" has the meaning set forth in the first recital hereof.
"2004 Certificated Note" has the meaning set forth in Section
201(c)(i) hereof.
"2007 Certificated Note" " has the meaning set forth in Section
201(c)(ii) hereof.
Section 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee to
take any action under any of the provisions of this Indenture, the Company shall
furnish to the Trustee an Officers' Certificate stating that all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any provision
of this Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he or
she has made such examination or investigation as is necessary to enable
him or her to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
7
Section 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by or covered by the opinion of only one such Person,
or that they be so certified or covered by only one document, but one such
Person may certify or give an opinion with respect to some matters and one or
more other such Persons as to other matters, and any such Person may certify or
give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of
or representations by counsel, unless such officer knows or in the exercise of
reasonable care should know that the certificate or opinion or representations
with respect to the matters upon which his or her certificate or opinion is
based 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 stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows or in the exercise of reasonable care should
know that the certificate or opinion or representations with respect to such
matters 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 104. ACTS OF HOLDERS; RECORD DATES.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) 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 a certificate of a 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 signer acting in a capacity other than his or her individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his or her authority. The fact and date of the execution of any such
instrument or writing, or the authority of the
8
Person executing the same, may also be proved in any other manner which the
Trustee deems sufficient.
(c) The Company may set any day as the record date for the purpose
of determining, as applicable, the Holders of Outstanding 2004 Notes or 2007
Notes entitled to make any request or demand, or give any authorization,
direction, notice, consent or waiver, or take other action, provided or
permitted by this Indenture to be made, given or taken by Holders of such Notes.
With regard to any record date set pursuant to this paragraph, the
Holders of Outstanding Notes on such record date (or their duly appointed
agents), and only such Persons, shall be entitled to take relevant action,
whether or not such Holders remain Holders after such record date. With regard
to any action that may be taken hereunder only by Holders of a requisite
principal amount of Outstanding Notes (or their duly appointed agents) and for
which a record date is set pursuant to this paragraph, the Company may, at its
option , set an expiration date after which no such action purported to be taken
by any Holder shall be effective hereunder unless taken on or prior to such
expiration date by Holders of the requisite principal amount of Outstanding
Notes on such record date (or their duly appointed agents). On or prior to any
expiration date set pursuant to this paragraph, the Company may, on one or more
occasions at its option, extend such expiration date to any later date. Nothing
in this paragraph shall prevent any Holder (or any duly appointed agent thereof)
from taking at any time any action contrary to or different from any action
previously taken or purported to have been taken hereunder by such Holder, in
which event the Company may set a record date in respect thereof pursuant to
this paragraph. Notwithstanding the foregoing or the Trust Indenture Act, the
Company shall not set a record date for, and the provisions of this paragraph
shall not apply with respect to, any action to be taken by Holders pursuant to
Section 501, 502 or 512.
Upon receipt by the Trustee of notice of any default described in
Section 501, any declaration of acceleration, or any rescission and annulment of
any such declaration, pursuant to Section 502 or of any direction in accordance
with Section 512, a record date shall automatically and without any other action
by any Person be set for the purpose of determining the Holders of Outstanding
2004 Notes or 2007 Notes entitled to join in such notice, declaration, or
rescission and annulment, or direction, as the case may be, which record date
shall be the close of business on the day the Trustee receives such notice,
declaration, rescission and annulment or direction, as the case may be. The
Holders of Outstanding Notes on such record date (or their duly appointed
agent), and only such Persons, shall be entitled to join in such notice,
declaration, rescission and annulment, or direction, as the case may be, whether
or not such Holders remain Holders after such record date; PROVIDED THAT, unless
such notice, declaration, rescission and annulment, or direction, as the case
may be, shall have become effective by virtue of Holders of the requisite
principal amount of Outstanding Notes on such record date (or their duly
appointed agents) having joined therein on or prior to the 90th day after such
record date, such notice of default, declaration, or rescission and annulment or
direction given or made by the Holders, as the case may be, shall automatically
and without any action by any Person be canceled and of no further effect.
Nothing in this paragraph shall prevent a Holder (or a duly appointed agent
thereof) from giving, before or after the expiration of such 90-day period, a
notice of default, a declaration of
9
acceleration, a rescission and annulment of a declaration of acceleration or a
direction in accordance with Section 512, contrary to or different from, or,
after the expiration of such period, identical to, a previously given notice,
declaration, rescission and annulment, or direction, as the case may be, that
has been canceled pursuant to the proviso to the preceding sentence, in which
event a new record date in respect thereof shall be set pursuant to this
paragraph.
(d) The ownership of Notes shall be proved by the Note Register.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Note shall bind every future Holder of
the same Note and the Holder of every Note issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such Note.
Section 105. NOTICES, ETC., TO TRUSTEE AND COMPANY.
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 or by the Company 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: Corporate Trust
Services, ______________________________
__________________________________________________ or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the
first paragraph of this instrument to the attention of the Office of the
Secretary or at any other address previously furnished in writing to the
Trustee by the Company.
Section 106. 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 his address as it appears in the Note Register, not
later than the latest date (if any), and not earlier than the earliest date (if
any), 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.
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In case by reason of the suspension of regular mail service or by reason of any
other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.
Section 107. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with another
provision hereof that is required under the Trust Indenture Act to be included
in this Indenture by any of the provisions of such Act, such required provision
shall control. If any provision of this Indenture modifies or excludes any
provision of the Trust Indenture Act that may be so modified or excluded, such
provision of the Act as so modified or excluded, as the case may be, shall be
deemed to apply to this Indenture.
Section 108. 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 109. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
Section 110. SEVERABILITY CLAUSE.
In case any provision in this Indenture or in the Notes 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 111. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Notes, express or implied, shall
give to any Person, other than the parties hereto and their successors hereunder
and the Holders, and, subject to Section 907, holders of Senior Indebtedness or
Entitled Persons in respect of Other Financial Obligations, any benefit or any
legal or equitable right, remedy or claim under this Indenture.
Section 112. GOVERNING LAW.
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE
TO BE PERFORMED IN SAID STATE.
Section 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Stated Maturity or any
other payment date of any of the 2004 Notes or the 2007 Notes shall not be a
Business Day at the
11
Place of Payment of such Note at which such Note is presented for payment, then
(notwithstanding any other provision of this Indenture or of the Notes, payment
of interest on or principal and premium, if any, of such Notes need not be made
at such Place of Payment on such date, but may be made on the next succeeding
Business Day at such Place of Payment with the same force and effect as if made
on such payment date and no interest shall accrue for the period from and after
such payment date.
ARTICLE TWO
FORM OF NOTES
Section 201. FORM AND DATING
(a) (i) The Global and Certificated Notes and the certificate of
authentication of the Trustee thereon with respect to the 2004 Notes shall be
substantially in the forms of Exhibit A or Exhibit B hereto, respectively, which
are hereby incorporated in and expressly made a part of this Indenture.
(ii) The Global and Certificated Notes and the certificate of
authentication of the Trustee thereon with respect to the 2007 Notes shall be
substantially in the forms of Exhibit C or Exhibit D hereto, respectively, which
are hereby incorporated in and expressly made a part of this Indenture.
(b) The Notes may have such letters, numbers or other marks of
identification and such legends and endorsements, stamped, printed, lithographed
or engraved thereon, (i) as the Company may deem appropriate and as are not
inconsistent with the provisions of this Indenture, (ii) such as may be required
to comply with this Indenture, any law or any rule of any securities exchange on
which the Notes may be listed and (iii) such as may be necessary to conform to
customary usage. Each Note shall be dated the date of its authentication by the
Trustee. The Notes shall be issued only in fully registered form, without
coupons, in denominations of $1,000 and integral multiples thereof.
(c) (i) The 2004 Notes shall be issued initially in the form of one
global note substantially in the form of Exhibit A hereto (a "2004 Global
Note"). Upon issuance, such Global Note shall be duly executed by the Company
and authenticated by the Trustee as hereinafter provided and deposited with the
Trustee as custodian for the Depositary and registered in the name of Cede &
Co., as nominee of the Depositary (such nominee being referred to as the "2004
Global Note Holder"). The 2004 Global Note may be exchanged for securities in
definitive form substantially in the form of Exhibit B hereto ("2004
Certificated Notes") pursuant to Section 308 hereof. Upon issuance, any
Certificated Note shall be duly executed by the Company and authenticated by the
Trustee as hereinafter provided.
