Exhibit 4.32
Matrix Bancorp, Inc.,
as Issuer
and
Xxxxx Fargo Bank, National Association,
as Trustee, Paying Agent, Calculation Agent and Securities Registrar
-----------------------------
INDENTURE
Dated as of February 13, 2004
-----------------------------
FLOATING RATE SUBORDINATED DEBT SECURITIES DUE 2014
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01. Definitions..........................................................................1
Section 1.02. Compliance Certificates and Opinions.................................................7
Section 1.03. Form of Documents Delivered to Trustee...............................................7
Section 1.04. Notices, etc. to Trustee and Issuer..................................................8
Section 1.05. Notice to Holders; Waiver............................................................8
Section 1.06. Effect of Headings and Table of Contents.............................................9
Section 1.07. Successors and Assigns...............................................................9
Section 1.08. Separability Clause..................................................................9
Section 1.09. Benefits of Indenture................................................................9
Section 1.10. Governing Law........................................................................9
Section 1.11. Legal Holidays.......................................................................9
ARTICLE II
DEBT SECURITY FORMS
Section 2.01. Forms Generally......................................................................9
Section 2.02. Form of Trustee's Certificate of Authentication.....................................10
ARTICLE III
THE DEBT SECURITIES
Section 3.01. Authentication, Delivery and Dating.................................................10
Section 3.02. Denominations.......................................................................11
Section 3.03. Execution...........................................................................11
Section 3.04. Registration, Transfer and Exchange.................................................11
Section 3.05. Mutilated, Destroyed, Lost and Stolen Debt Securities...............................14
Section 3.06. Redemption at Maturity..............................................................15
Section 3.07. Payment of Interest; Interest Rights Preserved......................................15
Section 3.08. Additional Amounts..................................................................16
Section 3.09. Cancellation........................................................................18
Section 3.10. Computation of Interest.............................................................18
Section 3.11. CUSIP Numbers.......................................................................20
Section 3.12. Persons Deemed Owners...............................................................20
Section 3.13. Federal Regulatory Approval Required................................................20
ARTICLE IV
SATISFACTION AND DISCHARGE
Section 4.01. Satisfaction and Discharge of Indenture.............................................20
Section 4.02. Application of Trust Money..........................................................22
Section 4.03. Paying Agent to Repay Moneys Held...................................................22
Section 4.04. Return of Unclaimed Moneys..........................................................22
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TABLE OF CONTENTS
(continued)
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ARTICLE V
REMEDIES
Section 5.01. Events of Default...................................................................22
Section 5.02. Acceleration of Maturity: Rescission and Annulment.................................23
Section 5.03. Defaults; Collection of Indebtedness and Suits for Enforcement by Trustee...........24
Section 5.04. Trustee May File Proofs of Claim....................................................25
Section 5.05. Trustee May Enforce Claims Without Possession of Debt Securities....................25
Section 5.06. Application of Money Collected......................................................25
Section 5.07. Limitation on Suits.................................................................26
Section 5.08. Unconditional Right of Holders to Receive Principal and Interest....................27
Section 5.09. Restoration of Rights and Remedies..................................................27
Section 5.10. Right and Remedies Cumulative.......................................................27
Section 5.11. Delay or Omission Not Waiver........................................................27
Section 5.12. Control by Holders..................................................................27
Section 5.13. Waiver of Past Event of Default.....................................................28
Section 5.14. Undertaking for Costs...............................................................28
ARTICLE VI
THE TRUSTEE
Section 6.01. Certain Duties and Responsibilities.................................................28
Section 6.02. Notice of Defaults..................................................................29
Section 6.03. Certain Rights of Trustee...........................................................30
Section 6.04. Not Responsible for Recitals or Issuance of Debt Securities.........................31
Section 6.05. May Hold Debt Securities............................................................31
Section 6.06. Money Held in Trust.................................................................31
Section 6.07. Compensation and Reimbursement......................................................32
Section 6.08. Disqualification, Conflicting Interests.............................................33
Section 6.09. Corporate Trustee Required, Eligibility.............................................33
Section 6.10. Resignation and Removal, Appointment of Successor...................................33
Section 6.11. Acceptance of Appointment by Successor..............................................35
Section 6.12. Merger, Conversion, Consolidation or Succession to Business.........................35
Section 6.13. Preferential Collection of Claims Against Issuer....................................35
Section 6.14. Appointment of Authenticating Agent.................................................35
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND ISSUER
Section 7.01. Issuer to Furnish Trustee Names and Addresses of Holders............................36
Section 7.02. Preservation of Information; Communication to Holders...............................37
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TABLE OF CONTENTS
(continued)
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ARTICLE VIII
CONCERNING THE HOLDERS
Section 8.01. Acts of Holders.....................................................................38
Section 8.02. Proof of Ownership; Proof of Execution of Instruments by Holders....................38
Section 8.03. Revocation of Consents; Future Holders Bound........................................39
ARTICLE IX
HOLDERS' MEETINGS
Section 9.01. Purposes of Meetings................................................................39
Section 9.02. Call of Meetings by Trustee.........................................................40
Section 9.03. Call of Meetings by Issuer or Holders...............................................40
Section 9.04. Regulations.........................................................................40
Section 9.05. Voting..............................................................................41
Section 9.06. No Delay of Rights by Meeting.......................................................41
Section 9.07. Quorum; Actions.....................................................................41
ARTICLE X
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 10.01. Issuer May Consolidate, etc., Only on Certain Terms.................................42
Section 10.02. Successor Corporation Substituted...................................................43
Section 10.03. Opinion of Counsel..................................................................43
ARTICLE XI
SUPPLEMENTAL INDENTURES
Section 11.01. Supplemental Indentures Without Consent of Holders..................................43
Section 11.02. Supplemental Indentures With Consent of Holders.....................................44
Section 11.03. Execution of Supplemental Indentures................................................45
Section 11.04. Effect of Supplemental Indentures...................................................45
Section 11.05. Reference in Debt Securities to Supplemental Indentures.............................45
Section 11.06. Subordination Unimpaired............................................................45
Section 11.07. Notice of Supplemental Indenture....................................................45
ARTICLE XII
COVENANTS
Section 12.01. Payment of Principal and Interest...................................................45
Section 12.02. Tax Treatment of the Debt Securities................................................46
Section 12.03. Maintenance of Office or Agency.....................................................46
Section 12.04. Money for Debt Securities; Payments To Be Held in Trust.............................46
Section 12.05. Officers' Certificate as to Default.................................................47
Section 12.06. Regulatory Reports..................................................................48
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TABLE OF CONTENTS
(continued)
Page
ARTICLE XIII
TAX EVENT REDEMPTION
Section 13.01. Tax Redemption......................................................................48
Section 13.02. Notice of Redemption................................................................48
Section 13.03. Payment of Debt Securities Called for Redemption....................................48
ARTICLE XIV
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
Section 14.01. Indenture and Debt Securities Solely Corporate Obligations..........................49
ARTICLE XV
SUBORDINATION OF DEBT SECURITIES
Section 15.01. Agreement to Subordinate............................................................49
Section 15.02. Obligation of the Issuer Unconditional and Payment Permitted if
No Default..........................................................................51
Section 15.03. Limitations on Duties to Holders of Senior Indebtedness.............................51
Section 15.04. Notice to Trustee of Facts Prohibiting Payments.....................................52
Section 15.05. Application by Trustee of Moneys Deposited With It..................................52
Section 15.06. Subrogation.........................................................................52
Section 15.07. Subordination Rights Not Impaired by Acts or Omissions of Bank
or Holders of Senior Indebtedness...................................................52
Section 15.08. Authorization of Trustee to Effectuate Subordination of Debt
Securities..........................................................................53
Section 15.09. Right of Trustee to Hold Senior Indebtedness........................................53
Section 15.10. Article XV Not to Prevent Defaults (Including Events of Default)....................53
Section 15.11. Article Applicable to Paying Agents.................................................54
EXHIBITS
EXHIBIT A FORM OF DEBT SECURITY
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THIS INDENTURE is dated as of February 13, 2004, between
Matrix Bancorp, Inc. (the "Issuer"), having its principal office at 000 00xx
Xxxxxx, Xxxxx 0000 Xxxxxx, XX 00000 and Xxxxx Fargo Bank, National Association,
a national banking association, as Trustee (in such capacity, the "Trustee"),
Paying Agent, Calculation Agent and Securities Registrar hereunder, having its
Corporate Trust Office at 000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, XX
00000.
RECITALS OF THE ISSUER
WHEREAS, for its lawful purposes, the Issuer has duly
authorized the issuance of its floating rate subordinated debt securities due
2014 (the "Debt Securities") under this Indenture for inclusion in the Regional
Diversified Funding 2004-1 Ltd. transaction and, to provide for, among other
things, the execution, authentication, delivery and administration thereof, the
Issuer has duly authorized the execution of this Indenture; and
WHEREAS, all acts and things necessary to make this Indenture
a valid agreement of the Issuer, in accordance with its terms have been done and
performed.
NOW, THEREFORE, in consideration of the premises and the
purchase of the Debt Securities by the Holders thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit of all Holders of
the Debt Securities as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 1.01. Definitions. For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article I have the meanings assigned to
them in this Article I, and include the plural as well as the singular;
(b) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as
are generally accepted in the United States at the date of such
computation;
(c) the words "herein," "hereof and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision; and
(d) unless the context otherwise requires; any reference to an
"Article" or a "Section" is to an Article or Section of this Indenture.
Certain terms, used principally in Article III and Article VI, are
defined in those respective Articles.
"Act" when used with respect to any Holder has the meaning specified in
Section "Additional Amounts" shall have the meaning set forth in Section 3.08.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" has the meaning specified in Section 6.14.
"Board of Directors" means either the board of directors of the Issuer,
or the executive or any other committee of that board duly authorized to act in
respect hereof.
"Board Resolution" means a copy of a resolution certified by a
Secretary or an Assistant Secretary of the Issuer to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" when used with respect to any Place of Payment means any
day that is not a Saturday, a Sunday or a legal holiday or a day on which
banking institutions or trust companies in Wilmington, Delaware, Denver,
Colorado or such Place of Payment are authorized or obligated by law to close
and, unless otherwise specified in a given definition, if the date of payment
hereunder falls on a day that is not a Business Day, the first following
Business Day will become the relevant date.
"Calculation Agent" means the Person identified as "Trustee in the
first paragraph hereof.
"Code" means the Internal Revenue Code of 1986 as in effect on the date
hereof. "Company Account" has the meaning set forth in Section 6.01(e).
"Corporate Trust Office" means the office of the Trustee at which at
any particular time its corporate trust business shall be administered, which
office at the date of execution of this instrument is located at 000 Xxxxx
Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000.
The term "corporation" includes corporations, associations, companies
and business trusts.
"Debt Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Debt Securities authenticated and
delivered under this Indenture.
"Default" has the meaning specified in Section 5.03.
"Defaulted Interest" has the meaning specified in Section 3.07.
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"Dollar" or "$" means such currency of the United States as at the time
of payment is legal tender for the payment of public and private debts.
"Event of Default" has the meaning specified in Section 5.01
"FDIC" means the Federal Deposit Insurance Corporation.
"Federal Reserve" means the Board of Governors of the Federal Reserve
System.
"Holder" of a Debt Security means the Person in whose name the Debt
Security is registered in the Security Register.
"Indenture" means this instrument as originally executed, or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Interest Payment Date" means February 8, May 8, August 8 and November
8 of each year, commencing on May 8, 2004, during the term of this Indenture.
"Interest Rate" means, subject to the occurrence of a Reset Event, a
per annum rate of interest, reset quarterly, equal to LIBOR, as determined on
the LIBOR Determination Date immediately preceding each Interest Payment Date,
plus 2.75%. A Reset Event will occur if on any day specified by the Initial
Purchaser (as defined in the Purchase Agreement), Regional Diversified Funding
2004-1 Ltd. or another pooled trust preferred vehicle becomes the registered
owner of the Debt Securities (such day, the "Reset Date"). Upon the occurrence
of a Reset Event, the applicable LIBOR will be reset on the Reset Date to be
equal to the LIBOR applicable on the newly issued securities with the same LIBOR
Determination Dates issued by other national banks, federal savings banks,
banking organizations, bank holding companies or thrift holding companies who
issue LIBOR based on 10 year floating rate securities to Regional Diversified
Funding 2004-1 Ltd. or another pooled trust preferred vehicle designated by the
Initial Purchaser.
"Issuer" means the Person named as the "Issuer" in the first paragraph
of this instrument until a successor corporation shall have become such pursuant
to the applicable provisions of this Indenture, and thereafter "Issuer" shall
mean such successor corporation.
"Issuer Authorized Officer" means any executive officer of the Issuer
who is authorized to sign an Issuer Request or Issuer Order on behalf of the
Issuer.
"Issuer Request" and "Issuer Order" mean, respectively, a written
request or order signed in the name of the Issuer by two Issuer Authorized
Officers and delivered to the Trustee.
"LIBOR" means the London Interbank Offered Rate for U.S. Dollar
deposits in Europe as determined by the Calculation Agent according to Section
3.10(b).
"LIBOR Banking Day" has the meaning set forth in Section 3.10(b)(1).
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"LIBOR Business Day" has the meaning set forth in Section 3.10(b)(1).
"LIBOR Determination Date" has the meaning set forth in Section 3.10(b).
"Maturity Date" means May 8, 2014.
"OTS" means the Office of Thrift Supervision.
"Officers' Certificate" means a certificate signed by two Issuer
Authorized Officers and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel to the Issuer and who shall be reasonably satisfactory to the Trustee,
that is delivered to the Trustee.
"Outstanding" when used with respect to Debt Securities means, as of
the date of determination, all Debt Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Debt Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Debt Securities for whose payment or redemption money in
the necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (other than the Issuer) in trust or set aside and
segregated in trust by the Issuer (if the Issuer shall act as its own
Paying Agent) for the Holders of such Debt Securities; provided,
however, that if such Debt Securities or portions thereof are to be
redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee has
been made; and
(iii) Debt Securities that have been paid pursuant to Section
3.05 or in exchange for, or in lieu of, other Debt Securities shall
have been authenticated and delivered pursuant to this Indenture, other
than any such Debt Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such Debt
Securities are held by a bona fide purchaser in whose hands such Debt
Securities are valid obligations of the Issuer;
provided, however, that in determining whether the Holders of the requisite
principal amount of Debt Securities Outstanding have performed any Act
hereunder, Debt Securities owned by the Issuer or any other obligor upon the
Debt Securities or any Affiliate of the Issuer or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such Act, only Debt
Securities that a Responsible Officer of the Trustee actually knows to be so
owned shall be so disregarded. Debt Securities so owned that have been pledged
in good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right to act with respect to such Debt
Securities and that the pledgee is not the Issuer or any other obligor upon the
Debt Securities or any Affiliate of the Issuer or of such other obligor. In the
case of a dispute as to such right, any decision by the Trustee taken upon the
advice of counsel shall be full protection to the Trustee.
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"Paying Agent" means the Trustee or any Person authorized by the Issuer
to pay the principal of or interest on any Debt Securities on behalf of the
Issuer.
"Person" means any individual, corporation, partnership, joint venture,
limited liability company, association, joint stock company, trust, estate,
unincorporated organization or government or any agency or political subdivision
thereof.
"Place of Payment" means the place or places where the principal of and
interest on the Debt Securities are payable.
"Predecessor Security" of any particular Debt Security means every
previous Debt Security evidencing all or a portion of the same debt as that
evidenced by such particular Debt Security, and, for the purposes of this
definition, any Debt Security authenticated and delivered under Section 3.05 in
lieu of a lost, destroyed or stolen Debt Security shall be deemed to evidence
the same debt as the lost, destroyed or stolen Debt Security.
"Purchase Agreement" means the Purchase Agreement relating to the
offering and sale of the Debt Securities.
"Redemption Date" when used with respect to any Debt Security means the
date on which the principal of such Debt Security becomes due and payable as
therein or herein provided, whether at the Maturity Date or Tax Redemption Date
or by declaration of acceleration.
"Redemption Price" of any Debt Security means the principal amount
thereof and accrued and unpaid interest, if any, to the Redemption Date.
"Regular Record Date" for the interest payable on the Debt Securities
on any Interest Payment Date means the fifteenth day prior to an Interest
Payment Date, whether or not such date is a Business Day.
"Reset Date" means "Reset Date" as used in the definition of Interest
Rate. "Reset Event" means "Reset Event" as used in the definition of Interest
Rate.
"Responsible Officer" when used with respect to the Trustee means any
officer within the Corporate Trust Office with direct responsibility for the
administration of the Indenture, including any vice president, assistant vice
president, secretary or assistant secretary, or any other officer or assistant
officer of the Trustee customarily performing functions similar to those
performed by the persons who at the time shall be such officers, respectively,
or to whom any corporate trust matter is referred at the Trustee's Corporate
Trust Office because of his or her knowledge of and familiarity with the
particular subject.
"Securities Act" means the Securities Act of 1933, as amended from time
to time, or any successor legislation.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.04(a).
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"Senior Indebtedness" means the principal of and any premium on the
following, whether outstanding on the date of execution of the Indenture or
thereafter created, assumed or incurred: (a) any obligation of, or any
obligation guaranteed by, the Issuer for the repayment of borrowed money
(including general unsecured creditors), whether or not evidenced by bonds,
debentures, notes or other written instruments, and similar obligations arising
from off-balance sheet guarantees and direct credit substitutes including its
obligations to the Federal Reserve Bank or the FDIC, if any, and any rights
acquired by the FDIC as a result, of loans made by the FDIC to the Issuer or the
purchase or guarantee of any of its assets by the FDIC pursuant to the
provisions of 12 USC 1823(c), (d) or (e), if applicable, (b) deposits, (c)
obligations under bankers' acceptances and letters of credit, (d) obligations
associated with derivative products such as interest rate and foreign exchange
rate contracts, commodity and currency contracts and similar arrangements, (e)
any deferred obligations of, or any such obligation guarantees by, the Issuer
for the payment of the purchase price of property or assets, (f) obligations of
the Issuer as lessee under any lease of real or personal property required to be
capitalized under generally accepted accounting principles at the time and (g)
any amendments, deferrals, renewals, extensions or refundings of any such
indebtedness or obligations referred to in clauses (a) or (c) - (f) above;
provided, that Senior Indebtedness will not include (i) obligations, renewals,
extensions or refundings referred to in clauses (a) or (c) - (g) that
specifically by their terms rank junior to, or equally with, the Debt Securities
in right of payment upon the happening of any event of the kind specified in the
first sentence of the second paragraph of Section 15.01 and (ii) the Debt
Securities.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.07.
