EXHIBIT 4(j)
NEW YORK COMMUNITY BANCORP, INC., as Issuer
and
WILMINGTON TRUST COMPANY, as Trustee
FIRST SUPPLEMENTAL INDENTURE
Dated as of ___________, 2002
______% Junior Subordinated Deferrable Interest Debentures due ________
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS ....................................................................... 1
Section 1.1 Definition of Terms ......................................................... 1
ARTICLE II TERMS AND CONDITIONS OF THE DEBENTURES ............................................ 6
Section 2.1 Designation and Principal Amount ............................................ 6
Section 2.2 Maturity .................................................................... 6
Section 2.3 Global Debentures ........................................................... 6
Section 2.4 Interest .................................................................... 6
Section 2.5 Optional Deferral of Interest ............................................... 7
Section 2.6 Redemption .................................................................. 8
Section 2.7 Limited Right to Require Exchange of Preferred Securities and Repurchase
of Debentures ............................................................... 9
Section 2.8 Change of Control Right to Require Exchange of Preferred Securities
and Repurchase of Debentures ................................................ 9
Section 2.9 Distribution of Debentures in Exchange for Trust Securities Upon the
Occurrence of a Special Event ............................................... 10
Section 2.10 Events of Default ........................................................... 11
Section 2.11 Amendment; Supplement; Waiver ............................................... 12
Section 2.12 Defeasance .................................................................. 15
Section 2.13 Paying Agent; Security Registrar ............................................ 17
ARTICLE III FORM OF DEBENTURE ................................................................. 17
Section 3.1 Form of Debenture ........................................................... 17
ARTICLE IV EXPENSES .......................................................................... 17
Section 4.1 Payment of Expenses ......................................................... 17
ARTICLE V COVENANTS ......................................................................... 18
Section 5.1 Covenants in the Event of an Event of Default or of a Deferral of
Interest .................................................................... 18
Section 5.2 Additional Covenants Relating to the Trust .................................. 19
Section 5.3 Covenant in Event of Distribution of Debentures ............................. 19
Section 5.4 Additional Covenant Relating to the Guarantee ............................... 19
ARTICLE VI SUBORDINATION ..................................................................... 20
Section 6.1 Debentures Subordinated to Senior Indebtedness .............................. 20
Section 6.2 Subrogation ................................................................. 21
Section 6.3 Obligation of the Company is Absolute and Unconditional ..................... 22
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TABLE OF CONTENTS
(continued)
Page
Section 6.4 Maturity of or Default on Senior Indebtedness........................... 22
Section 6.5 Payments on Debentures Permitted........................................ 22
Section 6.6 Effectuation of Subordination by Trustee................................ 22
Section 6.7 Knowledge of Trustee.................................................... 23
Section 6.8 Trustee's Relation to Senior Indebtedness............................... 23
Section 6.9 Rights of Holders of Senior Indebtedness Not Impaired................... 23
Section 6.10 Modification of Terms of Senior Indebtedness............................ 23
ARTICLE VII RIGHTS OF HOLDERS OF PREFERRED SECURITIES..................................... 24
Section 7.1 Preferred Security Holders' Rights...................................... 24
Section 7.2 Direct Action........................................................... 24
Section 7.3 Payments Pursuant to Direct Actions..................................... 24
ARTICLE VIII REMARKETING................................................................... 24
Section 8.1 Effectiveness of this Article........................................... 24
Section 8.2 Remarketing............................................................. 25
ARTICLE IX MISCELLANEOUS................................................................. 30
Section 9.1 Ratification of Indenture............................................... 30
Section 9.2 Trustee Not Responsible for Recitals.................................... 30
Section 9.3 Governing Law........................................................... 30
Section 9.4 Severability............................................................ 30
Section 9.5 Counterparts............................................................ 31
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FIRST SUPPLEMENTAL INDENTURE, dated as of __________, 2002 (this
"First Supplemental Indenture"), between NEW YORK COMMUNITY BANCORP, INC., a
Delaware corporation (the "Company"), having its principal place of business at
000 Xxxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000 and WILMINGTON TRUST COMPANY, a
Delaware banking corporation, as trustee (the "Trustee"), having its corporate
trust office at 1100 North Market Street, Xxxxxx Square North, Wilmington,
Delaware 19890, under the Indenture, dated as of __________, 2002, between the
Company and the Trustee (the "Base Indenture," together with the First
Supplemental Indenture, the "Indenture").
WHEREAS, the Company executed and delivered the Base Indenture
to the Trustee to provide for the issuance from time to time of the Company's
unsecured debentures, notes or other evidences of indebtedness (collectively the
"Debt Securities," and individually, a "Debt Security") to be issued in one or
more series as might be determined by the Company under the Base Indenture, in
an unlimited aggregate principal amount which may be authenticated and delivered
as provided in the Base Indenture;
WHEREAS, pursuant to the terms of the First Supplemental
Indenture, the Company desires to provide for the establishment of a new series
of Debt Securities to be known as the 6.000% Junior Subordinated Deferrable
Interest Debentures due 2051 (the "Debentures"), the form and substance of such
Debentures and the terms, provisions and conditions thereof to be as set forth
in the Indenture;
WHEREAS, New York Community Capital Trust V, a Delaware
statutory trust (the "Trust"), has offered to the public $275,000,000 in
aggregate stated liquidation amount of its 6.000% Preferred Securities (the
"Preferred Securities") and, in connection therewith, the Company has agreed to
purchase $8,505,200 in aggregate stated liquidation amount of the Trust's common
securities (the "Common Securities" and, together with the Preferred Securities,
the "Trust Securities"), each representing an undivided beneficial ownership
interest in the assets of the Trust, and proposes to invest the proceeds from
such offerings in $283,505,200 aggregate principal amount of the Debentures; and
WHEREAS, the Company has requested that the Trustee execute and
deliver this First Supplemental Indenture, all requirements necessary to make
this First Supplemental Indenture a valid instrument in accordance with its
terms (and to make the Debentures, when executed by the Company and
authenticated and delivered by the Trustee, the valid obligations of the
Company) have been performed, and the execution and delivery of this First
Supplemental Indenture has been duly authorized in all respects.
NOW, THEREFORE, in consideration of the purchase and acceptance
of the Debentures by the Holders (as defined below) thereof, and for the purpose
of setting forth, as provided in the Indenture, the form and substance of the
Debentures and the terms, provisions and conditions thereof, the Company
covenants and agrees with the Trustee as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definition of Terms.
Unless the context otherwise requires:
(a) a term not defined herein that is defined in the Base
Indenture has the same meaning when used in this First Supplemental Indenture;
(b) a term defined anywhere in this First Supplemental
Indenture has the same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) a reference to a Section or Article is to a Section or
Article of this First Supplemental Indenture;
(e) headings are for convenience of reference only and do not
affect interpretation;
(f) the following terms have the following meanings:
"Accreted Value" has the meaning set forth in the Declaration.
"Administrative Trustees" has the meaning set forth in the
Declaration.
"Base Indenture" has the meaning set forth in the Recitals.
"Business Day" has the meaning set forth in the Declaration.
"Change of Control" has the meaning set forth in the
Declaration.
"Change of Control Repurchase Date" has the meaning set forth
in the Declaration.
"Change of Control Repurchase Price" has the meaning set forth
in the Declaration.
"Change of Control Repurchase Right" has the meaning set forth
in the Declaration.
"Common Securities" has the meaning set forth in the Recitals.
"Company" has the meaning set forth in the Recitals.
"Compounded Interest" has the meaning set forth in Section
2.5(a).
"Coupon Rate" has the meaning set forth in Section 2.4(a).
"Debenture Distribution Notice" has the meaning set forth in
the Declaration.
"Debenture Issuer" has the meaning set forth in the
Declaration.
"Debentures" has the meaning set forth in the Recitals.
"Debt Securities" or "Debt Security" has the meaning set forth
in the Recitals.
"Declaration" means the Amended and Restated Declaration of
Trust of the Trust, dated as of __________, 2002, among the Debenture Issuer, in
its capacity as Sponsor, the initial Administrative Trustees, Wilmington Trust
Company, as Property Trustee, and Wilmington Trust Company, as Delaware Trustee,
as amended and restated from time to time.
"Definitive Preferred Securities" has the meaning set forth in
the Declaration.
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"Delaware Trustee" has the meaning set forth in the
Declaration.
"Direct Action" has the meaning set forth in Section 7.2.
"Distribution Date" has the meaning set forth in the
Declaration.
"Distributions" have the meaning set forth in the Declaration.
"Exchange Agent" has the meaning set forth in the Declaration.
"Exercise Price" has the meaning set forth in the Warrant
Agreement.
"Extension Period" has the meaning set forth in Section
2.5(a).
"Failed Remarketing" has the meaning set forth in the
Declaration.
"Failed Remarketing Date" has the meaning set forth in the
Declaration.
"First Supplemental Indenture" has the meaning set forth in
the Recitals.
"Global Debenture" has the meaning set forth in Section
2.3(a).
"Global Preferred Security" has the meaning set forth in the
Declaration.
"Guarantee" has the meaning set forth in the Declaration.
"Holder" means a Person in whose name a Debenture is
registered.
"Indenture" has the meaning set forth in the Recitals.
"Initial Purchasers" has the meaning set forth in the
Declaration.
"Legal Cause Remarketing Event" has the meaning set forth in
the Declaration.
"Legal Requirements" has the meaning set forth in the
Declaration.
"Like Amount" has the meaning set forth in the Declaration.
"90 Day Period" has the meaning set forth in the Declaration.
"Non Book-Entry Preferred Securities" has the meaning set
forth in Section 2.3(b).
"No Recognition Opinion" has the meaning set forth in the
Declaration.
"Officers' Certificate" has the meaning set forth in the
Declaration.
"Opinion of Counsel" means the written opinion of counsel
rendered by an independent law firm which shall be acceptable to the Trustee.
"Optional Redemption Remarketing Event" has the meaning set
forth in the Declaration.
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"Payment Blockage Notice" has the meaning set forth in Section 6.1(d).
"Preferred Securities" has the meaning set forth in the Recitals.
"Preferred Securities Certificate" has the meaning set forth in the
Declaration.
"Property Trustee" has the meaning set forth in the Declaration.
"Pro Rata" has the meaning set forth in the Declaration.
"Purchase Agreement" has the meaning set forth in the Declaration.
"Remarketing" means:
(i) as long as the Trust has not been liquidated, the operation
of the procedures for remarketing specified in Section 6.6
of the Declaration; and
(ii) if the Trust has been liquidated, the operation of the
procedures for remarketing specified in Article VIII.
"Remarketing Agent" has the meaning set forth in the Declaration.
"Remarketing Agreement" has the meaning set forth in the Declaration.
"Remarketing Date" has the meaning set forth in the Declaration.
"Remarketing Settlement Date" has the meaning set forth in the
Declaration.
"Repurchase Price" has the meaning set forth in the Declaration.
"Repurchase Right" has the meaning set forth in the Declaration.
"Reset Rate" has the meaning set forth in the Declaration.
"Senior Indebtedness" means the principal of, premium, if any, and
interest (including all interest accruing subsequent to the commencement of any
bankruptcy or similar proceeding, whether or not a claim for post-petition
interest is allowable as a claim in any such proceeding) on:
(1) all indebtedness, obligations and other liabilities
(contingent or otherwise) of the Company for borrowed money (including
obligations of the Company in respect of overdrafts, foreign exchange
contracts, currency exchange agreements, interest rate protection
agreements, and any loans or advances from banks, whether or not
evidenced by notes or similar instruments) or evidenced by bonds,
debentures, notes or other instruments for the payment of money, or
indebtedness incurred in connection with the acquisition of any
properties or assets (whether or not the recourse of the lender is to
the whole of the assets of the Company or to only a portion thereof),
other than any account payable or other accrued current liability or
obligation to trade creditors incurred in the ordinary course of
business;
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(2) all obligations and liabilities (contingent or
otherwise) in respect of leases of the Company required or
permitted, in conformity with generally accepted accounting
principles, to be accounted for as capitalized lease obligations
on the balance sheet of the Company;
(3) all direct or indirect guaranties or similar agreements
by the Company in respect of, and obligations or liabilities
(contingent or otherwise) of the Company to purchase or otherwise
acquire or otherwise assure a creditor against loss in respect
of, indebtedness, obligations or liabilities of another Person of
the kind described in clauses (1) and (2);
(4) any and all amendments, renewals, extensions and
refundings of any indebtedness, obligation or liability of the
kind described in clauses (1) through (3).
"Senior Indebtedness" does not include:
(1) any indebtedness in which the instrument or instruments
evidencing or securing the same or pursuant to which the same is
outstanding, or in any amendment, renewal, extension or refunding
of such instrument or instruments, it is expressly provided that
such indebtedness shall not be senior in right of payment to the
Debentures or expressly provides that such Indebtedness is pari
passu or junior to the Debentures;
(2) trade accounts payable in the ordinary course of
business; and
(3) any series of subordinated debt securities, whether
currently outstanding or created, assumed or incurred at a later
date, initially issued to any trust, partnerships or other
entities affiliated with the Company in connection with an
issuance of securities similar to the Preferred Securities.
"Special Distribution Date" has the meaning set forth in the
Declaration.
"Special Event" has the meaning set forth in the Declaration.
"Special Record Date" has the meaning set forth in the
Declaration.
"Trust" has the meaning set forth in the Recitals.
"Trust Securities" has the meaning set forth in the Recitals.
