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EXHIBIT 4.6
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QUADRAMED CORPORATION
and
THE BANK OF NEW YORK, as Trustee
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SUBORDINATED INDENTURE
Dated as of May 1, 1998
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CROSS REFERENCE SHEET*
Between
Provisions of Trust Indenture Act (as defined herein) and Indenture dated
as of May 1, 1998 between QuadraMed Corporation and The Bank of New York,
Trustee:
SECTION OF THE ACT SECTION OF INDENTURE
310(a)(1) and (2)........................................................................6.9
310(a)(3) and (4)...............................................................Inapplicable
310(b)..........................................................6.8 and 6.10(a), (b) and (d)
310(c)..........................................................................Inapplicable
311(a)..................................................................................6.14
311(b)..................................................................................6.14
311(c)..........................................................................Inapplicable
312(a)...........................................................................4.1 and 4.2
312(b)...................................................................................4.2
312(c)...................................................................................4.2
313(a)...................................................................................4.3
313(b)(1).......................................................................Inapplicable
313(b)(2)................................................................................4.3
313(c)............................................................4.3, 5.11, 6.10, 6.11, 8.2
and 12.2
313(d)...................................................................................4.3
314(a)...........................................................................3.5 and 4.2
314(b)..........................................................................Inapplicable
314(c)(1) and (2).......................................................................11.5
314(c)(3).......................................................................Inapplicable
314(d)..........................................................................Inapplicable
314(e)..................................................................................11.5
314(f)..........................................................................Inapplicable
315(a), (c) and (d)......................................................................6.1
315(b)..................................................................................5.11
315(e)..................................................................................5.12
316(a)(1).......................................................................5.9 and 5.10
316(a)(2).......................................................................Not required
316(a)(last sentence)....................................................................7.4
316(b)...................................................................................5.7
317(a)...................................................................................5.2
317(b)........................................................................3.4(a) and (b)
318(a)..................................................................................11.7
*This Cross Reference Sheet is not part of the Indenture.
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TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS .........................................................................................................1
Section 1.1. Certain Terms Defined........................................................................................1
"Affiliate" ........................................................................................................2
"Authenticating Agent" .............................................................................................2
"Authorized Newspaper" .............................................................................................2
"Board of Directors" ...............................................................................................2
"Board Resolution" .................................................................................................2
"Business Day" .....................................................................................................3
"Capital Stock" ....................................................................................................3
"Commission" .......................................................................................................3
"Common Equity" ....................................................................................................3
"Company" ..........................................................................................................3
"Company Order" ....................................................................................................3
"Consolidated Tangible Assets" .....................................................................................3
"Corporate Trust Office" ...........................................................................................3
"Coupon" ...........................................................................................................4
"Covenant Defeasance" ..............................................................................................4
"Defaulted Interest" ...............................................................................................4
"Depositary" .......................................................................................................4
"Dollar" or "$" ....................................................................................................4
"ECU" ..............................................................................................................4
"Event of Default" .................................................................................................4
"Exchange Act" .....................................................................................................4
"Fair Value" .......................................................................................................4
"Foreign Currency" .................................................................................................4
"Global Subordinated Security" .....................................................................................4
"Holder," "Holder of Subordinated Securities," .....................................................................4
"Interest Payment Date," ...........................................................................................5
"IRS" ..............................................................................................................5
"Judgment Currency" ................................................................................................5
"Maturity," ........................................................................................................5
"Non-U.S. Person" ..................................................................................................5
"Officer's Certificate" ............................................................................................5
"Opinion of Counsel" ...............................................................................................5
"Original Issue Date" ..............................................................................................5
"Original Issue Discount Subordinated Security" ....................................................................5
"Outstanding" ......................................................................................................5
"Paying Agent" .....................................................................................................6
"Periodic Offering" ................................................................................................6
"Person" ...........................................................................................................6
"PORTAL Market" ....................................................................................................7
"Predecessor Subordinated Security" ................................................................................7
"principal" ........................................................................................................7
"QIB" or "Qualified Institutional Buyer" ...........................................................................7
"Regular Record Date" ..............................................................................................7
"Registered Global Subordinated Security" ..........................................................................7
"Registered Subordinated Security" .................................................................................7
"Regulation S" .....................................................................................................7
"Required Currency" ................................................................................................7
(i)
4
"Responsible Officer" ..............................................................................................7
"Restricted Subordinated Security" .................................................................................8
"Rule 144" .........................................................................................................8
"Rule 144A" ........................................................................................................8
"Rule 144K" ........................................................................................................8
"Securities Act" ...................................................................................................8
"Security Register" and "Security Registrar" .......................................................................8
"Significant Subsidiary" ...........................................................................................8
"Special Record Date" ..............................................................................................8
"Stated Maturity," .................................................................................................8
"Subsidiary" .......................................................................................................8
"Subordinated Indenture" ...........................................................................................8
"Subordinated Security" or "Subordinated Securities" ...............................................................9
"Transfer Restriction Termination Date" ............................................................................9
"Trustee" ..........................................................................................................9
"Unregistered Subordinated Security" ...............................................................................9
"U.S. Government Obligations" ......................................................................................9
"Voting Stock" .....................................................................................................9
"Yield to Maturity" ................................................................................................9
ARTICLE II. SUBORDINATED SECURITIES.............................................................................................9
Section 2.1. Forms Generally........................................................................................9
Section 2.2. Form of Trustee's Certificate of Authentication.......................................................10
Section 2.3. Amount Unlimited; Issuable in Series..................................................................11
Section 2.4. Authentication and Delivery of Subordinated Securities................................................14
Section 2.4. Authentication and Delivery of Subordinated Securities................................................14
Section 2.5. Execution of Subordinated Securities..................................................................17
Section 2.6. Certificate of Authentication.........................................................................17
Section 2.7. Denomination and Date of Subordinated Securities; Payments of Interest................................18
Section 2.8. Registration, Transfer and Exchange...................................................................20
Section 2.9. Mutilated, Defaced, Destroyed, Lost and Stolen Subordinated Securities................................27