"Subsidiary" means a corporation, limited liability company,
partnership or other entity, at least a majority of the outstanding voting
stock, membership interests or partnership interests, as the case may be, of
which is owned, directly or indirectly, by the Issuer or by one or more other
Subsidiaries, or by the Issuer and one or more other Subsidiaries. For the
purposes of this definition, "voting stock" means stock having voting power for
the election of directors, whether at all times or only for so long as no senior
class of stock has such voting power by reason of any contingency.
"Tax Event" means the receipt by the Issuer of an Opinion of Counsel
experienced in such matters to the effect that, as a result of any change
(including any prospective change) in, or amendment to, the laws (or any
regulations or rulings promulgated thereunder) of the United States or any
political subdivision or taxing authority thereof or therein, or any change in
the application or official interpretation of such laws, regulations or rulings,
which change or amendment becomes effective on or after the original issuance of
the Debt Securities, there is more than an insubstantial risk that the Issuer
has or will become obligated to pay Additional Amounts on the Debt Securities as
provided in Section 3.08.
"Tax Redemption Date" has the meaning set forth in Section 13.01.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
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"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended
from time to time, or any successor legislation.
"United States" means the United States of America (including the
States and the District of Columbia), its territories and its possessions.
"United States Alien" has the meaning set forth in Section 3.08.
Section 1.02. Compliance Certificates and Opinions. Upon any
application or request by the Issuer to the Trustee to take any action under any
provision of this Indenture, the Issuer shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and, if requested by the Trustee, an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any provision
of this Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(a) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of each such individual,
he or she has made such examination or investigation as is necessary to
enable him or her to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.03. Form of Documents Delivered to Trustee. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified by,
or covered by the opinion of, only one such Person, or that they be so certified
or covered by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an officer of the Issuer may be based,
insofar as it relates to legal matters, upon an Opinion of Counsel, or a
certificate or representations by counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or representations
or Opinion of Counsel with respect to the matters upon which his or her
7
certificate or opinion is based are erroneous. Any such certificate or
representation or Opinion of Counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, an
officer or officers of the Issuer stating that the information with respect to
such factual matters is in the possession of the Issuer, unless such counsel
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 1.04. Notices, etc. to Trustee and Issuer. Any Act of Holders
or other document provided or permitted by this Indenture to be made upon, given
or furnished to, or filed with,
(a) the Trustee by any Holder or by the Issuer shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if made, given, furnished or filed in writing to or
with the Trustee at its Corporate Trust Office, Attention: Corporate
Trust Administration; or
(b) the Issuer by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first class postage
prepaid or, transmitted via facsimile, to the Issuer addressedto it at
the address of its principal office specified in the first paragraph of
this Indenture or at any other address previously furnished in writing
to the Trustee by the Issuer.
Any such Act or other document shall be in the English language.
Section 1.05. Notice to Holders; Waiver. Where this Indenture provides
for notice to Holders of any event by the Issuer or the Trustee, such notice
shall be sufficiently given (unless otherwise herein expressly provided) if in
writing and mailed, first class postage prepaid, or transmitted via facsimile to
such Holders as their names and addresses appear in the Security Register,
within the time prescribed. In any case where notice is given by mail, neither
the failure to mail such notice nor any defect in any notice so mailed to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders, and any notice that is mailed in the manner herein provided shall
be conclusively deemed to have been received by such Holder, whether or not such
Holder actually receives such notice.
In the event of suspension of regular mail service or by reason of any
other cause it shall be impracticable to give notice by mail, then such
notification as shall be given with the approval of the Trustee shall constitute
sufficient notice for every purpose hereunder.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice shall be filed with the Trustee, but such filing shall
not be a condition precedent to the validity of any action taken in reliance on
such waiver.
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Section 1.06. Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
Section 1.07. Successors and Assigns. All covenants and agreements in
this Indenture by the parties hereto shall bind their respective successors and
assigns and inure to the benefit of their permitted successors and assigns,
whether so expressed or not.
Section 1.08. Separability Clause. In case any provision in this
Indenture or in the Debt Securities shall be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
Section 1.09. Benefits of Indenture. Nothing in this Indenture or in
the Debt Securities, express or implied, shall give to any Person, other than
the parties hereto, any Security Registrar, any Paying Agent, any Authenticating
Agent and their respective successors hereunder, the Holders and the holders of
Senior Indebtedness, any benefit or any legal or equitable right, remedy or
claim under this Indenture.
Section 1.10. Governing Law. This Indenture and the Debt Securities
shall be governed by and construed in accordance with applicable federal laws
and the law of the State of New York without regard to the conflicts of law
rules of such State.
Section 1.11. Legal Holidays. In any case where any Interest Payment
Date, the Redemption Date, the Tax Redemption Date or the Maturity Date shall
not be a Business Day in Wilmington, Delaware, Denver, Colorado or at any Place
of Payment, then (notwithstanding any other provision of this Indenture or of
the Debt Securities) payment of principal or interest need not be made at such
Place of Payment on such date, but may be made on the next succeeding Business
Day at such Place of Payment with the same force and effect as if made on such
Interest Payment Date, the Redemption Date, the Tax Redemption Date or the
Maturity Date.
ARTICLE II
DEBT SECURITY FORMS
Section 2.01. Forms Generally. Subject to Section 3.04, the Debt
Securities shall be substantially in the form of Exhibit A hereto. The Debt
Securities shall be issued in registered, certificated form without coupons, and
may have such letters, numbers or other marks of identification or designation
and such legends or endorsements placed thereon as the Issuer may deem
appropriate and as are not inconsistent with the provisions of this Indenture,
or as may be required to comply with any law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any securities exchange on
which the Debt Securities may be listed or of any automated quotation system on
which the Debt Securities may be quoted, or to conform to usage, all as
determined by the officers executing the Debt Securities as conclusively
evidenced by their execution of such Debt Securities.
The definitive Debt Securities shall be printed, lithographed or
engraved or produced by any combination of these methods on steel engraved
borders or may be produced in any other manner, all as determined by the
9
officers executing such Debt Securities, as conclusively evidenced by their
execution of such Debt Securities.
Section 2.02. Form of Trustee's Certificate of Authentication. The form
of the Trustee's certificate of authentication to be borne by the Debt
Securities shall be substantially as follows:
CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities referred to in the within-mentioned
Indenture.
Xxxxx Fargo Bank, National Association,
not in its individual capacity but
solely as Trustee
By:
-------------------------------------
Authorized Officer
ARTICLE III
THE DEBT SECURITIES
Section 3.01. Authentication, Delivery and Dating. (a) Upon the
execution and delivery of this Indenture, the Issuer will execute and deliver
Debt Securities in an aggregate principal amount not in excess of $10,000,000 to
the Trustee for authentication, together with an Issuer Order for the
authentication and delivery of the Debt Securities, and the Trustee in
accordance with the Issuer Order shall authenticate and deliver the Debt
Securities. The Trustee shall be entitled to receive, prior to the
authentication and delivery of the Debt Securities, an Officers' Certificate
stating that all conditions precedent provided for in this Indenture relating to
the issuance of the Debt Securities have been complied with and as to the
absence of any event that is, or after notice or lapse of time or both would
become, a Default.
(b) The Trustee shall not be required to authenticate any Debt
Securities if the issuance of such Debt Securities pursuant to this
Indenture will adversely affect the Trustee's own rights, duties or
immunities under the Debt Securities and this Indenture or otherwise in
a manner which is not reasonably acceptable to the Trustee.
(c) Each Debt Security shall be dated the date of its
authentication.
(d) No Debt Security shall be entitled to any benefit under
this Indenture or be valid or obligatory for any purpose unless there
appears on such Debt Security a certificate of authentication
substantially in the form provided for herein duly executed by the
Trustee or by an Authenticating Agent by manual signature of one of its
authorized officers, and such certificate upon any Debt Security shall
be conclusive evidence, and the only evidence, that such Debt Security
has been duly authenticated and delivered hereunder and is entitled to
the benefits of this Indenture.
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Section 3.02. Denominations. The Debt Securities shall be issuable only
in registered form in minimum denominations of $100,000 and integral multiples
of $1,000 in excess thereof and shall be payable only in Dollars.
Section 3.03. Execution. The Debt Securities shall be executed on
behalf of the Issuer by an Issuer Authorized Officer. The signature of any
Issuer Authorized Officer may be manual or facsimile.
Debt Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Issuer shall bind
the Issuer, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Debt
Securities or did not hold such offices at the date of such Debt Securities.
Section 3.04. Registration, Transfer and Exchange. (a) The Issuer shall
cause to be kept at the Corporate Trust Office of the Trustee a register for the
Debt Securities (the register maintained in such office and in any other office
or agency of the Issuer in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Issuer shall provide for the
registration of the Debt Securities and of transfers and exchanges of the Debt
Securities and the address at which notice and demand to or upon the Issuer in
respect of this Indenture and the Debt Securities may be served by the Holders
of Debt Securities. The Trustee is hereby appointed "Security Registrar" for the
purpose of registering Debt Securities and registering transfers and exchanges
of Debt Securities as herein provided; provided, however, that the Issuer may
appoint co-Security Registrars. Such Security Register shall be in written form
or in any other form capable of being converted into written form within a
reasonable period of time. At all reasonable times the Security Register shall
be open for inspection by the Issuer.
Upon surrender for registration of transfer of any Debt Security at the
office or agency of the Issuer maintained for such purpose, the Issuer shall
execute, and the Trustee or any Authenticating Agent, upon receipt of and in
accordance with an Issuer Order, shall authenticate and deliver, in the name of
the designated transferee, one or more new Debt Securities of any authorized
denomination or denominations of like tenor and aggregate principal amount,
bearing a number not contemporaneously Outstanding and containing identical
terms and provisions.
At the option of the Holder, Debt Securities may be exchanged for other
Debt Securities of any authorized denomination or denominations of like tenor
and aggregate principal amount containing identical terms and conditions, upon
surrender of the Debt Securities to be exchanged at the office or agency of the
Issuer maintained for such purpose.
Whenever any Debt Securities are so surrendered for exchange, the
Issuer shall execute, and the Trustee or any Authenticating Agent, upon receipt
of and in accordance with an Issuer Order, shall authenticate and deliver, the
Debt Securities that the Holder making the exchange is entitled to receive.
(b) All Debt Securities issued upon any transfer or exchange
of Debt Securities shall be valid obligations of the Issuer, evidencing
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the same debt, and entitled to the same benefits under this Indenture,
as the Debt Securities surrendered for such transfer or exchange.
Every Debt Security presented or surrendered for transfer or exchange
shall (if so required by the Issuer, the Trustee or the Security Registrar) be
duly endorsed, and be accompanied by a written instrument of transfer in form
satisfactory to the Issuer, the Trustee and the Security Registrar, duly
executed by the Holder thereof or such Holder's attorney duly authorized in
writing.
No service charge will be made for any transfer or exchange of Debt
Securities except as provided in Section 3.05. The Issuer or the Trustee may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration, transfer or
exchange of Debt Securities, other than, in, the case of the Issuer, those
expressly provided in this Indenture to be made at the Issuer's own expense or
without expense or without charge to the Holders.
The Issuer or the Trustee, as applicable, shall not be required to
register, transfer or exchange Debt Securities during a period beginning at the
opening of business 15 days before the Redemption Date and ending at the close
of business on the Redemption Date.
Upon the request of the Initial Purchaser (as defined in the Purchase
Agreement) the Issuer shall provide for the Debt Securities to be transferred
and held through the facilities of The Depository Trust Company, the Euroclear
system, Clearstream Banking or similar book-entry systems for holders and
transferees who are qualified institutional buyers for purposes of Rule 144A
under the Securities Act or Regulation S Transferees or, consistent with an
opinion of counsel, other holders or transferees. The Issuer shall cause
appropriate revisions to the form of Debt Securities necessary to facilitate
book-entry transfers and holding.
(c) Notwithstanding the foregoing, Debt Securities may not be
transferred except in compliance with the restricted securities legend
set forth below (subject to the preceding paragraph), unless otherwise
determined by the Issuer in accordance with applicable law which legend
shall be placed on each Debt Security:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. THE HOLDER OF THIS
SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER
SUCH SECURITY ONLY (A) TO THE ISSUER, (B) PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT
OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN
THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) TO A "NON-U.S.
PERSON" IN AN "OFFSHORE TRANSACTION" PURSUANT TO REGULATION S UNDER THE
SECURITIES ACT, (D) TO AN "ACCREDITED INVESTOR" WITHIN THE MEANING OF
SUBPARAGRAPH (a) (1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT
IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF AN
"ACCREDITED INVESTOR," FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR
12
OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT, OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION AND PROSPECTUS REQUIREMENTS OF THE OCC, SUBJECT TO THE ISSUER'S
RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D) OR (E) TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION OR OTHER
INFORMATION SATISFACTORY TO IT IN ACCORDANCE WITH THE INDENTURE, A COPY OF WHICH
MAY BE OBTAINED FROM THE ISSUER. THE HOLDER OF THIS SECURITY AGREES THAT IT WILL
COMPLY WITH THE FOREGOING RESTRICTIONS.
NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED,
SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF EXCEPT
PURSUANT TO ANY APPLICABLE REGISTRATION REQUIREMENTS UNDER FEDERAL LAW OR AN
EXEMPTION FROM SUCH REGISTRATION REQUIREMENTS OR UNLESS SUCH TRANSACTION IS NOT
SUBJECT TO ANY SUCH REGISTRATION REQUIREMENTS. THE HOLDER OF THIS SECURITY BY
ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY
ONLY (A) TO THE ISSUER, (B) PURSUANT TO AN AVAILABLE EXEMPTION FROM ANY
APPLICABLE REGISTRATION REQUIREMENTS OR (C) IF SUCH OFFER, SALE OR OTHER
TRANSFER IS NOT SUBJECT TO REGISTRATION UNDER APPLICABLE FEDERAL LAW, SUBJECT TO
THE ISSUER'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE
(B) OR (C) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION OR
OTHER INFORMATION SATISFACTORY TO IT IN ACCORDANCE WITH THE INDENTURE, A COPY OF
WHICH MAY BE OBTAINED FROM THE ISSUER. THE HOLDER OF THIS SECURITY AGREES THAT
IT WILL COMPLY WITH THE FOREGOING RESTRICTIONS.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF ALSO AGREES, REPRESENTS AND
WARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT, INDIVIDUAL RETIREMENT ACCOUNT OR
OTHER PLAN OR ARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), (EACH A "PLAN"), OR AN ENTITY
WHOSE UNDERLYING ASSETS INCLUDE "PLAN ASSETS" BY REASON OF ANY PLAN'S INVESTMENT
IN THE ENTITY AND NO PERSON INVESTING "PLAN ASSETS" OF ANY PLAN MAY ACQUIRE OR
HOLD THIS SECURITY OR ANY INTEREST THEREIN, UNLESS SUCH PURCHASER OR HOLDER IS
ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER U.S. DEPARTMENT OF LABOR
PROHIBITED TRANSACTION CLASS EXEMPTION 96-23, 95-60, 91-38, 90-1 OR 84-14 OR
ANOTHER APPLICABLE EXEMPTION OR ITS PURCHASE AND HOLDING OF THIS SECURITY IS NOT
PROHIBITED BY SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE WITH RESPECT TO
SUCH PURCHASE OR HOLDING. ANY PURCHASER OR HOLDER OF THIS SECURITY OR ANY
INTEREST THEREIN WILL BE DEEMED TO HAVE REPRESENTED BY ITS PURCHASE AND HOLDING
13
THEREOF THAT EITHER (i) IT IS NOT AN EMPLOYEE BENEFIT PLAN WITHIN THE MEANING OF
SECTION 3(3) OF ERISA, OR A PLAN TO WHICH SECTION 4975 OF THE CODE IS
APPLICABLE, A TRUSTEE OR OTHER PERSON ACTING ON BEHALF OF AN EMPLOYEE BENEFIT
PLAN OR PLAN, OR ANY OTHER PERSON OR ENTITY USING THE ASSETS OF ANY EMPLOYEE
BENEFIT PLAN OR PLAN TO FINANCE SUCH PURCHASE, OR (ii) SUCH PURCHASE WILL NOT
RESULT IN A PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF
THE CODE FOR WHICH THERE IS NO APPLICABLE STATUTORY OR ADMINISTRATIVE EXEMPTION.
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE SECURITY
REGISTRAR AND THE ISSUER SUCH CERTIFICATE AND OTHER INFORMATION AS MAY BE
REQUIRED BY THE INDENTURE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE
FOREGOING RESTRICTIONS.
THIS SECURITY WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING A
PRINCIPAL AMOUNT OF NOT LESS THAN $100,000 AND MULTIPLES OF $1,000 IN EXCESS
THEREOF. ANY ATTEMPTED TRANSFER OF THIS SECURITY IN A BLOCK HAVING A PRINCIPAL
AMOUNT OF LESS THAN $100,000 SHALL BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT
WHATSOEVER. ANY SUCH PURPORTED TRANSFEREE SHALL BE DEEMED NOT TO BE THE HOLDER
OF THIS SECURITY FOR ANY PURPOSE, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF
DISTRIBUTIONS ON THIS SECURITY, AND SUCH PURPORTED TRANSFEREE SHALL BE DEEMED TO
HAVE NO INTEREST WHATSOEVER IN THIS SECURITY.