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(ii) The 2007 Notes shall be issued initially in the form of one global
note substantially in the form of Exhibit C hereto (a "2007 Global Note"). Upon
issuance, such Global Note shall be duly executed by the Company and
authenticated by the Trustee as hereinafter provided and deposited with the
Trustee as custodian for the Depositary and registered in the name of Cede &
Co., as nominee of the Depositary (such nominee being referred to as the "2007
Global Note Holder"). The 2007 Global Note may be exchanged for securities in
definitive form substantially in the form of Exhibit D hereto (" 2007
Certificated Notes") pursuant to Section 308 hereof. Upon issuance, any
Certificated Note shall be duly executed by the Company and authenticated by the
Trustee as hereinafter provided.
(d) Each Global Note shall bear the following legend on the face
thereof:
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY TO BANK UNITED CORP. OR THE REGISTRAR FOR
REGISTRATION OF TRANSFER OR EXCHANGE AND ANY NOTE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR SUCH OTHER ENTITY AS HAS BEEN REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS HAS BEEN REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
TRANSFER OF THIS NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, AND
NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF INTERESTS IN THIS
NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN SECTION 308 OF THE INDENTURE DATED AS OF
____________, 1997, BETWEEN BANK UNITED CORP., AS ISSUER, AND THE TRUSTEE
NAMED THEREIN, PURSUANT TO WHICH THIS NOTE WAS ISSUED.
(e) Definitive Notes shall be typed, printed, lithographed or
engraved or produced by any combination of such methods or produced in any other
manner permitted by the rules of any securities exchange on which such Notes may
be listed, all as determined by the officers of the Company executing such
Notes, as evidenced by their execution of such Notes.
ARTICLE THREE
THE NOTES
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Section 301. TITLE AND TERMS.
The aggregate principal amount of 2004 Notes and 2007 Notes which
may be authenticated and delivered under this Indenture and Outstanding at any
time may not exceed $100,000,000 and $120,000,000, respectively, except for
Notes authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other 2004 Notes or 2007 Notes pursuant to Sections
304, 305, 309 or 906.
The 2004 Notes and the 2007 Notes shall each be issued in a single
series, known and designated, respectively, as the __% Subordinated Notes due
2004, and the __% Subordinated Notes due 2007. The Stated Maturity for the
payment of principal of (a) the 2004 Notes shall be _______, 2004, which Notes
shall bear interest at a rate of ____% per annum from the Issue Date, and (b)
the 2007 Notes shall be ______________, 2007, which Notes shall bear interest at
__% per annum from the Issue Date, or from the most recent Interest Payment Date
to which interest has been paid thereon or duly provided for, payable
semiannually on ___ __ and ______ __ of each year (commencing ____ __, 1997)
until the principal thereof is paid or duly provided for.
The principal of (premium, if any,) and interest on the Notes shall
be payable at the office or agency of the Company in the Borough of Manhattan,
The City of New York, maintained for such purpose and at any other office or
agency maintained by the Company for such purpose; PROVIDED, HOWEVER, that
interest may be payable at the option of the Company by check mailed to the
address of the person entitled thereto as such address shall appear on the Note
Register.
Section 302. AUTHORIZED DENOMINATIONS.
The Notes shall be issuable in denominations of $1,000 and any
integral multiple thereof.
Section 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Notes shall be executed on behalf of the Company by its Chairman
of the Board, its President, a Vice Chairman or one of its Vice Presidents,
under its corporate seal reproduced or imprinted on the Notes by facsimile or
otherwise, and shall be attested by the Company's Secretary or one of its
Assistant Secretaries, in each case by manual or facsimile signature.
In the event that any of the Notes shall have been signed (either
manually or by facsimile) by a Person that shall have ceased to be an
appropriate officer of the Company before any such Note shall have been
authenticated and delivered by the Trustee, or disposed of by the Company, such
Notes nevertheless may be authenticated and delivered or disposed of as though
the Person who signed such Notes had not ceased to be such appropriate officer
of the Company, and any Note may be signed on behalf of the Company by such
Persons as, at the actual time of execution of such Note, shall be the proper
officers of the Company, although at the date of such Note or of the execution
of this instrument such Person was not such officer.
14
The Trustee shall, upon receipt of a Company Order requesting such
action, authenticate Notes for original issue up to the aggregate principal
amount not to exceed $100,000,000 Outstanding in respect of the 2004 Notes at
any given time in the form of a Global Note, and $120,000,000 Outstanding in
respect of the 2007 Notes at any given time in the form of a Global Note.
Upon the occurrence of any event specified in Section 308(a) hereof,
the Company shall execute and the Trustee shall authenticate and make available
for delivery to each beneficial owner identified by the Depositary, in exchange
for such beneficial owner's interest in the 2004 Global Note and in the 2007
Global Note, Certificated Notes representing Notes theretofore represented by
such Global Note.
At any time after the execution and delivery of this Indenture, the
Company may deliver Notes executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Notes; and the Trustee in accordance with such Company Order
shall authenticate such Notes by manual signature of an authorized signatory of
the Trustee and deliver such Notes as in this Indenture provided and not
otherwise. The Notes shall not be valid for any purpose unless so authenticated.
A Note shall not be valid or entitled to any benefit under this
Indenture or obligatory for any purpose unless executed and issued by the
Company and authenticated by the manual signature of the Trustee as provided
herein. The signature of the Trustee shall be conclusive evidence, and the only
evidence, that the Note has been authenticated and delivered under this
Indenture and is entitled to the benefits of this Indenture.
Notwithstanding the foregoing, if any Note shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Note to the Trustee for cancellation as
provided in Section 312 together with a written statement (which need not comply
with Section 103 and need not be accompanied by an Opinion of Counsel) stating
that such Note has never been issued and sold by the Company, for all purposes
of this Indenture such Note shall be deemed never to have been authenticated and
delivered hereunder and shall not be entitled to the benefits of this Indenture.
Section 304. TEMPORARY NOTES.
Pending the preparation of definitive Notes, the Company may
execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Notes which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially of the tenor
of the definitive Notes in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Notes may determine, as evidence execution of such
Notes.
If temporary Notes are issued, the Company will cause definitive
Notes to be prepared without unreasonable delay. After the preparation of
definitive Notes, the temporary Notes shall be exchangeable for definitive Notes
upon surrender of the temporary Notes at the office or agency of the Company in
a Place of Payment, without charge to the Holder. Upon
15
surrender for cancellation of any one or more temporary Notes the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor one
or more definitive Notes, of any authorized denominations and of a like
aggregate principal amount and tenor. Until so exchanged the temporary Notes
shall in all respects be entitled to the same benefits under this Indenture as
definitive Notes and tenor.
Section 305. REGISTRAR AND PAYING AGENT.
The Company shall maintain, pursuant to Section 1002 hereof, an
office or agency where the Notes may be presented for registration of transfer
or for exchange (the "Registrar"), an office or agency where Notes may be
presented for payment (the "Paying Agent") and an office or agency where notices
and demands to or upon the Company in respect of the Notes and this Indenture
may be served.
The Company shall cause to be kept at such office a register (the
register maintained in such office and in any other office or agency of the
Company in a Place of Payment being herein sometimes collectively referred to as
the "Note Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Notes and of
transfers of Notes entitled to be registered or transferred as provided herein.
The Trustee, at its Corporate Trust Office, is initially appointed Registrar for
the purpose of registering Notes and transfers of Notes as herein provided. The
Company may, upon written notice to the Trustee, change the designation of the
Trustee as Registrar and appoint another Person to act as Registrar for purposes
of this Indenture. If any Person other than the Trustee acts as Registrar, the
Trustee shall have the right at any time, upon reasonable notice, to inspect or
examine the Note Register and to make such inquiries of the Registrar as the
Trustee shall in its discretion deem necessary or desirable in performing its
duties hereunder.
The Company shall enter into an appropriate agency agreement with
any Person designated by the Company as Registrar or Paying Agent that is not a
party to this Indenture, which agreement shall incorporate the provisions of the
Trust Indenture Act and shall implement the provisions of this Indenture that
relate to such Registrar or Paying Agent. Prior to the designation of any such
Person, the Company shall, by written notice (which notice shall include the
name and address of such Person), inform the Trustee of such designation. The
Trustee, at its Corporate Trust Office, is initially appointed Paying Agent
under this Indenture. If the Company fails to maintain a Registrar or Paying
Agent, the Trustee shall act as such.
All Notes issued upon any registration of transfer or exchange of
Notes shall be the valid obligations of the Company, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Notes surrendered
upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Note Register duly executed, by the Holder
thereof or his attorney duly authorized in writing.
16
No service charge shall be made for any registration of transfer or
exchange of Notes, 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 registration of transfer or exchange of Notes, other than exchanges
pursuant to Section 304 or 906 not involving any transfer.
SECTION 306. PAYING AGENT TO HOLD MONEY IN TRUST. On or prior to
each due date of the principal, premium, or any payment of interest with respect
to any Note, the Company shall deposit with the Paying Agent a sum sufficient to
pay such principal, premium or interest when so becoming due.