Section 2.10. Cancellation of Subordinated Securities; Destruction Thereof.........................................28
Section 2.11. Temporary Subordinated Securities....................................................................29
ARTICLE III. COVENANTS OF THE COMPANY.........................................................................................30
Section 3.1. Payment of Principal and Interest.....................................................................30
Section 3.2. Offices for Payments, Etc.............................................................................30
Section 3.3. Appointment to Fill a Vacancy in Office of Trustee....................................................32
Section 3.4. Paying Agents. 32
Section 3.5. Compliance Certificates...............................................................................33
Section 3.6. Corporate Existence...................................................................................33
Section 3.7. Maintenance of Properties.............................................................................34
Section 3.8. Payment of Taxes and Other Claims.....................................................................34
Section 3.9. Luxembourg Publications...............................................................................34
Section 3.10. Usury Laws...........................................................................................35
(ii)
5
ARTICLE IV. SECURITYHOLDER LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE...................................................35
Section 4.1. Company to Furnish Trustee Information as to Names and Addresses of Securityholders...................35
Section 4.2. Preservation of Information; Communications to Holders................................................35
Section 4.3. Reports by Trustee....................................................................................36
Section 4.4. Reports by Company....................................................................................36
ARTICLE V. REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT....................................................37
Section 5.1. Event of Default Defined, Acceleration of Maturity; Waiver of Default.................................37
Section 5.2. Acceleration of Maturity; Rescission and Annulment....................................................39
Section 5.3. Collection of Indebtedness by Trustee; Trustee May Prove Debt.........................................41
Section 5.4. Trustee May File Proofs of Claims.....................................................................41
Section 5.5. Trustee May Enforce Claims Without Possession of Subordinated Securities..............................43
Section 5.6. Application of Proceeds...............................................................................43
Section 5.7. Suits for Enforcement.................................................................................45
Section 5.8. Limitations on Suits by Subordinated Security Holders.................................................45
Section 5.9. Unconditional Right of Securityholders to Institute Certain Suits.....................................46
Section 5.10. Restoration of Rights on Abandonment of Proceedings..................................................46
Section 5.11. Powers and Remedies Cumulative; Delay or Omission Not Waiver of Default..............................46
Section 5.12. Delay or Omission Not Waiver.........................................................................46
Section 5.13. Control by Holders of Subordinated Securities........................................................47
Section 5.14. Waiver of Past Defaults..............................................................................47
Section 5.15. Trustee to Give Notice of Default, But May Withhold in Certain Circumstances.........................48
Section 5.16. Right of Court to Require Filing of Undertaking to Pay Costs.........................................48
Section 5.17. Waiver of Stay or Extension Laws.....................................................................49
ARTICLE VI. CONCERNING THE TRUSTEE............................................................................................49
Section 6.1. Duties and Responsibilities of the Trustee; During Default; Prior to Default..........................49
Section 6.2. Certain Rights of the Trustee.........................................................................51
Section 6.3. Trustee Not Responsible for Recitals, Disposition of Subordinated Securities or
Application of Proceeds Thereof.......................................................................52
Section 6.4. Trustee and Agents May Hold Subordinated Securities or Coupons; Collections, Etc......................52
Section 6.5. Moneys Held by Trustee................................................................................53
Section 6.6. Compensation and Indemnification of Trustee and Its Prior Claim.......................................53
(iii)
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Section 6.7. Right of Trustee to Rely on Officer's Certificate, Etc................................................53
Section 6.8. Subordinated Indentures Not Creating Potential Conflicting Interests for the Trustee..................54
Section 6.9. Qualification of Trustee: Conflicting Interests.......................................................54
Section 6.10. Persons Eligible for Appointment as Trustee..........................................................54
Section 6.11. Resignation and Removal; Appointment of Successor Trustee............................................54
Section 6.12. Acceptance of Appointment by Successor Trustee.......................................................56
Section 6.13. Merger, Conversion, Consolidation or Succession to Business of Trustee...............................58
Section 6.14. Preferential Collection of Claims Against the Company................................................58
Section 6.15. Appointment of Authenticating Agent..................................................................58
ARTICLE VII. CONCERNING THE SECURITYHOLDERS...................................................................................60
Section 7.1. Evidence of Action Taken by Securityholders...........................................................60
Section 7.2. Proof of Execution of Instruments and of Holding of Subordinated Securities...........................60
Section 7.3. Holders to be Treated as Owners.......................................................................60
Section 7.4. Subordinated Securities Owned by Company Deemed Not Outstanding.......................................61
Section 7.5. Right of Revocation of Action Taken...................................................................62
ARTICLE VIII. SUPPLEMENTAL SUBORDINATED INDENTURES............................................................................62
Section 8.1. Supplemental Subordinated Indentures Without Consent of Securityholders...............................62
Section 8.2. Supplemental Subordinated Indentures with Consent of Securityholders..................................64
Section 8.3. Effect of Supplemental Subordinated Indenture.........................................................66
Section 8.4. Documents to be Given to Trustee......................................................................66
Section 8.5. Notation on Subordinated Securities in Respect of Supplemental Subordinated Indentures................66
ARTICLE IX. CONSOLIDATION, MERGER, SALE OR CONVEYANCE.........................................................................67
Section 9.1. Company May Consolidate, Etc., Only on Certain Terms..................................................67
Section 9.2. Successor Corporation Substituted.....................................................................68
ARTICLE X. SATISFACTION AND DISCHARGE.........................................................................................68
Section 10.1. Satisfaction and Discharge of Subordinated Indenture.................................................68
Section 10.2. Application by Trustee of Funds Deposited for Payment of Subordinated Securities.....................73
Section 10.3. Repayment of Moneys Held by Paying Agent.............................................................73
Section 10.4. Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two Years............................73
Section 10.5. Indemnity for U.S. Government of Obligations.........................................................74
ARTICLE XI. MISCELLANEOUS PROVISIONS..........................................................................................74
(iv)
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Section 11.1. Incorporators, Stockholders, Officers and Directors of Company Exempt from Individual Liability......74
Section 11.2. Provisions of Subordinated Indenture for the Sole Benefit of Parties and Holders of
Subordinated Securities and Coupons................................................................74
Section 11.3. Successors and Assigns of Company Bound by Subordinated Indenture....................................75
Section 11.4. Notices and Demands on Company, Trustee and Holders of Subordinated Securities and Coupons...........75
Section 11.5. Officer's Certificates and Opinions of Counsel; Statements to be Contained Therein...................76
Section 11.6. Payments Due on Saturdays, Sundays and Holidays......................................................77
Section 11.7. Conflict of Any Provision of Subordinated Indenture with Trust Indenture Act.........................77
Section 11.8. New York Law to Govern...............................................................................77
Section 11.9. Counterparts.........................................................................................77
Section 11.10. Effect of Headings..................................................................................77
Section 11.11. Subordinated Securities in a Foreign Currency or in ECU.............................................78
Section 11.12. Judgment Currency...................................................................................78
ARTICLE XII. REDEMPTION OF SUBORDINATED SECURITIES AND SINKING FUNDS..........................................................79
Section 12.1. Applicability of Article.............................................................................79
Section 12.2. Notice of Redemption; Partial Redemptions............................................................79
Section 12.3. Payment of Subordinated Securities Called for Redemption.............................................81
Section 12.4. Exclusion of Certain Subordinated Securities from Eligibility for Selection for Redemption...........82
Section 12.5. Mandatory and Optional Sinking Funds.................................................................83
(v)
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THIS SUBORDINATED INDENTURE, dated as of May 1, 1998, by and between
QuadraMed Corporation, a Delaware corporation (the "Company"), and The Bank of
New York, a New York banking corporation, as trustee (the "Trustee"),
W I T N E S S E T H:
WHEREAS, the Company has duly authorized the issuance, sale,
execution and delivery, from time to time, of its unsecured evidences of
subordinated indebtedness (hereinafter referred to as the "Subordinated
Securities"), without limit as to principal amount, issuable in one or more
series, the amount and terms of each such series to be determined as hereinafter
provided; and, to provide the terms and conditions upon which the Subordinated
Securities are to be issued, authenticated and delivered, the Company has duly
authorized the execution of this Subordinated Indenture; and
WHEREAS, all acts and things necessary to make the Subordinated
Securities, when executed by the Company and authenticated and delivered by the
Trustee as in this Subordinated Indenture provided, the valid, binding and legal
subordinated obligations of the Company, and to constitute this Subordinated
Indenture a valid indenture and agreement according to its terms, have been done
and performed, and the execution of this Subordinated Indenture and the issuance
hereunder of the Subordinated Securities have in all respects been duly
authorized; and
WHEREAS, all things necessary to make this Subordinated Indenture a
valid indenture and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the
Subordinated Securities by the holders thereof, the Company and the Trustee
mutually covenant and agree for the equal and proportionate benefit of the
respective holders from time to time of the Subordinated Securities and of the
coupons, if any, appertaining thereto as follows:
ARTICLE I.