THIS OBLIGATION IS NOT A DEPOSIT AND IS NOT INSURED BY THE UNITED STATES OR ANY
AGENCY OR FUND OF THE UNITED STATES, INCLUDING THE FEDERAL DEPOSIT INSURANCE
CORPORATION. THIS OBLIGATION IS SUBORDINATED TO THE CLAIMS OF DEPOSITORS OF THE
ISSUER AND THE CLAIMS OF GENERAL AND SECURED CREDITORS OF THE ISSUER, IS
INELIGIBLE AS COLLATERAL FOR A LOAN BY THE ISSUER AND IS NOT SECURED.
Section 3.05. Mutilated, Destroyed, Lost and Stolen Debt Securities. If
(i) any mutilated Debt Security is surrendered to the Trustee at its Corporate
Trust Office or (ii) the Issuer and the Trustee receive evidence to their
satisfaction of the destruction, loss or theft of any Debt Security, and there
is delivered to the Issuer and the Trustee such security or indemnity as may be
required by them to save each of them and any Paying Agent harmless, and neither
the Issuer nor the Trustee receives notice that such Debt Security has been
acquired by a bona fide purchaser, then the Issuer shall execute and upon Issuer
Request the Trustee shall authenticate and deliver, in exchange for or in lieu
of any such mutilated, destroyed, lost or stolen Debt Security, a new Debt
Security of like tenor, form, terms and principal amount, bearing a number not
contemporaneously Outstanding.
In case any such mutilated, destroyed, lost or stolen Debt Security has
become or is about to become due and payable, the Issuer in its discretion may,
instead of issuing a new Debt Security, pay the amount due on such Debt Security
in accordance with its terms.
Upon the issuance of any new Debt Security under this Section, the
Issuer or the Trustee may require the payment of a sum sufficient to cover any
14
tax or other governmental charge that may be imposed in respect thereto and any
other expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Debt Security issued pursuant to this Section shall
constitute an original additional contractual obligation of the Issuer, whether
or not the destroyed, lost or stolen Debt Security shall be found at any time,
and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Debt Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Debt Securities.
Section 3.06. Redemption at Maturity. (a) The Debt Securities shall, on
the Maturity Date, subject to prior written approval from the OTS in accordance
with Section 3.13, become due and payable at the Redemption Price and from and
after such date (unless the Issuer shall default in the payment of the
Redemption Price) the Debt Securities shall cease to bear interest. Upon
surrender of any Debt Security for redemption on or after the Maturity Date,
such Debt Security shall be paid by the Issuer at the Redemption Price. If any
Debt Security shall not be so paid upon surrender thereof for redemption, the
principal shall, until paid, bear interest from the Maturity Date at the
Interest Rate.
(b) On or prior to the Maturity Date, the Issuer shall deposit
with the Trustee or with a Paying Agent (or, if the Issuer is acting as
its own Paying Agent, segregate and hold in trust), in immediately
available funds, an amount in Dollars sufficient to pay the Redemption
Price on the Maturity Date.
Section 3.07. Payment of Interest; Interest Rights Preserved. (a) Each
Debt Security will bear interest at the then applicable Interest Rate from and
including each Interest Payment Date or, in the case of the first interest
period, the original date of issuance of such Debt Security to, but excluding,
the next succeeding Interest Payment Date or, in the case of the last interest
period, the Redemption Date, and on any overdue principal and any overdue
installment of interest (including Defaulted Interest), payable on each Interest
Payment Date, commencing on May 8, 2004. Interest on any Debt Security that is
payable and is punctually paid or duly provided for on any Interest Payment Date
shall be paid to the Person in whose name such Debt Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest notwithstanding the cancellation of such Debt
Security upon any transfer or exchange subsequent to the Regular Record Date.
Payment of interest shall be made at the Corporate Trust Office or, at the
option of the Issuer, by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register or, in accordance
with arrangements satisfactory to the Trustee, at the option of the Holder, by
wire transfer to an account designated by the Holder.
(b) Any interest on any Debt Security that is payable but is
not punctually paid or duly provided for on any Interest Payment Date
("Defaulted Interest") shall forthwith cease to be payable to the
Holder on the relevant Regular Record Date by virtue of having been
15
such a Holder, and such Defaulted Interest may be paid by the Issuer,
at its election in each case, as provided in clause (1) or (2) below:
(1) The Issuer may elect to make payment of any
Defaulted Interest to the Persons in whose names such Debt
Securities (or their respective Predecessor Securities) are
registered at the close of business on a Special Record Date
for the payment of such Defaulted Interest, which shall be
fixed in the following manner. The Issuer shall notify the
Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each such Debt Security and the date of
the proposed payment, and at the same time the Issuer shall
deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as
in this clause provided. Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest
which shall be not more than 15 days and not less than 10 days
prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the
proposed payment The Trustee shall promptly notify the Issuer
of such Special Record Date and, in the name and at the
expense of the Issuer, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to the
Holders of such Debt Securities at their addresses as they
appear in the Security Register, not less than 10 days prior
to such Special Record Date. Notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor
having been mailed as aforesaid, such Defaulted Interest shall
be paid to the Persons in whose names such Debt Securities (or
their respective Predecessor Securities) are registered at the
close of business on such Special Record Date and shall no
longer be payable pursuant to the following clause (2).
(2) The Issuer may make payment of any Defaulted
Interest in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Debt
Securities may be listed, and upon such notice as may be
required by such exchange, if, after notice given by the
Issuer to the Trustee of the proposed payment pursuant to this
clause, such manner of payment shall be deemed practicable by
the Trustee.
(c) Subject to the foregoing provisions of this Section, each
Debt Security delivered under this Indenture upon transfer of or in
exchange for or in lieu of any other Debt Security shall carry the
rights to interest accrued and unpaid, that were carried by such other
Debt Security.
Section 3.08. Additional Amounts. The Issuer will, subject to the
exceptions and limitations set forth below, pay as additional interest to each
Holder that is a United States Alien (as defined below) such amounts (the
"Additional Amounts") as may be necessary so that every net payment received by
such Holder, after deduction or withholding for or on account of any present or
future tax, assessment or other governmental charge imposed upon or as a result
16
of such payment by the United States (or any political subdivision or taxing
authority thereof or therein), will not be less than the amount the Holder would
have received in respect of such Debt Security had no such deduction or
withholding been imposed. However, the Issuer will not be required to make any
such payment of additional interest for or on account of:
(a) any tax, assessment or other governmental charge that
would not have been imposed but for (i) the existence of any present or
former connection between such Holder (or between a fiduciary, settlor
or beneficiary of, or a person holding a power over, such Holder, if
such Holder is an estate or a trust, or a member or shareholder of such
Holder, if such Holder is a partnership or a corporation) and the
United States, including, without limitation, such Holder (or such
fiduciary, settlor, beneficiary, person holding a power, member or
shareholder) being or having been a citizen or resident thereof or
being or having been engaged in trade or business or present therein or
having or having had a permanent establishment therein or (ii) such
Holder's past or present status as a personal holding company, foreign
personal holding company or private foundation or other tax-exempt
organization with respect to the United States or as a corporation that
accumulates earnings to avoid United States federal income tax;
(b) any estate, inheritance, gift, sales, transfer or personal
property tax or any similar tax, assessment or other governmental
charge;
(c) any tax, assessment or other governmental charge that is
payable otherwise than by deduction or withholding from a payment on a
Debt Security;
(d) any tax, assessment or other governmental charge that
would not have been imposed but for a failure to comply with any
applicable certification, documentation, information or other reporting
requirement concerning the nationality, residence, identity or
connection with the United States of the Holder or the beneficial owner
of such Debt Security if, without regard to any tax treaty, such
compliance is required by statute or regulation of the United States as
a precondition to relief or exemption from such tax, assessment or
other governmental charge; or
(e) any tax, assessment or other governmental charge imposed
on a Holder that actually or constructively owns 10 percent or more of
the combined voting power of all classes of stock of the Issuer or that
is a controlled foreign corporation related to the Issuer through stock
ownership;
nor shall such additional interest be paid with respect to a payment on a Debt
Security to a Holder that is a fiduciary or partnership or other than the sole
beneficial owner of such payment to the extent a beneficiary or settlor with
respect to such fiduciary or a member of such partnership or a beneficial owner
would not have been entitled to the additional interest had such beneficiary,
settlor, member or beneficial owner held the Debt Security directly.
The term "United States Alien" means any person who, for United States
federal income tax purposes, is a foreign corporation, a nonresident alien
individual, a nonresident alien fiduciary of a foreign estate or trust, or a
foreign partnership one or more of the members of which is, for United States
17
federal income tax purposes, a foreign corporation, a nonresident alien
individual or a nonresident alien fiduciary of a foreign estate or trust.
Whenever in this Indenture or the Debt Securities there is a reference
in any context to the payment of principal of or interest on the Debt
Securities, such mention shall be deemed to include mention of payments of the
Additional Amounts provided for in this paragraph to the extent that, in such
context, Additional Amounts are, were or would be payable in respect thereof
pursuant to the provisions of this paragraph and express mention of the payment
of Additional Amounts (if applicable) in any provisions hereof shall not be
construed as excluding Additional Amounts in those provisions hereof where such
express mention is not made.
Section 3.09. Cancellation. All Debt Securities surrendered for
payment, redemption, transfer or exchange shall, if surrendered to any Person
other than the Trustee, be delivered to the Trustee and shall be promptly
canceled by it or, if surrendered to the Trustee or any Authenticating Agent,
shall be promptly canceled by it, and no Debt Securities shall be issued in lieu
thereof except as expressly permitted by any of the provisions of this
Indenture. All Debt Securities canceled by any Authenticating Agent shall be
delivered to the Trustee. The Issuer may at any time deliver to the Trustee for
cancellation any Debt Securities previously authenticated and delivered
hereunder that the Issuer may have acquired in any manner whatsoever, and all
Debt Securities so delivered shall be promptly canceled by the Trustee. No Debt
Securities shall be authenticated in lieu of or in exchange for any Debt
Securities canceled as provided in this Section, except as expressly permitted
by this Indenture. All canceled Debt Securities held by the Trustee shall be
returned to the Issuer. The acquisition of any Debt Securities by the Issuer
shall not operate as a redemption or satisfaction of the indebtedness
represented thereby unless and until such Debt Securities are surrendered to the
Trustee for cancellation.
Section 3.10. Computation of Interest.
(a) The amount of interest payable for any interest period
will be computed on the basis of a 360-day year and the actual number
of days elapsed in the relevant interest period.
(b) LIBOR for a given interest payment period shall be
determined by the Calculation Agent in accordance with the following
provisions:
(1) Subject to the occurrence of a Reset Event, on
the second LIBOR Business Day (provided, that on such day
commercial banks are open for business (including dealings in
foreign currency deposits) in London (a "LIBOR Banking Day"),
and otherwise the next preceding LIBOR Business Day that is
also a LIBOR Banking Day) prior to February 1, May 1, August 1
and November 1, as the case may be, immediately prior to the
commencement of such interest payment period (except, with
respect to the first interest payment period, LIBOR for such
interest payment period shall be determined on February 11,
2004) (each such day, a "LIBOR Determination Date"), LIBOR
shall equal the rate, as obtained by the Calculation Agent,
for three-month U.S. Dollar deposits in Europe, which appears
18
on Telerate Page 3750 (as defined in the International Swaps
and Derivatives Association, Inc. 1991 Interest Rate and
Currency Exchange Definitions) or such other page as may
replace such Telerate Page 3750, as of 11:00 a.m. (London
time) on such LIBOR Determination Date, as reported by
Bloomberg Financial Markets Commodities News. "LIBOR Business
Day" means any day that is not a Saturday, Sunday or other day
on which commercial banking institutions in New York, New York
or Wilmington, Delaware are authorized or obligated by law or
executive order to be closed. If such rate is superseded on
Telerate Page 3750 by a corrected rate before 12:00 noon
(London time) on the same LIBOR Determination Date, the
corrected rate as so substituted will be the applicable LIBOR
for that LIBOR Determination Date.
(2) If, on any LIBOR Determination Date, such rate
does not appear on Telerate Page 3750 as reported by Bloomberg
Financial Markets Commodities News or such other page as may
replace such Page 3750, the Calculation Agent shall determine
the, arithmetic mean of the offered quotations of the
Reference Banks (as defined below) to leading banks in the
London interbank market for three-month U.S. Dollar deposits
in Europe (in an amount determined by the Calculation Agent)
by reference to requests for quotations as of approximately
11:00 a.m. (London time) on the LIBOR Determination Date made
by the Calculation Agent to the Reference Banks. If, on any
LIBOR Determination Date, at least two of the Reference Banks
provide such quotations, LIBOR shall equal the arithmetic mean
of such quotations. If, on any LIBOR Determination Date, only
one or none of the Reference Banks provide such quotations,
LIBOR shall be deemed to be the arithmetic mean of the offered
quotations that at least two leading banks in the City of New
York (as selected by the Calculation Agent) are quoting on the
relevant LIBOR Determination Date for three-month U.S. Dollar
deposits in Europe at approximately 11:00 a.m. (London time)
(in an amount determined by the Calculation Agent). As used
herein, "Reference Banks" means four major banks in the London
interbank market selected by the Calculation Agent.
(3) If the Calculation Agent is required but is
unable to determine a rate in accordance with at least one of
the procedures provided above, LIBOR for such interest payment
period shall be LIBOR in effect for the immediately preceding
interest payment period.
(c) All percentages resulting from any calculations on the
Debt Securities will be rounded, if necessary, to the nearest one
hundred-thousandth of a percentage point, with five one-millionths of a
percentage point rounded upward (e.g., 9.876545% (or .09876545) being
rounded to 9.87655% (or .0987655)), and all dollar amounts used in or
resulting from such calculation will be rounded to the nearest cent
(with one-half cent being rounded upward).
(d) On each LIBOR Determination Date and the Reset Date, the
Calculation Agent shall notify, in writing, the Issuer and the Paying
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Agent of the applicable Interest Rate in effect for the related
Interest Payment Date. The Calculation Agent shall, upon the request of
the holder of any Debt Securities, provide the Interest Rate then in
effect. All calculations made by the Calculation Agent in the absence
of manifest error shall be conclusive for all purposes and binding on
the Issuer and the Holders of the Debt Securities. The Paying Agent
shall be entitled to rely on information received from the Calculation
Agent or the Issuer as to the Interest Rate. The Issuer shall, from
time to time, provide any necessary information to the Paying Agent
relating to any original issue discount and interest on the Debt
Securities that is included in any payment and reportable for taxable
income calculation purposes.
Section 3.11. CUSIP Numbers. The Issuer in issuing the Debt Securities
may use "CUSIP" numbers (if then generally in use), and, if so, the Trustee
shall use "CUSIP" numbers in notices of redemption as a convenience to Holders;
provided, that any such notice may state that no representation is made as to
the correctness of such numbers either as printed on the Debt Securities or as
contained in any notice of a redemption and that reliance may be placed only on
the other identification numbers printed on the Debt Securities, and any such
redemption shall not be affected by any defect in or omission of such numbers.
Section 3.12. Persons Deemed Owners. The Issuer, the Trustee and any
agent of the Issuer or the Trustee may treat the Person in whose name any Debt
Security is registered as the owner of such Debt Security for the purpose of
receiving payment of principal of and (subject to Section 3.07) interest, if
any, on, such Debt Security and for all other purposes whatsoever, whether or
not such Debt Security be overdue, and neither the Issuer, the Trustee nor any
agent of the Issuer or the Trustee shall be affected by notice to the contrary.
All payments made to any Holder, or upon such Holder's order, shall be valid,
and, to the extent of the sum or sums paid, effectual to satisfy and discharge
the liability for moneys payable upon such Debt Security.
Section 3.13. Federal Regulatory Approval Required.
The Issuer may not retire any part of its obligation under the Debt
Securities, whether pursuant to an acceleration in the case of an Event of
Default or otherwise, without the prior written approval of the OTS. Not more
than 60 days and not less than 30 days prior to the Redemption Date, or within
30 days after receipt of any declaration of acceleration pursuant to Section
5.02, the Issuer will apply to the OTS for written approval of repayment prior
to or at maturity.
In the event that the Issuer obtains such prior written approval, the
Issuer shall notify the Holders and the Trustee, and will arrange for prompt
payment on the Debt Securities.
ARTICLE IV
SATISFACTION AND DISCHARGE
Section 4.01. Satisfaction and Discharge of Indenture. This Indenture,
shall, upon Issuer Order, cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange herein expressly
provided for and rights to receive payments of principal of and interest and as
20
otherwise expressly provided herein) and the Trustee, upon receipt of an Issuer
Order and at the expense of the Issuer, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when
(a) either
(1) all Debt Securities theretofore authenticated and
delivered (other than (A) Debt Securities that have been
destroyed, lost or stolen and that have been replaced or paid
as provided in Section 3.05 and (B) Debt Securities for whose
payment money has theretofore been deposited in trust or
segregated and held in trust by the Issuer and thereafter
repaid to the Issuer or discharged from such trust, as
provided in Section 12.04), have been delivered to the Trustee
for cancellation; or
(2) all Debt Securities not theretofore delivered to
the Trustee for cancellation,
(A) have become due and payable, or
(B) will become due and payable within one
year,
and the Issuer has irrevocably deposited or caused to be
deposited with the Trustee funds in trust in an amount
sufficient to pay and discharge the entire indebtedness on
such Debt Securities, for principal and interest to the date
of such deposit (in the case of Debt Securities that have
become due and payable) or to the date of redemption;
provided, however, in the event a petition for relief under
the Federal bankruptcy, insolvency or other similar laws, as
now or hereafter constituted, or any other applicable Federal
or state bankruptcy, insolvency or other similar law, is filed
with respect to the Issuer within 91 days after the deposit,
or the FDIC or any other Person is appointed to act as a
receiver or conservator or liquidator or trustee or assignee
in bankruptcy or insolvency of the Issuer within 91 days after
the deposit, and the Trustee is required to return the moneys
then on deposit with the Trustee to the Issuer, the
obligations of the Issuer under this Indenture with respect to
such Debt Securities shall not be deemed terminated or
discharged;
(b) the Issuer has paid or caused to be paid all other sums
payable hereunder by the Issuer;
(c) the Issuer has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with; and
(d) the Issuer shall have received prior written approval for
such discharge from the OTS pursuant to Section 3.13.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Issuer to the Trustee under Section 6.07, the obligations of
the Issuer to any Authenticating Agent under Section 6.14, and, if money shall
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have been deposited with the Trustee pursuant to subclause (2) of clause (a) of
this Section, the obligations of the Trustee under Section 4.02 and the last
paragraph of Section 12.04 shall survive.