The Company shall require each Paying Agent (other than the Trustee)
to agree in writing that such Paying Agent shall hold in trust for the benefit
of Holders or the Trustee all money held by such Paying Agent for the payment of
principal, premium and interest with respect to the Notes, shall notify the
Trustee of any default by the Company in making any such payment and at any time
during the continuance of any such default, upon the written request of the
Trustee, shall forthwith pay to the Trustee all sums held in trust by such
Paying Agent.
The Company at any time may require a Paying Agent to pay all money
held by it to the Trustee and to account for any funds disbursed by such Paying
Agent. Upon complying with this Section 306, the Paying Agent shall have no
further liability for the money delivered to the Trustee.
SECTION 307. GLOBAL NOTES. (a) So long as the Global Notes are
registered in the name of the Depositary or its nominee, members of, or
participants in, the Depositary ("Agent Members") shall have no rights under
this Indenture with respect to the Global Notes held on their behalf by the
Depositary or the Trustee as its custodian, and the Depositary may be treated by
the Company, the Trustee and any agent of the Company or the Trustee as the
absolute owner of such Global Notes for all purposes. Notwithstanding the
foregoing, nothing herein shall (i) prevent the Company, the Trustee or any
agent of the Company or the Trustee, from giving effect to any written
certification, proxy or other authorization furnished by the Depositary or (ii)
impair, as between the Depositary and its Agent Members, the operation of
customary practices governing the exercise of the rights of a Holder of Notes.
(b) The Holder of each Global Note may grant proxies and otherwise
authorize any Person, including Agent Members and Persons that may hold
interests in such Global Note through Agent Members, to take any action which a
Holder of Notes is entitled to take under this Indenture or the Notes.
SECTION 308. TRANSFER AND EXCHANGE. (a) The Global Notes shall be
exchanged by the Company for Certificated Notes if (i) the Depositary (A) has
notified the Company that it is unwilling or unable to continue as, or ceases to
be, a clearing agency registered under Section 17A of the Exchange Act and (B) a
successor to the Depositary registered as a clearing agency under Section 17A of
the Exchange Act is not able to be appointed by the Company within 90 calendar
days or (ii) the Depositary is at any time unwilling or unable to continue as
Depositary and a successor to the Depositary is not able to be appointed by the
Company within 90 calendar
17
days. If an Event of Default occurs and is continuing, the Company shall, at the
request of the Holder of each Global Note, exchange all or part of such Global
Note for one or more Certificated Notes; PROVIDED THAT the principal amount of
each of such Certificated Notes, and such Global Note, after such exchange,
shall be $1,000 or an integral multiple thereof. Whenever the Global Notes are
exchanged as a whole for Certificated Notes such Global Notes shall be
surrendered by the Holder thereof to the Trustee for cancellation. Whenever the
Global Notes are exchanged in part for one or more Certificated Notes pursuant
to this Section 308(c), it shall be surrendered by the Holder thereof to the
Trustee and the Trustee shall make the appropriate notations thereon pursuant to
Section 307(a) hereof. All Certificated Notes issued in exchange for Global
Notes or any portion thereof shall be registered in such names, and delivered,
as the Depositary shall instruct the Trustee.
(h) A Holder may transfer a Note only upon the surrender of such
Note for registration of transfer. No such transfer shall be effected until, and
the transferee shall succeed to the rights of a Holder only upon, final
acceptance and registration of the transfer in the Note Register by the
Registrar. When Notes are presented to the Registrar with a request to register
the transfer of, or to exchange, such Notes, the Registrar shall register the
transfer or make such exchange as requested if its requirements for such
transactions and any applicable requirements hereunder are satisfied. To permit
registrations of transfers and exchanges, the Company shall execute and the
Trustee shall authenticate Certificated Notes at the Registrar's request.
(i) No service charge shall be made for any registration of transfer
or exchange of Notes, but the Company may require payment by Holders of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer of Notes.
(j) All Notes issued upon any registration of transfer or exchange
pursuant to the terms of this Indenture will evidence the same debt and will be
entitled to the same benefits under this Indenture as the Notes surrendered for
such registration of transfer or exchange.
(k) Any Holder of a Global Note shall, by acceptance of such Global
Note, agree that transfers of beneficial interests in such Global Note may be
effected only through a Book Entry system maintained by such Holder (or its
agent), and that ownership of a beneficial interest in the Notes represented
thereby shall be required to be reflected in Book Entry form. Transfers of a
Global Note shall be limited to transfers in whole and not in part, to the
Depositary, its successors, and their respective nominees. Interests of
beneficial owners in a Global Note shall be transferred in accordance with the
rules and procedures of the Depositary (or its successors).
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Section 309. MUTILATED, DESTROYED, LOST AND STOLEN NOTES.
If any mutilated Note is surrendered to the Trustee, the Company
shall execute and upon its written request the Trustee shall authenticate and
make available for delivery, in exchange for any such mutilated Note, a new Note
containing identical provisions and of like principal amount, bearing a number
not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Note and
(ii) such Note or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Note has been acquired by a bona fide
purchaser, the Company shall execute and upon the Company's request the Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen
Note, a new Note of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Note has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Note, pay such Note.
Upon the issuance of any new Note 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 2004 or 2007 Note issued pursuant to this Section in lieu
of any such destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Note 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 2004 Notes or 2007 Notes, as the case may be, 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 Notes.
Section 310. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Interest on any Note 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 Note is registered at the close of business on the Regular
Record Date for such interest, which shall be _____ __ or ____ __ (whether or
not a Business Day) immediately preceding such Interest Payment Date.
Any interest on any Note which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be payable to the 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:
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(1) The Company may elect to make payment of any Defaulted Interest
and any interest payable on such Defaulted Interest to the Persons in
whose names the Notes 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
Note 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 Notes at his or her or its
address as it appears in the Note Register, not less than 10 days prior to
such Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so mailed, such
Defaulted Interest shall be paid to the Persons in whose names the Notes
are registered at the close of business 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, and any
interest payable on such Defaulted Interest, on the Notes in any other
lawful manner not inconsistent with the requirements of any securities
exchange on which such Notes may be listed, and upon such notice as may be
required by such exchange, if, after notice given by the Company to the
Trustee of the proposed payment pursuant to this Clause, such manner of
payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Note
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Note shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Note.
Section 311. PERSONS DEEMED OWNERS.
Prior to due presentment for registration of transfer of any Note,
the Company, the Trustee, the Paying Agent, the Registrar or any co-registrar
may deem or treat the Person in whose name a Note is registered as the absolute
owner of such Note for the purpose of receiving payment of principal of and any
premium and any interest on such Note and for all other purposes whatsoever,
whether or not such Note be overdue, and none of the Company, the Trustee, the
Paying Agent, the Registrar or any co-registrar shall be affected by notice to
the contrary.
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Section 312. CANCELLATION.
All Notes surrendered for payment, registration of transfer or
exchange shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee and, if not already cancelled, shall be promptly
cancelled by it. The Company may at any time deliver to the Trustee for
cancellation any Note previously authenticated and delivered hereunder which the
Company may have acquired in any manner whatsoever, and may deliver to the
Trustee (or to any other Person for delivery to the Trustee) for cancellation
any Notes previously authenticated hereunder which the Company has not issued
and sold, and all Notes so delivered shall be promptly cancelled by the Trustee.
No Notes shall be authenticated in lieu of or in exchange for any Notes
cancelled as provided in this Section, except as expressly permitted by this
Indenture. All cancelled Notes held by the Trustee shall be disposed of as
directed by a Company Order.
If the Company shall acquire any of the Notes, such acquisition
shall not operate as a satisfaction of the indebtedness represented by such
Notes unless and until the same are delivered to the Trustee cancelled or for
cancellation.
Section 313. COMPUTATION OF INTEREST.
Interest on the Notes shall be computed on the basis of a 360-day year of
twelve 30-day months.
Section 314. CUSIP NUMBER
The Company, in issuing either 2004 Notes or 2007 Notes, may use a
"CUSIP" number and, if so, the Trustee shall use the CUSIP number in any notice
to Holders as a convenience to such Holders PROVIDED THAT any such notice may
state that no representation is made as to the correctness or accuracy of the
CUSIP number printed in the notice or on the Notes and that reliance may be
placed only on the other identification numbers printed on the Notes. The
Trustee shall promptly notify the Trustee of any change in CUSIP number.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. 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 Notes herein expressly provided for), and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(1) either
(A) all Notes theretofore authenticated and delivered (other
than (i) Notes which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 309 and (ii) Notes
for whose payment money has
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theretofore been deposited in trust or segregated and held in trust
by the Company and thereafter repaid to the Company or discharged
from such trust, as provided in Section 1003) have been delivered to
the Trustee cancelled or for cancellation; or
(B) the Company has deposited or caused to be deposited with
the Trustee as trust funds in trust an amount of money sufficient to
pay and discharge the entire indebtedness on such Notes not
theretofore delivered to the Trustee cancelled or for cancellation,
for principal (and premium, if any) and interest to the date of such
deposit (in the case of Notes which have become due and payable) or
to the Stated Maturity, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been complied
with.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Company to the Trustee under Section 607, the
obligations of the Company to any Authenticating Agent under Section
614 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 402 and the last paragraph
of Section 1003 shall survive.