DEFINITIONS
Section 1.1. Certain Terms Defined.
The following terms (except as otherwise expressly provided or
unless the context otherwise clearly requires) for all purposes of this
Subordinated Indenture and of any indenture supplemental hereto shall have the
respective meanings specified in this Section. All other terms used in this
Subordinated Indenture that are defined in the Trust Indenture Act of 1939, as
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amended (the "Trust Indenture Act"), or the definitions of which in the
Securities Act of 1933, as amended (the "Securities Act"), are referred to in
the Trust Indenture Act, including terms defined therein by reference to the
Securities Act (except as herein otherwise expressly provided or unless the
context otherwise requires), shall have the meaning assigned to such terms in
the Trust Indenture Act and in the Securities Act as in effect from time to
time. All accounting terms used herein and not expressly defined shall have the
meanings assigned to such terms in accordance with generally accepted accounting
principles, and the term "generally accepted accounting principles" means such
accounting principles as are generally accepted at the time of any computation
unless a different time shall be specified with respect to such series of
Subordinated Securities as provided for in Section 2.3. The words "herein,"
"hereof" and "hereunder" and other words of similar import refer to this
Subordinated Indenture as a whole and not to any particular Article, Section or
other subdivision. The terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular.
"Affiliate" has the same meaning as given to that term in Rule 405
of the Securities Act or any successor provision.
"Authenticating Agent" shall have the meaning set forth in Section
6.15.
"Authorized Newspaper" means a newspaper (which, in the case of The
City of New York, will, if practicable, be The Wall Street Journal (Eastern
Edition), in the case of the United Kingdom of Great Britain and Northern
Ireland (the "United Kingdom"), will, if practicable, be The Financial Times
(London Edition) and, in the case of the Grand Duchy of Luxembourg
("Luxembourg"), will, if practicable, be the Luxemburger Wort) published in an
official or common language of the county of publication customarily published
at least once a day for at least five days in each calendar week and of general
circulation in The City of New York, the United Kingdom or Luxembourg, as
applicable. If it shall be impractical in the opinion of the Trustee to make any
publication of any notice required hereby in an Authorized Newspaper, any
publication or other notice in lieu thereof which is made or given with the
approval of the Trustee shall constitute a sufficient publication of such
notice.
"Board of Directors" means either the Board of Directors of the
Company or any committee of such Board duly authorized to act on its behalf.
"Board Resolution" means a copy of one or more resolutions,
certified by the secretary or an assistant secretary of the Company to have been
duly adopted or consented to by the Board of Directors and to be in full force
and effect, and delivered to the Trustee.
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"Business Day" means, with respect to any Subordinated Security, a
day other than any day on which banking institutions in the city (or in any of
the cities, if more than one) in which amounts are payable, as specified in the
form of such Subordinated Security, are authorized or required by any applicable
law or regulation to be closed.
"Capital Stock" of any Person means any and all shares, rights to
purchase, warrants or options (whether or not currently exercisable);
participation or other equivalents of or interest in (however designated) the
equity (including without limitation common stock, preferred stock and
partnership and joint venture interests) of such Person (excluding any debt
securities that are convertible into, or exchangeable for, such equity).
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or if at any time
after the execution and delivery of this Subordinated Indenture such Commission
is not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties on such date.
"Common Equity" of any Person means all Capital Stock of such Person
that is generally entitled to (a) vote in the election of directors of such
Person or (b) if such Person is not a corporation, vote or otherwise participate
in the selection of the governing body, partners, managers or others that will
control the management and policies of such Person.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Subordinated Indenture, and
thereafter "Company" shall mean such successor Person.
"Company Order" means a written statement, request or order of the
Company signed in its name by the chairman of the Board of Directors, the
president, any vice president or the treasurer of the Company.
"Consolidated Tangible Assets" of any Person as of any date means
the total assets of such Person and its Subsidiaries (excluding any assets that
would be classified as "intangible assets" under generally accepted accounting
principles ("GAAP")) on a consolidated basis at such date, as determined in
accordance with GAAP, less all write-ups subsequent to the date of initial
issuance of the Securities in the book value of any asset owned by such Person
or any of its Subsidiaries.
"Corporate Trust Office" means the office of the Trustee at which
the corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, as of the date of this Subordinated
Indenture, located
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at 000 Xxxxxxx Xxxxxx, Xxxxx 00X, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate
Trust Administration.
"Coupon" means any interest coupon appertaining to an Unregistered
Subordinated Security.
"Covenant Defeasance" shall have the meaning set forth in Section
10.1(C).
"Defaulted Interest" has the meaning specified in Section 2.7.
"Depositary" means, with respect to the Subordinated Securities of
any series issuable or issued in the form of one or more Registered Global
Subordinated Securities, the Person designated as Depositary by the Company
pursuant to Section 2.3 until a successor Depositary shall have become such
pursuant to the applicable provisions of this Subordinated Indenture, and
thereafter "Depositary" shall mean or include each Person who is then a
Depositary hereunder, and if at any time there is more than one such Person,
"Depositary" as used with respect to the Subordinated Securities of any such
series shall mean the Depositary with respect to the Registered Global
Subordinated Securities of that series.
"Dollar" or "$" means the coin or currency of the United States of
America as at the time of payment is legal tender for the payment of public and
private debts.
"ECU" means the European Currency Unit as defined and revised from
time to time by the European Monetary System of the European Community.
"Event of Default" means any event or condition specified as such in
Section 5.1.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Fair Value" when used with respect to any Voting Stock means the
fair value as determined in good faith by the Board of Directors of the Company.
"Foreign Currency" means a currency issued by the government of a
country other than the United States of America.
"Global Subordinated Security" has the meaning set forth in Section
2.8(b)(i).
"Holder," "Holder of Subordinated Securities," "Securityholder" or
other similar terms mean (a) in the case of any Registered Subordinated
Security, the person in whose name such Subordinated Security is registered in
the Security Register kept by the Company for that purpose in accordance with
the terms
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hereof, and (b) in the case of any Unregistered Subordinated Security, the
bearer of such Subordinated Security, or any Coupon appertaining thereto, as the
case may be.
"Interest Payment Date," means the Stated Maturity of an installment
of interest on such Subordinated Security.
"IRS" means the Internal Revenue Service of the United States
Department of the Treasury, or any successor entity.
"Judgment Currency" has the meaning set forth in Section 11.12.
"Maturity," when used with respect to any Subordinated Security,
means the date on which the principal of such Subordinated Security becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Non-U.S. Person" means any person that is not a "U.S. person" as
such term is defined in Rule 902 of the Securities Act.
"Officer's Certificate" means a certificate signed by the chairman
of the Board of Directors, the president or any vice president or the treasurer
of the Company and delivered to the Trustee. Each such certificate shall comply
with Section 314 of the Trust Indenture Act and include the statements provided
for in Section 11.5.