Section 4.02. Application of Trust Money. Subject to Section 6.07 and
the provisions of the last paragraph of Section 12.04, all money deposited with
the Trustee pursuant to Section 4.01 shall be held in trust and applied by it,
in accordance with the provisions of the Debt Securities and this Indenture, to
the payment, either directly or through any Paying Agent (including the Issuer
acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, for the payment of which such moneys have been deposited with
the Trustee, of all sums due and to become due thereon for principal and
interest, except that such money need not be segregated from other funds except
to the extent required by applicable law.
Section 4.03. Paying Agent to Repay Moneys Held. Upon the satisfaction
and discharge of this Indenture all moneys then held by any Paying Agent of the
Debt Securities (other than the Trustee) shall, upon demand of the Issuer, be
repaid to it or paid to the Trustee, and thereupon such Paying Agent shall be
released from all further liability with respect to such moneys.
Section 4.04. Return of Unclaimed Moneys. Any moneys deposited with or
paid to the Trustee or any Paying Agent for payment of the principal of or
interest on Debt Securities and not applied but remaining unclaimed by the
Holders for two years after the date upon which the principal of or interest on
such Debt Securities, as the case may be, shall have become due and payable,
shall be repaid to the Issuer by the Trustee or such Paying Agent on written
demand; and the Holders shall thereafter look only to the Issuer for any payment
which such Holders may be entitled to collect and all liability of the Trustee
or such Paying Agent with respect to such moneys shall thereupon cease.
ARTICLE V
REMEDIES Section 5.01. Events of Default. "Event of Default" means any
one of the following events (whatever the reason for such Event of Default and
whether it shall be voluntary or involuntary or be effected by operation of law,
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(a) a decree or order by a court having jurisdiction in the
premises shall have been entered adjudging the Issuer bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, readjustment, arrangement, composition or similar
relief for the Issuer under the Federal bankruptcy laws, or any other
similar applicable law of any governmental unit, domestic or foreign,
and such decree or order shall have continued undischarged or unstayed
for a period of 90 days; or a decree or order or other decision of a
court or agency or supervisory authority having jurisdiction in the
premises for the appointment of the FDIC or any other Person to act as
a receiver or conservator or liquidator or trustee or assignee in
bankruptcy or insolvency of the Issuer or of a substantial part of its
property, or for the involuntary winding up or liquidation of its
22
affairs, shall have been entered and such decree or order shall have
remained in force undischarged and unstayed for a period of 90 days;
or, under the provisions of any insolvency, bankruptcy, or other law
for the relief or aid of creditors or depositors, any court, or agency
or supervisory authority having jurisdiction in the premises shall
assume custody or control of the Issuer or of a substantial part of its
property, and such custody and control shall not be terminated or
stayed within 90 days from the date of assumption of such custody or
control; or any substantial part of the property of the Issuer shall be
sequestered or attached and shall not be returned to the possession of
the Issuer or released from such attachment within 90 days thereafter;
or
(b) the Issuer shall institute proceedings to be adjudicated a
voluntary bankrupt, or shall consent to the filing of a bankruptcy
proceeding against it, or shall file a petition or answer or consent
seeking reorganization, readjustment, arrangement, composition or
similar relief under the Federal bankruptcy laws, or any other similar
applicable law of any governmental unit, domestic or foreign, or shall
consent to the filing of any such petition or shall consent to the
appointment of a receiver or conservator or liquidator or trustee or
assignee in bankruptcy or insolvency of it or of a substantial part of
its property, or shall make an assignment for the benefit of creditors,
or shall admit in writing its inability to pay its debts generally as
they become due, or if corporate action shall be taken by the Issuer in
furtherance of any of the aforesaid purposes.
Section 5.02. Acceleration of Maturity: Rescission and Annulment. If an
Event of Default occurs and is continuing, then the Trustee or the Holders of
not less than 25% in principal amount of the Outstanding Debt Securities may
declare the principal amount of and all accrued but unpaid interest on the Debt
Securities to be due and payable immediately, by a notice in writing to the
Issuer (and to the Trustee if given by Holders), and upon any such declaration
such principal amount and interest shall become immediately due and payable,
subject to regulatory approval pursuant to Section 3.13. Upon payment of such
amounts, all obligations of the Issuer in respect of the payment of principal of
and interest on the Debt Securities shall terminate.
At any time after such a declaration of acceleration has been made and
before a judgment or decree for payment of the money due has been obtained as
hereinafter in this Article V provided, the Holders of a majority in principal
amount of the Outstanding Debt Securities, by written notice to the Issuer and
the Trustee, may rescind and annul such declaration and its consequences if:
(a) the Issuer has paid or deposited with the Trustee a sum
sufficient to pay
(1) all overdue installments of interest on all Debt
Securities,
(2) the principal of any Debt Securities that have
become due and payable otherwise than by such declaration of
acceleration and interest thereon at the Interest Rate,
(3) to the extent that payment of such interest is
lawful, interest upon overdue installments of interest on each
Debt Security at the Interest Rate, and
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(4) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel; and
(b) all Defaults have been cured, waived or otherwise
remedied.
No such rescission and waiver shall affect any subsequent default or
impair any right consequent thereon.
Section 5.03. Defaults; Collection of Indebtedness and Suits for
Enforcement by Trustee. "Default," wherever used herein, means any one of the
following events (whatever the reason for such Default and whether it shall be
voluntary or involuntary or be effected by operation of law pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) an Event of Default has occurred;
(b) the Issuer fails to pay the principal of any Debt Security
at the Redemption Date and such failure is continued for seven days,
whether or not such payment is prohibited by Article XV hereof; or
(c) the Issuer fails to pay any installment of interest on an
Interest Payment Date and such failure is continued for 30 days,
whether or not such payment is prohibited by Article XV hereof.
The Issuer covenants that, if a Default shall occur, it will, upon
demand of the Trustee and subject to Section 3.13 hereof, pay to the Trustee,
for the benefit of the Holders, the entire amount then due and payable on the
Debt Securities (x) in the case of a Default specified in clause (a) or (b)
above, for the principal and interest, if any, and interest upon the overdue
principal and, to the extent that payment of such interest shall be legally
enforceable, upon overdue installments of interest, at the Interest Rate, and
(y) in the case of a Default specified in clause (c) above, for the interest
and, to the extent that payment of such interest shall be legally enforceable,
upon overdue installments of interest, at the Interest Rate; and in each case,
in addition thereto, such further amount as shall be sufficient to cover the
costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Issuer fails to pay such amount forthwith upon such demand and
if the necessary approvals under Section 3.13 have been obtained, the Trustee,
in its own name and as trustee of an express trust, may institute a judicial
proceeding for the collection of the sums so due and unpaid, and may prosecute
such proceeding to judgment or final decree, and may enforce the same against
the Issuer or any other obligor upon the Debt Securities, and collect the moneys
adjudged or decreed to be payable in the manner provided by law out of the
property of the Issuer or any other obligor upon the Debt Securities wherever
situated.
If a Default occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
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enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
Section 5.04. Trustee May File Proofs of Claim. In case of the pendency
of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceedings, or any
voluntary or involuntary case under the Federal bankruptcy laws, as now or
hereafter constituted, or any other applicable Federal or state bankruptcy,
insolvency or other similar law relative to the Issuer or any other obligor upon
the Debt Securities, or the property of the Issuer or of such other obligor or
their creditors, the Trustee (irrespective of whether theprincipal of the Debt
Securities shall then be due and payable as therein expressed or by declaration
of acceleration or otherwise and irrespective of whether the Trustee shall have
made any demand on the Issuer for the payment of overdue principal or interest)
shall be entitled and empowered, by intervention in such proceeding or
otherwise,
(a) to file and prove a claim for the whole amount of
principal and interest owing and unpaid in respect of the Debt
Securities and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and
of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, custodian, liquidator, sequestrator (or
other similar official) in any such proceeding is hereby authorized by each such
Holder to make such payments to the Trustee, and in the event that the Trustee
shall consent to the making of such payments directly to such Holders, to pay to
the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 6.07.
Nothing herein shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Debt
Securities or the rights of any Holder, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
Section 5.05. Trustee May Enforce Claims Without Possession of Debt
Securities. All rights of action and claims under this Indenture or the Debt
Securities may be prosecuted and enforced by the Trustee without the possession
of any Debt Security or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name, as trustee of an express trust, and any recovery of judgment
shall, after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders in respect of which such judgment has been
recovered.
Section 5.06. Application of Money Collected. Any money collected by
the Trustee pursuant to this Article shall be applied in the following order, at
the date or dates fixed by the Trustee and, in case of the distribution of such
25
money on account of principal or interest, upon presentation of the Debt
Securities in respect of which money has been collected and the notation thereon
of the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses incurred by, and
reasonable fees of, the Trustee, its agents, attorneys and counsel, and
of all other amounts due to the Trustee under Section 6.07;
SECOND: To the payment of all Senior Indebtedness of the
Issuer if and to the extent required by Article XV;
THIRD: To the payment of the amounts then due and unpaid for
principal of and interest on the Debt Securities, in respect of which
or for the benefit of which such money has been collected ratably,
without preference or priority of any kind, according to the amounts
due and payable on such Debt Securities for principal and interest,
respectively; and
FOURTH: The balance, if any, to the Issuer.
Section 5.07. Limitation on Suits. No Holder shall have any
right to institute any proceeding, judicial or otherwise, with respect
to this Indenture, or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless:
(a) such Holder has previously given written notice
to the Trustee of a continuing Default;
(b) the Holders of not less than 25% o in principal
amount of the Outstanding Debt Securities shall have made
written request to the Trustee to institute proceedings in
respect of such Default in its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the
Trustee indemnity satisfactory to the Trustee, in its
reasonable discretion, against the costs, expenses and
liabilities to be incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute
any such proceeding; and
(e) no direction inconsistent with such written
request has been given to the Trustee during such 60-day
period by the Holders of a majority in principal amount of the
Outstanding Debt Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all Holders. For the
protection and enforcement of the provisions of this Section, each and every
Holder and the Trustee shall be entitled to such relief as can be given at law
or in equity.
26
Section 5.08. Unconditional Right of Holders to Receive Principal and
Interest. Subject only to the provisions of Article XV, the Holder of any Debt
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal on the Redemption Date and (subject to Section 3.07)
interest (including any Additional Amounts) on the Interest Payment Dates, and
to institutesuit for the enforcement of any such payment and interest thereon,
and such right shall not be impaired without the consent of such Holder.
Section 5.09. Restoration of Rights and Remedies. If the Trustee or any
Holder has instituted any proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or abandoned for any reason,
or has been determined adversely to the Trustee or to such Holder, then and in
every such case the Issuer, the Trustee and the Holders shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had been
instituted.
Section 5.10. Right and Remedies Cumulative. Except as otherwise
expressly provided elsewhere in this Indenture, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
Section 5.11. Delay or Omission Not Waiver. No delay or omission of the
Trustee or of any Holder to exercise any right or remedy accruing upon any Event
of Default shall impair any such right or remedy or constitute a waiver of any
such Event of Default or any acquiescence therein. Every right and remedy given
by this Indenture or by law to the Trustee or to the Holders may be exercised
from time to time, and as often as may be deemed expedient, by the Trustee or by
the Holders, as the case may be.
Section 5.12. Control by Holders. The Holders of not less than a
majority in principal amount of the Outstanding Debt Securities shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power conferred on
the Trustee with respect to the Debt Securities; provided, that:
(a) such direction shall not be in conflict with any rule of
law or with this Indenture;
(b) subject to the provisions of Section 6.01, the Trustee
shall have the right to decline to follow any such direction if the
Trustee in good faith being advised by counsel shall, by a Responsible
Officer or Responsible Officers of the Trustee, determine that the
proceeding so directed might result in personal liability for the
Trustee or would be unjustly prejudicial to the Holders not joining in
any such direction; and
(c) the Trustee may take any other action deemed proper by the
Trustee that is not inconsistent with such direction.
27
Section 5.13. Waiver of Past Event of Default. The Holders of not less
than a majority in principal amount of the Outstanding Debt Securities may on
behalf of all Holders waive any past Event of Default hereunder and its
consequences.
Upon any such waiver, such Event of Default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of the Debt Securities under this Indenture, but no such waiver
shall extend to any subsequent or other Event of Default or impair any right
consequent thereon.
Section 5.14. Undertaking for Costs. All parties to this Indenture
agree, and each Holder of any Debt Security by his or her acceptance thereof
shall be deemed to have agreed, that any court may in its discretion require, in
any suit for the enforcement of any right or remedy under this Indenture, or in
any suit against the Trustee for any action taken, suffered or omitted by it as
Trustee, the filing by any party litigant in such suit of an undertaking to pay
the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant, but the provisions of this
Section shall not apply to any suit instituted by the Trustee, to any suit
instituted by any Holder or group of Holders holding in the aggregate more than
10% o in principal amount of the Outstanding Debt Securities, or to any suit
instituted by any Holder of a Debt Security for the enforcement of the payment
of the principal of or interest on such Debt Security on or after the Redemption
Date or the relevant Interest Payment Date.
ARTICLE VI
THE TRUSTEE
Section 6.01. Certain Duties and Responsibilities. (a) Except during
the continuance of an Event of Default or Default,
(1) the Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon an Officers' Certificate or Opinion of Counsel
or any other certificates or opinions furnished to the Trustee
and conforming to the requirements of this Indenture; but in
the case of any Officers' Certificate or Opinion of Counsel or
any other such certificates or opinions which by any
provisions hereof are specifically required to be furnished to
the Trustee, the Trustee shall be under a duty to examine the
same to determine whether or not they conform on their face to
the requirements of this Indenture.
(b) In case a Default has occurred and is continuing, the
Trustee shall, with respect to the Debt Securities, exercise such of
the rights and powers vested in it by this Indenture, and use the same
28
degree of care and skill in their exercise, as a prudent person would
exercise or use under the circumstances in the conduct of his or her
own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its
own negligent failure to act, or its own willful misconduct, except
that:
(1) this clause shall not be construed to limit the
effect of clause (a) above;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless
it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to
any action taken, suffered or omitted to be taken by it, with
respect to the Debt Securities, in good faith in accordance
with the direction of the Holders of a majority in principal
amount of the Outstanding Debt Securities relating to the
time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee under this Indenture with
respect to the Debt Securities; and
(4) the Trustee shall not be required to expend or
risk its own funds or otherwise incur any financial liability
in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to
the provisions of this Section and Section 6.02.
(e) The Trustee shall establish and maintain a segregated
non-interest bearing trust account (the "Company Account") in the
United States in the name of and under the exclusive control of the
Trustee, and maintained in the Trustee's trust department, on behalf of
the Holders of the Debt Securities and, upon the receipt of payments of
funds made in respect of the Debt Securities by the Issuer, deposit
such funds into the Company Account and make payments to the Holders of
the Debt Securities from the Company Account in accordance with the
applicable terms of the relevant Holder's Debt Securities. Funds in the
Company Account shall be held uninvested until disbursed in accordance
with this Indenture.
Section 6.02. Notice of Defaults. Within 90 days after the occurrence
of any default hereunder, the Trustee shall by the pertinent methods provided in
Section 1.05 give notice to all Holders of each default hereunder known to the
Trustee, unless such default shall have been cured or waived; provided, however,
that, except in the case of default in the payment of the principal of or
interest on any Debt Security, the Trustee shall be protected in withholding
such notice if and so long as the board of directors, the executive committee or
a trust committee of directors and/or Responsible Officers of the Trustee in
good faith determines that the withholding of such notice is in the interest of
the Holders; provided further, that in the case of any default of the character
specified in Section 5.01(a)(i) no such notice to Holders shall be given until
at least 60 days after the occurrence thereof; and provided further, that the
29
Trustee shall not be charged with knowledge of default unless either (a) a
Responsible Officer of the Trustee shall have actual knowledge of such default
or (b) the Trustee shall have received written notice thereof from the Issuer or
any other obligor on the Debt Security or any Holder, except with respect to a
default pursuant to Sections 5.03(b) or 5.03(c) hereof (other than a default
resulting from the default in the payment of Additional Amounts, if any, if the
Trustee does not have actual knowledge or written notice that such payment is
due and payable) of which the Trustee shall be deemed to have knowledge. For the
purpose of this Section, the term "default" means any event that is, or after
notice or lapse of time or both would become, a Default.