Section 402. APPLICATION OF TRUST MONEY.
Subject to provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Notes and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and any premium and
interest for whose payment such money has been deposited with the Trustee.
ARTICLE FIVE
REMEDIES
Section 501. EVENTS OF DEFAULT.
"Event of Default", wherever used herein with respect to the 2004
Notes and the 2007 Notes, 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
22
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(1) a decree or order by a court having jurisdiction in the premises
shall have been entered adjudging the Company a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization of the
Company under the Federal Bankruptcy Act or any other similar applicable
federal or state law, and such decree or order shall have continued
undischarged and unstayed for a period of 60 days; or a decree or order of
a court having jurisdiction in the premises for the appointment of a
receiver or liquidator or trustee or assignee in bankruptcy or insolvency
of the Company or substantially all of its property, or for the winding up
or liquidation of its affairs, shall have been entered, and such decree or
order shall have continued undischarged and unstayed for a period of 60
days; or
(2) the Company shall institute proceedings to be adjudicated a
bankrupt, or shall consent to the filing of a bankruptcy proceeding
against it, or shall file a petition or answer or consent seeking
reorganization under the Federal Bankruptcy Act or any other similar
applicable federal or state law, or shall consent to the filing of any
such petition, or shall consent to the appointment of a receiver or
liquidator or trustee or assignee in bankruptcy or insolvency of it or
substantially all of its property or shall make an assignment for the
benefit of creditors; or
(3) the entry by a court or supervisory authority having
jurisdiction in the premises and applying any federal or state bankruptcy,
insolvency, reorganization or other similar law or regulation of (a) a
decree or order for relief in respect of the Bank in an involuntary case
or proceeding or (b) a decree or order adjudging the Bank a bankrupt or
insolvent, or approving as properly filed, a petition seeking
reorganization, arrangement, adjustment or composition of, or in respect
of, the Bank, or ordering that a receiver, liquidator, assignee,
custodian, trustee, conservator, sequestrator or other similar official
shall be appointed as to, or take possession of, the Bank or any
substantial part of its property without its consent, or ordering the
winding up or liquidation of the affairs of the Bank, and the continuance
of any such decree or order unstayed and in effect for a period of 60
consecutive days; or
(4) the commencement by the Bank of a voluntary case under any
applicable Federal or state bankruptcy, insolvency or other similar law,
or the consent by it to the entry of an order for relief in an involuntary
case under any such law or to the appointment of a receiver, liquidator,
assignee, custodian, trustee, sequestrator (or other similar official) of
the Bank or of any substantial part of its property, or the making by it
of an assignment for the benefit of creditors, or the admission by it in
writing of its inability to pay its debts generally as they become due, or
the taking of corporate action by the Bank in furtherance of any action;
or
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(5) The FDIC or any successor thereto shall be appointed by any court or
the OTS or any successor thereto to act as conservator, liquidator,
receiver or other legal custodian for the Bank.
Section 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default with respect to Notes at the time Outstanding
occurs and is continuing, then in every such case the Trustee or the Holders of
not less than 25% in principal amount of the Outstanding Notes may declare the
unpaid principal of (and premium, if any), PLUS accrued and unpaid interest on
all of the Notes then Outstanding to be immediately due and payable, by a notice
in writing to the Company (and to the Trustee if given by Holders), and upon any
such declaration such principal amount (and premium, if any) and accrued
interest shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Notes has been made and before a judgment or decree for payment of the money due
has been obtained by the Trustee as hereinafter in this Article provided, the
Holders of a majority in principal amount of the Outstanding Notes, by written
notice to the Company and the Trustee, may rescind and annul such declaration
and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Notes,
(B) the principal of (and premium, if any, on) any Notes which
have become due otherwise than by such declaration of acceleration
and any interest thereon at the rate or rates prescribed therefor in
such Notes,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Notes, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Notes, other than the
non-payment of the principal of Notes which have become due solely by such
declaration of acceleration, have been cured or waived as provided in
Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
The Company covenants that if
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(1) default is made in the payment of any interest on any Note when
such interest becomes due and payable and such default continues for a
period of 30 days, or
(2) default is made in the payment of the principal of (or premium,
if any, on) any Note at the Maturity thereof,
the Company shall, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Notes, the whole amount then due and payable on such Notes for
principal and any premium and interest and, to the extent that payment of such
interest shall be legally enforceable, interest on any overdue principal and
premium and on any overdue interest, at the rate or rates prescribed therefor in
such Notes; and, in addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Notes and collect the moneys
adjudged or decreed to be payable in the manner provided by law out of the
Property of the Company or any other obligor upon such Notes, wherever situated.
If an Event of Default with respect to Notes occurs and is
continuing, the Trustee may in its discretion, subject to applicable law,
proceed to protect and enforce its rights and the rights of the Holders of Notes
under this Indenture 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 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of any judicial proceeding relative to the Company (or any
other obligor upon the Notes), its property or its creditors, the Trustee shall
be entitled and empowered, by intervention in such proceeding or otherwise, to
take any and all actions authorized under the Trust Indenture Act in order to
have claims of the Holders and the Trustee allowed in any such proceeding. 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; and any custodian, receiver, assignee, trustee, liquidator, sequestrator
or other similar official in any such judicial proceeding is hereby authorized
by each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607.
No provision of this Indenture 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,
25
arrangement, adjustment or composition affecting the Notes or the rights of any
Holder thereof or to authorize the Trustee to vote in respect of the claim of
any Holder in any such proceeding.
Section 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF NOTES.
All rights of action and claims under this Indenture or the Notes
may be prosecuted and enforced by the Trustee without the possession of any of
the Notes or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders of the Notes in respect of which such judgment has been recovered.
Section 506. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or any premium
or interest, upon presentation of the Notes 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 under Section
607;
SECOND: to the payment of the amounts then due and unpaid for
principal of and any premium and interest on the Notes 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 Notes for principal and any premium and interest,
respectively; and
THIRD: the balance, if any, to the Company.
Section 507. LIMITATION ON SUITS.
No Holder of any Note shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Notes;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Notes 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;
26
(4) the Trustee for 30 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 30-day period by the Holders of a
majority in principal amount of the Outstanding Notes;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
Section 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM
AND INTEREST.
Notwithstanding any other provision in this Indenture, the Holder of
any Note shall have the right, which is absolute and unconditional, to receive
payment of the principal of and any premium and (subject to Section 310) any
interest on such Note on the Stated Maturity or Maturities expressed in such
Note and to institute suit for the enforcement of any such payment, and such
rights shall not be impaired without the consent of such Holder.
Section 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
Section 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Notes in the last paragraph of
Section 309, 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.
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Section 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Notes 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 may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
Section 512. CONTROL BY HOLDERS.
The Holders of a majority in principal amount of the Outstanding
Notes 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 Notes, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
(2) the Trustee shall not determine that the action so directed would
be unjustly prejudicial to Holders not taking part in such direction, and
(3) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Section 513. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in principal amount of the
Outstanding Notes may on behalf of the Holders of all the Notes waive any past
default hereunder and its consequences, except a default
(1) in the payment of the principal of or any premium, if any, or
interest on any Note, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Note.
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 514. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may
28
require any party litigant in such suit to file an undertaking to pay the costs
of such suit, and may assess costs against any such party litigant, in the
manner and to the extent provided in the Trust Indenture Act; provided that
neither this Section nor the Trust Indenture Act shall be deemed to authorize
any court to require such an undertaking or to make such an assessment in any
suit instituted by the Company.
Section 515. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that 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 SIX
THE TRUSTEE
Section 601. CERTAIN DUTIES AND RESPONSIBILITIES.
The duties and responsibilities of the Trustee shall be as provided
by the Trust Indenture Act. Notwithstanding the foregoing, 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 it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it. 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 602. NOTICE OF DEFAULTS.
If an Event of Default or a default in the performance and
observance of any of the terms, provisions and conditions of this Indenture
occurs hereunder with respect to the Notes, the Trustee shall give the Holders
of Outstanding Notes notice of such default as and to the extent provided by the
Trust Indenture Act.