"Opinion of Counsel" means an opinion in writing signed by legal
counsel who may be an employee of the Company or other counsel. Each such
opinion shall comply with Section 314 of the Trust Indenture Act and include the
statements provided for in Section 11.5.
"Original Issue Date" of any Subordinated Security (or portion
thereof) means the earlier of (a) the date of such Subordinated Security or (b)
the date of any Subordinated Security (or portion thereof) for which such
Subordinated Security was issued (directly or indirectly) on registration of
transfer, exchange or substitution.
"Original Issue Discount Subordinated Security" means any
Subordinated Security that provides for an amount less than the principal amount
thereof to be due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 5.2.
"Outstanding" (except as otherwise provided in Section 7.4), when
used with reference to Subordinated Securities, means, subject to the provisions
of Section 7.4, as of any particular time, all Subordinated Securities
authenticated and delivered by the Trustee under this Subordinated Indenture,
except
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(a) Subordinated Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(b) Subordinated Securities, or portions thereof, for the payment
or redemption of which moneys or U.S. Government Obligations (as provided
for in Section 10.1) in the necessary amount shall have been deposited in
trust with the Trustee or with any Paying Agent (other than the Company)
or shall have been set aside, segregated and held in trust by the Company
for the Holders of such Subordinated Securities (if the Company shall act
as its own Paying Agent), provided, that if such Subordinated Securities,
or portions thereof, are to be redeemed prior to the Maturity thereof,
notice of such redemption shall have been given as herein provided, or
provisions satisfactory to the Trustee shall have been made for giving
such notice; and
(c) Subordinated Securities which shall have been paid or in
substitution for which other Subordinated Securities shall have been
authenticated and delivered pursuant to the terms of Section 2.9 (except
with respect to any such Subordinated Security as to which proof
satisfactory to the Trustee is presented that such Subordinated Security
is held by a person in whose hands such Subordinated Security is a legal,
valid and binding obligation of the Company).
In determining whether the Holders of the requisite principal amount
of Outstanding Subordinated Securities of any or all series have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
the principal amount of an Original Issue Discount Subordinated Security that
shall be deemed to be Outstanding for such purposes shall be the amount of the
principal thereof that would be due and payable as of the date of such
determination upon a declaration of acceleration of the Maturity thereof
pursuant to Section 5.2.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Company.
"Periodic Offering" means an offering of Subordinated Securities of
a series from time to time, the specific terms of which Subordinated Securities,
including, without limitation, the rate or rates of interest, if any, thereon,
the Stated Maturity or Maturities thereof and the redemption provisions, if any,
with respect thereto, are to be determined by the Company or its agents upon the
issuance of such Subordinated Securities.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
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"PORTAL Market" means Private Offerings, Resales and Trading through
Automatic Linkages Market.
"Predecessor Subordinated Security" of any particular Subordinated
Security means every previous Subordinated Security evidencing all or a portion
of the same debt as that evidenced by such particular Subordinated Security;
and, for the purposes of this definition, any Subordinated Security
authenticated and delivered under Section 2.4 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Subordinated Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Subordinated
Security.
"principal" whenever used with reference to the Subordinated
Securities or any Subordinated Security or any portion thereof, shall be deemed
to include "and premium, if any," provided, however, that such inclusion of
premium, if any, shall under no circumstances result in the double counting of
such premium for the purpose of any calculation required hereunder.
"QIB" or "Qualified Institutional Buyer" means "Qualified
Institutional Buyer" as such term is defined in Rule 144A under the Securities
Act.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the securities of any series means the date specified for that
purpose as contemplated in Section 2.3.
"Registered Global Subordinated Security" means a Subordinated
Security evidencing all or a part of a series of Registered Subordinated
Securities, issued to the Depositary for such series in accordance with Section
2.4, and bearing the legend prescribed in Section 2.4 and any other legend
required by the Depositary for such series.
"Registered Subordinated Security" means any Subordinated Security
registered on the Subordinated Security Register of the Company.
"Regulation S" means Regulation S under the Securities Act, or any
successor provision.
"Required Currency" shall have the meaning set forth in Section
11.12.
"Responsible Officer" when used with respect to the Trustee means
the president, any vice president (whether or not designated by numbers or words
added before or after the title "Vice President"), the cashier, the secretary,
the treasurer, any trust officer, any assistant trust officer, any assistant
vice president, any assistant cashier, any assistant secretary, any assistant
treasurer, or any other officer or assistant officer of the Trustee customarily
performing functions similar to those
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performed by the persons who at the time shall be such officers, respectively,
or to whom any corporate trust matter is referred because of his or her
knowledge of and familiarity with the particular subject.
"Restricted Subordinated Security" has the meaning set forth in
Section 2.8(b).
"Rule 144" means Rule 144 under the Securities Act.
"Rule 144A" means Rule 144A under the Securities Act.
"Rule 144K" means Rule 144(k) under the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 2.9.
"Significant Subsidiary" means a Subsidiary of the Company which at
the time of determination either (i) had tangible assets which, as of the
Company's most recent quarterly consolidated balance sheet, constituted at least
5% of Consolidated Tangible Assets as of such date, or (ii) had revenues for the
12-month period ending on the date of the Company's most recent quarterly
consolidated statement of income which constituted at least 5% of the Company's
total consolidated revenues for such period.
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 2.7.
"Stated Maturity," when used with respect to any Subordinated
Security or any installment of interest thereon, means the date specified in
such Subordinated Security as the fixed date on which the principal of such
Subordinated Security or such installment of interest is due and payable.
"Subsidiary" of any Person means (a) any corporation of which Common
Equity having ordinary voting power to elect a majority of the directors of such
corporation is owned by such Person directly or through one or more other
subsidiaries of such Person and (b) any entity other than a corporation in which
such Person, directly or indirectly, owns at least 50% of the Common Equity of
such entity and has the authority to manage such entity on a day-to-day basis.
"Subordinated Indenture" means this instrument as originally
executed and delivered or, if amended or supplemented as herein provided, as so
amended or supplemented or both, and shall include the forms and terms of
particular series of Subordinated Securities established as contemplated
hereunder.
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"Subordinated Security" or "Subordinated Securities" (except as
otherwise provided in Section 7.4) has the meaning stated in the first recital
of this Subordinated Indenture, or, as the case may be, Subordinated Securities
that have been authenticated and delivered under this Subordinated Indenture.
"Transfer Restriction Termination Date" means the earlier of the
first date on which (i) the Subordinated Securities of a series (other than such
Subordinated Securities acquired by the Company or any Affiliate thereof since
the issue date of such Subordinated Securities) may be sold pursuant to Rule
144K (or any successor provision) and (ii) all such Subordinated Securities have
been exchanged or sold pursuant to an effective registration statement.
"Trustee" means the Person identified as "Trustee" in the first
paragraph hereof and, subject to the provisions of Article VI, shall also
include any successor trustee. "Trustee" shall also mean or include each Person
who is then a trustee hereunder and if at any time there is more than one such
Person, "Trustee" as used with respect to the Subordinated Securities of any
series shall mean the trustee with respect to the Subordinated Securities of
such series.
"Unregistered Subordinated Security" means any Subordinated Security
other than a Registered Subordinated Security.