Section 6.03. Certain Rights of Trustee. Except as otherwise provided
in Section 6.01:
(a) the Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, coupon or other paper
or document believed by it in good faith to be genuine and to have been
signed or presented by the proper party or parties;
(b) any request or direction of the Issuer mentioned herein
shall be sufficiently evidenced by an Issuer Request or Issuer Order
and any resolution of the Board of Directors shall be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers'
Certificate;
(d) the Trustee may consult with counsel and the advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities that might be
incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, coupon or other paper or
document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Issuer, personally or by agent or attorney;
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(g) the Trusteemay execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder;
(h) the Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be authorized or
within the discretion, rights or powers conferred upon it by this
Indenture; nothing contained herein shall, however, relieve the Trustee
of the obligation, upon the occurrence of an Event of Default with
respect to the Debt Securities (that has not been cured or waived) to
exercise with respect to Debt Securities such of the rights and powers
vested in it by this Indenture, and to use the same degree of care and
skill in their exercise, as a prudent person would exercise or use
under the circumstances in the conduct of his or her own affairs; and
(i) Whenever the Trustee is unable to decide between
alternative courses of action permitted or required by the terms of
this Indenture, is unsure of the course of action to be taken by it
hereunder, or otherwise determines that instruction is necessary,
appropriate or advisable, the Trustee shall promptly give notice (in
such form as shall be appropriate under the circumstances) to the
Issuer or the Holders requesting instruction as to the course of action
to be adopted, and to the extent the Trustee acts in good faith in
accordance with any written instruction received from the Issuer or the
Holders (exercised by the Act of the Holders of not less than a
majority in principal amount of the Outstanding Debt Securities), as
the case may be, the Trustee shall not be liable on account of such
action or inaction to the Issuer, any Holder or any other Person. If
the Trustee shall not have received appropriate instruction within ten
days of such notice (or within such shorter period of time as
reasonably may be specified in such notice or may be necessary under
the circumstances) it may, but shall be under no duty to, take or
refrain from taking such action, not inconsistent with this Indenture,
as it shall in good xxxxx xxxx to be in the best interests of the
Holders, and shall have no liability to the Issuer, any Holder or any
other Person for such action or inaction.
Section 6.04. Not Responsible for Recitals or Issuance of Debt
Securities. The recitals contained herein and in the Debt Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Issuer, and the Trustee assumes no responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or the Debt Securities. The Trustee shall not be accountable for the
use or application by the Issuer of any Debt Securities or the proceeds thereof.
Section 6.05. May Hold Debt Securities. The Trustee, any Paying Agent,
the Security Registrar or any other agent of the Issuer or the Trustee, in its
individual or any other capacity, may become the owner or pledgee of Debt
Securities, and may otherwise deal with the Issuer with the same rights it would
have if it were not Trustee, Paying Agent, Security Registrar or such other
agent.
Section 6.06. Money Held in Trust. Money held by the Trustee or any
Paying Agent (except the Issuer) in trust hereunder need not be segregated from
other funds except to the extent required by law. Neither the Trustee nor any
Paying Agent shall be under any liability for interest on any money received by
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it hereunder except as otherwise agreed in writing with the Issuer. So long as
no Event of Default shall have occurred and be continuing, all interest allowed
on any such moneys, if any, shall be paid from time to time to the Issuer upon
the written order of the Issuer, signed by the Chairman of the Board of
Directors, the Vice Chairman, the President, the Chief Financial Officer, the
Chief Operating Officer, a Vice President, the Treasurer or an Assistant
Treasurer of the Issuer.
Section 6.07. Compensation and Reimbursement. The Issuer agrees
(a) to pay to the Trustee from time to time such compensation
in Dollars for all services rendered by it hereunder as may be mutually
agreed upon in writing by the Issuer and the Trustee (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(b) to reimburse the Trustee in Dollars upon its written
request for all documented reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any
provision of this Indenture (including the reasonable compensation and
the reasonable expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance attributable to its
negligence or bad faith; and
(c) to indemnify in Dollars the Trustee (including in its
individual capacity) and any predecessor Trustee (and its officers,
agents, directors and employees) for, and to hold it harmless against,
any and all loss, damage, claim, liability or expense except to the
extent such loss, damage, claim, liability or expense results from the
negligence or bad faith of such indemnitee, arising out of or in
connection with the acceptance or administration of this trust or
performance of its duties hereunder, including the costs and expenses
of defending itself against any claim or liability in connection with
the exercise or performance of any of its powers or duties hereunder.
Without prejudice to any other rights available to the Trustee under
applicable law, when the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Sections 5.01 (a) or 5.01(b),
the expenses (including the reasonable charges and expenses of its counsel) and
the compensation for the services are intended to constitute expenses of
administration under any applicable Federal or state bankruptcy, insolvency or
other similar laws.
As security for the performance of the obligations of the Issuer under
this Section, the Trustee shall have a lien prior to the Debt Securities, upon
all property and funds held or collected by the Trustee as such, except funds
held in trust for the payment of amounts due on the Debt Securities.
The obligations of the Issuer under this Section to compensate,
reimburse and indemnify the Trustee for expenses, disbursements and advances
shall constitute additional indebtedness under this Indenture and shall survive
the satisfaction and discharge or other termination of this indenture and shall
survive the resignation or removal of the Trustee.
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Section 6.08. Disqualification, Conflicting Interests. If the Trustee
has or shall acquire any "conflicting interest" within the meaning of ss. 310(b)
of the Trust Indenture Act, the Trustee shall either eliminate such interest or
resign, to the extent and in the manner provided by, and subject to this
Indenture.
Section 6.09. Corporate Trustee Required, Eligibility. There shall at
all times be a Trustee hereunder that shall be an entity organized and doing
business under the laws of the United States of America, any State thereof or
the District of Columbia, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $50,000,000, subject
to supervision or examination by Federal or State authority. If such entity
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such entity shall
be deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published.
The Issuer may not, nor may any Person directly or indirectly
controlling, controlled by, or under common control with the Issuer, serve as
Trustee.
If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
Section 6.10. Resignation and Removal, Appointment of Successor. (a) No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee under Section 6.11.
(b) The Trustee may resign at any time by giving written
notice thereof to the Issuer. If an instrument of acceptance by a
successor Trustee shall not have been delivered to the Trustee within
30 days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(c) The Trustee may be removed at any time and (subject to
Section 6.10(e) below) a successor Trustee appointed by Act of the
Holders of a majority in principal amount of the Outstanding Debt
Securities, delivered to the Trustee and to the Issuer.
(d) If at any time:
(1) the Trustee shall fail to comply with Section
6.08 after written request therefor by the Issuer or by any
Holder who has been a bona fide Holder of a Debt Security for
at least six months, or
(2) the Trustee shall cease to be eligible under
Section 6.09 and shall fail to resign after written request
therefor by the Issuer or by any Holder who has been a bona
fide Holder of a Debt Security for at least six months, or
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(3) the Trustee shall become incapable of acting or a
decree or order for relief by a court having jurisdiction in
the premises shall have been entered in respect of the Trustee
in an involuntary case under the Federal bankruptcy laws, as
now or hereafter constituted, or any other applicable Federal
or State bankruptcy, insolvency or similar law; or a decree or
order by a court having jurisdiction in the premises shall
have been entered for the appointment of a receiver,
custodian, liquidator, assignee, trustee, sequestrator (or
other similar official) of the Trustee or of its property or
affairs, or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation, winding up or liquidation, or
(4) the Trustee shall commence a voluntary case under
the Federal bankruptcy laws, as now or hereafter constituted,
or any other applicable Federal or State bankruptcy,
insolvency or similar law or shall consent to the appointment
of or taking possession by a receiver, custodian, liquidator,
assignee, trustee, sequestrator (or other similar official) of
the Trustee or its property or affairs, or shall make an
assignment for the benefit of creditors, or shall admit in
writing its inability to pay its debts generally as they
become due, or shall take corporate action in furtherance of
any such action,
then, in any such case, (i) the Issuer by a Board Resolution may remove the
Trustee or (ii) subject to Section 5.14, any Holder who has been a bona fide
Holder of a Debt Security for at least six months may, on behalf of himself or
herself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of
Trustee for any cause, the Issuer, by a Board Resolution, shall
promptly appoint a successor Trustee and shall comply with the
applicable requirements of Section 6.11. If, within one year after such
resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee shall be appointed by Act of the Holders
of a majority in principal amount of the Outstanding Debt Securities
delivered to the Issuer and the retiring Trustee, the successor Trustee
so appointed shall, forthwith upon its acceptance of such appointment,
become the successor Trustee and to that extent supersede the successor
Trustee appointed by the Issuer. If no successor Trustee shall have
been so appointed by the Issuer or the Holders and accepted appointment
in the manner hereinafter provided within 30 days after the notice of
resignation, or the removal, incapacity or other vacancy, of the
Trustee, the Trustee or any Holder who has been a bona fide Holder of a
Debt Security for at least six months, subject to Section 5.14, on
behalf of himself or herself and all others similarly situated, may
petition any court of competent jurisdiction for the appointment of a
successor Trustee.
(f) The Issuer shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee in
the manner and to the extent provided in Section 1.05 to the Holders.
Each notice shall include the name of the successor Trustee and the
address of its Corporate Trust Office.
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Section 6.11. Acceptance of Appointment by Successor. (a) In the case
of an appointment hereunder of a successor Trustee, each such successor Trustee
so appointed shall execute, acknowledge and deliver to the Issuer and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on request of the Issuer or the successor Trustee, such retiring Trustee
shall, upon payment of the amounts then due to it pursuant to the provisions of
Section 6.07, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee, and shall
duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder, subject nevertheless to its
claim, if any, provided for in Section 6.07.
(b) Upon request of any successor Trustee, the Issuer shall
execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and
trusts referred to in paragraph (a) of this Section.
(c) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be
qualified and eligible under this Article.
Section 6.12. Merger, Conversion, Consolidation or Succession to
Business. Any entity into which the Trustee may be merged or converted or with
which it may be consolidated, or any entity resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any entity
succeeding to all or substantially all of the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided, that such
entity shall be otherwise qualified and eligible under this Article, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto. In case any Debt Securities shall have been authenticated, but
not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Debt Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Debt
Securities. In case any Debt Securities shall not have been authenticated by
such predecessor Trustee, any such successor Trustee may authenticate and
deliver such Debt Securities, in either its own name or that of its predecessor
Trustee, with the full force and effect which this Indenture provides for the
certificate of authentication of the Trustee.
Section 6.13. Preferential Collection of Claims Against Issuer. If and
when the Trustee shall be or become a creditor of the Issuer (or any other
obligor upon the Debt Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Issuer (or any such other obligor).
Section 6.14. Appointment of Authenticating Agent. As long as any Debt
Securities remain Outstanding, the Trustee may upon the request of the Issuer,
by an instrument in writing, appoint an authenticating agent (the
"Authenticating Agent") which shall be authorized to act on behalf of the
Trustee to authenticate Debt Securities issued upon exchange, registration of
transfer, partial redemption or pursuant to Section 3.05. Debt Securities
authenticated by such Authenticating Agent shall be entitled to the benefits of
35
this Indenture and shall be valid and obligatory for all purposes as if
authenticated by such Trustee. Wherever reference is made in this Indenture to
the authentication and delivery of Debt Securities by the Trustee or to the
Trustee's Certificate of Authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a Certificate of Authentication executed on behalf of
such Trustee by such Authenticating Agent. Such Authenticating Agent shall at
all times be a corporation organized and doing business under the laws of the
United States of America or of any State, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least
$50,000,000 (determined as provided in Section 6.09 with respect to the Trustee)
and subject to supervision or examination by Federal or State authority.
Any corporation into which any Authenticating Agent may be merged or
converted, or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which any Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all of
the corporate trust business of any Authenticating Agent, shall continue to be
the Authenticating Agent without the execution or filing of any paper or any
further act on the part of the Trustee or such Authenticating Agent. Any
Authenticating Agent may at any time, and if it shall cease to be eligible
shall, resign by giving written notice of resignation to the applicable Trustee
and to the Issuer.
Upon receiving such a notice of resignation, or in case at any time any
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee shall upon Issuer Request appoint a
successor Authenticating Agent, and the Issuer shall provide notice of such
appointment to the Holders in the manner and to the extent provided in Section
1.05. Any successor Authenticating Agent upon acceptance of its appointment
hereunder shall become vested with all rights, powers, duties and
responsibilities of its predecessor hereunder, with like effect as if originally
named as Authenticating Agent. The Issuer agrees to pay to the Authenticating
Agent from time to time reasonable compensation including reimbursement of its
reasonable expenses for its services. The Authenticating Agent shall have no
responsibility or liability for any action taken by it as such at the direction
of the Trustee.
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND ISSUER
Section 7.01 Issuer to Furnish Trustee Names and Addresses of Holders.
The Issuer will furnish or cause to be furnished to the Trustee:
(a) on each Regular Record Date for an Interest Payment Date,
a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders as of such Regular Record Date; and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Issuer of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished;
36
except that no such lists need be furnished under this Section 7.01 so long as
the Trustee is in possession thereof by reason of its acting as Security
Registrar.
Section 7.02. Preservation of Information; Communication to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of Holders contained
in the most recent list furnished to the Trustee as provided in Section 7.01 or
received by it in the capacity of Paying Agent or Security Registrar (if so
acting) hereunder.
The Trustee may destroy any list furnished to it as provided in Section
7.01 upon receipt of a new list so furnished, destroy any information received
by it as Paying Agent or Security Registrar (if so acting) hereunder upon
delivering to itself as Trustee, not earlier than 45 days after an Interest
Payment Date, a list containing the names and addresses of the Holders obtained
from such information since the delivery of the next previous list, if any, and
destroy any list delivered to itself as Trustee which was compiled from
information received by it as Paying Agent or Security Registrar (if so acting)
hereunder upon the receipt of a new list so delivered.
(b) If a Holder applies in writing to the Trustee, and
furnishes to the Trustee reasonable proof that it has owned a Debt
Security for a period of at least six months preceding the date of such
application, and such application states that the Holder desires to
communicate with other Holders with respect to their rights under this
Indenture or under the Debt Securities and is accompanied by a copy of
the form of proxy or other communication which such applicants propose
to transmit, then the Trustee shall, within five Business Days after
the receipt of such application, at its election either:
(1) afford such Holder access to the information
preserved at the time by the Trustee in accordance with
Section 7.02(a), or
(2) inform such Holder as to the approximate number
of Holders whose names and addresses appear in the information
preserved at the time by the Trustee in accordance with
Section 7.02(a), and as to the approximate cost of mailing to
such Holders the form of proxy or other communication,
specified in such application.
If the Trustee shall elect not to afford the Holder access to
such information, the Trustee shall, upon written request of such
applicant, mail to the Holders whose names and addresses appear in the
information preserved at the time by the Trustee in accordance with
Section 7.02(a), a copy of the form of proxy or other communication
which is specified in such request, with reasonable promptness after a
tender to the Trustee of the material to be mailed and of payment, or
provision for the payment, of the reasonable expenses of mailing,
unless within five days after such tender the Trustee shall mail to
such applicant a written statement to the effect that, in the opinion
of the Trustee, such mailing would be contrary to the best interests of
the Holders or would be in violation of applicable law. Such written
statement shall specify the basis of such opinion. In the event that
the applicants decide to proceed despite the Trustee's opinion and
obtain an order of a court of competent jurisdiction directing the
37
Trustee to mail the applicable material, after entry of such order and
renewal of such tender, the Trustee shall mail copies of such material
to all such Holders; otherwise the Trustee shall be relieved of any
obligation or duty to such applicants respecting their application.
(c) Every Holder of Debt Securities, by receiving and holding
the same, agrees with the Issuer and the Trustee that neither the
Issuer nor the Trustee nor the Security Registrar nor any Paying Agent
shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders in accordance
with Section 7.02(b), regardless of the source from which such
information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request
made under Section 7.02(b).
ARTICLE VIII
CONCERNING THE HOLDERS
Section 8.01. Acts of Holders. Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by an agent or proxy duly appointed in writing, and, except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is hereby expressly
required, to the Issuer. Such instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the "Act" of
the Holders signing such instrument or instruments. Whenever in this Indenture
it is providedthat the Holders of a specified percentage in aggregate principal
amount of the Outstanding Debt Securities may take any Act, the fact that the
Holders of such specified percentage have joined therein may be evidenced by (a)
the instrument or instruments executed by Holders in person or by agent or proxy
appointed in writing, or by (b) the record of Holders voting in favor thereof at
any meeting of such Holders duly called and held in accordance with the
provisions of Article IX, or by (c) a combination of such instrument or
instruments and any such record of such a meeting of Holders.
Section 8.02. Proof of Ownership; Proof of Execution of Instruments by
Holders. The ownership of the Debt Securitiesshall be proved by the Security
Register or by a certificate of the Security Registrar.
Subject to the provisions of Sections 6.01, 6.03 and 9.05, proof of the
execution of a writing appointing an agent or proxy and of the execution of any
instrument by a Holder or such Holder's agent or proxy shall be sufficient and
conclusive in favor of the Trustee and the Issuer if made in the following
manner:
The fact and date of the execution by any such person of any instrument
may be proved by the certificate of any notary public or other officer
authorized to take acknowledgment of deeds, that the person executing such
instrument acknowledged to him or her the execution thereof, or by an affidavit
of a witness to such execution sworn to before any such notary or other such
officer. Where such execution is by an officer of a corporation or association
or a member of a partnership on behalf of such corporation, association or
38
partnership, as the case may be, or by any other person acting in a
representative capacity, such certificate or affidavit shall also constitute
sufficient proof of such person's authority. The record of any Holders' meeting
shall be proved in the manner provided in Section 9.06.
The Trustee may in any instance require further proof with respect to
any of the matters referred to in this Section so, long as the request is a
reasonable one.
If the Issuer shall solicit an Act from the Holders, the Issuer may, at
its option, by Board Resolution, fix in advance a record date for the
determination of Holders entitled to take such Act, but the Issuer shall have no
obligation to do so. Such record date shall be the record date specified in or
pursuant to such Board Resolution, which shall be a date not earlier than the
date 30 days prior to the first solicitation of Holders generally in connection
therewith and not later than the date such solicitation is completed.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Debt Security shall bind every future Holder
of the same Debt Security and any Debt Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, suffered or omitted by the Trustee or any agent of the Trustee or
the Issuer in reliance thereon, whether or not notation of such action is made
upon such Debt Security.