"Trustee" has the meaning set forth in the Recitals.
"Unit" has the meaning set forth in the Declaration.
"Unit Agreement" has the meaning set forth in the Declaration.
"Warrant" has the meaning set forth in the Warrant Agreement.
"Warrant Agent" has the meaning set forth in the Warrant
Agreement.
"Warrant Agreement" has the meaning set forth in the Declaration.
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"Warrant Requirements" has the meaning set forth in the
Declaration.
ARTICLE II
TERMS AND CONDITIONS OF THE DEBENTURES
Section 2.1 Designation and Principal Amount.
There is hereby authorized a series of Debt Securities designated
the "6.000% Junior Subordinated Deferrable Interest Debentures due 2051,"
limited in aggregate principal amount to $283,505,200.
Section 2.2 Maturity.
The Stated Maturity shall be November 1, 2051 unless reset in
connection with a Remarketing to 180 days following the Remarketing Date.
Section 2.3 Global Debentures.
If distributed to holders of Trust Securities in connection with
the involuntary or voluntary dissolution of the Trust:
(a) The Debentures in definitive form may be presented to the
Trustee by the Property Trustee in exchange for a global security in an
aggregate principal amount equal to all Outstanding Debentures (a "Global
Debenture"). The Company upon any such presentation shall execute a Global
Debenture in such aggregate principal amount and deliver the same to the Trustee
for authentication and delivery in accordance with the Base Indenture and this
First Supplemental Indenture. The Depositary for the Global Debentures will be
The Depositary Trust Company. The Global Debentures will be registered in the
name of the Depositary or its nominee, Cede & Co., and delivered by the Trustee
to the Depositary or a custodian appointed by the Depositary for crediting to
the accounts of its participants pursuant to the instructions of the
Administrative Trustees. Payments on the Debentures issued as a Global Debenture
will be made to the Depositary or its nominee.
(b) If any Preferred Securities are held in definitive form, the
Debentures in definitive form may be presented to the Trustee by the Property
Trustee, and any Trust Securities which represent Preferred Securities other
than Preferred Securities held by the depositary for the Preferred Securities or
its nominee ("Non Book-Entry Preferred Securities") will be deemed to represent
beneficial ownership interests in Debentures presented to the Trustee by the
Property Trustee having an aggregate principal amount equal to the aggregate
stated liquidation amount of the Non Book-Entry Preferred Securities until such
Preferred Securities Certificates are presented to the Security Registrar for
transfer or reissuance, at which time such Preferred Securities Certificates
will be canceled and a Debenture registered in the name of the holder of the
Securities or the transferee of the holder of such Securities, as the case may
be, with an aggregate principal amount equal to the aggregate stated liquidation
amount of the Securities canceled will be executed by the Company and delivered
to the Trustee for authentication and delivery in accordance with the Base
Indenture and this First Supplemental Indenture. On issue of such Debentures,
Debentures with an equivalent aggregate principal amount that were presented by
the Property Trustee to the Trustee will be deemed to have been canceled.
Section 2.4 Interest.
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(a) Each Debenture will bear interest at a rate per annum of
6.000% (the "Coupon Rate") of the principal amount of $50 per Debenture from and
including _________, 2002 to, but excluding, the Remarketing Date, and at the
Reset Rate of the Accreted Value of the Debenture from and including the
Remarketing Date to, but excluding, the Stated Maturity, payable quarterly in
arrears on February 1, May 1, August 1 and November 1 of each year (each, an
"Interest Payment Date"), commencing on February 1, 2003.
(b) Interest not paid on the scheduled Interest Payment Date will
accrue and compound quarterly at the Coupon Rate of the principal amount of the
Debentures or the Reset Rate of the Accreted Value of the Debentures, as the
case may be.
(c) The Regular Record Dates for the Debentures shall be:
(i) as long as the Debentures are represented by a Global
Debenture, the Business Day preceding the corresponding
Interest Payment Date; or
(ii) if the Debentures are issued in definitive form, at
least one Business Day prior to the corresponding
Interest Payment Date.
(d) The amount of interest payable on the Debentures for any
period will be computed:
(i) for any full 90-day quarterly period, on the basis of a
360-day year of twelve 30-day months;
(ii) for any period shorter than a full 90-day quarterly
period, on the basis of a 30-day month; and
(iii) for any period shorter than a 30-day month, on the
basis of the actual number of days elapsed in the
30-day month.
In the event that any date on which interest is payable on the
Debentures is not a Business Day, payment of the interest payable on such date
will be made on the next day that is a Business Day (and without any additional
interest or other payment in respect of any such delay), except that if such
Business Day is in the next calendar year, such payment will be made on the
preceding Business Day with the same force and effect as if made on the date
such payment was originally payable.
Section 2.5 Optional Deferral of Interest.
(a) As long as no Event of Default has occurred and is continuing,
and as long as a Failed Remarketing has not occurred, the Company has the right,
at any time and from time to time, to defer payments of interest on the
Debentures by extending the interest payment period on the Debentures for a
period (each, an "Extension Period") not exceeding 20 consecutive quarters,
during which Extension Period no interest shall be due and payable on the
Debentures; provided that no Extension Period shall end on a date other than an
Interest Payment Date or extend beyond the Stated Maturity. Upon the occurrence
of a Failed Remarketing, any such Extension Period shall terminate, and interest
shall become payable in cash on the next Interest Payment Date. Despite such
deferral, interest shall continue to accrue with additional interest thereon (to
the extent permitted by applicable law) at the Coupon Rate of the principal
amount of the Debentures or the Reset Rate of the Accreted Value of the
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Debentures on the Remarketing Date, as applicable, compounded quarterly during
any such Extension Period ("Compounded Interest"). Prior to the termination of
any such Extension Period, the Company may further defer payments of interest by
further extending such Extension Period; provided that such Extension Period,
together with all such previous and further extensions of such Extension Period,
may not exceed 20 consecutive quarters or extend beyond the Stated Maturity. At
the termination of any Extension Period, the Company shall pay all interest then
accrued and unpaid, plus Compounded Interest. Upon the termination of any
Extension Period and the payment of all amounts then due, the Company may
commence a new Extension Period, subject to the above requirements.
(b) The procedure the Company must follow to exercise its option
to defer payments of interest on the Debentures for an Extension Period shall be
as follows:
(i) If the Property Trustee shall be the only holder of the
Debentures, the Company shall give notice of its
election of such Extension Period to the Property
Trustee, the Administrative Trustees and the Trustee at
least one Business Day prior to the earlier of:
(A) the next date on which Distributions on the
Preferred Securities are payable; or
(B) the date the Administrative Trustees are required
to give notice of the record date or the date such
Distributions are payable for the first quarter of
such Extension Period to (x) any national stock
exchange or other organization on which the
Preferred Securities are listed or quoted, if any,
or (y) the holders of the Preferred Securities; or
(ii) If the Property Trustee shall not be the holder of the
Debentures, the Company shall give notice of its
election of such extension period to the Holders at
least ten Business Days prior to the earlier of:
(A) the Interest Payment Date for the first quarter of
such Extension Period; or
(B) the date on which the Company is required to give
notice of the record date or the payment date of
such related interest payment for the first quarter
of such Extension Period to (x) any national stock
exchange or other organization on which the
Debentures are listed or quoted, if any, or (y) the
Holders.
(iii) The Company shall pay all deferred interest and
Compounded Interest on the Debentures prior to the
exercise of its right to cause a Remarketing of the
Debentures.
Section 2.6 Redemption.
(a) The Company shall have no right to redeem the Debentures.
(b) The Debentures shall not be subject to a sinking fund
provision.
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Section 2.7 Limited Right to Require Exchange of Preferred Securities and
Repurchase of Debentures.
(a) Pursuant to Section 6.7 of the Declaration, in the event a
holder of a Unit exercises a Warrant on a date other than a Remarketing
Settlement Date and elects to exercise its Repurchase Right, the Company shall
be required to repurchase at the Repurchase Price on the applicable Special
Distribution Date Debentures having a principal amount at maturity on the date
of exchange of Preferred Securities for Debentures equal to the liquidation
preference of the exchanged Preferred Securities on such exchange date.
(b) No less than three Business Days prior to the applicable
Special Distribution Date:
(i) if the Preferred Securities to be exchanged are
represented by a Global Preferred Security, the Trustee
shall, in accordance with the instruction of the
Property Trustee provided for in the Declaration,
transfer to the Exchange Agent Debentures having a
principal amount at maturity equal to the liquidation
preference of the Preferred Securities for which,
pursuant to the Declaration, the necessary endorsement
to the "Schedule of Increases or Decreases in Global
Preferred Security" attached to the Global Preferred
Security was made to reduce the amount of Preferred
Securities represented thereby; and
(ii) if the Preferred Securities to be exchanged are
represented by Definitive Preferred Securities, the
Trustee shall, in accordance with the instruction of the
Property Trustee provided for in the Declaration,
deliver to such holder definitive Debentures having a
principal amount at maturity equal to the liquidation
preference of the Preferred Securities of such holder
which, pursuant to the Declaration, were presented by
such holder to the Property Trustee for cancellation.
(c) On the applicable Special Distribution Date, the Debenture
Issuer shall repurchase the Debentures which were the subject of an exchange
notice received by the Debenture Issuer by paying the Repurchase Price directly
to the selling holder.
Section 2.8 Change of Control Right to Require Exchange of Preferred
Securities and Repurchase of Debentures.
(a) Pursuant to Section 6.8 of the Declaration, in the event a
Change of Control occurs and the holder of a Unit or the holder of a Preferred
Security, as the case may be, elects to exercise its Change of Control
Repurchase Right, the Company shall be required to repurchase at the Change of
Control Repurchase Price on the Change of Control Repurchase Date Debentures
having an Accreted Value on the date of exchange equal to the Accreted Value of
the exchanged Preferred Securities on such exchange date.
(b) No less than three Business Days prior to the Change of
Control Repurchase Date:
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(i) if the Preferred Securities to be exchanged are
represented by a Global Preferred Security, the Trustee
shall, in accordance with the instruction of the
Property Trustee provided for in the Declaration,
transfer to the Exchange Agent Debentures having an
Accreted Value equal to the Accreted Value of the
Preferred Securities for which, pursuant to the
Declaration, the necessary endorsement to the "Schedule
of Increases or Decreases in Global Preferred Security"
attached to the Global Preferred Security was made to
reduce the amount of Preferred Securities represented
thereby; and
(ii) if the Preferred Securities to be exchanged are
represented by Definitive Preferred Securities, the
Trustee shall, in accordance with the instruction of
the Property Trustee provided for in the Declaration,
deliver to such holder definitive Debentures having an
Accreted Value equal to the Accreted Value of the
Preferred Securities of such holder which, pursuant to
the Declaration, were presented by such holder to the
Property Trustee for cancellation.
(c) On the Change of Control Repurchase Date, the Debenture
Issuer shall repurchase the Debentures which were the subject of an exchange
notice received by the Debenture Issuer by paying the Change of Control
Repurchase Price directly to the selling holder.
Section 2.9 Distribution of Debentures in Exchange for Trust Securities Upon
the Occurrence of a Special Event.
(a) If at any time a Special Event occurs and certain conditions
set forth in Section 2.9(b) are satisfied, the Administrative Trustees may
dissolve the Trust and, after satisfaction of liabilities to creditors of the
Trust as provided by applicable law, cause the Debentures held by the Property
Trustee to be distributed to the holders of Trust Securities in liquidation of
such holders' interests in the Trust on a Pro Rata basis, upon not less than 30
nor more than 60 days notice, within the 90 Day Period, and, simultaneous with
such distribution, to cause a Like Amount of the Securities to be exchanged by
the Trust on a Pro Rata basis.
(b) The dissolution of the Trust and distribution of the
Debentures pursuant to Section 2.9(a) shall be permitted only upon satisfaction
of the following three conditions:
(i) the receipt by the Administrative Trustees of a No
Recognition Opinion;
(ii) neither the Trust nor the Company being able to
eliminate, which elimination shall be complete within
the 90 Day Period, such Special Event by taking some
ministerial action (such as filing a form, making an
election or pursuing some other reasonable measure)
that:
(A) has no material adverse effect on the Trust, the
Company or the holders of the Trust Securities; or
(B) does not subject any of them to more than de
minimis regulatory requirements; and
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(iii) the receipt by the Administrative Trustees of the
prior written consent of the Company.
(c) A Debenture Distribution Notice, which notice shall be
irrevocable, shall be given by the Trust by mail to each holder of Trust
Securities not fewer than 30 nor more than 60 days before the date of
distribution of the Debentures. A Debenture Distribution Notice shall be deemed
to be given on the day such notice is first mailed by first-class mail, postage
prepaid, to Holders. No defect in the Debenture Distribution Notice or in the
mailing of the Debenture Distribution Notice with respect to any holder of Trust
Securities shall affect the validity of the exchange proceedings with respect to
any other holder of Trust Securities.
(d) On and from the date fixed by the Administrative Trustees
for any distribution of Debentures and liquidation of the Trust:
(i) the Trust Securities no longer shall be deemed to be
outstanding;
(ii) the Depositary or its nominee (or any successor
Depositary or its nominee), as the holder of the
Preferred Securities, will receive a registered global
certificate or certificates representing the
Debentures to be delivered upon such distribution; and
(iii) any certificates representing Trust Securities not
held by the Depositary or its nominee (or any
successor Depositary or its nominee) shall be deemed
to represent Debentures having an aggregate principal
amount equal to the aggregate liquidation amount of
such Trust Securities and bearing accrued and unpaid
interest in an amount equal to the accumulated and
unpaid Distributions on such Trust Securities, until
such certificates are presented for cancellation, at
which time the Company shall issue, and the Trustee
shall authenticate, a certificate representing such
Debentures.