"U.S. Government Obligations" shall have the meaning set forth in
Section 10.1(A).
"Voting Stock" means stock of any class or classes having general
voting power under ordinary circumstances to elect a majority of the board of
directors, managers or trustees of the corporation in question, provided, that,
for the purposes hereof, stock which carries only the right to vote
conditionally on the happening of an event shall not be considered voting stock
whether or not such event shall have happened.
"Yield to Maturity" means the yield to maturity on a series of
securities, calculated at the time of issuance of such series, or, if
applicable, at the most recent redetermination of interest on such series, and
calculated in accordance with accepted financial practice.
ARTICLE II.
SUBORDINATED SECURITIES
Section 2.1. Forms Generally.
The Subordinated Securities of each series and the Coupons, if any,
to be attached thereto shall be substantially in such form (not inconsistent
with this Subordinated Indenture) as
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shall be established by or pursuant to one or more Board Resolutions (as set
forth in a Board Resolution or, to the extent established pursuant to but not
set forth in a Board Resolution, an Officer's Certificate detailing such
establishment) or in one or more indentures supplemental hereto, in each case
with such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by this Subordinated Indenture and may have
imprinted or otherwise reproduced thereon such legend or legends or
endorsements, not inconsistent with the provisions of this Subordinated
Indenture, as may be required to comply with any law or with any rules or
regulations pursuant thereto, or with any rules of any securities exchange or to
conform to general usage, all as may be determined by the officers executing
such Subordinated Securities and Coupons, if any, as evidenced by their
execution of such Subordinated Securities and Coupons.
The definitive Subordinated Securities and Coupons, if any, shall be
printed, lithographed or engraved on steel engraved borders or may be produced
in any other manner, all as determined by the officers executing such
Subordinated Securities and Coupons, if any, as evidenced by their execution of
such Subordinated Securities and Coupons, if any.
Section 2.2. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication on all Subordinated
Securities shall be in substantially the following form:
"This is one of the Subordinated Securities referred to in the
within-mentioned Subordinated Indenture.
The Bank of New York
as Trustee
Dated: _______________
By: _____________________________
Authorized Signatory"
If at any time there shall be an Authenticating Agent appointed with
respect to any series of Subordinated Securities, then the Trustee's Certificate
of Authentication to be borne by the Subordinated Securities of each such series
shall be substantially as follows:
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"This is one of the Subordinated Securities referred to in the
within-mentioned Subordinated Indenture.
The Bank of New York
as Trustee
By: ___________________________
as Authenticating Agent
By: ___________________________
Authorized Signatory"
Section 2.3. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Subordinated Securities which may
be authenticated and delivered under this Subordinated Indenture is unlimited.
The Subordinated Securities may be issued in one or more series and
each such series shall be established in or pursuant to one or more Board
Resolutions (and to the extent established pursuant to but not set forth in a
Board Resolution, in an Officer's Certificate detailing such establishment) or
established in one or more indentures supplemental hereto, prior to the initial
issuance of Subordinated Securities of any series,
(1) the designation of the Subordinated Securities of the series,
which shall distinguish the Subordinated Securities of the series from the
Subordinated Securities of all other series, and which may be part of a
series of Subordinated Securities previously issued;
(2) any limit upon the aggregate principal amount of the
Subordinated Securities of the series that may be authenticated and
delivered under this Subordinated Indenture (except for Subordinated
Securities authenticated and delivered upon registration of transfer of,
or in exchange for, or in lieu of, other Subordinated Securities of the
series pursuant to Section 2.8, 2.9, 2.11, 8.5 or 12.3);
(3) if other than Dollars, the coin or currency in which the
Subordinated Securities of the series are denominated (including, but not
limited to, any Foreign Currency or ECU);
(4) the date or dates on which the principal of the Subordinated
Securities of the series is payable;
(5) the rate or rates at which the Subordinated Securities of the
series shall bear interest, if any, the date or dates from which such
interest shall accrue, on which such interest shall be payable and (in the
case of
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Registered Subordinated Securities) on which a record shall be taken for
the determination of Holders to whom interest is payable and/or the method
by which such rate or rates or date or dates shall be determined;
(6) the place or places where the principal of and any interest on
Subordinated Securities of the series shall be payable, if other than as
provided in Section 3.2;
(7) the right, if any, of the Company to redeem Subordinated
Securities, in whole or in part, at its option and the period or periods
within which, the price or prices at which and any terms and conditions
upon which Subordinated Securities of the series may be so redeemed,
pursuant to any sinking fund or otherwise;
(8) the obligation, if any, of the Company to redeem, purchase or
repay Subordinated Securities of the series pursuant to any mandatory
redemption, sinking fund or analogous provisions or at the option of a
Holder thereof and the price or prices at which and the period or periods
within which and any terms and conditions upon which Subordinated
Securities of the series shall be redeemed, purchased or repaid, in whole
or in part, pursuant to such obligation; (9) if other than denominations
of $1,000 and any integral multiple thereof in the case of Registered
Subordinated Securities, or $1,000 and $5,000 in the case of Unregistered
Subordinated Securities, the denominations in which Subordinated
Securities of the series shall be issuable;
(10) if other than the principal amount thereof, the portion of the
principal amount of Subordinated Securities of the series which shall be
payable upon declaration of acceleration of the Maturity thereof;
(11) if other than the coin or currency in which the Subordinated
Securities of the series are denominated, the coin or currency in which
payment of the principal of or interest on the Subordinated Securities of
such series shall be payable;
(12) if the principal of or interest on the Subordinated Securities
of the series are to be payable, at the election of the Company or a
Holder thereof, in a coin or currency other than that in which the
Subordinated Securities are denominated, the period or periods within
which, and the terms and conditions upon which, such election may be made;
(13) if the amount of payments of principal of and interest on the
Subordinated Securities of the series may be
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determined with reference to an index based on a coin or currency other
than that in which the Subordinated Securities of the series are
denominated, the manner in which such amounts shall be determined;
(14) whether the Subordinated Securities of the series will be
issuable as Registered Subordinated Securities (and if so, whether such
Subordinated Securities will be issuable as Registered Global Subordinated
Securities) or Unregistered Subordinated Securities (with or without
Coupons), or any combination of the foregoing, any restrictions applicable
to the offer, sale or delivery of Unregistered Subordinated Securities or
the payment of interest thereon and, if other than as provided in Section
2.8, the terms upon which Unregistered Subordinated Securities of any
series may be exchanged for Registered Subordinated Securities of such
series and vice versa;
(15) whether and under what circumstances the Company will pay
additional amounts on the Subordinated Securities of the series held by a
person who is not a U.S. person in respect of any tax, assessment or
governmental charge withheld or deducted and, if so, whether the Company
will have the option to redeem the Subordinated Securities of the series
rather than pay such additional amounts;
(16) if the Subordinated Securities of the series are to be
issuable in definitive form (whether upon original issue or upon exchange
of a temporary Subordinated Security of such series) only upon receipt of
certain certificates or other documents or satisfaction of other
conditions, the form and terms of such certificates, documents or
conditions;
(17) any trustees, depositaries, authenticating or paying agents,
transfer agents or registrars of any other agents with respect to the
Subordinated Securities of such series;
(18) any other events of default or covenants with respect to the
Subordinated Securities of such series;
(19) the terms of subordination applicable to any series of the
Subordinated Securities;
(20) if the Subordinated Securities of the series are to be
convertible into or exchangeable for any other security; and
(21) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Subordinated Indenture).