Section 8.03. Revocation of Consents; Future Holders Bound. At any time
prior to (but not after) the evidencing to the Trustee, as provided in Section
8.01, of the taking of any Act by the Holders of the percentage in aggregate
principal amount of the Outstanding Debt Securities specified in this Indenture
in connection with such Act, any Holder of a Debt Security the number, letter or
other distinguishing symbol of which is shown by the evidence to be included in
the Debt Securities the Holders of which have consented to such Act may, by
filing written notice with the Trustee at the Corporate Trust Office and upon
proof of ownership as provided in Section 8.02, revoke such Act so far as it
concerns such Debt Security. Except as aforesaid, any such Act taken by the
Holder of any Debt Security shall be conclusive and binding upon such Holder and
upon all future Holders of such Debt Security and of any Debt Securities issued
on transfer or in lieu thereof or in exchange or substitution therefor,
irrespective of whether or not any notation in regard thereto is made upon such
Debt Security or such other Debt Securities.
ARTICLE IX
HOLDERS' MEETINGS
Section 9.01. Purposes of Meetings. A meeting of Holders may be called
at any time and from time to time pursuant to the provisions of this Article IX
for any of the following purposes:
(a) to give any notice to the Issuer or to the Trustee, or to
give any directions to the Trustee, or to consent to the waiving of any
default hereunder and its consequences, or to take any other action
39
authorized to be taken by Holders pursuant to any of the provisions of
Article V;
(b) to remove the Trustee and appoint a successor Trustee
pursuant to the provisions of Article VI;
(c) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 11.02; or
(d) to take any other action authorized to be taken by or on
behalf of the Holders of any specified aggregate principal amount of
the Outstanding Debt Securities under any other provision of this
Indenture or under applicable law.
Section 9.02. Call of Meetings by Trustee. The Trustee may at any time
call a meeting of Holders to take any action specified in Section 9.01, to be
held at such time or times and at such place in New York or Wilmington, Delaware
as the Trustee shall determine. Notice of every meeting of the Holders, setting
forth the time and place of such meeting and in general terms the action
proposed to be taken at such meeting, shall be given to Holders in the manner
and to the extent provided in Section 1.05. Such notice shall be given not less
than 20 days or more than 180 days prior to the date fixed for the meeting.
Section 9.03. Call of Meetings by Issuer or Holders. In case at any
time the Issuer, pursuant to a Board Resolution, or the Holders of not less than
10% in aggregate principal amount of the Outstanding Debt Securities shall have
requested the Trustee to call a meeting of the Holders by written request
setting forth in reasonable detail the action proposed to be taken at the
meeting, and the Trustee shall not have given the notice of such meeting within
20 days after the receipt of such request, then the Issuer or such Holders may
determine the time or times and the place or places for such meetings and may
call such meetings to take any action authorized in Section 9.01, by giving
notice thereof as provided in Section 9.02.
(a) Qualifications for Voting. To be entitled to vote at any
meeting of Holders a Person shall be a Holder or a Person appointed by
an instrument in writing as agent or proxy by such Holder. The only
Persons who shall be entitled to be present or to speak at any meeting
of Holders shall be the Persons entitled to vote at such meeting and
their counsel and any representatives of the Trustee with respect to
which such meeting is being held and its counsel and any
representatives of the Issuer and its counsel.
Section 9.04. Regulations. Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Holders, in regard to proof of the holding of Debt
Securities and of the appointment of proxies, and in regard to the appointment
and duties of inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall deem appropriate.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the Issuer
or by Holders as provided in Section 9.03, in which case the Issuer or the
Holders calling the meeting, as the case may be, shall in like manner appoint a
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temporary chairman. A permanent chairman and a permanent secretary of the
meeting shall be elected by a majority vote at the meeting.
Subject to the provisos in the definition of "Outstanding," at any
meeting each Holder or proxy therefor shall be entitled to, one vote for each
$1,000 principal amount of Debt Securities held or represented by such Holder;
provided, however, that no vote shall be cast or counted at any meeting in
respect of any Debt Security challenged as not Outstanding and ruled by the
chairman of the meeting to be not Outstanding. The chairman of the meeting shall
have no right to vote other than by virtue of Outstanding Debt Securities held
by such chairman or instruments in writing duly designating such chairman as the
person to vote on behalf of Holders. Any meeting of Holders with respect to
which a meeting was duly called pursuant to the provisions of Section 9.02 or
9.03 may be adjourned from time to time by a majority of such Holders present
and the meeting may be held as so adjourned without further notice.
Section 9.05. Voting. The vote upon any resolution submitted to any
meeting of Holders with respect to which such meeting is being held shall be by
written ballots on which shall be subscribed the signatures of such Holders or
of their representatives by proxy and the serial number or numbers of the Debt
Securities held or represented by them. The permanent chairman of the meeting
shall appoint two inspectors of votes who shall count all votes cast at the
meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in duplicate of all
votes cast at the meeting. A record in duplicate of the proceedings of each
meeting of Holders shall be prepared by the secretary of the meeting and there
shall be attached to said record the original reports of the inspectors of votes
on any vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was transmitted as provided in Section 9.02. The record
shall show the serial numbers of the Debt Securities voting in favor of or
against any resolution. The record shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one of the
duplicates shall be delivered to the Issuer and the other to the Trustee to be
preserved by the Trustee.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
Section 9.06. No Delay of Rights by Meeting. Nothing in this Article IX
contained shall be deemed or construed to authorize or permit, by reason of any
call of a meeting of Holders or any rights expressly or impliedly conferred
hereunder to make such call, any hindrance or delay in the exercise of any right
or rights conferred upon or reserved to the Trustee or to any Holder under any
of the provisions of the Indenture or of the Debt Securities.
Section 9.07. Quorum; Actions. The Persons entitled to vote a majority
in principal amount of the Debt Securities shall constitute a quorum for a
meeting of Securityholders; provided, however, that if any action is to be taken
at such meeting with respect to a consent, waiver, request, demand, notice,
authorization, direction or other action which may be given by the holders of
not less than a specified percentage in principal amount of the Debt Securities,
the Persons holding or representing such specified percentage in principal
amount of the Debt Securities will constitute a quorum. In the absence of a
quorum within 30 minutes of the time appointed for any such meeting, the meeting
41
shall, if convened at the request of Securityholders, be dissolved. In any
othercase the meeting may be adjourned for a period of not less than 10 days as
determined by the permanent 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 permanent 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 in Section 9.02, except that such notice need be
given only once not less than five days prior to the date on which the meeting
is scheduled to be reconvened. Notice of the reconvening of an adjourned meeting
shall state expressly the percentage, as provided above, of the principal amount
of the Debt Securities which shall constitute a quorum.
Except as limited by the proviso in the first paragraph of Section
11.02, any resolution presented to a meeting or adjourned meeting duly
reconvened at which a quorum is present as aforesaid may be adopted by the
affirmative vote of the holders of not less than a majority in principal amount
of the Debt Securities; provided, however, that, except as limited by the
proviso in the first paragraph of Section 11.02, any resolution with respect to
any consent, waiver, request, demand, notice, authorization, direction or other
action that this Indenture expressly provides may be given by the holders of not
less than a specified percentage in principal amount of the Debt Securities may
be adopted at a meeting or an adjourned meeting duly reconvened and at which a
quorum is present as aforesaid only by the affirmative vote of the holders of a
not less than such specified percentage in principal amount of the Debt
Securities.
Any resolution passed or decision taken at any meeting of holders of
Debt Securities duly held in accordance with this Section shall be binding on
all the Securityholders, whether or not present or represented at the meeting.
ARTICLE X.
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 10.01. Issuer May Consolidate, etc., Only on Certain Terms. The
Issuer shall not consolidate with or merge into any other entity or convey,
transfer or lease its properties and assets substantially as an entirety to any
Person, unless:
(a) the entity formed by such consolidation or into which the
Issuer is merged or the Person which acquires by conveyance or
transfer, or which leases, the properties and assets of the Issuer
substantially as an entirety (the "successor corporation") shall be a
corporation or other banking organization organized and existing under
the laws of the United States or any state or territory thereof or the
District of Columbia and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the
principal of and interest on all the Debt Securities, the payment of
all amounts owed hereunder by the Issuer to the Trustee and the
performance of every covenant of this Indenture on the part of the
Issuer to be performed or observed;
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(b) immediately after giving effect to such transaction and
treating any indebtedness that becomes an obligation of the Issuer as a
result of such transaction as having been incurred by the Issuer at the
time of such transaction, no Default, and no event that, after notice
or lapse of time, or both, would become a Default, shall have happened
and be continuing; and
(c) the Issuer has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance, transfer or lease, and the
assumption by any successor entity, and such supplemental indenture
comply with this Article and that all conditions precedent herein
provided for relating to such transaction have been complied with.
Section 10.02. Successor Corporation Substituted. Upon any
consolidation with or merger into any other corporation, or any
conveyance, transfer or lease of the properties and assets of the
Issuer substantially as an entirety in accordance with Section 10.01,
the successor corporation formed by such consolidation or into which
the Issuer is merged or to which such conveyance, transfer or lease is
made shall succeed to, and be substituted for, and may exercise every
right and power of, the Issuer under this Indenture with the same
effect as if such successor corporation had been named as the Issuer
herein, and thereafter, the predecessor corporation shall be relieved
of all obligations and covenants under this Indenture and the Debt
Securities.
Section 10.03. Opinion of Counsel. The Trustee shall be
entitled to receive and, subject to Sections 6.01 and 6.03, shall be
protected in relying upon an Opinion of Counsel as conclusive evidence
that any such consolidation, merger, sale, conveyance or lease and any
such assumption complies with the provisions of this Article.
ARTICLE XI.
SUPPLEMENTAL INDENTURES
Section 11.01. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Issuer, when authorized by a Board
Resolution, and the Trustee, at the direction of the Issuer, at any time and
from time to time, may enter into one or more indentures supplemental hereto, in
form satisfactory to the Trustee, for any of the following purposes:
(a) to evidence the succession of another corporation to the
Issuer and the assumption by such successor of the covenants of the
Issuer herein and in the Debt Securities contained; or
(b) to add to the covenants of the Issuer, for the benefit of
the Holders, or to surrender any right or power herein conferred upon
the Issuer; or
(c) to add any additional Defaults or Events of Default; or
(d) to change or eliminate any of the provisions of this
Indenture, provided, that any such change or elimination shall become
effective only when there is no Outstanding Debt Security created prior
43
to the execution of such supplemental indenture that is entitled to the
benefit of such provision and as to which such supplemental indenture
would apply or
(e) to establish the form or terms of Debt Securities; or
(f) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee pursuant to the requirements of
Section 6.11; or
(g) to evidence any changes to Section 6.08 or 6.09 permitted
by the terms thereof; or
(h) to cure any ambiguity, to correct or supplement any
provision herein that may be defective or inconsistent with any other
provision herein, or to make any other provisions with respect to
matters or questions arising under this Indenture that shall not be
inconsistent with any provision of this Indenture; provided, that such
other provisions shall not adversely affect the interests of the
Holders of Outstanding Debt Securities created prior to the execution
of such supplemental indenture in any material respect.
Section 11.02. Supplemental Indentures With Consent of Holders. With
the consent of the Holders of not less than a majority in aggregate principal
amount of the Outstanding Debt Securities affected by such supplemental
indenture voting separately, by Act of said Holders delivered to the Issuer and
the Trustee, the Issuer, when authorized by a Board Resolution, and the Trustee,
at the directionof the Issuer, may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders under this Indenture or such
Debt Securities; provided, however, that no such supplemental indenture shall,
without such consent of the Holder of each Outstanding Debt Security affected
thereby,
(a) change the Maturity Date or Interest Payment Date of any
Debt Security, or reduce the principal amount thereof or the Interest
Rate payable upon redemption thereof, or reduce the amount provable in
bankruptcy or insolvency pursuant to Section 5.04, or change any Place
of Payment where, or the currency in which, any Debt Security or the
interest thereon is payable, or impair the right to institute suit for
the enforcement of any payment on or after the Redemption Date thereof;
or
(b) reduce the percentage in principal amount of the
Outstanding Debt Securities, the consent of whose Holders is required
for any supplemental indenture, or the consent of whose Holders is
required forr any waiver of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences provided
for in this Indenture; or
(c) modify any of the provisions of this Section or Section
5.13, except to increase any such percentage or to provide that certain
other provisions of this Indenture cannot be modified or waived without
the consent of the Holder of each Outstanding Debt Security affected
thereby; provided, however, that this clause shall not be deemed to
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require the consent of any Holder with respect to changes in the
references to "the Trustee" and concomitant changes in this Section, or
the deletion of this proviso, in accordance with the requirements of
Sections 6.11 and 11.01(f).
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
Section 11.03. Execution of Supplemental Indentures. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and (subject to Section
6.01) shall be fully protected in relying upon, an Opinion of Counsel stating
that the execution of such supplemental indenture is authorized or permitted by
this Indenture. Notwithstanding any other provision of this Indenture to the
contrary, the Trustee may, but shall not be obligated to, enter into any
supplemental indenture that affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Section 11.04. Effect of Supplemental Indentures. Upon the execution of
any supplemental indenture under this Article, this Indenture shall be modified
in accordance therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes; and every Holder of Debt Securities theretofore
or thereafter authenticated and delivered hereunder shall be bound thereby.
Section 11.05. Reference in Debt Securities to Supplemental Indentures.
Debt Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Issuer, bear a notation in form approved by the Trustee and the Issuer as to
any matter provided for in such supplemental indenture. If the Issuer or the
Trustee shall so determine, new Debt Securities so modified as to conform, in
the opinion of the Board of Directors of the Issuer, to any such supplemental
indenture may be prepared and executed by the Issuer and, upon receipt by the
Trustee of an Issuer Order, authenticated and delivered by the Trustee in
exchange for Outstanding Debt Securities.
Section 11.06. Subordination Unimpaired. No supplemental indenture
entered into under this Article shall modify, directly or indirectly, the
provisions of Article XV or the definition of Senior Indebtedness in Section
1.01 in any manner that might alter or impair the subordination of the Debt
Securities with respect to Senior Indebtedness then outstanding unless each
holder of such Senior Indebtedness has consented thereto in writing.
Section 11.07. Notice of Supplemental Indenture. Promptly after the
execution by the Issuer and the Trustee of any supplemental indenture pursuant
to Section 11.02, the Issuer shall transmit to the Holders a notice setting
forth the substance of such supplemental indenture.
ARTICLE XII.
COVENANTS
Section 12.01. Payment of Principal and Interest. The Issuer covenants
and agrees for the benefit of the Debt Securities, that it will duly and
punctually pay the principal of and interest on the Debt Securities in
45
accordance with the terms of the Debt Securities and this Indenture. At the
option of the Issuer, each installment of interest on the Debt Securities may be
paid (i) by mailing checks for such interest payable to the order of the holders
of Debt Securities entitled thereto as they appear on the Securities Registrar
or (ii) by wire transfer to any account with a banking institution located in
the United States designated by such Person to the Paying Agent no later than
the related record date.
Section 12.02. Tax Treatment of the Debt Securities. The Issuer will
treat the Debt Securities as indebtedness, and the interest payable in respect
of such Debt Securities (including any Additional Amounts) as interest, for all
U.S. federal income tax purposes. All payments in respect of such Debt
Securities will be made free and clear of U.S. withholding tax provided, that
any beneficial owner thereof has provided an Internal Revenue Service Form W-8
BEN (or any substitute or successor form) establishing its non-U.S. status for
U.S. federal income tax purposes.
Section 12.03. Maintenance of Office or Agency. The Issuer will
maintain in Wilmington, Delaware, in Denver, Colorado or in each Place of
Payment an office or agency where Debt Securities may be presented or
surrendered for payment, where Debt Securities may be surrendered for transfer
or exchange and where notices and demands to or upon the Issuer in respect of
the Debt Securities and this Indenture may be served. The Issuer will give
prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Issuer shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the Corporate Trust Office of the Trustee, and the
Issuer hereby appoints the Trustee as its agent to receive all presentations,
surrenders, notices and demands.
The Issuer may also from time to time designate different or additional
offices or agencies to be maintained for such purposes (in or outside of such
Place of Payment), and may from time to time rescind any such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Issuer of its obligations described in the preceding paragraph. The
Issuer will give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency.
Section 12.04. Money for Debt Securities; Payments To Be Held in Trust.
If the Issuer shall at any time act as its own Paying Agent with respect of Debt
Securities, it will, on or before each Interest Payment Date and the Redemption
Date, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the interest and principal so becoming due,
respectively, until such sums shall be paid to such Persons or otherwise
disposed of as herein provided, and will promptly notify the Trustee of its
action or failure so to act.
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Whenever the Issuer shall have one or more Paying Agents it will, prior
to each Interest Payment Date and the Redemption Date, deposit with any such
Paying Agent a sum sufficient to pay the principal or interest so becoming due,
such sum to be held in trust for the benefit of the Persons entitled thereto,
and (unless any such Paying Agent is the Trustee) the Issuer will promptly
notify the Trustee of its action or failure so to act.
The Issuer will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will:
(a) hold all sums held by it for the payment of the principal
of or interest in trust for the benefit of the Persons entitled thereto
until such sums shall be paid to such Persons or otherwise disposed of
as herein provided;
(b) give the Trustee notice of any default by the Issuer (or
any other obligor upon the Debt Securities) in the making of any
payment of principal of or interest on the Debt Securities; and
(c) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Issuer Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Issuer or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Issuer or
such Paying Agent, and, upon such payment by the Issuer or any Paying Agent to
the Trustee, the Issuer or such Paying Agent, as applicable, shall be released
from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Issuer, in trust for the payment of the principal of or interest on any
Debt Security and remaining unclaimed for two years after such principal or
interest has become due and payable shall be paid to the Issuer upon Issuer
Request, or (if then held by the Issuer) shall be discharged from such trust,
and the Holder of such Debt Security shall thereafter, as an unsecured general
creditor, look only to the Issuer for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all liability
of the Issuer as trustee thereof, shall thereupon cease; provided, however, that
the Trustee or such Paying Agent before being required to make any such
repayment, may at the expense of the Issuer cause to be transmitted in the
manner and to the extent provided by Section 1.05, notice that such money
remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such notification, any unclaimed balance of
such money then remaining will be repaid to the Issuer.