Section 603. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 601:
(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, note, other evidence of indebtedness
29
or other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written 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 Note 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, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney;
(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; and
(h) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the
direction of the Holders of a majority in principal amount of the
Outstanding Notes 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.
30
Section 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF NOTES.
The recitals contained herein and in the Notes, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and the Trustee or any Authenticating Agent assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Notes. The Trustee or any Authenticating
Agent shall not be accountable for the use or application by the Company of
Notes or the proceeds thereof.
Section 605. MAY HOLD NOTES.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Notes and, subject to
Sections 608 and 613, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
Section 606. 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.
Section 607. COMPENSATION AND REIMBURSEMENT.
The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify the Trustee for, and to hold it harmless against,
any loss, liability or expense incurred without negligence or bad faith on
its part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and
expenses of defending itself against any claim or liability in connection
with the exercise or performance or any of its powers or duties hereunder.
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Section 608. DISQUALIFICATION; CONFLICTING INTERESTS.
If the Trustee has or shall acquire a conflicting interest within
the meaning of Section 310(b) of the Trust Indenture Act, the Trustee shall
either eliminate such interest or resign, to the extent and in the manner
provided by, and subject to the provisions of, the Trust Indenture Act and this
Indenture.
Section 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be a
Person that is eligible pursuant to the Trust Indenture Act to act as such and
has a combined capital and surplus of at least $50,000,000. If such Person
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 Person shall be deemed
to be its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
Section 610. 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 in accordance with the
applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the Notes by
giving written notice thereof to the Company. If the instrument of acceptance by
a successor Trustee required by Section 611 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 Notes.
(c) The Trustee may be removed at any time with respect to the Notes
by Act of the Holders of a majority in principal amount of the Outstanding
Notes, delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after written
request therefor by the Company or by any Holder who has been a bona fide
Holder of a Note for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and
shall fail to resign after written request therefor by the Company or by
any such Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or
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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 by a Board Resolution may remove the
Trustee with respect to all Notes, or (ii) subject to Section 514, any Holder
who has been a bona fide Holder of a Note 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 Notes 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 Notes, the Company, by a Board Resolution, shall promptly appoint
a successor Trustee or Trustees with respect to the Notes (it being understood
that any such successor Trustee may be appointed with respect to the Notes and
that at any time there shall be only one Trustee with respect to the Notes and
shall comply with the applicable requirements of Section 611. If, within one
year after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Notes shall be appointed by Act
of the Holders of a majority in principal amount of the Outstanding Notes
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment in accordance
with the applicable requirements of Section 611, become the successor Trustee
with respect to the Notes and to that extent supersede the successor Trustee
appointed by the Company. If no successor Trustee with respect to the Notes
shall have been so appointed by the Company or the Holders and accepted
appointment in the manner required by Section 611, any Holder who has been a
bona fide Holder of a Note for at least six months may, 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 Notes.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Notes and each appointment of a
successor Trustee with respect to the Notes to all Holders of Notes in the
manner provided in Section 106. Each notice shall include the name of the
successor Trustee with respect to the Notes and the address of its Corporate
Trust Office.
Section 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Notes, every such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; but, on the request of the
Company or the successor Trustee, such retiring Trustee shall, upon payment of
its charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder.
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(b) In case of the appointment hereunder of a successor Trustee with
respect to the Notes, the Company, the retiring Trustee and such successor
Trustee shall execute and deliver an indenture supplemental hereto wherein such
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, such successor Trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Notes to which the appointment of such
successor Trustee relates (2) if the retiring Trustee is not retiring with
respect to all Notes, 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 Notes 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 Trustee's 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 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 Notes; but, on request of the
Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Notes to which the
appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (a) and (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
Section 612. 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 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 Notes 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 Notes so authenticated with the same effect as if
such successor Trustee had itself authenticated such Notes.
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Section 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee shall comply with the provisions of Section 311 of the
Trust Indenture Act.
Section 614. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint an Authenticating Agent or Agents with
respect to the Notes which shall be authorized to act on behalf of the Trustee
to authenticate Notes issued upon original issue and upon exchange or
registration of transfer or pursuant to Section 309, and Notes 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 Notes 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 and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and shall at all times
be a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than $50,000,000 and subject to supervision or examination
by Federal or State authority. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Authenticating Agent shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, such Authenticating
Agent shall resign immediately in the manner and with the effect specified in
this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, 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 and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. 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 shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of 2004
Notes and the 2007 Notes, as applicable, with respect to which such
Authenticating Agent will serve, as their names and addresses appear in the Note
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Register. 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 provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
__________________________ is initially designated as the
Authenticating Agent for the Notes.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
The Company will furnish or cause to be furnished to the Trustee,
not more than 60 days after each semi-annual interest payment, as the case may
be, where such interest payments are to be made, and at such other times as the
Trustee may request in writing, within 30 days after receipt by the Company of
any such request, a list in such form as the Trustee may reasonably require
containing all information in the possession or control of the Company, or any
of its paying agents other than the Trustee, as to the names and addresses of
the Holders of Notes obtained since the date as of which the next previous list,
if any, was furnished.
Section 702. 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 701 and the names
and addresses of Holders received by the Trustee in its capacity as Note
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) Holders may communicate as provided in Section 312(b) of the
Trust Indenture Act with other Holders with respect to their rights under this
Indenture or under the Notes.
(c) Every Holder of Notes agrees with the Company and the Trustee
that neither the Company nor the Trustee nor any agent of either of them shall
be held accountable by reason of any disclosure of information as to names and
addresses of Holders made pursuant to the Trust Indenture Act.
Section 703. REPORTS BY TRUSTEE.
(a) Within 60 days after _____ __ of each year commencing with the
year 1997, if and so long as any Notes shall be outstanding hereunder, the
Trustee shall transmit to Holders such reports as may be required pursuant to
Section 313 (a) of the Trust Indenture Act.
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(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which any Notes are listed, with the Commission and with the Company. The
Company will notify the Trustee when any Notes are listed on any stock exchange.
Section 704. REPORTS BY COMPANY.
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to Section 314 of the Trust
Indenture Act at the times and in the manner provided pursuant thereto; provided
that any such information, documents or reports required to be filed with the
Commission pursuant to Section 13 or 15(d) of the Notes Exchange Act of 1934
shall be filed with the Trustee within 15 days after the same is so required to
be filed with the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company covenants that it will not merge or consolidate with any
other corporation or sell or convey all or substantially all of its assets to
any person, firm or corporation, except that the Company may merge or
consolidate with, or sell or convey all or substantially all of its assets to,
any other corporation, PROVIDED that (i) either the Company shall be the
continuing corporation, or the successor corporation (if other than the Company)
shall be a corporation organized and existing under the laws of the United
States of America or a State thereof and such corporation shall expressly assume
the due and punctual payment of the principal of (and premium, if any) and
interest on all the Notes, according to their tenor, and the due and punctual
performance and observance of all of the covenants and conditions of this
Indenture to be performed by the Company by supplemental indenture in form
satisfactory to the Trustee, executed and delivered to the Trustee by such
corporation, and (ii) the Company or such successor corporation, as the case may
be, shall not, immediately after such merger or consolidation, or such sale or
conveyance, be in default in the performance of any such covenant or condition.
Section 802. SUCCESSOR SUBSTITUTED.
Upon any consolidation of the Company with, or merger of the Company
into, any other Person or any sale or conveyance of all or substantially all of
the assets of the Company in accordance with Section 801, the successor Person
formed by such consolidation or into which the Company is merged or to which
such sale or conveyance, is made shall succeed to, and be substituted for, and
may exercise every right and power of, the Company under this Indenture with the
same effect as if such successor Person had been named as the Company herein,
and thereafter, except in the case of a lease, the predecessor Person shall be
relieved of all obligations and covenants under this Indenture and the Notes.
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Section 803. OPINION OF COUNSEL TO TRUSTEE.