(e) In the event of a dissolution of the Trust and a
distribution of the Debentures, the Company shall have the same rights, and
shall be subject to same terms and conditions, to cause a Remarketing of the
Debentures as the Company has and is subject to under Section 6.6 of the
Declaration to cause a Remarketing of the Preferred Securities.
Section 2.10 Events of Default.
In addition to the Events of Default set forth in Section 6.01 of
the Base Indenture, it shall be an Event of Default with respect to the
Debentures if the following occurs and shall be continuing:
(a) the Company defaults in the payment of principal of or
premium, if any, on any of the Debentures when it becomes due and payable at
Stated Maturity, upon exercise of a Repurchase Right, upon exercise of a Change
of Control Repurchase Right or otherwise, whether or not such payment is
prohibited by the subordination provisions of Article 6 of this First
Supplemental Indenture;
(b) the Company defaults in the payment of interest on any of
the Debentures when it becomes due and payable and such default continues for a
period of 30 days after written notice of such
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failure shall have been given to the Company by the Trustee or to the Company
and the Trustee by the Holders of at least 25% in aggregate principal amount of
the Outstanding Debentures; whether or not such payment is prohibited by the
subordination provisions of Article 6 of this First Supplemental Indenture;
provided, however, that a valid extension of the interest payment period does
not constitute a default in the payment of interest;
(c) the Company fails to perform or observe any other term,
covenant or agreement contained in the Debentures or the Indenture (other than a
term, covenant or agreement included in the Indenture solely for the benefit of
any series of Debt Securities other than the Debentures) and such default
continues for a period of 90 days after written notice of such failure shall
have been given to the Company by the Trustee or to the Company and the Trustee
by the Holders of at least 25% in aggregate principal amount of the Outstanding
Debentures; or
(d) the Trust shall have voluntarily or involuntarily dissolved,
wound up its business or otherwise terminated its existence, except in
connection with:
(i) the distribution of the Debentures held by the Trust
to the holders of the Trust Securities in liquidation
of the Trust or their interests in the Trust;
(ii) the redemption of all of the outstanding Trust
Securities; or
(iii) a merger, consolidation, conversion, amalgamation,
replacement or other transaction involving the Trust
that is permitted under Section 3.14 of the
Declaration.
Section 2.11 Amendment; Supplement; Waiver.
(a) Amendment 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 amend the Indenture and the
Debentures to:
(i) add to the covenants of the Company for the benefit of
the Holders;
(ii) add to the Events of Default under the Indenture;
(iii) surrender any right or power herein conferred upon the
Company;
(iv) provide for the assumption of the Company's
obligations to the Holders in the case of a merger,
consolidation, conveyance, transfer or lease pursuant
to Article 5 of the Base Indenture;
(v) comply with the requirements of the Securities and
Exchange Commission in order to maintain the
qualification of the Indenture under the Trust
Indenture Act; or
(vi) cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any
other provision herein or which is otherwise
defective, or to make any other provisions with
respect to
12
matters or questions arising under the Indenture which
the Company and the Trustee may deem necessary or
desirable and which shall not be inconsistent with the
provisions of the Indenture; provided that such action
pursuant to this clause (vi) does not adversely affect
the interests of the Holders in any material respect.
(b) Amendment With Consent of Holders. With the consent of the
Holders of not less than a majority in aggregate principal amount of the
Debentures and all other series of Debt Securities affected at the time
Outstanding, voting as one class, the Company and the Trustee, at any time and
from time to time, may modify or amend the Indenture and the Debentures;
provided, however, that no such modification or amendment shall be effective
until the Holder of each Debenture affected at the time Outstanding shall have
consented to such modification or amendment, if such modification or amendment
shall:
(i) change the Stated Maturity of the principal of, or any
installment of principal or interest on, any
Debenture;
(ii) reduce the principal amount of, premium, if any, or
the rate of interest on, any Debenture;
(iii) change the place of payment where the Debentures or
any premium or interest thereon is payable;
(iv) impair the right to institute suit for the enforcement
of any such payment on or with respect to the
Debentures;
(v) reduce the above-stated percentage in principal amount
of Debentures, the Holders of which are required to
modify or amend the Indenture, to consent to any
waiver thereunder or to approve any supplemental
indenture;
(vi) change any obligation of the Company to maintain an
office or agency in the places and for the purposes
required by the Indenture; or
(vii) modify any of the above provisions;
provided, further, that if the Debentures are held by the Property Trustee, no
such modification or amendment shall be effective until the holders of not less
than 66 2/3% of the aggregate liquidation amount of the Trust Securities shall
have consented to such modification or amendment; provided, further, that where
the consent of the Holders of more than 66 2/3% of the aggregate principal
amount of the Debentures is required pursuant to Section 9.02 of the Base
Indenture, no such modification or amendment shall be effective until the
holders of at least the same proportion in aggregate liquidation amount of the
Trust Securities shall have consented to such modification or amendment.
(c) Waiver of Past Defaults. The Holders of not less than a
majority of aggregate principal amount of the Debentures then Outstanding may on
behalf of the Holders of all Debentures waive any past default with respect to
the Debentures, except for (i) a default in the payment of principal of,
premium, if any, or interest on the Debentures and (ii) a default in respect of
a covenant or provision of the Indenture which cannot be modified or amended
without the consent of the Holder of each
13
Debenture then Outstanding. No such waiver shall be effective until the holders
of a majority in aggregate stated liquidation amount of Trust Securities shall
have consented to such waiver; provided that where a consent under the Indenture
would require the Holders of more than a majority in principal amount of
Debentures, no such waiver shall be effective until the holders of at least the
same proportion in aggregate stated liquidation amount of Trust Securities shall
have consented to such waiver.
(d) Meetings and Voting.
(i) The Trustee may at any time call a meeting of Holders
of Debentures for any purpose permitted by the Base
Indenture. Notice of every meeting of Holders of
Debentures, setting forth the time and the place in
the City of New York of such meeting and in general
terms the action proposed to be taken at such meeting,
shall be given not less than 21 nor more than 180 days
prior to the date fixed for the meeting.
In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 20% in
aggregate principal amount of the Outstanding
Debentures shall have requested the Trustee to call a
meeting of the Holders of Debentures for any purpose
permitted by the Base Indenture, by written request
setting forth in reasonable detail the action proposed
to be taken at the meeting, and the Trustee shall not
have made the first publication of the notice of such
meeting within 21 days after receipt of such request
or shall not thereafter proceed to cause the meeting
to be held as provided herein, then the Company or the
Holders of Debentures in the amount specified, as the
case may be, may determine the time and the place in
The City of New York for such meeting and may call
such meeting for such purposes by giving notice
thereof.
(ii) Except as provided below, the Persons entitled to vote
a majority in principal amount of the Outstanding
Debentures shall constitute a quorum. In the absence
of a quorum within 30 minutes of the time appointed
for any such meeting, the meeting shall, if convened
at the request of Holders of Debentures, be dissolved.
In any other case, the meeting may be adjourned for a
period of not less than 10 days as determined by the
chairman of the meeting prior to the adjournment of
such meeting. In the absence of a quorum at any such
adjourned meeting, such adjourned meeting may be
further adjourned for a period of not less than 10
days as determined by the chairman of the meeting
prior to the adjournment of such adjourned meeting.
Notice of the reconvening of any adjourned meeting
shall be given as provided herein, except that such
notice need be given only once and not less than five
days prior to the date on which the meeting is
scheduled to be reconvened. Notice of the reconvening
of an adjourned meeting shall state expressly the
percentage of the principal amount of the Outstanding
Debentures which shall constitute a quorum.
(iii) Subject to the foregoing, at the reconvening of any
meeting adjourned for a lack of a quorum, the Persons
entitled to vote 25% in principal amount
14
of the Outstanding Debentures at the time shall
constitute a quorum for the taking of any action set
forth in the notice of the original meeting.
(iv) At a meeting or an adjourned meeting duly reconvened
and at which a quorum is present as aforesaid, any
resolution and all matters shall be effectively passed
and decided if passed or decided by the Persons
entitled to vote the lesser of:
(A) a majority in principal amount of the Debentures
then Outstanding; or
(B) 66 2/3% in principal amount of the Debentures
represented and voting at such meeting;
provided, however, that if any consent, waiver or other action must be given,
made or taken by the Holders of a specified percentage in principal amount of
Outstanding Debentures (which is less than a majority of the principal amount to
Debentures then Outstanding), then such consent, waiver or other action may be
given, made or taken by the Persons entitled to vote the lesser of:
(x) the specified percentage in principal amount of
the Debentures then Outstanding; or
(y) a majority in principal amount of the Debentures
represented and voting at such meeting.
(v) Any resolution passed or decisions taken at any
meeting of Holders of Debentures duly held in
accordance with this Section shall be binding on all
the Holders of Debentures, whether or not present or
represented at the meeting.
Section 2.12 Defeasance.
The Company shall be deemed to have been discharged from its
obligations with respect to all of the outstanding Debentures on the date of the
deposit referred to in subparagraph (A) hereof, and the provisions of this
Indenture, as it relates to such outstanding Debentures, shall no longer be in
effect (and the Trustee, at the expense of the Company, shall, upon the request
of the Company, execute proper instruments supplied to it by the Company
acknowledging the same), except as to:
(i) the rights of Holders of Debentures to receive,
solely from the trust funds described in subparagraph
(A) hereof, payments of the principal of or interest
on the outstanding Debentures on the date such
payments are due; and
(ii) the rights, powers, trust and immunities of the
Trustee hereunder;
provided that the following conditions shall have been
satisfied:
(A) the Company shall have deposited, or caused to
be deposited, irrevocably with the Trustee,
under the terms of an escrow trust
15
agreement satisfactory to the Trustee, as trust
funds in trust for the purpose of making the
following payments, specifically pledged as
security for and dedicated solely to the benefit
of the Holders of the Debentures, cash in U.S.
dollars and/or Eligible Instruments (including
U.S. Government Obligations) which through the
payment of interest and principal in respect
thereof, in accordance with their terms, will
provide (and without reinvestment and assuming no
tax liability will be imposed on such Trustee),
not later than one day before the due date of any
payment of money, an amount in cash, sufficient,
in the opinion of a nationally recognized firm of
independent public accountants expressed in a
written certification thereof delivered to the
Trustee, to pay principal of and interest on all
the Debentures on the dates such payments of
principal or interest are due and payable;
(B) no Default or Event of Default with respect to
the Debentures shall have occurred and be
continuing on the date of such deposit;
(C) such deposit and the related intended
consequences will not result in a breach or
violation of, or constitute a default or event of
default under, the Indenture or any other
material indenture, agreement or other instrument
binding upon the Company or its subsidiaries or
any of their properties or assets;
(D) the Company shall have delivered to the Trustee
an Officers' Certificate and an Opinion of
Counsel to the effect that (1) the Company has
received from, or there has been published by,
the Internal Revenue Service a ruling (which
ruling shall be satisfactory to the Trustee), or
(2) since the date of execution of this First
Supplemental Indenture, there has been a change
in the applicable federal income tax law, in
either case to the effect that, and based thereon
such Opinion of Counsel shall confirm that, the
Holders will not recognize income, gain or loss
for federal income tax purposes as a result of
such deposit, defeasance and discharge and will
be subject to federal income tax on the same
amount and in the same manner and at the same
times as would have been the case if such
deposit, defeasance and discharge had not
occurred;
(E) the Company shall have delivered to the Trustee
an Officers' Certificate stating that the deposit
was not made by the Company with the intent of
preferring the Holders over any other creditors
of the Company or with the intent of defeating,
hindering, delaying or defrauding any other
creditors of the Company;
(F) such deposit shall not result in the trust
arising from such deposit constituting an
"investment company" (as defined in the
16
Investment Company Act of 1940, as amended (the
"Investment Company Act")), or such trust shall
be qualified under such Act or exempt from
regulation thereunder; and
(G) the Company shall have delivered to the Trustee
an Officers' Certificate and an Opinion of
Counsel, each stating that all conditions
precedent relating to the defeasance contemplated
by this Section 2.12 have been complied with.
Notwithstanding a defeasance of the Debentures, the Company shall
continue to have the right to cause a Remarketing of the Debentures so long as
the amounts described above are expected to be on deposit in the escrow trust
account as of such adjusted date of maturity (i.e., 180 days following the
Remarketing Date).
Section 2.13 Paying Agent; Security Registrar.
Initially, the Trustee shall act as Paying Agent and Security
Registrar. If the Debentures are issued in definitive form, the Corporate Trust
Office shall be the office or agency of the Paying Agent and the Security
Registrar for the Debentures.
ARTICLE III
FORM OF DEBENTURE
Section 3.1 Form of Debenture.
The Debentures and the Trustee's Certificate of Authentication to
be endorsed thereon are to be substantially in the forms of Exhibit A annexed
hereto.
ARTICLE IV
EXPENSES
Section 4.1 Payment of Expenses.