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All Subordinated Securities of any one series and Coupons, if any,
appertaining thereto shall be substantially identical, except in the case of
Registered Subordinated Securities as to denomination and except as may
otherwise be provided by or pursuant to the Board Resolution or Officer's
Certificate referred to above or as set forth in any indenture supplemental
hereto. All Subordinated Securities of any one series need not be issued at the
same time and may be issued from time to time, consistent with the terms of this
Subordinated Indenture, if so provided by or pursuant to such Board Resolution,
such Officer's Certificate or in any indenture supplemental hereto.
Section 2.4. Authentication and Delivery of Subordinated Securities.
The Company may deliver Subordinated Securities of any series having
attached thereto appropriate Coupons, if any, executed by the Company to the
Trustee for authentication together with the applicable documents referred to
below in this Section 2.4, and the Trustee shall thereupon authenticate and
deliver such Subordinated Securities and Coupons, if any, to or upon the order
of the Company (contained in the Company Order referred to below in this
Section) or pursuant to such procedures acceptable to the Trustee and to such
recipients as may be specified from time to time by a Company Order. The
maturity date, original issue date, interest rate and any other terms of the
Subordinated Securities of such series and Coupons, if any, appertaining thereto
shall be determined by or pursuant to such Company Order and procedures. If
provided for in such procedures, such Company Order may authorize authentication
and delivery pursuant to oral or electronic instructions from the Company or its
duly authorized agent or agents, which instructions, if oral, shall be promptly
confirmed in writing. In authenticating such Subordinated Securities and
accepting the additional responsibilities under this Subordinated Indenture in
relation to such Subordinated Securities, the Trustee shall be entitled to
receive (in the case of subparagraphs (2), (3) and (4) below only at or before
the time of the first request of the Company to the Trustee to authenticate
Subordinated Securities of such series) and (subject to Section 6.1) shall be
fully protected in relying upon, the following enumerated documents unless and
until such documents have been superseded or revoked:
(1) a Company Order requesting such authentication and setting
forth delivery instructions if the Subordinated Securities and Coupons, if
any, are not to be delivered to the Company, provided that, with respect
to Subordinated Securities of a series subject to a Periodic Offering, (a)
such Company Order may be delivered by the Company to the Trustee prior to
the delivery to the Trustee of such Subordinated Securities for
authentication and delivery, (b) the Trustee shall authenticate and
deliver Subordinated Securities of such series for original issue from
time to
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time, in an aggregate principal amount not exceeding the aggregate
principal amount established for such series, pursuant to a Company Order
or pursuant to procedures acceptable to the Trustee as may be specified
from time to time by a Company Order, (c) the maturity date or dates,
original issue date or dates, interest rate or rates and any other terms
of Subordinated Securities of such series shall be determined by a Company
Order or pursuant to such procedures and (d) if provided for in such
procedures, such Company Order may authorize authentication and delivery
pursuant to oral or electronic instructions from the Company or its duly
authorized agent or agents, which instructions, if oral, shall be promptly
confirmed in writing;
(2) any Board Resolution, Officer's Certificate and/or executed
supplemental indenture referred to in Section 2.1 and 2.3 by or pursuant
to which the forms and terms of the Subordinated Securities and Coupons,
if any, were established;
(3) an Officer's Certificate setting forth the form or forms and
terms of the Subordinated Securities and Coupons, if any, stating that the
form or forms and terms of the Subordinated Securities and Coupons, if
any, have been established pursuant to Sections 2.1 and 2.3 and comply
with this Subordinated Indenture, and covering such other matters as the
Trustee may reasonably request; and
(4) Either one or more Opinions of Counsel, or a letter addressed
to the Trustee permitting it to rely on one or more Opinions of Counsel,
substantially to the effect that:
(a) the form or forms of the Subordinated Securities and Coupons,
if any, have been duly authorized and established in conformity with the
provisions of this Subordinated Indenture;
(b) in the case of an underwritten offering, the terms of the
Subordinated Securities have been duly authorized and established in
conformity with the provisions of this Subordinated Indenture, and, in the
case of an offering that is not underwritten, certain terms of the
Subordinated Securities have been established pursuant to a Board
Resolution, an Officer's Certificate or a supplemental indenture in
accordance with this Subordinated Indenture, and when such other terms as
are to be established pursuant to procedures set forth in a Company Order
shall have been established, all such terms will have been duly authorized
by the Company and will have been established in conformity with the
provisions of this Subordinated Indenture; and
(c) such Subordinated Securities and Coupons, if any, when
executed by the Company and authenticated by the
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Trustee in accordance with the provisions of this Subordinated Indenture
and delivered to and duly paid for by the purchasers thereof, and subject
to any conditions specified in such Opinion of Counsel, will have been
duly issued under this Subordinated Indenture, will be entitled to the
benefits of this Subordinated Indenture, and will be valid and binding
obligations of the Company, enforceable in accordance with their
respective terms except as the enforceability thereof may be limited by
(i) bankruptcy, insolvency or similar laws affecting creditors' rights
generally, (ii) rights of acceleration, if any, and (iii) the availability
of equitable remedies may be limited by equitable principles of general
applicability and such counsel need express no opinion with regard to the
enforceability of Section 6.6 or of a judgment denominated in a currency
other than Dollars.
In rendering such opinions, any counsel may qualify any opinions as
to enforceability by stating that such enforceability may be limited by
bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent
transfer and other similar laws affecting the rights and remedies of creditors
and is subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law). Such counsel
may rely upon opinions of other counsel (copies of which shall be delivered to
the Trustee), in which case the opinion shall state that such counsel believes
he and the Trustee are entitled so to rely. Such counsel may also state that,
insofar as such opinion involves factual matters, he has relied, to the extent
he deems proper, upon certificates of officers of the Company and its
subsidiaries and certificates of public officials.
The Trustee shall have the right to decline to authenticate and
deliver any Subordinated Securities under this Section if the Trustee, being
advised by counsel, determines that such action may not lawfully be taken by the
Company or if the Trustee in good faith by one or more Responsible Officers
shall determine that such action would expose the Trustee to personal liability
to existing Holders or would affect the Trustee's own rights, duties or
immunities under the Subordinated Securities, this Subordinated Indenture or
otherwise.
If the Company shall establish pursuant to Section 2.3 that the
Subordinated Securities of a series are to be issued in the form of one or more
Registered Global Subordinated Securities, then the Company shall execute and
the Trustee shall, in accordance with this Section and the Company Order with
respect to such series, authenticate and deliver one or more Registered Global
Subordinated Securities that (i) shall represent and shall be denominated in an
amount equal to the aggregate principal amount of all of the Subordinated
Securities of such series issued and not yet canceled, (ii) shall be registered
in the name of the Depositary for such Registered
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Global Subordinated Security or Subordinated Securities or the nominee of such
Depositary, (iii) shall be delivered by the Trustee to such Depositary or
delivered or held pursuant to such Depositary's instructions and (iv) shall bear
a legend substantially to the following effect: "Unless and until it is
exchanged in whole or in part for Subordinated Securities in definitive
registered form, this Subordinated Security may not be transferred except as a
whole by the Depositary to the nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a nominee of such
successor Depositary."