The Trustee, may receive and shall be fully protected in relying
upon an Opinion of Counsel stating that any such consolidation, merger, sale or
conveyance, and any such assumption, complies with the provisions of this
Article.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company, when authorized by
a Board Resolution, and the Trustee, at any time and from time to time, may
enter into one or more indentures supplemental hereto, in form satisfactory to
the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company
herein and in the Notes; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any of the Notes (and if such covenants are to be for
the benefit of less than all of the Notes, stating that such covenants are
expressly being included solely for the benefit of such Notes) or to
surrender any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default; or
(4) to provide for uncertificated Notes in addition to or in place of
Certificated Notes; or
(5) 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 Note Outstanding created prior to the execution of such
supplemental indenture which is entitled to the benefit of such provision;
or
(6) to secure the Notes; or
(7) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Notes and to add to
or change any of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts hereunder by
more than one Trustee, pursuant to the requirements of Section 611(b); or
(8) subject to Section 907, to add to, change or eliminate any of the
provisions of Article Twelve in respect of the Notes, including
outstanding securities, PROVIDED that
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any such addition, change or elimination shall not adversely affect the
interests of the Holders of Outstanding Notes in any material respect;
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be 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
(9) shall not adversely affect the interests of the Holders of Notes; or
(10) 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 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than 66-2/3% in
principal amount of the Outstanding Notes affected by such supplemental
indenture, by Act of said Holders delivered to the Company and the Trustee, the
Company, when authorized by a Board Resolution, and the Trustee may enter into
an indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture, or for the purpose of waiving or modifying in any manner the
rights of the Holders of Notes under this Indenture; PROVIDED, HOWEVER, that no
such supplemental indenture shall, without the consent of the Holder of each
Outstanding Note affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any of the 2004 or 2007 Notes,
or change any Place of Payment where, or the coin or currency in which,
any such Note or any premium 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
(2) reduce the percentage in principal amount of the Outstanding 2004
Notes or 2007 Notes , the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1006 except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Note affected
thereby.
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.
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Section 903. 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 shall be fully protected in relying upon, an Opinion of Counsel stating that
the execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Section 904. 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 Notes theretofore or thereafter authenticated and delivered hereunder shall
be bound thereby.
Section 905. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
Section 906. REFERENCE IN NOTES TO SUPPLEMENTAL INDENTURES.
Notes authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Notes so modified as to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Notes.
Section 907. SUBORDINATION UNIMPAIRED.
No provision in any supplemental indenture that affects the superior
position of the holders of Senior Indebtedness shall be effective against any
holder of Senior Indebtedness, unless such holder shall have consented thereto.
Notwithstanding any provision in this Indenture or otherwise, the rights of
Entitled Persons in respect of Other Financial Obligations under this Indenture
and otherwise in respect of any of the 2004 Notes or the 2007 Notes, at any time
and from time to time, be modified in any respect or eliminated without the
consent of any Entitled Person in respect of Other Financial Obligations.
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ARTICLE TEN
COVENANTS
Section 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company covenants and agrees for the benefit of Notes that it
shall duly and punctually pay the principal of and any premium and interest on
the Notes in accordance with the terms of the Notes and this Indenture.
Section 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in each Place of Payment for Notes an
office or agency where Notes may be presented or surrendered for payment, where
Notes may be surrendered for registration of transfer or exchange and where
notices and demands to or upon the Company in respect of the Notes and this
Indenture may be served. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee 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 Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations; PROVIDED,
HOWEVER, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in each Place of
Payment for Notes for such purposes. The Company will give prompt written notice
to the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.
Section 1003. MONEY FOR NOTES PAYMENTS TO BE HELD IN TRUST.
If the Company, any subsidiary or any of their respective affiliates
shall at any time act as its own Paying Agent with respect to the Notes, such
Paying Agent shall, on or before each due date of the principal of or any
premium or interest on any of the Notes, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay the principal
and any premium and interest so becoming due until such sums shall be paid to
such Persons or otherwise disposed of as herein provided and will promptly
notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for the
Notes, it shall, on or prior to each due date of the principal of or any premium
or interest on any Notes , deposit with a Paying Agent a sum sufficient to pay
such amount, such sum to be held as provided by the Trust Indenture Act, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
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The Company shall cause the Paying Agent for the Notes 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 shall (i) comply with the provisions of the
Trust Indenture Act applicable to it as a Paying Agent and (ii) during the
continuance of any default by the Company (or any other obligor upon the Notes)
in the making of any payment in respect of the Notes, upon the written request
of the Trustee, forthwith pay to the Trustee all sums held in trust by such
Paying Agent for payment in respect of the Notes.
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 or any premium
or interest on any Note and remaining unclaimed for two years after such
principal, premium or interest has become due and payable shall be paid to the
Company on Company Request, or (if then held by the Company) shall be discharged
from such trust; and the Holder of such Note 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.
Section 1004. STATEMENT BY OFFICERS AS TO DEFAULT.
The Company shall deliver to the Trustee, within 60 days after the
end of each fiscal year of the Company ending after the date hereof, a
certificate in accordance with Section 314 (a) (4) of the Trust Indenture Act
stating whether or not to the best knowledge of the signers thereof the Company
is in default in the performance and observance of any of the terms, provisions
and conditions of this Indenture (without regard to any requirement of notice
provided hereunder) and, if the Company shall be in default, specifying all such
defaults and the nature and status thereof of which they may have knowledge.
Section 1005. CORPORATE EXISTENCE.
Subject to Article Eight, the Company shall do or cause to be done
all things necessary to preserve and keep in full force and effect its corporate
existence, rights (charter and statutory) and franchises; PROVIDED, HOWEVER,
that the Company shall not be required to preserve any such right or franchise
if the Company shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Holders.
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Section 1006. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with any
term, provision or condition of any covenant (other than the covenants contained
in Sections 1001 to 1005) made applicable to the Notes pursuant to Section 301
hereof with respect to the Notes if before the time for such compliance the
Holders of at least 66-2/3% in principal amount of the Outstanding Notes shall,
by Act of such Holders, either waive such compliance in such instance or
generally waive compliance with such term, provision or condition, but no such
waiver shall extend to or affect any term, provision or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any such
term, provision or condition shall remain in full force and effect.
Section 1007. MAINTENANCE OF STATUS OF SUBSIDIARIES AS INSURED DEPOSITORY
INSTITUTION.
The Company shall do or cause to be done all things necessary to
preserve and keep in full force and effect the status of each of its
subsidiaries that is a depository institution (including the Bank) as an insured
depository institution and do or cause to be done all things necessary to ensure
that savings accounts of each such subsidiary are insured by the FDIC or any
successor organization up to the maximum amount permitted by 12 U.S.C. Section
1811 ET SEQ. and the regulations thereunder or any succeeding federal law,
except as to individual accounts or interests in employee benefit plans that are
not entitled to "pass-through" insurance under 12 U.S.C. Section 1821(a)(1)(D).
Section 1008. CAPITAL AND DIVIDENDS.
The Company shall not declare or pay any dividend or make any other
distribution on any shares of its common stock (other than dividends payable
solely in shares of its common stock), or make (or permit any subsidiary to
make) any payment to purchase or otherwise retire or acquire any such shares, if
at the time of such action the Company is not in compliance, or would fail as a
result of such action to remain in compliance, with any minimum capital
maintenance requirements established by the Federal Reserve Board or another
banking regulator that are then applicable to the Company.
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ARTICLE ELEVEN
SUBORDINATION OF NOTES
Section 1101. NOTES SUBORDINATED TO EXTENT PROVIDED.
The Company covenants and agrees, and each Holder of a Note, by his
or her acceptance thereof, likewise covenants and agrees, that, to the extent
and in the manner hereinafter set forth in this Article, the indebtedness
represented by the Notes and the payment of the principal of, premium, if any,
and interest on each and all of the Notes are hereby expressly made subordinate
and subject in right of payment to the prior payment in full of all Senior
Indebtedness, and, to the extent set forth in Section 1115, to Other Financial
Obligations.
Section 1102. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC.
In the event of (a) any insolvency or bankruptcy case or proceeding,
or any receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relative to the Company or to its assets, or
(b) any liquidation, dissolution or other winding up of the Company, whether
voluntary or involuntary and whether or not involving solvency or bankruptcy, or
(c) any assignment for the benefit of creditors or any other marshalling of
assets and liabilities of the Company, then and in any such event the holders of
Senior Indebtedness shall be entitled to receive payment in full of all amounts
due or to become due on or in respect of all Senior Indebtedness, or provision
shall be made for such payment in money or money's worth, before the Holders of
the Notes are entitled to receive any payment on account of principal of or
premium, if any, or interest on the Notes, and to that end the holders of Senior
Indebtedness 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, which may be payable or deliverable in respect of the
2004 Notes or the 2007 Notes in any such case, proceeding, dissolution,
liquidation or other winding up or event.
In the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or Holder of any 2004 Note or 2007 Note shall have received
any payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, before all Senior Indebtedness is paid
in full or payment thereof provided for, and if such fact shall, at or prior to
the time of such payment or distribution, have been made known to the Trustee
or, as the case may be, such Holder, then and in such event such payment or
distribution shall be paid over or delivered by the Trustee or the Holder, as
the case may be, forthwith to the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee, agent or other Person making payment or
distribution of assets of the Company for application to the payment of all
Senior Indebtedness remaining unpaid, to the extent necessary to pay all Senior
Indebtedness in full, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Indebtedness.