Section 12.05. Officers' Certificate as to Default. The Issuer will
deliver to the Trustee, on or before a date not more than four months afterthe
end of each fiscal year of the Issuer, so long as Debt Securities are
Outstanding hereunder, an Officers' Certificate (one of the signers of which
shall be the principal executive, principal financial or principal accounting
officer of the Issuer), stating whether or not to the best knowledge of the
signers thereof the Issuer is in default in the performance and observation of
any of the terms, provisions and conditions of this Indenture, and, if the
Issuer shall be in default, specifying all such defaults and the nature thereof
of which they may have knowledge. Such compliance shall be determined without
regard to periods of grace or notice requirements.
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Section 12.06. Regulatory Reports. So long as the only Holder of the
Debt Securities is Regional Diversified Funding 2004-1 Ltd., the Issuer will
deliver to the Holder a copy of the Issuer's quarterly regulatory financial
reports promptly following its filing with the Issuer's federal regulatory
authority (including each "Consolidated Reports of Condition and Income" on
reporting form FFIEC 031 or 041, or the Federal Reserve Board's Forms FRY-6 and
FRY-9, or the Office of Thrift Supervision's "Thrift Financial Report" form, as
applicable, or such other similar quarterly regulatory reporting form as may be
amended and in affect from time to time).
ARTICLE XIII.
TAX EVENT REDEMPTION
Section 13.01. Tax Redemption. If a Tax Event shall occur and be
continuing, the Issuer shall have the right, subject to the receipt by the
Issuer of prior approval from the Issuer's appropriate federal regulatory
authority (if then required under the applicable regulations or guidelines of
such regulatory authority) to redeem the Debt Securities, in whole but not in
part, at any time within 90 days following the occurrence of such Tax Event (the
"Tax Redemption Date"), at the Redemption Price.
Section 13.02. Notice of Redemption. In case the Issuer shall desire to
exercise the right to redeem the Debt Securities, it shall fix a Tax Redemption
Date and shall mail a notice of such redemption at least 30 and not more than 60
days prior to the Tax Redemption Date to the holders of the Debt Securities at
their last addresses as the same appear on the Security Register. Such mailing
shall be by first class mail. The notice if mailed in the manner herein provided
shall be conclusively presumed to have been duly given, whether or not the
holder receives such notice. In any case, failure to give such notice by mail or
any defect in the notice to the holder of any Debt Security shall not affect the
validity of the proceedings for the redemption of any other Debt Security.
Each such notice of redemption shall specify the CUSIP number, if any,
of the Debt Securities to be redeemed, the date fixed for redemption, the
Redemption Price at which Debt Securities are to be redeemed, the place or
places of payment, that payment will be made upon presentation and surrender of
such Debt Securities, that interest accrued to the date fixed for redemption
will be paid as specified in said notice, and that on and after said date
interest thereon or on the portions thereof to be redeemed will cease to accrue.
The Issuer will give the Trustee notice not less than 45 nor more than
60 days prior to the Redemption Date as to the Redemption Price at which the
Debt Securities are to be redeemed and the aggregate principal amount of Debt
Securities to be redeemed.
Section 13.03. Payment of Debt Securities Called for Redemption. If
notice of redemption has been given as provided in Section 13.02, the Debt
Securities with respect to which such notice has been given shall become due and
payable on the Tax Redemption Date and at the place or places stated in such
notice at the applicable Redemption Price, together with any Additional Amounts,
and on and after said Tax Redemption Date (unless the Issuer shall default in
the payment of such Debt Securities at the Redemption Price) interest on the
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Debt Securities shall cease to accrue. Prior to 10:00 a.m. New York City time on
the Tax Redemption Date specified in such notice of redemption, the Issuer will
deposit with the Trustee or with one or more paying agents an amount of money
sufficient to redeem the Debt Securities on the Tax Redemption Date at the
Redemption Price. On presentation and surrender of such Debt Securities at a
place of payment specified in said notice, such Debt Securities shall be paid
and redeemed by the Issuer at the Redemption Price.
ARTICLE XIV.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
Section 14.01. Indenture and Debt Securities Solely Corporate
Obligations. No recourse for the payment of the principal of or interest on any
Debt Security, or for any claim based thereon or otherwise in respect thereof,
and no recourse under or upon any obligation, covenant or agreement of the
Issuer in this Indenture or in any supplemental indenture, or in any such Debt
Security, or because of the creation of any indebtedness represented thereby,
shall be had against any incorporator, stockholder, officer, director, employee
or agent, as such, past, present or future, of the Issuer or of any successor
corporation of the Issuer, either directly or through the Issuer or any
successor corporation of the Issuer, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise; it being expressly understood that all such liability is hereby
expressly waived and released as a condition of, and as a consideration for, the
execution of this Indenture and the issue of the Debt Securities.
ARTICLE XV.
SUBORDINATION OF DEBT SECURITIES
Section 15.01. Agreement to Subordinate. The Issuer, for itself, its
successors and assigns, covenants and agrees, and each Holder of a Debt Security
likewise covenants and agrees by such Holder's acceptance thereof, that the
obligation of the Issuer to make any payment on account of the principal of and
interest on each and all of the Debt Securities shall, to the extent and in the
manner provided herein, be subordinate and junior in right of payment to the
Issuer's obligations to the holders of Senior Indebtedness.
In the event of any insolvency, bankruptcy, receivership,
conservatorship, reorganization, readjustment of debt, marshalling of assets and
liabilities or similar proceedings or any liquidation, dissolution or winding-up
of or relating to the Issuer as a whole, whether voluntary or involuntary, all
obligations of the Issuer to holders of Senior Indebtedness shall be entitled to
be paid in full before any payment, whether in cash, property or otherwise,
shall be made on any account of the principal of or interest on any of the Debt
Securities. In the event of any such proceeding, after payment in full of all
sums owing with respect to Senior Indebtedness, the Holders shall be entitled
ratably to be paid from the remaining assets of the Issuer the amounts at the
time due and owing on account of unpaid principal of and interest, if any, on
the Debt Securities. In addition, in the event of any such proceeding, if any
payment or distribution of assets of the Issuer of any kind or character,
whether in cash, property or securities (other than securities of the Issuer or
49
any other corporation provided for by a plan of reorganization or readjustment
the payment of which is subordinate, at least to the extent provided in these
subordination provisions with respect to the indebtedness evidenced by the Debt
Securities, to the payment of all Senior Indebtedness at the time outstanding
and to any securities issued in respect thereof under any such plan of
reorganization or readjustment), including any such payment or distribution that
may be payable or deliverable by reason of the payment of any other indebtedness
of the Issuer being subordinated to the payment of the Debt Securities, shall be
received by the Trustee or the Holders before all Senior Indebtedness is paid in
full, such payment or distribution shall be held (in trust if received by such
Holders) for the benefit of and shall be paid over to the holders of such Senior
Indebtedness or their representative or representatives or to the trustee or
trustees under any indenture under which any instruments evidencing any of such
Senior Indebtedness may have been issued, ratably, for application to the
payment of all Senior Indebtedness remaining unpaid until all such Senior
Indebtedness shall have been paid in full, after giving effect to any concurrent
payment or distribution to the holders of such Senior Indebtedness.
The subordination provisions of the foregoing paragraph shall not be
applicable to amounts at the time due and owing on the Debt Securities on
account of the unpaid principal of or interest, if any, on the Debt Securities
for the payment of which funds have been deposited in trust with the Trustee or
any Paying Agent or have been set aside by the Issuer in trust in accordance
with the provisions of this Indenture; nor shall such provisions impair any
rights, interests, remedies or powers of any secured creditor of the Issuer in
respect of any security the creation of which is not prohibited by the
provisions of this Indenture.
The Holders of Debt Securities and the Trustee, in respect of any
claims of the Holders to payment of any principal or interest in respect of any
Debt Securities, by their acceptance thereof will be deemed to have waived any
right of set-off or counterclaim that such Holders or (subject to Section 6.07)
the Trustee, respectively, in such respect, might otherwise have.
The Issuer shall give prompt written notice to the Trustee of any
insolvency, bankruptcy, receivership, conservatorship, reorganization,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings or any liquidation, dissolution or winding-up or relating to the
Issuer as a whole, whether voluntary or involuntary, or of any default with
respect to any Senior Indebtedness that would prevent the Trustee from making
any payment in respect of the Debt Securities under this Section. The Trustee,
subject to the provisions of Section 6.01, shall be entitled to assume that, and
may act as if, no such event has occurred unless a Responsible Officer of the
Trustee assigned to the Corporate Trust Office has received at the Corporate
Trust Office of the Trustee from the Issuer or any one or more holders of Senior
Indebtedness or any receiver or conservator of the Issuer (who shall have been
certified or otherwise established to the satisfaction of the Trustee to be such
a holder or trustee) written notice thereof. Upon any distribution of assets of
the Issuer referred to in this Article, the Trustee and Holders shall be
entitled to rely conclusively upon a certificate of the receiver or conservator,
or any order or decree entered by a court of competent jurisdiction, or other
Person making any distribution to the Trustee or to the Holders for the purpose
of ascertaining the Persons entitled to participate in such distribution, the
holders of the Senior Indebtedness, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
50
thereto or to this Article. In the absence of a certificate from any such
liquidating trustee, receiver, conservator, agent or other Person, the Trustee,
subject to Section 6.01, shall be entitled to rely conclusively upon a written
notice by a Person representing himself or herself to be a holder of Senior
Indebtedness (or a trustee or representative on behalf of such holder) as
evidence that such Person is a holder of such Senior Indebtedness (or is such a
trustee or representative). In the event that the Trustee determines, in its
discretion, that further evidence is required with respect to the right of any
Person, as a holder of Senior Indebtedness, to participate in any payment or
distribution pursuant to this Section, the Trustee may request such Person to
furnish evidence to the reasonable satisfaction of the Trustee as to the amount
of such Senior Indebtedness held by such Person, as to the extent to which such
Person is entitled to participate in such payment or distribution, and as to
other facts pertinent to the rights of such Person under this Section, and if
such evidence is not furnished, the Trustee may, defer any payment to such
Person pending judicial determination as to the right of such Person to receive
such payment.
Section 15.02. Obligation of the Issuer Unconditional and Payment
Permitted if No Default. Subject to the provisions of, this Article and the
terms of the Debt Securities, nothing contained in this Article or elsewhere in
this Indenture is intended to or shall impair, as between the Issuer and the
Holders, the obligation of the Issuer, which is absolute and unconditional, to
pay to such Holders the principal of and interest on the Debt Securities when,
where and as the same shall become due and payable, all in accordance with the
terms of the Debt Securities, or is intended to or shall affect the relative
rights of such Holders and creditors of the Issuer other than the holders of
Senior Indebtedness, nor shall anything herein or therein prevent the Trustee or
the Holder of any Debt Security 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 Issuer received upon the exercise of any
such remedy.
Section 15.03. Limitations on Duties to Holders of Senior Indebtedness.
In the event and during the continuation of any default in the payment of
principal of or interest on any Senior Indebtedness beyond any applicable period
of grace, or in the event that the maturity of any Senior Indebtedness has been
accelerated because of a default, then, unless and until such default or event
of default shall have been cured or waived or shall have ceased to exist, no
payment of principal of or interest, if any, on the Debt Securities, or in
respect of any redemption, exchange, retirement, purchase or other acquisition
of any of the Debt Securities, shall be made by the Issuer.
In the event that, notwithstanding the foregoing, any payment shall be
received by the Trustee when such payment is prohibited by the preceding
paragraph of this Section 15.03, such payment shall be held in trust for the
benefit of, and shall be paid over or delivered to, the holders of Senior
Indebtedness or their respective representatives, or to the trustee or trustees
under any indenture pursuant to which any of such Senior Indebtedness may have
been issued, as their respective interests may appear, but only to the extent
that the holders of the Senior Indebtedness (or their representative or
representatives or a trustee) notify the Trustee in writing within 90 days of
such payment of the amounts then due and owing on the Senior Indebtedness and
only the amounts specified in such notice to the Trustee shall be paid to the
holders of Senior Indebtedness
51
Section 15.04. Notice to Trustee of Facts Prohibiting Payments. The
Issuer shall give prompt written notice to a Responsible Officer of the Trustee
at the Corporate Trust Office of any fact known to the Issuer that would
prohibit the making of any payment of monies to or by the Trustee in respect of
the Debt Securities pursuant to the provisions of this Article XV.
Notwithstanding any of the provisions of this Article or any other provision of
this Indenture, the Trustee shall not at any time be charged with knowledge of
the existence of any facts that would prohibit the making of any payment of
funds to or by the Trustee unless and until a Responsible Officer of the Trustee
assigned to its Corporate Trust Office shall have received at the Corporate
Trust Office writtennotice thereof from the Issuer or from one or more holders
of Senior Indebtedness or from any trustee therefor who shall have been
certified by the Issuer or otherwise established to the reasonable satisfaction
of the Trustee to be such a holder or trustee; and, prior to the receipt of such
written notice, the Trustee, subject to the provisions of Section 6.01, shall be
entitled in all respects to assume that no such facts exist; provided, however,
that if prior to the fifth Business Day preceding the date upon which by the
terms hereof any such funds may become payable, or if prior to the third
Business Day preceding the date of the execution of instruments pursuant to
Section 4.01 acknowledging satisfaction and discharge of this Indenture, the
Trustee shall not have received with respect to such funds the notice provided
for in this Section, then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to receive such
moneys and/or apply the same to the purpose for which they were received and
shall not be affected by any notice to the contrary that may be received by it
on or after such date; provided, however, no such application shall affect the
obligations under this Article of the Persons receiving such moneys from the
Trustee.
Section 15.05. Application by Trustee of Moneys Deposited With It.
Anything in this Indenture to the contrary notwithstanding, any deposit of a sum
by the Issuer with the Trustee or any agent (whether or not in trust) for any
payment of the principal of or interest on any Debt Securities shall, except as
provided in Section 15.04, be subject to the provisions of Section 15.01.
Section 15.06. Subrogation. Subject to the payment in full of all
Senior Indebtedness, the Holders shall be subrogated to the rights of the
holders of such Senior Indebtedness to receive payments or distributions of
assets of the Issuer applicable to such Senior Indebtedness until the Debt
Securities shall be paid in full, and none of the payments or distributions to
the holders of such Senior Indebtedness to which the Holders or the Trustee
would be entitled except for the provisions of this Article or of payments over,
pursuant to the provisions of this Article, to the holders of such Senior
Indebtedness by the Holders or the Trustee shall, as among the Issuer, its
creditors other than the holders of such Senior Indebtedness, and the Holders,
be deemed to be a payment by the Issuer to or on account of such Senior
Indebtedness; it being understood that the provisions of this Article are and
are intended solely for the purpose of defining the relative rights of the
Holders, on one hand, and the holders of the Senior Indebtedness, on the other
hand.
Section 15.07. Subordination Rights Not Impaired by Acts or Omissions
of Bank or Holders of Senior Indebtedness. No right of any present or future
holders of any Senior Indebtedness to enforce subordination as herein provided
shall at any time in any way be prejudiced or impaired by any act or failure to
52
act on the part of the Issuer or by any act or failure to act, in good faith, by
any such holder, or by any noncompliance by the Issuer with the terms,
provisions and covenants of this Indenture, regardless of any knowledge thereof
with which any such holder may have or be otherwise charged. The holders of
Senior Indebtedness may, at any time or from time to time and in their absolute
discretion, change the manner, place or terms of payment, change or extend the
time of payment of, or renew or alter, any such Senior Indebtedness, or amend or
supplement any instrument pursuant to which any such Senior Indebtedness is
issued or by which it may be secured, or release any security therefor, or
exercise or refrain from exercising any other of their rights under the Senior
Indebtedness including, without limitation, the waiver of default thereunder,
all without notice to or assent from the Holders or the Trustee and without
affecting the obligations of the Issuer, the Trustee or the Holders under this
Article.
Section 15.08. Authorization of Trustee to Effectuate Subordination of
Debt Securities. Each Holder of a Debt Security, by his or her acceptance
thereof, authorizes and expressly directs the Trustee on his or her behalf to
take such action as may be necessary or appropriate to effectuate, as between
the Holders and the holders of Senior Indebtedness, the subordination provided
in this Article. If, in the event of any proceeding or other action relating to
the Issuer referred to in the second paragraph of Section 15.01, a proper claim
or proof of debt in the form required in such proceeding or action is not filed
by or on behalf of the Holders prior to 15 days before the expiration of the
time to file such claim or claims, then the holder or holders of Senior
Indebtedness shall have the right to file and are hereby authorized to file an
appropriate claim for and on behalf of the Holders.
Section 15.09. Right of Trustee to Hold Senior Indebtedness. The
Trustee shall be entitled to all of the rights set forth in this Article in
respect of any Senior Indebtedness at any time held by it in its individual
capacity to the same extent as any other holder of such Senior Indebtedness, and
nothing in this Indenture shall be construed to deprive the Trustee of any of
its rights as such holder.
With respect to the holders of Senior Indebtedness of the Issuer, the
Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article XV, and no implied
covenants or obligations with respect to the holders of such Senior Indebtedness
shall be read into this Indenture against the Trustee. The Trustee shall not owe
or be deemed to owe any fiduciary duty to the holders of such Senior
Indebtedness and, subject to the provisions of Article VI of this Indenture, the
Trustee shall not be liable to any holder of such Senior Indebtedness if it
shall pay over or deliver to Holders, the Issuer or any other Person money or
assets to which any holder of such Senior Indebtedness shall be entitled by
virtue of this Article XV or otherwise.