Each Depositary designated pursuant to Section 2.3 must, at the time
of its designation and at all times while it serves as Depositary, be a clearing
agency registered under the Exchange Act and any other applicable statute or
regulation.
Section 2.5. Execution of Subordinated Securities.
The Subordinated Securities and each Coupon appertaining thereto, if
any, shall be signed on behalf of the Company by the chairman or vice chairman
of its Board of Directors or its president, or any executive (senior or other),
a vice president or its treasurer. Such signatures may be the manual or
facsimile signatures of the present or any future such officers. Typographical
and other minor errors or defects in any such reproduction of the seal or any
such signature shall not affect the validity or enforceability of any
Subordinated Security that has been duly authenticated and delivered by the
Trustee.
In case any officer of the Company who shall have signed any of the
Subordinated Securities or Coupons, if any, shall cease to be such officer
before the Subordinated Security or Coupon so signed (or the Subordinated
Security to which the Coupon so signed appertains) shall be authenticated and
delivered by the Trustee or disposed of by the Company, such Subordinated
Security or Coupon nevertheless may be authenticated and delivered or disposed
of as though the person who signed such Subordinated Security or Coupon had not
ceased to be such officer of the Company; and any Subordinated Security or
Coupon may be signed on behalf of the Company by such persons as, at the actual
date of the execution of such Subordinated Security or Coupon, shall be the
proper officers of the Company, although at the date of the execution and
delivery of this Subordinated Indenture any such person was not such an officer.
Section 2.6. Certificate of Authentication.
Only such Subordinated Securities as shall bear thereon a
certificate of authentication substantially in the form hereinbefore recited,
executed by the Trustee by the manual signature of one of its authorized
officers, shall be entitled to
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the benefits of this Subordinated Indenture or be valid or obligatory for any
purpose. No Coupon shall be entitled to the benefits of this Subordinated
Indenture or shall be valid and obligatory for any purpose until the certificate
of authentication on the Subordinated Security to which such Coupon appertains
shall have been duly executed by the Trustee. The execution of such certificate
by the Trustee upon any Subordinated Security executed by the Company shall be
conclusive evidence that the Subordinated Security so authenticated has been
duly authenticated and delivered hereunder and that the Holder is entitled to
the benefits of this Subordinated Indenture.
Section 2.7. Denomination and Date of Subordinated Securities; Payments of
Interest.
The Subordinated Securities of each series shall be issuable as
Registered Subordinated Securities or Unregistered Subordinated Securities in
denominations established as contemplated by Section 2.3 or, with respect to the
Registered Subordinated Securities of any series, if not so established, in
denominations of $1,000 and any integral multiple thereof. If denominations of
Unregistered Subordinated Securities of any series are not so established, such
Subordinated Securities shall be issuable in denominations of $1,000 and $5,000.
The Subordinated Securities of each series shall be numbered, lettered or
otherwise distinguished in such manner or in accordance with such plan as the
officers of the Company executing the same may determine with the approval of
the Trustee, as evidenced by the execution and authentication thereof.
Each Registered Subordinated Security shall be dated the date of its
authentication. Each Unregistered Subordinated Security shall be dated as
provided in the Board Resolution referred to in Section 2.3. The Subordinated
Securities of each series shall bear interest, if any, from the date, and such
interest shall be payable on the dates, established as contemplated by Section
2.3.
Interest on any Subordinated Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the Person in whose name that Subordinated Security (or one or more
Predecessor Subordinated Securities) is registered at the close of business on
the Regular Record Date for such interest. At the option of the Company,
interest on any Subordinated Security may be paid by mailing a check to the
address of the Holder thereof as such address appears in the Subordinated
Securities Register.
Any interest on any Subordinated Security which is payable, but is
not punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
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such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Subordinated Securities (or
their respective Predecessor Subordinated Securities) are registered at
the close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Subordinated Security and the date of
the proposed payment, and at the same time the Company shall deposit with
the Trustee an amount of money equal to the aggregate amount proposed to
be paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than 15
days and not less than 10 days prior to the date of the proposed payment
and not less than 10 days after the receipt by the Trustee of the notice
of the proposed payment. The Trustee shall promptly notify the Company of
such Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed, first-class
postage prepaid, to each Holder at his address as it appears in the
Subordinated 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 so mailed, such
Defaulted Interest shall be paid to the Persons in whose names the
Subordinated Securities (or their respective Predecessor Subordinated
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 Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which the Subordinated Securities may be listed,
and upon such notice as may be required by such exchange, if, after notice
given by the Company to the Trustee of the proposed payment pursuant to
this clause, such manner of payment shall be deemed practicable by the
Trustee.
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Subject to the foregoing provisions of this Section, each
Subordinated Security delivered under this Subordinated Indenture upon
registration of transfer of or in exchange for or in lieu of any other
Subordinated Security shall carry the rights to interest accrued and unpaid, and
to accrue, which were carried by such other Subordinated Security.
In the case of any Subordinated Security which is converted during
the period after any Regular Record Date and on or prior to the next succeeding
Interest Payment Date (other than any Subordinated Security whose Maturity is
prior to such Interest Payment Date), interest whose Stated Maturity is on such
Interest Payment Date shall be payable on such Interest Payment Date
notwithstanding such conversion, and such interest (whether or not punctually
paid or duly provided for) shall be paid to the Person in whose name that
Subordinated Security (or one or more Predecessor Subordinated Securities) is
registered at the close of business on such Regular Record Date; provided,
however, that Subordinated Securities so registered for conversion shall (except
in the case of Subordinated Securities or portions thereof which have been
called for redemption on a Redemption Date within such period) be accompanied by
payment in New York Clearing House Funds or other funds acceptable to the
Company of an amount equal to the interest payable on such Interest Payment Date
on the principal amount being surrendered for conversion. Except as otherwise
expressly provided in the immediately preceding sentence, in the case of any
Subordinated Security which is converted, interest whose Stated Maturity is
after the date of conversion of such Subordinated Security shall not be payable.
Section 2.8. Registration, Transfer and Exchange.
(a) The Company will keep at each office or agency to be
maintained for the purpose as provided in Section 3.2 for each series of
Subordinated Securities a register or registers (the register maintained in such
office and in any other office or agency of the Company designated pursuant to
Section 3.2 being herein sometimes collectively referred to as the "Security
Register") in which, subject to such reasonable regulations as the Company may
prescribe, it will provide for the registration of Registered Subordinated
Securities of such series and the registration of transfer of Registered
Subordinated Securities of such series. Such Security Register shall be in
written form in the English language or in any other form capable of being
converted into such form within a reasonable time. At all reasonable times such
Security Register or registers shall be open for inspection by the Trustee.
Upon due presentation for registration of transfer of any Registered
Subordinated Security of any series at any such office or agency to be
maintained for the purpose as provided in Section 3.2, the Company shall execute
and the Trustee shall authenticate and deliver in the name of the transferee or
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transferees a new Registered Subordinated Security or Registered Subordinated
Securities of the same series, maturity date, interest rate and original issue
date in authorized denominations for a like aggregate principal amount.
Unregistered Subordinated Securities (except for any temporary
global Unregistered Subordinated Securities) and Coupons (except for Coupons
attached to any temporary global Unregistered Subordinated Securities) shall be
transferable by delivery.