In connection with the offering, sale and issuance of the
Debentures to the Trust in connection with the sale of the Trust Securities by
the Trust, the Company, as borrower, shall:
(a) pay for all costs and expenses relating to the offering,
sale and issuance of the Debentures, including compensation to the Initial
Purchasers payable pursuant to the Purchase Agreement and compensation of the
Trustee (in any of its capacities) under the Indenture in accordance with the
provisions of Section 7.06 of the Base Indenture; and
(b) pay for all costs and expenses of the Trust, including, but
not limited to, costs and expenses relating to the organization and operation of
the Trust (including any taxes, duties, assessments or other governmental
charges of whatever nature imposed on the Trust by the United States or any
other taxing authority), the offering, sale and issuance of the Trust Securities
(including compensation to the Initial Purchasers payable pursuant to the
Purchase Agreement in connection therewith); the fees and expenses of the
Property Trustee (including, without limitation, those incurred in connection
with the
17
enforcement by the Property Trustee of the rights of the holders of the
Preferred Securities), the Delaware Trustee and the Administrative Trustees; the
costs and expenses relating to the operation of the Trust (including, without
limitation, costs and expenses of accountants, attorneys, statistical or
bookkeeping services, expenses for printing and engraving and computing or
accounting equipment, paying agent(s), registrar(s), transfer agent(s),
duplicating, travel and telephone and other telecommunications expenses); and
costs and expenses incurred in connection with the acquisition, financing and
disposition of Trust assets;
(c) be primarily liable for any indemnification obligations
arising with respect to the Declaration; and
(d) pay any and all taxes (other than United States withholding
taxes), duties, assessments or governmental charges of whatever nature imposed
on the Trust by the United States or any other taxing authority and all
liabilities, costs and expenses with respect to such taxes of the Trust.
ARTICLE V
COVENANTS
Section 5.1 Covenants in the Event of an Event of Default or of a Deferral of
Interest.
If an Event of Default occurs and written notice of such event has
been given to the Company, or if the Company exercises its right to defer
payments of interest on the Debentures pursuant to Section 2.5, the Company may
not:
(a) declare or pay any dividend on, make any distributions
relating to, or redeem, purchase, acquire or make a liquidation payment relating
to, any of its capital stock, or any warrants, options or other rights to
acquire capital stock (but excluding any debt security that is convertible into
or exchangeable for capital stock); or
(b) make any payment of interest, principal or premium, if any,
on or repay, repurchase or redeem any debt securities of the Company that rank
on a parity with or junior in interest to the Debentures or make any payments
with respect to any guarantee by the Company of the debt securities of any
subsidiary of the Company if such guarantee ranks on a parity with or junior in
interest to the Debentures;
in each case, other than:
(i) dividends or distributions in capital stock (or
rights to acquire capital stock) of the Guarantor;
(ii) payments under the Guarantee;
(iii) any declaration of a dividend in connection with the
implementation of a shareholders' rights plan, or the issuance of
stock under any such plan in the future, or the redemption or
repurchase of any such rights pursuant to a rights agreement;
(iv) repurchases or acquisitions of shares of capital
stock of the Guarantor in connection with the satisfaction by the
Guarantor of its obligations under any employee benefit plans or any
other contractual obligation of the Guarantor; or
18
(v) as a result of an exchange or conversion of the
Guarantor's capital stock for another class or series of the
Guarantor's capital stock;
(vi) the purchase of fractional interests in shares of
the Guarantor's capital stock pursuant to the conversion or exchange
provisions of such capital stock or the security being converted or
exchanged; and
(vii) repurchases of capital stock of the Guarantor in
connection with the satisfaction by the Guarantor of its obligations
pursuant to any acquisitions of businesses made by the Guarantor
(which repurchases are made in connection with the satisfaction of
indemnification obligations of the sellers of such businesses).
Section 5.2 Additional Covenants Relating to the Trust.
For as long as the Debentures are held of record by the Property
Trustee, the Company will:
(a) maintain, directly or indirectly, 100% ownership of the
Common Securities; provided, however, that any permitted successor of the
Company under this Indenture may succeed to the Company's ownership of such
Common Securities;
(b) use its reasonable efforts to cause the Trust to (a) remain
a statutory trust, except in connection with the distribution of the Debentures
to the Holders, the redemption of all of the Securities, or certain mergers,
consolidations, conversions or amalgamations, each as permitted by the
Declaration, (b) not to voluntarily dissolve, wind up, liquidate or be
terminated, except as permitted by the Declaration and (c) otherwise continue to
be classified as a grantor trust for United States federal income tax purposes;
(c) use its commercially reasonable efforts to ensure that the
Trust will not be an "investment company" required to be registered under the
Investment Company Act;
(d) not to take any action that would be reasonably likely to
cause the Trust to be classified as an association or a publicly traded
partnership taxable as a corporation for United States federal income tax
purposes; and
(e) use its reasonable best efforts to cause each holder of
Trust Securities to be treated as owning an undivided beneficial interest in the
Debentures.
Section 5.3 Covenant in Event of Distribution of Debentures.
If the Debentures are to be distributed to the holders of the
Preferred Securities upon dissolution of the Trust, the Company shall perform
all acts and take all actions necessary to facilitate the distribution of the
Debentures pursuant to Sections 6.10 and 8.2 of the Declaration (including,
without limitation, making the Debentures eligible for payment through The
Depository Trust Company).
Section 5.4 Additional Covenant Relating to the Guarantee.
19
If an event of default under the Guarantee occurs and written
notice of such event has been given to the Company, the Company shall be subject
to the limitations and restrictions set forth in Section 5.1 relating to an
Event of Default.
ARTICLE VI
SUBORDINATION
Section 6.1 Debentures Subordinated to Senior Indebtedness.
The Company covenants and agrees, and each Holder, by such
Holder's acceptance thereof, likewise covenants and agrees, that the
indebtedness represented by the Debentures and the payment of the principal of
and interest on each and all of the Debentures is hereby expressly subordinated
and junior, to the extent and in the manner as set forth in this Section 6.1, in
right of payment to the prior payment in full of all Senior Indebtedness.
(a) In the event of any payment or distribution of assets of the
Company to creditors upon any liquidation, dissolution, winding up or
reorganization of the Company, whether in bankruptcy, insolvency, reorganization
or receivership proceedings or upon an assignment by the Company for the benefit
of creditors or any other marshalling of the assets and liabilities of the
Company or otherwise, the holders of all Senior Indebtedness shall be entitled
first to receive payment of the full amount due thereon in respect of all such
Senior Indebtedness and all other amounts due or provision shall be made for
such amount in cash, or other payments satisfactory to the holders of Senior
Indebtedness, before the Holders are entitled to receive any payment or
distribution of any character, whether in cash, securities or other property, on
account of the principal of, premium, if any, or interest on the indebtedness
evidenced by the Debentures.
(b) In the event of any acceleration of maturity of the
Debentures because of an Event of Default, unless the full amount due in respect
of all Senior Indebtedness is paid in cash or other form of payment satisfactory
to the holders of Senior Indebtedness, no payment shall be made by the Company
with respect to the principal of or interest on the Debentures or to acquire any
of the Debentures, and the Company shall give prompt written notice of such
acceleration to such holders of Senior Indebtedness.
(c) In the event of and during the continuance of any default in
payment of the principal of or interest on any Senior Indebtedness, unless all
such payments due in respect of such Senior Indebtedness have been paid in full
in cash or other payments satisfactory to the holders of Senior Indebtedness, no
payment shall be made by the Company with respect to the principal of or
interest on the Debentures or to acquire any of the Debentures. The Company
shall give prompt written notice to the Trustee of any default under any Senior
Indebtedness or under any agreement pursuant to which Senior Indebtedness may
have been issued.
(d) During the continuance of any event of default with respect
to any Senior Indebtedness, as such event of default is defined under any such
Senior Indebtedness or in any agreement pursuant to which any Senior
Indebtedness has been issued (other than a default in payment of the principal
of or interest on any Senior Indebtedness), permitting the holder or holders of
such Senior Indebtedness to accelerate the maturity thereof, no payment shall be
made by the Company, directly or indirectly, with respect to principal of,
premium, if any, or interest on the Debentures for 179 days following notice in
writing (a "Payment Blockage Notice") to the Company, from any holder or holders
20
of such Senior Indebtedness or their representative or representatives or the
trustee or trustees under any indenture or under which any instrument evidencing
any such Senior Indebtedness may have been issued, that such an event of default
has occurred and is continuing, unless such event of default has been cured or
waived or such Senior Indebtedness has been paid in full; provided, however, if
the maturity of such Senior Indebtedness is accelerated, no payment may be made
on the Debentures until such Senior Indebtedness has been paid in full in cash
or other payment satisfactory to the holders of such Senior Indebtedness or such
acceleration (or termination, in the case of a lease) has been cured or waived.
For purposes of this Section 6.1(d), such Payment Blockage Notice
shall be deemed to include notice of all other events of default under such
indenture or instrument which are continuing at the time of the event of default
specified in such Payment Blockage Notice. The provisions of this Section 6.1(d)
shall apply only to one such Payment Blockage Notice given in any period of 365
days with respect to any issue of Senior Indebtedness, and no such continuing
event of default that existed or was continuing on the date of delivery of any
Payment Blockage Notice shall be, or shall be made, the basis for a subsequent
Payment Blockage Notice.
(e) In the event that, notwithstanding the foregoing provisions
of Sections 6.1(a), 6.1(b), 6.1(c) and 6.1(d), any payment on account of
principal of, premium, if any, or interest on the Debentures shall be made by or
on behalf of the Company and received by the Trustee, by any Holder or by any
Paying Agent (or, if the Company is acting as its own Paying Agent, money for
any such payment shall be segregated and held in trust):
(i) after the occurrence of an event specified in Section
6.1(a) or 6.1(b), then, unless all Senior
Indebtedness is paid in full in cash, or provision
shall be made therefor,
(ii) after the happening of an event of default of the
type specified in Section 6.1(c) above, then, unless
the amount of such Senior Indebtedness then due shall
have been paid in full, or provision made therefor or
such event of default shall have been cured or
waived, or
(iii) after the happening of an event of default of the
type specified in Section 6.1(d) above and delivery
of a Payment Blockage Notice, then, unless such event
of default shall have been cured or waived or the
179-day period specified in Section 6.1(d) shall have
expired,
such payment (subject, in each case, to the provisions of Section 6.7 hereof)
shall be held in trust for the benefit of, and shall be immediately paid over
to, the holders of Senior Indebtedness or their representative or
representatives or the trustee or trustees under any indenture under which any
instruments evidencing any of the Senior Indebtedness may have been issued, as
their interests may appear.
Section 6.2 Subrogation.
Subject to the payment in full of all Senior Indebtedness to which
the indebtedness evidenced by the Debentures is in the circumstances
subordinated as provided in Section 6.1 hereof, the Holders shall be subrogated
to the rights of the holders of such Senior Indebtedness to receive payments or
distributions of cash, property or securities of the Company applicable to such
Senior Indebtedness until all amounts owing on the Debentures shall be paid in
full, and, as between the Company, its
21
creditors other than holders of such Senior Indebtedness, and the Holders, no
such payment or distribution made to the holders of Senior Indebtedness by
virtue of this Article which otherwise would have been made to the holders of
the Debentures shall be deemed to be a payment by the Company on account of such
Senior Indebtedness, provided that the provisions of this Article are and are
intended solely for the purpose of defining the relative rights of the Holders,
on the one hand, and the holders of Senior Indebtedness, on the other hand.
Section 6.3 Obligation of the Company is Absolute and Unconditional.
Nothing contained in this Article or elsewhere in this Indenture
or in the Debentures is intended to or shall impair, as between the Company, its
creditors other than the holders of Senior Indebtedness, and the Holders, the
obligation of the Company, which is absolute and unconditional, to pay to the
Holders the principal of and interest on the Debentures as and when the same
shall become due and payable in accordance with their terms, or is intended to
or shall affect the relative rights of the Holders and creditors of the Company
other than the holders of Senior Indebtedness, nor shall anything contained
herein or therein prevent the Trustee or the Holder 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
in respect of cash, property or securities of the Company received upon the
exercise of any such remedy.
Section 6.4 Maturity of or Default on Senior Indebtedness.
Upon the maturity of any Senior Indebtedness by lapse of time,
acceleration or otherwise, all principal of or premium, if any, or interest on,
rent or other payment obligations in respect of all such matured Senior
Indebtedness shall first be paid in full, or such payment shall have been duly
provided for, before any payment on account of principal or interest is made
upon the Debentures.
Section 6.5 Payments on Debentures Permitted.
Except as expressly provided in this Article, nothing contained in
this Article shall affect the obligation of the Company to make, or prevent the
Company from making, payments of the principal of or interest on the Debentures
in accordance with the provisions hereof and thereof, or shall prevent the
Trustee or any Paying Agent from applying any moneys deposited with it hereunder
to the payment of the principal of or interest on the Debentures.
Section 6.6 Effectuation of Subordination by Trustee.
Each Holder, by such Holder's acceptance thereof, authorizes and
directs the Trustee on such Holder's behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article and appoints the Trustee such Holder's attorney-in-fact for any and all
such purposes.
Upon any payment or distribution of assets of the Company referred
to in this Article, the Trustee and the Holders shall be entitled to request and
rely upon any order or decree made by any court of competent jurisdiction in
which any such dissolution, winding up, liquidation or reorganization proceeding
affecting the affairs of the Company is pending or upon a certificate of the
trustee in bankruptcy, receiver, assignee for the benefit of creditors,
liquidating trustee or agent or other Person making any payment or distribution,
delivered to the Trustee or to the Holders, for the purpose of ascertaining the
Persons entitled to participate in such payment or distribution, and as to other
facts
22
pertinent to the right of such Persons under this Article, and if such evidence
is not furnished, the Trustee may defer any payment to such Persons pending
judicial determination as to the right of such Persons to receive such payment.