Nothing in this Article XV shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 6.07.
Section 15.10. Article XV Not to Prevent Defaults (Including Events of
Default). The failure to make a payment pursuant to the terms of the Debt
Securities by reason of any provision in this Article shall not be construed as
preventing the occurrence of a Default (including an Event of Default, if any).
53
Section 15.11. Article Applicable to Paying Agents. The term "Trustee"
as used in this Article shall (unless the context shall otherwise require) be
construed as extending to and including each Paying Agent appointed by the
Issuer and acting hereunder within its meaning as fully for all intents and
purposes as if the Paying Agent were named in this Article in addition to or in
place of the Trustee; provided, however, that Sections 15.04 and 15.09 shall not
apply to the Issuer or any Affiliate of the Issuer if the Issuer or such
Affiliate acts as Paying Agent.
* * * * *
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
54
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed by their respective officers thereunto duly authorized, as of the
day and year first above written.
Matrix Bancorp, Inc.
By:
----------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
Xxxxx Fargo Bank, National Association,
as Trustee, Paying Agent and Securities
Registrar
By:
----------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
55
EXHIBIT A
FORM OF FLOATING RATE SUBORDINATED DEBT SECURITY DUE 2014
[FACE OF SECURITY]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. THE HOLDER OF THIS
SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER
SUCH SECURITY ONLY (A) TO THE ISSUER, (B) PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT
OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN
THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) TO A "NON-U.S.
PERSON" IN AN "OFFSHORE TRANSACTION" PURSUANT TO REGULATION S UNDER THE
SECURITIES ACT, (D) TO AN "ACCREDITED INVESTOR" WITHIN THE MEANING OF
SUBPARAGRAPH (a) (1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT
IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF AN
"ACCREDITED INVESTOR," FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR
OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT, OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION AND PROSPECTUS REQUIREMENTS OF THE OCC, SUBJECT TO THE ISSUER'S
RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D) OR (E) TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION OR OTHER
INFORMATION SATISFACTORY TO IT IN ACCORDANCE WITH THE INDENTURE, A COPY OF WHICH
MAY BE OBTAINED FROM THE ISSUER. THE HOLDER OF THIS SECURITY AGREES THAT IT WILL
COMPLY WITH THE FOREGOING RESTRICTIONS.
NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED,
SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF EXCEPT
PURSUANT TO ANY APPLICABLE REGISTRATION REQUIREMENTS UNDER FEDERAL LAW OR AN
EXEMPTION FROM SUCH REGISTRATION REQUIREMENTS OR UNLESS SUCH TRANSACTION IS NOT
SUBJECT TO ANY SUCH REGISTRATION REQUIREMENTS. THE HOLDER OF THIS SECURITY BY
ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY
ONLY (A) TO THE ISSUER, (B) PURSUANT TO AN AVAILABLE EXEMPTION FROM ANY
APPLICABLE REGISTRATION REQUIREMENTS OR (C) IF SUCH OFFER, SALE OR OTHER
TRANSFER IS NOT SUBJECT TO REGISTRATION UNDER APPLICABLE FEDERAL LAW, SUBJECT TO
THE ISSUER'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE
(B) OR (C) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION OR
OTHER INFORMATION SATISFACTORY TO IT IN ACCORDANCE WITH THE INDENTURE, A COPY OF
WHICH MAY BE OBTAINED FROM THE ISSUER.
A-1
THE HOLDER OF THIS SECURITY AGREES THAT IT WILL COMPLY WITH THE FOREGOING
RESTRICTIONS.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF ALSO AGREES, REPRESENTS AND
WARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT, INDIVIDUAL RETIREMENT ACCOUNT OR
OTHER PLAN OR ARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), (EACH A "PLAN"), OR AN ENTITY
WHOSE UNDERLYING ASSETS INCLUDE "PLAN ASSETS" BY REASON OF ANY PLAN'S INVESTMENT
IN THE ENTITY AND NO PERSON INVESTING "PLAN ASSETS" OF ANY PLAN MAY ACQUIRE OR
HOLD THIS SECURITY OR ANY INTEREST THEREIN, UNLESS SUCH PURCHASER OR HOLDER IS
ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER U.S. DEPARTMENT OF LABOR
PROHIBITED TRANSACTION CLASS EXEMPTION 96-23, 95-60, 91-38, 90-1 OR 84-14 OR
ANOTHER APPLICABLE EXEMPTION OR ITS PURCHASE AND HOLDING OF THIS SECURITY IS NOT
PROHIBITED BY SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE WITH RESPECT TO
SUCH PURCHASE OR HOLDING. ANY PURCHASER OR HOLDER OF THIS SECURITY OR ANY
INTEREST THEREIN WILL BE DEEMED TO HAVE REPRESENTED BY ITS PURCHASE AND HOLDING
THEREOF THAT EITHER (i) IT IS NOT AN EMPLOYEE BENEFIT PLAN WITHIN THE MEANING OF
SECTION 3(3) OF ERISA, OR A PLAN TO WHICH- SECTION 4975 OF THE CODE IS
APPLICABLE, A TRUSTEE OR OTHER PERSON ACTING ON BEHALF OF AN EMPLOYEE BENEFIT
PLAN OR PLAN, OR ANY OTHER PERSON OR ENTITY USING THE ASSETS OF ANY EMPLOYEE
BENEFIT PLAN OR PLAN TO FINANCE SUCH PURCHASE, OR (ii) SUCH PURCHASE WILL NOT
RESULT IN A PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF
THE CODE FOR WHICH THERE IS NO APPLICABLE STATUTORY OR ADMINISTRATIVE EXEMPTION.
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE SECURITY
REGISTRAR AND THE ISSUER SUCH CERTIFICATE AND OTHER INFORMATION AS MAY BE
REQUIRED BY THE INDENTURE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE
FOREGOING RESTRICTIONS.
THIS SECURITY WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING A
PRINCIPAL AMOUNT OF NOT LESS THAN $100,000 AND MULTIPLES OF $1,000 IN EXCESS
THEREOF. ANY ATTEMPTED TRANSFER OF THIS SECURITY IN A BLOCK HAVING A PRINCIPAL
AMOUNT OF LESS THAN $100,000 SHALL BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT
WHATSOEVER. ANY SUCH PURPORTED TRANSFEREE SHALL BE DEEMED NOT TO BE THE HOLDER
OF THIS SECURITY FOR ANY PURPOSE, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF
DISTRIBUTIONS ON THIS SECURITY, AND SUCH PURPORTED TRANSFEREE SHALL BE DEEMED TO
HAVE NO INTEREST WHATSOEVER IN THIS SECURITY.
THIS OBLIGATION IS NOT A DEPOSIT AND IS NOT INSURED BY THE UNITED STATES OR ANY
AGENCY OR FUND OF THE UNITED STATES, INCLUDING THE FEDERAL DEPOSIT INSURANCE
CORPORATION. THIS OBLIGATION IS SUBORDINATED TO THE CLAIMS OF DEPOSITORS AND THE
CLAIMS OF GENERAL AND SECURED CREDITORS OF THE ISSUER, IS INELIGIBLE AS
COLLATERAL FOR A LOAN BY THE ISSUER AND IS NOT SECURED.
A-2
Floating Rate Subordinated Debt Security Due 2014
of
Matrix Bancorp, Inc.
Matrix Bancorp, Inc. (the "Issuer"), for value received, hereby promises to pay
to Citigroup Global Markets Inc., (the "Holder"), or registered assigns, the
principal sum of Ten Million Dollars ($10,000,000) on May 8, 2014, and to pay
interest thereon from February 13, 2004, or the most recent interest payment
date (each such date, an "Interest Payment Date") to which interest has been
paid or duly provided for, quarterly in arrears on February 8, May 8, August 8
and November 8 of each year commencing May 8, 2004, at -a variable per annum
rate equal to LIBOR (as defined in the Indenture) plus 2.75% (the "Interest
Rate") until the principal hereof shall have become due and payable, and on any
overdue principal and (without duplication and to the extent that payment of
such interest is enforceable under applicable law) on any overdue installment of
interest at an annual rate equal to the Interest Rate in effect for each such
period compounded quarterly subject to the occurrence of a Reset Event. Upon the
occurrence of a Reset Event, the applicable LIBOR will be reset on the Reset
Date to be equal to the LIBOR applicable on the newly issued securities with the
same LIBOR Determination Dates issued by other national banks, federal savings
banks, banking organizations, bank holding companies or thrift holding companies
who issue LIBOR based 10 year floating rate securities to Regional Diversified
Funding 2004-1 Ltd. or another pooled trust preferred vehicle designated by the
Initial Purchaser (as defined in the Purchase Agreement). The amount of interest
payable on any Interest Payment Date shall be computed on the basis of a 360-day
year and the actual number of days elapsed in the relevant interest period. In
the event that any date on which the principal or interest is payable on this
Debt Security is not a Business Day, then the payment of principal or interest
on such date will be made on the next succeeding day that is a Business Day,
except that, if such Business Day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day, in each case
with the same force and effect as if made on such date. The interest installment
so payable, and punctually paid or duly provided for, on any Interest Payment
Date will, as provided in the Indenture, be paid to the Person in whose name
this Debt Security (or one or more Predecessor Securities, as defined in the
Indenture) is registered at the close of business on the Regular Record Date for
such interest installment, which shall be the fifteenth day prior to an Interest
Payment Date whether or not such date is a Business Day. Any such interest
installment not punctually paid or duly provided for shall forthwith cease to be
payable to the registered holders on such Regular Record Date and may be paid to
the Person in whose name this Debt Security (or one or more Predecessor Debt
Securities) is registered at the close of business on a special record date to
be fixed by the Trustee for the payment of such defaulted interest, notice
whereof shall be given to the registered holders of the Debt Securities not more
than 15 days and not less than 10 days prior to such special record date, all as
more fully provided in the Indenture, or in any other lawful manner consistent
with the provisions of the Indenture. The principal of and interest on this Debt
Security shall be payable at the office or agency of the Trustee (or other
Paying Agent appointed by the Issuer) maintained for that purpose in any coin or
currency of the United States of America that at the time of payment is legal
tender for payment of public and private debts; provided, however, that payment
of interest may, be made at the option of the Issuer by check mailed to the
registered holder at such address as shall appear in the Security Register or by
wire transfer to an account appropriately designated by the holder hereof.
A-4
This Debt Security is not subject to redemption, repayment, repurchase or
retirement prior to maturity unless certain events occur involving U.S. taxation
as set forth in the Indenture, and is not subject to any sinking fund.
The indebtedness evidenced by this Debt Security is, to the extent provided in
the Indenture, subordinate and junior in right of payment to the prior payment
in full of all Senior Indebtedness, as defined in the Indenture, and this Debt
Security is issued subject to the provisions of the Indenture with respect
thereto. Each holder of this Debt Security, by accepting the same, (a) agrees to
and shall be bound by such provisions, (b) authorizes and directs the Trustee on
its, his or her behalf to take such action as may be necessary or appropriate to
acknowledge or effectuate the subordination so provided and (c) appoints the
Trustee his or her attorney-in-fact for any and all such purposes. Each holder
hereof, by his or her acceptance hereof, hereby waives all notice of the
acceptance of the subordination provisions contained herein and in the Indenture
by each holder of Senior Indebtedness, whether now outstanding or hereafter
incurred, and waives reliance by each such holder upon said provisions.
The Issuer waives demand, presentment for payment, notice of nonpayment, notice
of protest, and all other notices.
This Debt Security shall not be entitled to any benefit under the Indenture
hereinafter referred to, be valid or become obligatory for any purpose until the
certificate of authentication hereon shall have been signed by or on behalf of
the Trustee.
The provisions of this Debt Security are continued on the reverse side hereof
and such continued provisions shall for all purposes have the same effect as
though fully set forth at this place.
A-5
IN WITNESS WHEREOF, the Issuer has duly executed this certificate.
Matrix Bancorp, Inc.
By:
--------------------------------
Name:
-------------------------------
Title:
------------------------------
Dated: February 13, 2004
CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities referred to in the
within-mentioned Indenture.
Xxxxx Fargo Bank, National Association,
not in its individual capacity but
solely as Trustee
By:
-------------------------------------
Authorized Officer
Dated: February 13, 2004
A-6
[REVERSE OF SECURITY]
This Debt Security is one of a duly authorized series of Debt
Securities of the Issuer, all issued or to be issued pursuant to an Indenture
(the "Indenture") dated as of February 13, 2004, duly executed and delivered
between the Issuer and Xxxxx Fargo Bank, National Association, as Trustee (the
"Trustee"), 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 Issuer and the
holders of the Debt Securities of which this Debt Security is a part. The
summary of the terms of this Debt Security contained herein does not purport to
be complete and is qualified by reference to the Indenture. In the event of any
conflict between the terms of this Debt Security and the Indenture, the terms of
this Debt Security shall be controlling.
Upon the occurrence and continuation of a Tax Event, this Debt
Security may become due and payable, in whole but not in part, at any time,
within 90 days following the occurrence of such Tax Event (the "Tax Redemption
Date"), at the Redemption Price.
Any redemption pursuant to the preceding paragraph will be
made, subject to the receipt by the Issuer of prior approval from the OTS, if
then required under applicable capital guidelines or policies of the OTS upon
not less than 30 days' nor more than 60 days' notice.
In case an Event of Default, as defined in the Indenture,
shall have occurred and be continuing, the principal of all of the Debt
Securities may be declared due and payable, and upon such declaration of
acceleration shall become due and payable, in the manner, with the effect and
subject to the conditions provided in the Indenture. Any such redemption will be
made, subject to the receipt by the Issuer of prior approval from the OTS.
Redemption at maturity is subject to the receipt by the Issuer
of prior written approval from the OTS.
The Indenture contains provisions permitting the Issuer and
the Trustee, (with certain exceptions as provided in the Indenture) with the
consent of the holders of not less than a majority in aggregate principal amount
of the Debt Securities at the time outstanding affected thereby, as specified in
the Indenture, to execute supplemental indentures for the purpose of 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 Debt Securities; provided, however, that no such
supplemental indenture shall, among other things, without the consent of the
holders of each Debt Security then outstanding and affected thereby (i) change
the fixed maturity of the Debt Securities or any Interest Payment Date, or
reduce the principal amount of any Debt Security or the Interest Rate thereon,
or reduce the amount provable in bankruptcy or insolvency pursuant to Section
5.04 of the Indenture, or change the place of payment for any Debt Security, or
the currency in which any Debt Security or any interest thereon is payable, or
impair or affect the right of any holder of Debt Securities to institute suit
for the payment thereof, or (ii) reduce the aforesaid percentage of Debt
Securities, the holders of which are required to consent to any such
supplemental indenture or any waiver of compliance with certain provisions of
the Indenture or any Event of Defaults thereunder and their consequences. The
Indenture contains provisions permitting the holders of a majority in aggregate
principal amount of the Debt Securities at the time outstanding affected thereby
A-1-1
as provided in the Indenture, on behalf of all of the holders of the Debt
Securities, to waive any past Event of Default. Any such waiver by the
registered holder of this Debt Security (unless revoked as provided in the
Indenture) shall be conclusive and binding upon such holder and upon all future
holders and owners of this Debt Security and of any Debt Security issued in
exchange herefor or in place hereof (whether by registration of transfer or
otherwise), irrespective of whether or not any notation of such waiver is made
upon this Debt Security.
No reference herein to the Indenture and no provision of this
Debt Security or of the Indenture shall alter or impair the obligation of the
Issuer, which is absolute and unconditional, to pay the principal of and
interest on this Debt Security at the time and place and at the rate and in the
money herein prescribed.
As provided in the Indenture and subject to certain
limitations herein and therein set forth, this Debt Security is transferable by
the registered holder hereof on the Security Register of the Issuer, upon
surrender of this Debt Security for registration of transfer at the office or
agency of the Trustee in Wilmington, Delaware accompanied by a written
instrument or instruments of transfer in form satisfactory to the Issuer or the
Trustee duly executed by the registered holder hereof or such holder's attorney
duly authorized in writing, and thereupon one or more new Debt Securities 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 registration of transfer, but the Issuer may require payment
of a sum sufficient to cover any tax or other governmental charge payable in
relation thereto.
Prior to due presentment for registration of transfer of this
Debt Security, the Issuer, the Trustee, any Authenticating Agent, any Paying
Agent, any transfer agent and the Security Registrar may deem and treat the
registered holder hereof as the absolute owner hereof (whether or not this Debt
Security shall be overdue and notwithstanding any notice of ownership or writing
hereon) for the purpose of receiving payment of or on account of the principal
hereof and interest due hereon and for all other purposes, and neither the
Issuer nor the Trustee nor any Authenticating Agent nor any Paying Agent nor any
transfer agent nor any Security Registrar shall be affected by any notice to the
contrary.
No recourse shall be had for the payment of the principal of
or the interest on this Debt Security, or for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the Indenture, against
any incorporator, stockholder, officer or director, past, present or future, as
such, of the Issuer 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 the acceptance
hereof and as part of the consideration for the issuance hereof, expressly
waived and released.
The Debt Securities are issuable only in registered
certificated form without coupons. As provided in the Indenture and subject to
certain limitations herein and therein set forth, the Debt Securities are
exchangeable for a like aggregate principal amount of Debt Securities of a
different authorized denomination, as requested by the holder surrendering the
same.
All terms used in this Debt Security that are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
A-1-2
THE INDENTURE AND THE DEBT SECURITIES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH APPLICABLE FEDERAL LAWS AND THE LAW OF THE STATE OF
NEW YORK, WITHOUT REGARD TO THE CONFLICTS OF LAW RULES OF SUCH STATE.
A-1-3