For purposes of this Article only, the words "cash, property or
securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other corporation
provided for by a plan of reorganization or
44
readjustment which are subordinated in right of payment to all Senior
Indebtedness which may at the time be outstanding to substantially the same
extent as, or to a greater extent than, the Notes are so subordinated as
provided in this Article. The consolidation of the Company with, or the merger
of the Company into, another Person or the liquidation or dissolution of the
Company following the conveyance or transfer of its properties and assets
substantially as an entirety to another Person upon the terms and conditions set
forth in Article Eight shall not be deemed a dissolution, winding up,
liquidation, reorganization, assignment for the benefit of creditors or
marshalling of assets and liabilities of the Company for the purposes of this
Section if the Person formed by such consolidation or into which the Company is
merged or the Person which acquires by conveyance or transfer such properties
and assets substantially as an entirety, as the case may be, shall, as a part of
such consolidation, merger, conveyance or transfer, comply with the conditions
set forth in Article Eight.
Section 1103. PRIOR PAYMENT TO SENIOR INDEBTEDNESS UPON ACCELERATION OF
NOTES.
In the event that any of the 2004 Notes or the 2007 Notes are
declared due and payable before their Stated Maturity, then and in such event
the holders of the Senior Indebtedness shall be entitled to receive payment in
full of all amounts due on or in respect of all Senior Indebtedness, or
provision shall be made for such payment in money or money's worth, before the
Holders of the 2004 Notes or the 2007 Notes are entitled to receive any payment
of principal of or premium, if any, or interest on the 2004 Notes or the 2007
Notes or on account of the purchase or other acquisition of the 2004 Notes or
the 2007 Notes.
In the event that, notwithstanding the foregoing, the Company shall
make any payment to the Trustee or the Holder of any of the 2004 Notes or the
2007 Notes 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 by the Trustee or the Holder, as the case may
be, forthwith to the Company.
The provisions of this Section shall not apply to any payment with
respect to which Section 1102 would be applicable.
Section 1104. NO PAYMENT WHEN SENIOR INDEBTEDNESS IN DEFAULT.
In the event and during the continuation of any default in the
payment of principal of (or premium, if any) or interest on any Senior
Indebtedness beyond any applicable grace period with respect thereto, or in the
event that any event of default with respect to any Senior Indebtedness shall
have occurred and be continuing permitting the holders of such Senior
Indebtedness (or a trustee on behalf of the holders thereof) to declare such
Senior Indebtedness 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 event of default, then no payment shall be made by the Company on
account of principal of (or premium, if any) or
45
interest on the Notes or on account of the purchase or other acquisition of any
of the 2004 Notes or the 2007 Notes.
In the event that, notwithstanding the foregoing, the Company shall
make any payment to the Trustee or the Holder of any of the 2004 Notes or the
2007 Notes 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 by the Trustee or the Holder, as the case may
be, forthwith to the Company.
The provisions of this Section shall not apply to any payment with
respect to which Section 1102 would be applicable.
Section 1105. PAYMENT PERMITTED IF NO DEFAULT.
Nothing contained in this Article or elsewhere in this Indenture or
in any of the Notes shall prevent (a) the Company, at any time except during the
pendency of any case, proceeding, dissolution, liquidation or other winding up,
assignment for the benefit of creditors or other marshalling of assets and
liabilities of the Company referred to in Section 1102 or under the conditions
described in Section 1103 or 1104, from making payments at any time of principal
of or interest on the Notes, or (b) the application by the Trustee or any Paying
Agent of any moneys deposited with it hereunder to the payment of or on account
of the principal of or premium, if any, or interest on the Notes and the
retention by the Holders of any moneys so received if, at the time of such
payment, the Trustee or such Paying Agent did not have knowledge that such
payment would have been prohibited by the provisions of this Article.
Section 1106. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS.
Subject to the payment in full of all Senior Indebtedness, the
Holders of the Notes shall be subrogated (equally and ratably with the holders
of all indebtedness of the Company which by its express terms is subordinated to
indebtedness of the Company to substantially the same extent as the Notes are
subordinated and is entitled to like rights of subrogation) to the rights of the
holders of such Senior Indebtedness to receive payments and distributions of
cash, property and securities applicable to the Senior Indebtedness until the
principal of, premium, if any, and interest on the Notes shall be paid in full.
For purposes of such subrogation, no payments or distributions to the holders of
the Senior Indebtedness of any cash, property or securities to which the Holders
of the Notes or the Trustee would be entitled except for the provisions of this
Article, and no payments over pursuant to the provisions of this Article to the
holders of Senior Indebtedness by Holders of the Notes or the Trustee, shall, as
among the Company, its creditors other than holders of Senior Indebtedness and
the Holders of the Notes, be deemed to be a payment or distribution by the
Company to or on account of the Senior Indebtedness.
46
Section 1107. OBLIGATIONS OF COMPANY UNCONDITIONAL; 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 Notes on the one
hand and the holders of Senior Indebtedness (and, in the case of Section 1115,
Entitled Persons in respect of Other Financial Obligations) on the other hand.
Nothing contained in this Article or elsewhere in this Indenture or in the Notes
is intended to or shall: (a) impair, as among the Company, its creditors other
than holders of Senior Indebtedness, Entitled Persons in respect of Other
Financial Obligations and the Holders of the Notes, the obligation of the
Company, which is absolute and unconditional (and which, subject to the rights
under this Article of the holders of Senior Indebtedness and the rights under
Section 1115 of Entitled Persons in respect of Other Financial Obligations, is
intended to rank equally with all other general obligations of the Company), to
pay to the Holders of the Notes the principal of, premium, if any, and interest
on the Notes as and when the same shall become due and payable in accordance
with their terms; (b) affect the relative rights against the Company of the
Holders of the Notes and creditors of the Company other than the holders of
Senior Indebtedness and of Entitled Persons in respect of Other Financial
Obligations; or (c) prevent the Trustee or the Holder of any Note from
exercising all remedies otherwise permitted by applicable law upon default under
this Indenture, subject to the rights, if any, under this Article of the holders
of Senior Indebtedness, and under Section 1115 of Entitled Persons in respect of
Other Financial Obligations, to receive cash, property and securities otherwise
payable or deliverable to the Trustee or such Holder.
Section 1108. AUTHORIZATION OF TRUSTEE TO EFFECTUATE SUBORDINATION OF
NOTES.
Each Holder of a Note, by his or her acceptance thereof, authorizes
and expressly directs the Trustee on his or her behalf to take such action as
may be necessary or appropriate to effectuate the subordination and payment
provided in this Article.
Section 1109. NO WAIVER OF SUBORDINATION PROVISIONS.
No right of any present or future holder of any Senior Indebtedness
and Entitled Persons in respect of Other Financial Obligations, 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 by any act or failure to act, in good faith, by any such holder, or by any
non-compliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder may have or be
otherwise charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Indebtedness and Entitled Persons in respect of
Other Financial Obligations, as the case may be, may, at any time and from time
to time, without the consent of or notice to the Trustee or the Holders of the
Notes, without incurring responsibility to the Holders of the Notes and without
impairing or releasing the subordination provided in this Article or the
obligations hereunder of the Holders of the Notes to the holders of Senior
Indebtedness or Other Financial Obligations, do any one or more of the
following: (i) change the manner, place or terms of
47
payment or extend the time of payment of, or renew or alter, Senior Indebtedness
or Other Financial Obligations, or otherwise amend or supplement in any manner
Senior Indebtedness or Other Financial Obligations or any instrument evidencing
the same or any agreement under which Senior Indebtedness or Other Financial
Obligations is outstanding; (ii) sell, exchange, release or otherwise deal with
any property pledged, mortgaged or otherwise securing Senior Indebtedness; (iii)
release any Person liable in any manner for the collection of Senior
Indebtedness or Other Financial Obligations; and (iv) exercise or refrain from
exercising any rights against the Company and any other Person.
Section 1110. NOTICE TO TRUSTEE; TRUSTEE NOT CHARGED WITH KNOWLEDGE OF
PROHIBITION.
The Company shall give prompt written notice to the Trustee of any
fact known to the Company which would prohibit the making of any payment or
distribution to or by the Trustee in respect of the any of the 2004 Notes or the
2007 Notes. 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 or
distribution to or by the Trustee in respect of any of the 2004 Notes or the
2007 Notes, unless and until the Trustee shall have received written notice
thereof from the Company or a holder of Senior Indebtedness or from any trustee
therefor or from any Entitled Persons in respect of Other Financial Obligations,
and, prior to the receipt of any such written notice, the Trustee shall be
entitled in all respects to assume that no such facts exist.