Section 6.7 Knowledge of Trustee.
Notwithstanding the provisions of this Article or any other
provisions of this Indenture, the Trustee (acting in any of its capacities)
shall not be charged with notice or knowledge of the existence of any Senior
Indebtedness, of any default in payment of principal of, premium, if any, or
interest on, rent or other payment obligation in respect of any Senior
Indebtedness, or of any facts which would prohibit the making of any payment of
moneys to or by the Trustee, or the taking of any other action by the Trustee,
unless a Responsible Officer of the Trustee shall have received written notice
thereof from the Company, any Holder, any Paying Agent of the Company or the
holder or representative of any class of Senior Indebtedness, and, prior to the
receipt of any such written notice, the Trustee (acting in any of its
capacities) shall be entitled in all respects to assume that no such default or
facts exist; provided, however, that unless on the third Business Day prior to
the date upon which by the terms hereof any such moneys may become payable for
any purpose the Trustee shall have received the notice provided for in this
Section 6.7, then, anything herein contained to the contrary notwithstanding,
the Trustee shall have full power and authority (but shall not be obligated) to
receive such moneys and apply the same to the purpose for which they were
received, and shall not be affected by any notice to the contrary which may be
received by it on or after such date.
Section 6.8 Trustee's Relation to Senior Indebtedness.
The Trustee shall be entitled to all the rights set forth in this
Article with respect to any Senior Indebtedness at the time held by it, to the
same extent as any other holder of Senior Indebtedness and nothing contained in
this Indenture shall deprive the Trustee of any of its rights as such holder.
Nothing contained in this Article shall apply to claims of or
payments to the Trustee (acting in any of its capacities) under or pursuant to
Section 6.07 of the Base Indenture.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article, and no implied covenants or
obligations with respect to the holders of Senior Indebtedness shall be read
into this Indenture against the Trustee. The Trustee shall not be deemed to owe
any fiduciary duty to the holders of Senior Indebtedness and the Trustee shall
not be liable to any holder of Senior Indebtedness if it shall pay over or
deliver to Holders, the Company or any other Person moneys or assets to which
any holder of Senior Indebtedness shall be entitled by virtue of this Article or
otherwise.
Section 6.9 Rights of Holders of Senior Indebtedness Not Impaired.
No right of any present or future holder of any Senior
Indebtedness to enforce the subordination herein shall at any time or in any way
be prejudiced or impaired by any act or failure to act on the part of the
Company or by any noncompliance 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.
Section 6.10 Modification of Terms of Senior Indebtedness.
23
Any renewal or extension of the time of payment of any Senior
Indebtedness or the exercise by the holders of Senior Indebtedness of any of
their rights under any instrument creating or evidencing Senior Indebtedness,
including without limitation the waiver of default thereunder, may be made or
done all without notice to or assent from the Holders or the Trustee.
No compromise, alteration, amendment, modification, extension,
renewal or other change of, or waiver, consent or other action in respect of,
any liability or obligation under or in respect of, or of any of the terms,
covenants or conditions of any indenture or other instrument under which any
Senior Indebtedness is outstanding or of such Senior Indebtedness, whether or
not such release is in accordance with the provisions or any applicable
document, shall in any way alter or affect any of the provisions of this Article
or of the Debentures relating to the subordination thereof.
ARTICLE VII
RIGHTS OF HOLDERS OF PREFERRED SECURITIES
Section 7.1 Preferred Security Holders' Rights.
If the Property Trustee fails to enforce its rights under the
Debentures after a holder of Preferred Securities has made a written request,
the holder of Preferred Securities may, to the fullest extent permitted by law,
institute a legal proceeding directly against the Company to enforce the
Property Trustee's rights under the Indenture without first instituting any
legal proceeding against the Property Trustee or any other person or entity.
Section 7.2 Direct Action.
Notwithstanding any other provision of the Indenture, for as long
as any Preferred Securities remain outstanding, to the fullest extent permitted
by law, if an Event of Default has occurred and is continuing and such event is
attributable to the failure of the Company to pay the principal of or premium,
if any, or interest on the Debentures on the date such principal, premium, if
any, or interest is otherwise payable, a holder of Preferred Securities may
institute, to the fullest extent permitted by law, a proceeding directly against
the Company (a "Direct Action") to enforce payment to such holder of the
principal of or premium, if any, or interest on Debentures having an aggregate
principal amount equal to the aggregate stated liquidation amount of the
Preferred Securities of such holder.
Section 7.3 Payments Pursuant to Direct Actions.
The Company shall have the right to set off against its
obligations to the Trust, as Holder, any payment made to a holder of Preferred
Securities in connection with a Direct Action.
ARTICLE VIII
REMARKETING
Section 8.1 Effectiveness of this Article.
Except for Section 8.2(a) and 8.2(b), this Article VIII shall
become effective only upon a distribution of the Debentures upon dissolution of
the Trust which occurs prior to the Remarketing of the Preferred Securities
pursuant to the Declaration. Until such a distribution, or if such distribution
occurs
24
after the Remarketing of the Preferred Securities pursuant to the Declaration,
this Article VIII (except for Section 8.2(a) and 8.2(b)) shall have no effect.
Section 8.2 Remarketing.
(a) In connection with a Remarketing of the Preferred Securities:
(i) in connection with a Remarketing of the Preferred
Securities upon an Optional Redemption Remarketing
Event or a Legal Cause Remarketing Event, the Accreted
Value of the Debentures as of the end of the day on the
day next preceding the Remarketing Date shall become
due on the date which is 180 days following the
Remarketing Date;
(ii) beginning on the Remarketing Date, the rate of interest
per annum on the Accreted Value of the Debentures shall
become the Reset Rate on the Accreted Value of the
Securities established in the Remarketing of the
Preferred Securities; and
(iii) on the Remarketing Settlement Date, interest accrued
and unpaid on the Debentures from and including the
immediately preceding Interest Payment Date to, but
excluding, the Remarketing Settlement Date shall be
payable to the Holders of the Debentures on the Special
Record Date.
(b) In connection with a Remarketing of the Preferred Securities
and at any time thereafter, a purchaser may exchange its Preferred Securities
for its pro rata share of Debentures. In such event, the Administrative Trustees
shall cause Debentures held by the Property Trustee, having an aggregate
Accreted Value equal to the aggregate Accreted Value of the Preferred Securities
purchased by such purchaser and with accrued and unpaid interest equal to the
accumulated and unpaid Distributions on the Preferred Securities purchased by
such purchaser, and having the same record date for payment as the Preferred
Securities, to be distributed to such purchaser in exchange for such holders'
pro rata interest in the Trust. In such event, the Debentures held by the Trust
shall decrease by the amount of Debentures delivered to the purchaser of
Preferred Securities.
(c) The proceeds from the Remarketing of the Debentures shall be
paid to the selling holders; provided that upon an Optional Redemption
Remarketing Event (as defined in the Declaration) or a Legal Cause Remarketing
Event, the proceeds from the Remarketing of the Debentures that are held
pursuant to the Unit Agreement for which the holders of such Units have elected
to exercise their Warrants shall be paid directly to the Warrant Agent to
satisfy in full the Exercise Price of the Warrants held by such holders with any
excess proceeds being paid to the selling holders.
(d) Upon the occurrence of an Optional Redemption Remarketing
Event, the Company may elect to cause a Remarketing of the Debentures and select
a Remarketing Date; provided that the following conditions precedent are
satisfied:
(i) as of the date on which the Company elects to cause a
Remarketing of the Debentures and on the Remarketing
Date, no Event of Default or deferral of interest
payments to Holders of the Debentures shall have
occurred and be continuing;
25
(ii) as of the date on which the Company elects to cause a
Remarketing of the Debentures and on the Remarketing Date,
the Warrant Requirements shall have been satisfied; and
(iii) on the Remarketing Date, the Legal Requirements shall have
been satisfied.
The settlement of the Remarketing shall occur on the Remarketing Settlement
Date; provided that the following conditions precedent are satisfied on the
Remarketing Settlement Date:
(A) the Warrant Requirements shall be satisfied; and
(B) pursuant to the Warrant Agreement, a redemption of the
Warrants of those holders who have not elected to
exercise their Warrants prior to or on such date shall
have been consummated.
If any of the foregoing conditions precedent are not satisfied, the Remarketing
cannot occur and the contemporaneous redemption of Warrants shall be canceled;
provided, however, that if:
(x) the Remarketing cannot occur because of a failure to satisfy
either the Warrant Requirements or the Legal Requirements as
of or on the relevant date or dates; and
(y) the Company is using its best efforts to satisfy such
Requirements;
the Company shall have the right to cause a Remarketing of the Debentures on a
subsequent date which is no later than May 7, 2051; provided that all applicable
requirements and conditions precedents (including the timely occurrence of an
Optional Redemption Remarketing Event) are satisfied.
(e) Upon the occurrence of a Legal Cause Remarketing Event, the
Company may elect to cause a Remarketing of the Debentures and select a
Remarketing Date; provided that the following conditions precedent are
satisfied:
(i) as of the date on which the Company elects to cause a
Remarketing of the Debentures and on the Remarketing Date,
no Event of Default shall have occurred and be continuing;
(ii) as of the date on which the Company elects to cause a
Remarketing of the Debentures and on the Remarketing Date,
the Warrant Requirements shall have been satisfied; and
(iii) on the Remarketing Date, the Legal Requirements shall have
been satisfied.
The settlement of the Remarketing shall occur on the Remarketing Settlement
Date; provided that the following conditions precedent are satisfied on the
Remarketing Settlement Date:
(A) the Warrant Requirements shall be satisfied; and
26
(B) pursuant to the Warrant Agreement, a redemption of the
Warrants of those holders who have not elected to
exercise their Warrants on or prior to such date shall
have been consummated.
If any of the foregoing conditions precedent are not satisfied, the Remarketing
cannot occur and the contemporaneous redemption of Warrants shall be canceled;
provided, however, that if:
(x) the Remarketing cannot occur because of a failure to
satisfy either the Warrant Requirements or the Legal
Requirements as of or on the relevant date or dates; and
(y) the Company is using its best efforts to satisfy such
Requirements;
the Company shall have the right to cause a Remarketing of the Debentures on a
subsequent date which is no later than May 7, 2051; provided that all applicable
requirements and conditions precedents (including the timely occurrence of a
Legal Cause Remarketing Event) are satisfied.
(f) On the Maturity Remarketing Date, a Remarketing of the
Debentures shall occur; provided that on such date, the Legal Requirements (to
the extent applicable) shall have been satisfied.
(g) If, for any reason, a Remarketing of the Debentures does not
occur on the Maturity Remarketing Date, the Administrative Trustees shall give
notice thereof to all Holders of the Debentures (whether or not held pursuant to
the Unit Agreement) prior to the close of business on the Business Day following
the Maturity Remarketing Date. In such event:
(i) the rate of interest per annum on the Accreted Value of the
Debentures (which, on the Maturity Remarketing Date, shall
be equal to the principal amount of the Debentures) shall
become 11.10%
(ii) the Accreted Value of the Debentures shall be due and
payable on the day which is 180 days after the Maturity
Remarkable Date; and
(iii) the Company no longer shall have the option to defer
payments of interest on the Debentures.
(h) Upon the occurrence of an Optional Redemption Remarketing Event
or a Legal Cause Remarketing Event and the election by the Company to cause a
Remarketing of the Debentures, or upon the Maturity Remarketing Date, as long as
the Debentures are evidenced by a Global Debenture, deposited with the Clearing
Agency, the Company shall request, not later than four nor more than 20 days
prior to the Remarketing Date, that the Depositary notify the Holders of the
Debentures of the Remarketing of the Debentures and of the procedures that must
be followed if such Holder of Debentures or holder of Units wishes to opt not to
participate in the Remarketing of the Debentures.
(i) Upon the occurrence of a Remarketing Event, all of the Debentures
(excluding the Debentures as to which the Holders thereof have opted not to
participate in the Remarketing (but including Debentures that are not held
pursuant to the Unit Agreement)) shall be remarketed by the Remarketing Agent.
Not later than 5:00 p.m. (New York City time) on the Business Day preceding the
Remarketing Date, each Holder of Debentures may elect not to have the Debentures
held by such Holder remarketed in the Remarketing. Holders of Debentures that
are not held pursuant to the Unit Agreement
27
shall give such notice to the Trustee and Holders of Debentures that are held
pursuant to the Unit Agreement shall give such notice to the Unit Agent. Holders
of Debentures that do not give notice of their intention not to participate in
the Remarketing, shall be deemed to have consented to the disposition of their
Debentures in the Remarketing. Any such notice shall be irrevocable and may not
be conditioned upon the level at which the Reset Rate is established in the
Remarketing.
Not later than 5:00 p.m. (New York City time) on the Business Day
preceding the Remarketing Date, the Trustee and the Unit Agent, as applicable,
based on the notices received by it prior to such time, shall notify the Trust,
the Company and the Remarketing Agent of the aggregate principal amount of
Debentures to be tendered for purchase in the Remarketing.
(j) The right of each Holder to have Debentures tendered for
purchase shall be limited to the extent that:
(i) the Remarketing Agent conducts a Remarketing pursuant to
the terms of the Remarketing Agreement;
(ii) the Remarketing Agent is able to find a purchaser or
purchasers for the Debentures deemed tendered; and
(iii) such purchaser or purchasers deliver the purchase price
therefor to the Remarketing Agent.