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
Indebtedness (or a trustee therefor) or an Entitled Person in respect of Other
Financial Obligations to establish that such notice has been given by a holder
of Senior Indebtedness (or a trustee therefor) or an Entitled Person in respect
of Other Financial Obligations. 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 Indebtedness or an Entitled Person in respect of Other
Financial Obligations to participate in any payment or
distribution pursuant to this Article, Trustee may request such Person to
furnish evidence to the reasonable satisfaction of the Trustee as to the amount
of Senior Indebtedness or Other Financial Obligations 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 or distribution to such Person pending judicial determination as to the
right of such Person to receive such payment.
Section 1111. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING
AGENT.
Upon any payment or distribution of assets of the Company referred
to in this Article, the Trustee and the Holders of the Notes shall be entitled
to rely upon any order or decree entered by any court of competent jurisdiction
in which such insolvency, bankruptcy, receivership, liquidation, reorganization,
dissolution, winding up or similar case or proceeding is pending, or a
certificate of the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee for the benefit of creditors, agent or other Person making
such payment or distribution,
48
delivered to the Trustee or to the Holders of Notes, for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, the holders of the Senior Indebtedness and other indebtedness of
the Company and the Entitled Persons in respect of Other Financial Obligations,
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 1112. NO FIDUCIARY DUTY TO HOLDERS OF SENIOR INDEBTEDNESS OR OTHER
FINANCIAL OBLIGATIONS.
The Trustee shall not be deemed to owe any duty to the holders of
Senior Indebtedness of the Company or Entitled Persons in respect of Other
Financial Obligations, except as provided in this Article.
Section 1113. RIGHT OF TRUSTEE TO HOLD SENIOR INDEBTEDNESS OF COMPANY.
The Trustee shall be entitled to all of the rights set forth in this
Article in respect of any Senior Indebtedness or Other Financial Obligations of
the Company at any time held by it to the same extent as any other holder of
such Senior Indebtedness or of any Entitled Person in respect of Other Financial
Obligations , and nothing in this Indenture shall be construed to deprive the
Trustee of any of its rights as such holder or as such Entitled Person.
Section 1114. ARTICLE APPLICABLE TO PAYING AGENTS.
(a) 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; provided,
however, that Section 1113 shall not apply to the Company or any Affiliate of
the Company if it or such Affiliate acts as Paying Agent.
Section 1115. 2004 NOTES AND 2007 NOTES TO RANK PARI PASSU WITH EACH OTHER;
PAYMENT OF PROCEEDS IN CERTAIN CASES.
(a) Subject to the provisions of this Section, the 2004 Notes and
the 2007 Notes shall rank pari passu in right of payment with each other.
(b) Upon the occurrence of any of the events specified in clauses
(a), (b) and (c) of the first paragraph of Section 1102, the provisions of that
Section shall be given effect to determine the amount of cash, property or
securities which may be payable or deliverable as between the holders of Senior
Indebtedness, on the one hand, and the Holders of any of the 2004 Notes or the
2007 Notes, on the other hand.
(c) If, after giving effect to the provisions of Section 1102 and
Section 1106, any amount of cash, property or securities shall be available for
payment or distribution in respect of the Notes ("EXCESS PROCEEDS"), and, if at
such time, any Entitled Persons in respect of Other
49
Financial Obligations shall not have received payment in full of all amounts due
or to become due on or in respect of such Other Financial Obligations (and
provision shall not have been made for such payment in money or money's worth),
then such Excess Proceeds shall first be applied (ratably with any amount of
cash, property or securities available for payment or distribution in respect of
any other indebtedness of the Company that by its express terms provides for the
payment over of amounts corresponding to Excess Proceeds to Entitled Persons in
respect of Other Financial Obligations) to pay or provide for the payment of the
Other Financial Obligations remaining unpaid, to the extent necessary to pay all
Other Financial Obligations in full, after giving effect to any concurrent
payment or distribution to or for Entitled Persons in respect of Other Financial
Obligations. Any Excess Proceeds remaining after the payment (or provision for
payment) in full of all Other Financial Obligations shall be available for
payment or distribution in respect of the Notes.
(d) In the event that, notwithstanding the foregoing provisions of
subsection (c) of this Section, the Trustee or Holder of any Note shall have
received any payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, before all Other Financial
Obligations are paid in full or payment thereof duly provided for, and if such
fact shall, at or prior to the time of such payment or distribution have been
made known to the Trustee or, as the case may be, such Holder, then and in such
event, subject to any obligation that the Trustee or such Holder may have
pursuant to Section 1102, such payment or distribution shall be paid over or
delivered by the Trustee or the Holder, as the case may be, forthwith to the
trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent
or other Person making payment or distribution of assets of the Company for
payment in accordance with subsection (c).
(e) Subject to the payment in full of all Other Financial
Obligations, the Holders of the Notes shall be subrogated (equally and ratably
with the holders of all indebtedness of the Company that by its express terms
provides for the payment over of amounts corresponding to Excess Proceeds to
Entitled Persons in respect of Other Financial Obligations and is entitled to
like rights of subrogation) to the rights of the Entitled Persons in respect of
Other Financial Obligations to receive payments and distributions of cash,
property and securities applicable to the Other Financial Obligations until the
principal of and interest on the Notes shall be paid in full. For purposes of
such subrogation, no payments or distributions to Entitled Persons in respect of
Other Financial Obligations of any cash, property or securities to which Holders
of the Notes or the Trustee would be entitled except for the provisions of this
Section, and no payments over pursuant to the provisions of this Section to
Entitled Persons in respect of Other Financial Obligations by Holders of Notes
or the Trustee, shall, as among the Company, its creditors other than Entitled
Persons in respect of Other Financial Obligations and the Holders of Notes be
deemed to be a payment or distribution by the Company to or on account of the
Other Financial Obligations.
(f) The provisions of subsections (c), (d) and (e) of this Section
are and are intended solely for the purpose of defining the relative rights of
the Holders of the Notes, on the one hand, and the Entitled Persons in respect
of Other Financial Obligations, on the other hand, after giving effect to the
rights of the holders of Senior Indebtedness, as provided in this Article.
50
Nothing contained in subsections (c), (d) and (e) of this Section is intended to
or shall affect the relative rights against the Company of the Holders of the
Notes and (1) the holders of Senior Indebtedness, (2) the holders of
Indebtedness other than holders of indebtedness that by its express terms
provides for the payment over of amounts corresponding to Excess Proceeds to
Entitled Persons in respect of Other Financial Obligations or (3) other
creditors of the Company other than Entitled Persons in respect of Other
Financial Obligations.
ARTICLE TWELVE
MISCELLANEOUS
SECTION 1201. RULES BY TRUSTEE, PAYING AGENT AND REGISTRAR. The
Trustee may make reasonable rules for action by or a meeting of Holders, and any
Registrar and Paying Agent may make reasonable rules for their functions;
PROVIDED THAT no such rule shall conflict with terms of this Indenture or the
Trust Indenture Act.
SECTION 1203. NO RECOURSE AGAINST OTHERS. No director, officer,
employee, incorporator or stockholder of the Company, as such, shall have any
liability for any obligations of the Company under the Notes or this Indenture
or for any claim based on, in respect of, or by reason of, such obligations or
their creation, solely by reason of its status as a director, officer, employee,
incorporator or stockholder of the Company. By accepting a Note, each Holder
waives and releases all such liability (but only such liability) as part of the
consideration for issuance of such Note to such Holder.
SECTION 1203. COUNTERPARTS. This Indenture may be executed in any
number of counterparts and by the parties thereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
SECTION 1204. FURTHER INSTRUMENTS AND ACTS. Upon request of the
Trustee, the Company will execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purposes of this Indenture.
51
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.
BANK UNITED CORP.
By______________________________
Name:
Title
Attest:
AS TRUSTEE
By______________________________
Name:
Title
Attest:
00
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On the day of , 1997, before me personally came ,
to me known, who, being by me duly sworn, did depose and say that he is a
_________ of BANK UNITED CORP., one of the parties described in and which
executed the foregoing instrument; that he knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation, and that he
signed his name thereto by like authority.
---------
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the th day of , 1997, before me personally came ,
to me known, who, being by me duly sworn, did depose and say that he is
Corporate Trust Officer of _____________________ , N.A., one of the parties
described in and which executed the foregoing instrument; that he knows the seal
of said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
---------
EXHIBIT A
[FORM OF 2004 NOTE GLOBAL NOTE]
2
EXHIBIT B
[FORM OF 2004 NOTE CERTIFICATED NOTE]
3
EXHIBIT C
[FORM OF 2007 NOTE GLOBAL NOTE]
4
EXHIBIT D
[FORM OF 2007 NOTE CERTIFICATED NOTE]
5