(k) On the Remarketing Date, the Remarketing Agent shall use
commercially reasonable efforts to remarket the Debentures deemed tendered for
purchase at a price no less than 100% of the aggregate Accreted Value as of the
end of the day on the day next preceding the Remarketing Date.
(l) If, as a result of the efforts described in 8.2(k), the
Remarketing Agent determines that it will be able to remarket all of the
Debentures deemed tendered for purchase at the purchase price set forth in
Section 8.2(k) prior to 4:00 p.m. (New York City time) on the Remarketing Date,
the Remarketing Agent shall determine the Reset Rate, which shall be the rate
per annum (rounded to the nearest one-thousandth (0.001) of 1% per annum) that
the Remarketing Agent determines, in its sole judgment, to be the lowest rate
per annum that will enable it to remarket all of the Debentures deemed tendered
for Remarketing.
(m) If none of the Holders of the Debentures or the holders of the
Units elects to have their Debentures remarketed in the Remarketing, the Reset
Rate shall be the rate determined by the Remarketing Agent, in its sole
discretion, as the rate that would have been established had a Remarketing been
held on the Remarketing Date, and the related modifications to the others terms
of the Debentures and the Warrants shall be effective as of the Remarketing
Date.
(n) If, by 4:00 p.m. (New York City time) on the Remarketing Date,
the Remarketing Agent is unable to remarket all of the Debentures deemed
tendered for purchase, a Failed Remarketing shall be deemed to have occurred and
the Remarketing Agent shall so advise by telephone (promptly confirmed in
writing) the Depositary, the Property Trustee, the Trustee and the
Administrative Trustees on behalf of the Trust and the Company. The
Administrative Trustees shall then give notice of the Failed Remarketing to the
Company and the Holders of the Debentures prior to the close of business on the
Business Day following the Failed Remarketing Date. In the event of a Failed
Remarketing:
28
(i) the Accreted Value of the Debentures as of the end of the
day on the day next preceding the Failed Remarketing Date
shall become due on the date which is 180 days following the
Failed Remarketing Date;
(ii) beginning on the Failed Remarketing Date, the rate of
interest per annum on the Accreted Value of the Debentures
shall become 11.10% from the Failed Remarketing Date to but
not including the Stated Maturity (as modified in connection
with such Failed Remarketing); and
(iii) the Company no longer shall have the option to defer
payments of interest on the Debentures.
Notwithstanding a Failed Remarketing, subject to the satisfaction of the Legal
Requirements, the Warrants shall be redeemed at the Warrant Value and the
holders of Warrants shall have the option to exercise its Warrants in lieu of
such redemption, as provided in the Unit Agreement and the Warrant Agreement.
(o) By approximately 4:30 p.m. (New York City time) on the Remarketing
Date, provided that there has not been a Failed Remarketing, the Remarketing
Agent shall advise, by telephone (promptly confirmed in writing):
(i) the Depositary, the Property Trustee, the Trustee, the Trust
and the Company of the Reset Rate determined in the
Remarketing and the aggregate principal amount of Debentures
sold in the Remarketing;
(ii) each purchaser (or the Depositary participant thereof) of
the Reset Rate and the aggregate principal amount of
Debentures such purchaser is to purchase; and
(iii) each purchaser to give instructions to its Depositary
participant to pay the purchase price on the Remarketing
Settlement Date in same day funds against delivery of the
Debentures purchased through the facilities of the
Depositary.
(p) In accordance with the Depositary's normal procedures, on the
Remarketing Settlement Date, the transactions described above with respect to
each Debenture deemed tendered for purchase and sold in the Remarketing shall be
executed through the Depositary, and the accounts of the respective Depositary
participants shall be debited and credited and such Debentures delivered by
book-entry as necessary to effect purchases and sales of such Debentures. The
Depositary shall make payment in accordance with its normal procedures.
(q) If any Holder of the Debentures selling such Debentures (or any
holder of Units selling the Debentures that are held pursuant to the Unit
Agreement) in the Remarketing fails to deliver such Debentures, the Depositary
participant of such selling holder and of any other Person that was to have
purchased Debentures in the Remarketing may deliver to any such other Person an
aggregate principal amount of Debentures that is less than the aggregate
principal amount of Debentures that otherwise was to be purchased by such
Person. In such event, the aggregate principal amount of Debentures to be so
delivered shall be determined by such Depositary participant, and delivery of
such aggregate principal amount of Debentures shall constitute good delivery.
29
(r) The Remarketing Agent is not obligated to purchase any
Debentures that otherwise would remain unsold in the Remarketing. Neither the
Trust, any Trustee, the Company nor the Remarketing Agent shall be obligated in
any case to provide funds to make payment upon tender of the Debentures for
Remarketing.
(s) Under the Remarketing Agreement, the Company, in its capacity as
Debenture Issuer, shall be liable for, and shall pay, any and all costs and
expenses incurred in connection with the Remarketing, and the Trust shall not
have any liabilities for such costs and expenses.
(t) The tender and settlement procedures set forth in this Section
8.2, including provisions for payment by purchasers of the Debentures in the
Remarketing, shall be subject to modification to the extent required by the
Depositary or if the book-entry system is no longer available for the Debentures
at the time of the Remarketing, to facilitate the tendering and remarketing of
the Debentures in definitive form. In addition, the Remarketing Agent may modify
the settlement procedures set forth herein in order to facilitate the settlement
process.
ARTICLE IX
MISCELLANEOUS
Section 9.1 Ratification of Indenture.
The Indenture, as supplemented and amended by this First
Supplemental Indenture, is ratified and confirmed, and this First Supplemental
Indenture shall be deemed part of the Indenture in the manner and to the extent
herein and therein provided. If any provision of this First Supplemental
Indenture is inconsistent with a provision of the Base Indenture, the terms of
this First Supplemental Indenture shall control.
Section 9.2 Trustee Not Responsible for Recitals.
The recitals contained herein are made by the Company and not by the
Trustee, and the Trustee assumes no responsibility for the correctness thereof.
The Trustee makes no representation as to the validity or sufficiency of this
First Supplemental Indenture.
Section 9.3 Governing Law.
This First Supplemental Indenture and each Debenture shall be
governed by, and construed in accordance with, the laws of the State of New York
without regard to principles of conflicts of laws.
Section 9.4 Severability.
In case any one or more of the provisions contained in this First
Supplemental Indenture or in the Debentures shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this First
Supplemental Indenture or of the Debentures, but this First Supplemental
Indenture and the Debentures shall be construed as if such invalid or illegal or
unenforceable provision had never been contained herein or therein.
30
Section 9.5 Counterparts.
This First Supplemental Indenture may be executed in any number of
counterparts each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
31
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed, on the date or dates indicated in
the acknowledgments and as of the day and year first above written.
NEW YORK COMMUNITY BANCORP, INC.
By: _____________________________________
Name:
Title:
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as Trustee
By: _____________________________________
Name:
Title:
32
EXHIBIT A
[FACE OF DEBENTURE]
[Insert only if a Global Debenture: "This Debenture is a Global Debenture within
the meaning of the Indenture hereinafter referred to and is registered in the
name of Cede & Co., as nominee for The Depositary Trust Company (the
"Depositary"). This Debenture is exchangeable for Debentures registered in the
name of a person other than the Depositary or its nominee only in the limited
circumstances described in the Indenture, and no transfer of this Debenture
(other than a transfer of this Debenture as a whole by the Depositary to a
nominee of the Depositary or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary) may be registered except in limited
circumstances. Unless this Debenture is presented by an authorized
representative of the Depositary to New York Community Bancorp, Inc. or its
agent for registration of transfer, exchange or payment, and any Debenture
issued is registered in the name of Cede & Co. or such other name as requested
by an authorized representative of the Depositary, and any payment hereon is
made to Cede & Co., and, except as otherwise provided in the Indenture, 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.
NEW YORK COMMUNITY BANCORP, INC.
6.000% Junior Subordinated Deferrable Interest Debenture due
November 1, 2051
Certificate No.: $
This Debenture is one of a duly authorized series of Debt
Securities of New York Community Bancorp, Inc. (the "Debentures"), all issued
under and pursuant to an Indenture dated as of __________, 2002, duly executed
and delivered by New York Community Bancorp, Inc., a Delaware corporation (the
"Company", which term includes any successor corporation under the Indenture
hereinafter referred to) and Wilmington Trust Company, a Delaware banking
corporation, as Trustee (the "Trustee"), as supplemented by the First
Supplemental Indenture thereto dated as of __________, 2002, between the Company
and the Trustee (such Indenture as so supplemented, the "Indenture"), to which
Indenture and all indentures supplemental thereto reference is hereby made for a
description of the rights, limitations of rights, obligations, duties and
immunities thereunder of the Trustee, the Company and the Holders of the
Debentures. By the terms of the Indenture, the Debt Securities are issuable in
series that may vary as to amount, date of maturity, rate of interest and in
other respects as provided in the Indenture. This series of Debt Securities is
limited in aggregate principal amount to $283,505,200.
The Company, for value received, hereby promises to pay to Cede &
Co., Inc. or its registered assigns, the principal sum Two Hundred Eighty-Three
Million Five Hundred Five Thousand Two Hundred Dollars ($283,505,200) on
November 1, 2051 (or such earlier date as determined in connection with a
Remarketing).
A-1
Interest Payment Dates: February 1, May 1, August 1 and November
1, commencing on February 1, 2003.
Reference is hereby made to the further provisions of this
Debenture set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
A-2
IN WITNESS WHEREOF, the Company has caused this Debenture to be
duly executed manually or by facsimile by its duly authorized officers under its
corporate seal.
NEW YORK COMMUNITY BANCORP, INC.
By: __________________________________
Name:
Title:
By: __________________________________
Name:
Title:
Trustee's Certificate of Authentication
This is one of the 6.000% Subordinated Junior Deferrable Interest Debentures due
2051 referred to in the within-mentioned Indenture.
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as Trustee
By: __________________________________
Authorized Officer
Dated:
_______________, 2002
A-3
[REVERSE OF DEBENTURE]
NEW YORK COMMUNITY BANCORP, INC.
6.000% Subordinated Junior Deferrable Interest Debentures due 2051
Capitalized terms used herein but not defined shall have the meanings
assigned to them in the Indenture referred to below unless otherwise indicated.
1. Principal and Interest.
New York Community Bancorp, Inc., a Delaware corporation (the
"Company"), promises to pay interest on the principal amount of this Debenture
at the Coupon Rate from and including __________, 2002, to, but excluding, the
Remarketing Date, and on the Accreted Value of this Debenture on the Remarketing
Date at the Reset Rate from and including the Remarketing Date to, but
excluding, the Stated Maturity. The Company will pay interest on this Debenture
quarterly in arrears on February 1, May 1, August 1 and November 1 of each year
(each an "Interest Payment Date"), commencing on February 1, 2003. Interest not
paid on the scheduled Interest Payment Date will accrue and compound quarterly
at the Coupon Rate of the principal amount of this Debenture or the Reset Rate
of the Accreted Value of this Debenture, as the case may be.
Interest on the Debentures shall be computed (i) for any full quarterly
90-day period on the basis of a 360-day year of twelve 30-day months, (ii) for
any period shorter than a full quarterly 90-day period, on the basis of a 30-day
month and (iii) for any period less than a 30-day month, on the basis of the
actual number of days elapsed in the 30-day month.
2. Optional Deferral of Interest.
As long as no Event of Default has occurred and is continuing, and as
long as a Failed Remarketing has not occurred, the Company has the right, at any
time and from time to time, to defer payments of interest on the Debentures by
extending the interest payment period on the Debentures for a period (each, an
"Extension Period") not exceeding 20 consecutive quarters, during which
Extension Period no interest shall be due and payable on the Debentures,
provided that no Extension Period shall end on a date other than an Interest
Payment Date for the Debentures or extend beyond the Stated Maturity. Upon the
occurrence of a Failed Remarketing, any such Extension Period shall terminate,
and interest shall become payable in cash on the next Interest Payment Date.
Despite such deferral, interest shall continue to accrue with additional
interest thereon (to the extent permitted by applicable law) at the Coupon Rate
of the principal amount of the Debentures or Reset Rate of the Accreted Value of
the Debentures, as applicable, compounded quarterly during any such Extension
Period ("Compounded Interest"). Prior to the termination of any such Extension
Period, the Company may further defer payments of interest by further extending
such Extension Period; provided that such Extension Period, together with all
such previous and further extensions of such Extension Period, may not exceed 20
consecutive quarters or extend beyond the Stated Maturity. At the termination of
any Extension Period, the Company shall pay all interest then accrued and
unpaid, plus Compounded Interest. Upon the termination of any Extension Period
and the payment of all amounts then due, the Company may commence a new
Extension Period, subject to the above requirements.
The Company shall pay all deferred interest and Compounded Interest on
the Debentures prior to the exercise of its right to cause a Remarketing of the
Debentures.
A-4
During an Extension Period, the Company may not:
(a) declare or pay any dividend on, make any distributions relating to, or
redeem, purchase, acquire, or make a liquidation payment relating to, any of its
capital stock, or any warrants, options or other rights to acquire capital stock
(but excluding any debt security that is convertible into or exchangeable for
capital stock); or
(b) make any payment of interest, principal or premium, if any, on or
repay, repurchase or redeem any debt securities of the Company that rank on a
parity with or junior in interest to the Debentures or make any payments with
respect to any guarantee by the Company of the debt securities of any subsidiary
of the Company if such guarantee ranks on a parity with or junior in interest to
the Debentures;
in each case, other than:
(i) dividends or distributions in capital stock (or rights to
acquire capital stock) of the Guarantor;
(ii) payments under the Guarantee;
(iii) any declaration of a dividend in connection with the
implementation of a shareholders' rights plan, or the
issuance of stock under any such plan in the future, or the
redemption or repurchase of any such rights pursuant to a
rights agreement;
(iv) repurchases or acquisitions of shares of capital stock of
the Guarantor in connection with the satisfaction by the
Guarantor of its obligations under any employee benefit
plans or any other contractual obligation of the Guarantor;
or
(v) as a result of an exchange or conversion of the Guarantor's
capital stock for another class or series of the
Guarantor's capital stock;
(vi) the purchase of fractional interests in shares of the
Guarantor's capital stock pursuant to the conversion or
exchange provisions of such capital stock or the security
being converted or exchanged; and
(vii) repurchases of capital stock of the Guarantor in connection
with the satisfaction by the Guarantor of its obligations
pursuant to any acquisitions of businesses made by the
Guarantor (which repurchases are made in connection with
the satisfaction of indemnification obligations of the
sellers of such businesses).
3. Method of Payment.
Interest on any Debenture which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the person in
whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest. As long
as the Debentures are represented by a Global Debenture, the Regular Record
Dates for the
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Debentures shall be the Business Day preceding the corresponding Interest
Payment Date. If the Debentures are issued in definitive form, the Regular
Record Dates for the Debentures shall be at least one Business Day prior to the
corresponding Interest Payment Date.
4. Paying Agent and Security Registrar.
Initially, the Trustee will act as Paying Agent and Security Registrar.
The Company may change the Paying Agent and Security Registrar without notice to
any Holder.
5. Indenture.
The Company issued this Debenture under an Indenture, dated as of
_________, 2002 (the "Base Indenture"), between the Company and Wilmington
Trust Company, as trustee (the "Trustee"), as amended and supplemented by the
First Supplemental Indenture, dated as of _________, 2002 (the "First
Supplemental Indenture," together with the Base Indenture, the "Indenture"),
between the Company and the Trustee.
6. Redemption.
The Company shall have no right to redeem the Debentures.
7. Sinking Fund.
The Debentures will not be subject to a sinking fund provision.
8. Limited Right to Require Exchange of Preferred Securities and Repurchase of
Debentures.
Pursuant to Section 6.7 of the Declaration, in the event a holder of a
Unit exercises a Warrant on a date other than a Remarketing Settlement Date and
elects to exercise its Repurchase Right, the Company shall be required to
repurchase at the Repurchase Price on the applicable Special Distribution Date
Debentures which, pursuant to the Declaration, have been received in exchange
for Preferred Securities.
9. Change of Control Right to Require Exchange of Preferred Securities and
Repurchase of Debentures.
Pursuant to Section 6.8 of the Declaration, in the event a Change of
Control occurs and the holder of a Unit or the holder of a Preferred Security,
as the case may be, elects to exercise its Change of Control Repurchase Right,
the Company shall be required to repurchase at the Change of Control Repurchase
Price on the Change of Control Repurchase Date Debentures which, pursuant to the
Declaration, have been received in exchange for Preferred Securities.
10. Distribution of Debentures in Exchange for Trust Securities Upon the
Occurrence of a Special Event.
If at any time a Special Event occurs and certain conditions are
satisfied, the Administrative Trustees may dissolve the Trust and, after
satisfaction of liabilities to creditors of the Trust as provided by applicable
law, cause the Debentures held by the Property Trustee to be distributed to the
holders of Trust Securities in liquidation of such holders' interests in the
Trust on a Pro Rata basis, upon
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not less than 30 nor more than 60 days notice, within the 90 Day Period, and,
simultaneous with such distribution, to cause a Like Amount of the Securities to
be exchanged by the Trust on a Pro Rata basis.
A Debenture Distribution Notice, which notice shall be irrevocable,
shall be given by the Trust by mail to each holder of Trust Securities as
provided in the Indenture.
In the event of a dissolution of the Trust and a distribution of the
Debentures, the Company shall have the same right, and shall be subject to same
terms and conditions, to cause a Remarketing of the Debentures as the Company
has and is subject to under Section 6.6 of the Declaration to cause a
Remarketing of the Preferred Securities.
11. Remarketing.
Except as set forth herein, these remarketing provisions shall become
effective only upon a distribution of the Debentures upon dissolution of the
Trust which occurs prior to the Remarketing of the Preferred Securities pursuant
to the Declaration. Until such a distribution, or if such distribution occurs
after the Remarketing of the Preferred Securities pursuant to the Declaration,
these remarketing provisions shall have no effect.
In connection with a Remarketing of the Preferred Securities:
(i) in connection with a Remarketing of the Preferred Securities upon
an Optional Redemption Remarketing Event or a Legal Cause
Remarketing Event, the Accreted Value of the Debentures as of the
end of the day on the day next preceding the Remarketing Date
shall become due on the date which is 180 days following the
Remarketing Date;
(ii) beginning on the Remarketing Date, the rate of interest per annum
on the Accreted Value of the Debentures shall become the Reset
Rate on the Accreted Value of the Securities established in the
Remarketing of the Preferred Securities; and
(iii) on the Remarketing Settlement Date, interest accrued and unpaid on
the Debentures from and including the immediately preceding
Interest Payment Date to, but excluding, the Remarketing
Settlement Date shall be payable to the holders of the Debentures
on the Special Record Date.
In connection with a Remarketing of the Preferred Securities and at any
time thereafter, a purchaser may exchange its Preferred Securities for its pro
rata share of Debentures. In such event, the Administrative Trustees shall cause
Debentures held by the Property Trustee, having an aggregate Accreted Value
equal to the aggregate Accreted Value of the Trust Securities purchased by such
purchaser and with accrued and unpaid interest equal to the accumulated and
unpaid Distributions on the Trust Securities purchased by such purchaser, and
having the same record date for payment as the Preferred Securities, to be
distributed to such purchaser in exchange for such Holders' pro rata interest in
the Trust. In such event, the Debentures held by the Trust shall decrease by the
amount of Debentures delivered to the purchaser of Trust Securities.
The proceeds from the Remarketing of the Debentures shall be paid to the
selling Holders; provided that upon an Optional Redemption Remarketing Event or
a Legal Cause Remarketing Event, the proceeds from the Remarketing of the
Debentures that are held pursuant to the Unit Agreement
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for which the holders of such Units have elected to exercise their Warrants
shall be paid directly to the Warrant Agent to satisfy in full the Exercise
Price of the Warrants held by such holders with any excess proceeds being paid
to the selling holders.
Upon the occurrence of an Optional Redemption Remarketing Event, the
Company may elect to cause a Remarketing of the Debentures and select a
Remarketing Date; provided that the following conditions precedent are
satisfied:
(i) as of the date on which the Company elects to cause a Remarketing
of the Debentures and on the Remarketing Date, no Event of Default
or deferral of interest payments to Holders of the Debentures
shall have occurred and be continuing;
(ii) as of the date on which the Company elects to cause a Remarketing
of the Debentures and on the Remarketing Date, the Warrant
Requirements shall have been satisfied; and
(iii) on the Remarketing Date, the Legal Requirements shall have been
satisfied.
The settlement of the Remarketing shall occur on the Remarketing Settlement
Date; provided that the following conditions precedent are satisfied on the
Remarketing Settlement Date:
(A) the Warrant Requirements shall be satisfied; and
(B) pursuant to the Warrant Agreement, a redemption of the Warrants of
those holders who have not elected to exercise their Warrants on or prior to
such date shall have been consummated.
If any of the foregoing conditions precedent are not satisfied, the Remarketing
cannot occur and the contemporaneous redemption of Warrants shall be canceled;
provided, however, that if:
(x) the Remarketing cannot occur because of a failure to satisfy
either the Warrant Requirements or the Legal Requirements as of or
on the relevant date or dates; and
(y) the Company is using its best efforts to satisfy such
Requirements;
the Company shall have the right to cause a Remarketing of the Debentures on a
subsequent date which is no later than May 7, 2051; provided that all applicable
requirements and conditions precedents (including the timely occurrence of an
Optional Redemption Remarketing Event) are satisfied.
Upon the occurrence of a Legal Cause Remarketing Event, the Company may
elect to cause a Remarketing of the Debentures and select a Remarketing Date;
provided that the following conditions precedent are satisfied:
(i) as of the date on which the Company elects to cause a Remarketing
of the Debentures and on the Remarketing Date, no Event of Default
shall have occurred and be continuing;
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(ii) as of the date on which the Company elects to cause a
Remarketing of the Debentures and on the Remarketing
Date, the Warrant Requirements shall have been
satisfied; and
(iii) on the Remarketing Date, the Legal Requirements shall
have been satisfied.
The settlement of the Remarketing shall occur on the
Remarketing Settlement Date; provided that the following conditions precedent
are satisfied on the Remarketing Settlement Date:
(A) the Warrant Requirements shall be satisfied; and
(B) pursuant to the Warrant Agreement, a redemption of the
Warrants of those holders who have not elected to
exercise their Warrants on or prior to such date shall
have been consummated.
If any of the foregoing conditions precedent are not satisfied, the Remarketing
cannot occur and the contemporaneous redemption of Warrants shall be canceled;
provided, however, that if:
(x) the Remarketing cannot occur because of a failure to
satisfy either the Warrant Requirements or the Legal Requirements as of or on
the relevant date or dates; and
(y) the Company is using its best efforts to satisfy such
Requirements; the Company shall have the right to cause a Remarketing of the
Debentures on a subsequent date which is no later than May 7, 2051; provided
that all applicable requirements and conditions precedents (including the timely
occurrence of a Legal Cause Remarketing Event) are satisfied.
On the Maturity Remarketing Date, a Remarketing of the
Debentures shall occur; provided that on such date, the Legal Requirements (to
the extent applicable) shall have been satisfied.
If, for any reason, a Remarketing of the Debentures does not
occur on the Maturity Remarketing Date, the Administrative Trustees shall give
notice thereof to all Holders of Debentures (whether or not held pursuant to the
Unit Agreement) prior to the close of business on the Business Day following the
Maturity Remarketing Date. In such event:
(i) the rate of interest per annum on the Accreted Value
of the Debentures (which, on the Maturity Remarketing Date, shall be equal to
the principal amount of the Debentures) shall become 11.10%; and
(ii) the Accreted Value of the Debentures shall be due and
payable on the day which is 180 days after the Maturity Remarketing Date; and
(iii) the Company no longer shall have the option to defer
payments of interest on the Debentures.
Upon the occurrence of an Optional Redemption Remarketing
Event or a Legal Cause Remarketing Event and the election by the Company to
cause a Remarketing of the Debentures, or upon the Maturity Remarketing Date, as
long as the Debentures are evidenced by a Global Debenture, deposited with the
Clearing Agency, the Company shall request, not later than four nor more than 20
days prior to the Remarketing Date, that the Depositary notify the Holders of
the Debentures of the
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Remarketing of the Debentures and of the procedures that must be followed if
such Holder of Debentures or holder of Units wishes to opt not to participate in
the Remarketing of the Debentures.
Upon the occurrence of a Remarketing Event, all of the Debentures
(excluding the Debentures as to which the Holders thereof have opted not to
participate in the Remarketing (but including Debentures that are not held
pursuant to the Unit Agreement)) shall be remarketed by the Remarketing Agent.
Not later than 5:00 p.m. (New York City time) on the Business Day preceding the
Remarketing Date, each Holder of Debentures may elect not to have the Debentures
held by such Holder remarketed in the Remarketing. Holders of Debentures that
are not held pursuant to the Unit Agreement shall give such notice to the
Trustee and Holders of Debentures that are held pursuant to the Unit Agreement
shall give such notice to the Unit Agent. Holders of Debentures that do not give
notice of their intention not to participate in the Remarketing shall be deemed
to have consented to the disposition of their Debentures in the Remarketing. Any
such notice shall be irrevocable and may not be conditioned upon the level at
which the Reset Rate is established in the Remarketing.
Not later than 5:00 p.m. (New York City time) on the Business Day
preceding the Remarketing Date, the Trustee and the Unit Agent, as applicable,
based on the notices received by it prior to such time, shall notify the Trust,
the Company and the Remarketing Agent of the aggregate principal amount of
Debentures to be tendered for purchase in the Remarketing.
The right of each Holder to have Debentures tendered for purchase
shall be limited to the extent that:
(i) the Remarketing Agent conducts a Remarketing pursuant to the
terms of the Remarketing Agreement;
(ii) the Remarketing Agent is able to find a purchaser or purchasers
for the Debentures deemed tendered; and
(iii) such purchaser or purchasers deliver the purchase price therefor
to the Remarketing Agent.
On the Remarketing Date, the Remarketing Agent shall use commercially
reasonable efforts to remarket the Debentures deemed tendered for purchase at a
price no less than 100% of the aggregate Accreted Value as of the end of the day
on the day next preceding the Remarketing Date.
If, as a result of the efforts described herein, the Remarketing Agent
determines that it will be able to remarket all of the Debentures deemed
tendered for purchase at the purchase price set forth above prior to 4:00 p.m.
(New York City time) on the Remarketing Date, the Remarketing Agent shall
determine the Reset Rate, which shall be the rate per annum (rounded to the
nearest one-thousandth (0.001) of 1% per annum) that the Remarketing Agent
determines, in its sole judgment, to be the lowest rate per annum that will
enable it to remarket all of the Debentures deemed tendered for Remarketing.
If none of the Holders of the Debentures or the holders of the Units
elects to have their Debentures remarketed in the Remarketing, the Reset Rate
shall be the rate determined by the Remarketing Agent, in its sole discretion,
as the rate that would have been established had a Remarketing been held on the
Remarketing Date, and the related modifications to the others terms of the
Debentures and the Warrants shall be effective on the Remarketing Date.
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If, by 4:00 p.m. (New York City time) on the Remarketing Date, the
Remarketing Agent is unable to remarket all of the Debentures deemed tendered
for purchase, a Failed Remarketing shall be deemed to have occurred and the
Remarketing Agent shall so advise by telephone the Depositary, the Property
Trustee, the Trustee and the Administrative Trustees on behalf of the Trust and
the Company. The Administrative Trustees shall then give notice of the Failed
Remarketing to the Company and the Holders of the Debentures prior to the close
of business on the Business Day following the Failed Remarketing Date. In the
event of a Failed Remarketing:
(i) the Accreted Value of the Debentures as of the end of the day on
the day next preceding the Failed Remarketing Date shall become due on the date
which is 180 days following the Failed Remarketing Date;
(ii) beginning on the Failed Remarketing Date, the rate of interest
per annum on the Accreted Value of the Debentures shall become 11.10% to but not
including the Stated Maturity (as modified in connection with such Failed
Remarketing); and
(iii) the Company no longer shall have the option to defer payments of
interest on the Debentures.
Notwithstanding a Failed Remarketing, subject to the satisfaction of the Legal
Requirements, the Warrants shall be redeemed at the Warrant Value and a holders
of Warrants shall have the option to exercise its Warrants in lieu of such
redemption, as provided in the Unit Agreement and the Warrant Agreement.
By approximately 4:30 p.m. (New York City time) on the Remarketing
Date, provided that there has not been a Failed Remarketing, the Remarketing
Agent shall advise, by telephone:
(i) the Depositary, the Property Trustee, the Trustee, the Trust and
the Company of the Reset Rate determined in the Remarketing and the aggregate
principal amount of Debentures sold in the Remarketing;
(ii) each purchaser (or the Depositary participant thereof) of the
Reset Rate and the aggregate principal amount of Debentures such purchaser is to
purchase; and
(iii) each purchaser to give instructions to its Depositary
participant to pay the purchase price on the Remarketing Settlement Date in same
day funds against delivery of the Debentures purchased through the facilities of
the Depositary.
In accordance with the Depositary's normal procedures, on the
Remarketing Settlement Date, the transactions described above with respect to
each Debenture deemed tendered for purchase and sold in the Remarketing shall be
executed through the Depositary, and the accounts of the respective Depositary
participants shall be debited and credited and such Debentures delivered by
book-entry as necessary to effect purchases and sales of such Debentures. The
Depositary shall make payment in accordance with its normal procedures.
If any Holder of the Debentures selling such Debentures (or any holder
of Units selling the Debentures that are held pursuant to the Unit Agreement) in
the Remarketing fails to deliver such Debentures, the Depositary participant of
such selling holder and of any other Person that was to have purchased
Debentures in the Remarketing may deliver to any such other Person an aggregate
principal amount of Debentures that is less than the aggregate principal amount
of Debentures that otherwise was to
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be purchased by such Person. In such event, the aggregate principal amount of
Debentures to be so delivered shall be determined by such Depositary
participant, and delivery of such aggregate principal amount of Debentures shall
constitute good delivery.
The Remarketing Agent is not obligated to purchase any Debentures that
otherwise would remain unsold in the Remarketing. Neither the Trust, any
Trustee, the Company nor the Remarketing Agent shall be obligated in any case to
provide funds to make payment upon tender of the Debentures for Remarketing.
Under the Remarketing Agreement, the Company, as Debenture Issuer,
shall be liable for, and shall pay, any and all costs and expenses incurred in
connection with the Remarketing, and the Trust shall not have any liabilities
for such costs and expenses.
The tender and settlement procedures set forth herein, including
provisions for payment by purchasers of the Debentures in the Remarketing, shall
be subject to modification to the extent required by the Depositary or if the
book-entry system is no longer available for the Debentures at the time of the
Remarketing, to facilitate the tendering and remarketing of the Debentures in
definitive form. In addition, the Remarketing Agent may modify the settlement
procedures set forth herein in order to facilitate the settlement process.
12. Subordination.
The payment of principal of and interest on this Debenture is, to the
extent and in the manner provided in the Indenture, subordinated and subject in
right of payment to the prior payment in full of all amounts then due on all
Senior Indebtedness of the Company, and this Debenture is issued subject to such
subordination provisions of the Indenture with respect thereto. Each Holder of
this Debenture, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on such Holder's behalf to
take such action as may be necessary or appropriate to effectuate the
subordination so provided and (c) appoints the Trustee such Holder's
attorney-in-fact for any and all such purposes.
13. Defaults and Remedies.
The Indenture provides that an Event of Default with respect to the
Debentures occurs when any of the following occurs:
(a) the Company defaults in the payment of principal of or premium, if
any, on any of the Debentures when it becomes due and payable at Stated
Maturity, upon exercise of a Repurchase Right, upon exercise of a Change of
Control Repurchase Right or otherwise, whether or not such payment is prohibited
by the subordination provisions of Article 6 of the First Supplemental
Indenture;
(b) the Company defaults in the payment of interest on any of the
Debentures when it becomes due and payable and such default continues for a
period of 30 days after written notice of such failure shall have been given to
the Company by the Trustee or to the Company and the Trustee by the Holders of
at least 25% in aggregate principal amount of the Outstanding Debentures,
whether or not such payment is prohibited by the subordination provisions of
Article 6 of the First Supplemental Indenture; provided, however, that a valid
extension of the interest payment period does not constitute a default in the
payment of interest;
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(c) the Company fails to perform or observe any other term, covenant
or agreement contained in the Debentures or the Indenture (other than a covenant
included in the Indenture solely for the benefit of any series of Debt
Securities other than the Debentures) and such default continues for a period of
90 days after written notice of such failure is given as specified in the
Indenture;
(d) there are certain events of bankruptcy, insolvency or
reorganization of the Company; or
(e) the voluntarily or involuntarily dissolution, winding-up or
termination of the Trust, except in connection with:
(i) the distribution of the Debentures held by the Trust to the
holders of the Trust Securities in liquidation of the Trust
or their interests in the Trust;
(ii) the redemption of all of the outstanding Trust Securities;
or
(iii) certain mergers, consolidations, conversions,
amalgamations, replacements or other transactions involving
the Trust, each as permitted under the Declaration.
If an Event of Default shall occur and be continuing, the principal of
all of the Debentures may be declared due and payable, in the manner, with the
effect provided in the Indenture.
14. Amendment; Supplement; Waiver.
The Indenture contains provisions permitting the Company and the
Trustee, without the consent of any Holder, to execute supplemental indentures
modifying certain provisions of the Indenture, provided that no such
modification has a material adverse effect on the interests of the Holders.
In addition, the Indenture contains provisions permitting the Company
and the Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the Debentures and all other series of Debt
Securities affected at the time Outstanding, to execute supplemental indentures
for the purpose of modifying or amending the Indenture and the Debentures,
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Indenture or of any supplemental indenture or of modifying in
any manner the rights of the Holders of the Debentures; provided, however, that
affected no such supplemental indenture may, without the consent of the Holder
of each outstanding Debenture at the time Outstanding, among other things:
(i) change the Stated Maturity of the principal of, or any
installment of principal or interest on, any Debenture;
(ii) reduce the principal amount of, premium, if any, or the rate
of interest on any Debenture;
(iii) change the place of payment where the Debentures or any
premium or interest thereon is payable;
(iv) impair the right to institute suit for the enforcement of
any such payment on or with respect to the Debentures;
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(v) reduce the above-stated percentage in principal amount of
Debentures, the Holders of which are required to modify or
amend the Indenture, to consent to any waiver thereunder or
to approve any supplemental indenture;
(vi) change any obligation of the Company to maintain an office
or agency in the places and for the purposes required by
the Indenture; or
(vii) modify any of the above provisions;
provided, further, that if the Debentures are held by the Property Trustee, no
such supplemental indenture shall be effective until the holders of not less
than 66 2/3% of the aggregate liquidation amount of the Trust Securities shall
have consented to such supplemental indenture; provided, further, that where the
consent of the Holders of more than 66 2/3% of the aggregate principal amount of
the Debentures is required under the Indenture, no such supplemental indenture
shall be effective until the holders of at least the same proportion in
aggregate liquidation amount of the Trust Securities shall have consented to
such supplemental indenture.
The Indenture also contains provisions permitting the Holders of a
majority in aggregate principal amount of the Debentures at the time Outstanding
affected thereby, on behalf of all of the Holders of the Debentures, to waive
any past default in the performance of any of the covenants contained in the
Indenture, or established pursuant to the Indenture with respect to the
Debentures, and its consequences, except a default in the payment of the
principal of or interest on any of the Debentures (unless cured as provided in
the Indenture) or in respect of a covenant or provision that cannot be modified
or amended without the consent of the Holders of each Debenture then
Outstanding. Any such consent or waiver by the registered Holder of this
Debenture (unless revoked as provided in the Indenture) shall be conclusive and
binding upon such Holder and upon all future Holders and owners of this
Debenture and of any Debenture issued in exchange therefor or in place hereof
(whether by registration of transfer or otherwise), irrespective of whether or
not any notation of such consent or waiver is made upon this Debenture.
15. Restrictive Covenants.
The Indenture requires the Company, for as long as the Preferred
Securities remain outstanding, to:
(a) maintain, directly or indirectly, 100% ownership of the Common
Securities; provided, however, that any permitted successor of the Company under
the Indenture may succeed to the Company's ownership of such Common Securities;
(b) use its reasonable efforts to cause the Trust to (a) remain a
statutory trust, except in connection with the distribution of the Debentures to
the Holders, the redemption of all of the Securities, or certain mergers,
consolidations, conversions or amalgamations, each as permitted by the
Declaration, (b) not to voluntarily dissolve, wind up, liquidate or be
terminated, except as permitted by this Declaration and (c) otherwise continue
to be classified as a grantor trust for United States federal income tax
purposes;
(c) use its commercially reasonable efforts to ensure that the Trust
will not be an "investment company" required to be registered under the
Investment Company Act of 1940, as amended;
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(d) not to take any action that would be reasonably likely to
cause the Trust to be classified as an association or a publicly traded
partnership taxable as a corporation for United States federal income tax
purposes; and
(e) use its reasonable best efforts to cause each holder of
Trust Securities to be treated as owning an undivided beneficial interest in the
Debentures.
The Indenture also imposes certain limitations on the ability
of the Company to, among other things, merge, consolidate or sell, assign,
transfer or lease all or substantially all of its properties or assets. Such
covenants and limitations are subject to a number of important qualifications
and exceptions. The Company must report periodically to the Trustee on
compliance with the covenants in the Indenture.
16. Denomination; Transfer; Exchange.
The Debentures of this series are issuable only in registered
form without coupons in denominations of $50 and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations herein and
therein set forth, Debentures of this series so issued are exchangeable for a
like aggregate principal amount of Debentures of this series of a different
authorized denomination, as requested by the Holder surrendering the same.
As provided in the Indenture and subject to certain
limitations therein set forth, this Debenture is transferable by the registered
Holder hereof on the Security Register of the Company, upon surrender of this
Debenture for registration of transfer at the office or agency of the Trustee in
the City and State of New York accompanied by a written instrument or
instruments of transfer in form satisfactory to the Company or the Trustee duly
executed by the registered Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Debentures of authorized denominations
and for the same aggregate principal amount will be issued to the designated
transferee or transferees. No service charge will be made for any such transfer,
but the Company may require payment of a sum sufficient to cover any tax or
other governmental charge payable in relation thereto.
17. Persons Deemed Owners.
The registered Holder of this Debenture shall be treated as
its owner for all purposes.
18. Defeasance.
Subject to certain conditions contained in the Indenture, at
any time some or all of the Debentures and the Indenture may be terminated if
the Company deposits with the Trustee money and/or Eligible Instruments
(including U.S. Government Obligations) sufficient to pay the principal of and
interest on the Debentures to Stated Maturity, including as adjusted to 180 days
following the Remarketing Date, if applicable.
19. No Recourse Against Others.
No recourse shall be had for the payment of the principal of
or the interest on this Debenture, or for any claim based hereon, or otherwise
in respect hereof, or based on or in respect of the Indenture, against any
incorporator, shareholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by
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the acceptance hereof and as part of the consideration for the issuance hereof,
expressly waived and released.
20. Authentication.
This Debenture shall not be valid until the Trustee (or
authenticating agent) executes the certificate of authentication on the other
side of this Debenture.
21. Governing Law.
The indenture and this debenture shall be governed by, and
construed in accordance with, the laws of the State of New York.
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SCHEDULE OF INCREASES OR DECREASES IN GLOBAL DEBENTURE
The following increases or decreases in this Global Debenture
have been made:
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Amount of decrease in Amount of increase in Debentures evidenced
Principal Amount of Principal Amount of by this Global
Debentures evidenced Debentures evidenced Debenture following Signature of
by this Global by this Global such decrease authorized officer of
Date Debenture Debenture or increase Agent
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