At the option of the Holder thereof, Registered Subordinated
Securities of any series (other than a Registered Global Subordinated Security,
except as set forth below) may be exchanged for a Registered Subordinated
Security or Registered Subordinated Securities of such series having authorized
denominations and an equal aggregate principal amount, upon surrender of such
Registered Subordinated Securities to be exchanged at the agency of the Company
that shall be maintained for such purpose in accordance with Section 3.2 and
upon payment, if the Company shall so require, of the charges hereinafter
provided. If the Subordinated Securities of any series are issued in both
registered and unregistered form, at the option of the Holder thereof, except as
otherwise specified pursuant to Section 2.3, Unregistered Subordinated
Securities of any series may be exchanged for Registered Subordinated Securities
of such series having authorized denominations and an equal aggregate principal
amount, upon surrender of such Unregistered Subordinated Securities to be
exchanged at the agency of the Company that shall be maintained for such purpose
in accordance with Section 3.2, with, in the case of Unregistered Subordinated
Securities that have Coupons attached, all unmatured Coupons and all matured
Coupons in default thereto appertaining, and upon payment, if the Company shall
so require, of the charges hereinafter provided. At the option of the Holder
thereof, if Unregistered Subordinated Securities of any series, maturity date,
interest rate and original issue date are issued in more than one authorized
denomination, except as otherwise specified pursuant to Section 2.3, such
Unregistered Subordinated Securities may be exchanged for Unregistered
Subordinated Securities of such series having authorized denominations and an
equal aggregate principal amount, upon surrender of such Unregistered
Subordinated Securities to be exchanged at the agency of the Company that shall
be maintained for such purpose in accordance with Section 3.2 or as specified
pursuant to Section 2.3, with, in the case of Unregistered Subordinated
Securities that have Coupons attached, all unmatured Coupons and all matured
Coupons in default thereto appertaining, and upon payment, if the Company shall
so require, of the charges hereinafter provided. Registered Subordinated
Securities of any series may not be exchanged for Unregistered Subordinated
Securities of such series unless (1) otherwise specified pursuant to Section 2.3
and (2) the Company has delivered to the Trustee an Opinion of Counsel that (x)
the Company has received from the
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IRS a ruling or (y) since the date hereof, there has been a change in the
applicable Federal income tax law, in either case to the effect that the
inclusion of terms permitting Registered Subordinated Securities to be exchanged
for Unregistered Subordinated Securities would result in no Federal income tax
effect adverse to the Company or to any Holder. Whenever any Subordinated
Securities are so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the Subordinated Securities which the
Holder making the exchange is entitled to receive. All Subordinated Securities
and Coupons, if any, surrendered upon any exchange or transfer provided for in
this Subordinated Indenture shall be promptly canceled and, upon the Company's
written request, returned to the Company.
All Registered Subordinated Securities presented for registration of
transfer, exchange, redemption or payment shall (if so required by the Company
or the Trustee) be duly endorsed, or be accompanied by a written instrument or
instruments of transfer in form satisfactory to the Company and the Trustee duly
executed, by the Holder or his attorney duly authorized in writing.
The Company may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any exchange
or registration of transfer of Subordinated Securities. No service charge shall
be made for any such transaction.
The Company shall not be required to exchange or register a transfer
of (a) any Subordinated Securities of any series for a period of 15 days
preceding the first mailing of notice of redemption of Subordinated Securities
of such series to be redeemed or (b) any Subordinated Securities selected,
called or being called for redemption, in whole or in part, except, in the case
of any Subordinated Security to be redeemed in part, the portion thereof not so
to be redeemed.
Notwithstanding any other provision of this Section 2.8, unless and
until it is exchanged in whole or in part for Subordinated Securities in
definitive registered form, a Registered Global Subordinated Security
representing all or a portion of the Subordinated Securities of a series may not
be transferred except as a whole by the Depositary for such series to a nominee
of such Depositary or by a nominee of such Depositary to such Depositary or
another nominee of such Depositary or by such Depositary or any such nominee to
a successor Depositary for such series or a nominee of such successor
Depositary.
If at any time the Depositary for any Registered Subordinated
Securities of a series represented by one or more Registered Global Subordinated
Securities notifies the Company that it is unwilling or unable to continue as
Depositary for such
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Registered Subordinated Securities or if at any time the Depositary for such
Registered Subordinated Securities shall no longer be eligible under Section
2.4, the Company shall appoint a successor Depositary eligible under Section 2.4
with respect to such Registered Subordinated Securities. If a successor
Depositary eligible under Section 2.4 for such Registered Subordinated
Securities is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such ineligibility, the Company's
election pursuant to Section 2.3 that such Registered Subordinated Securities be
represented by one or more Registered Global Subordinated Securities shall no
longer be effective and the Company will execute, and the Trustee, upon receipt
of an Officer's Certificate for the authentication and delivery of definitive
Subordinated Securities of such series, will authenticate and deliver,
Subordinated Securities of such series in definitive registered form without
coupons, in any authorized denominations, in an aggregate principal amount equal
to the principal amount of the Registered Global Subordinated Security or
Subordinated Securities representing such Registered Subordinated Securities in
exchange for such Registered Global Subordinated Security or Subordinated
Securities.
The Company may at any time and in its sole discretion determine
that the Registered Subordinated Securities of any series issued in the form of
one or more Registered Global Subordinated Securities shall no longer be
represented by a Registered Global Subordinated Security or Subordinated
Securities. In such event the Company will execute, and the Trustee, upon
receipt of any Officer's Certificate for the authentication and delivery of
definitive Subordinated Securities of such series, will authenticate and
deliver, Subordinated Securities of such series in definitive registered form
without coupons, in any authorized denominations, in an aggregate principal
amount equal to the principal amount of the Registered Global Subordinated
Security or Subordinated Securities representing such Registered Subordinated
Securities, in exchange for such Registered Global Subordinated Security or
Subordinated Securities.
If specified by the Company pursuant to Section 2.3 with respect to
Subordinated Securities represented by a Registered Global Subordinated
Security, the Depositary for such Registered Global Subordinated Security may
surrender such Registered Global Subordinated Security in exchange in whole or
in part for Subordinated Securities of the same series in definitive registered
form on such terms as are acceptable to the Company and such Depositary.
Thereupon, the Company shall execute, and the Trustee shall authenticate and
deliver, without service charge,
(i) to the Person specified by such Depositary a new
Registered Subordinated Security or Subordinated Securities of the
same series, of any authorized denominations as
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requested by such Person, in an aggregate principal amount equal to
and in exchange for such Person's beneficial interest in the
Registered Global Subordinated Security; and
(ii) to such Depositary a new Registered Global
Subordinated Security in a denomination equal to the difference, if
any, between the principal amount of the surrendered Registered
Global Subordinated Security and the aggregate principal amount of
Registered Subordinated Securities authenticated and delivered
pursuant to clause (i) above.
Upon the exchange of a Registered Global Subordinated
Security for Subordinated Securities in definitive registered form without
coupons, in authorized denominations, such Registered Global Subordinated
Security shall be canceled by the Trustee or an agent of the Company or the
Trustee. Subordinated Securities in definitive registered form without coupons
issued in exchange for a Registered Global Subordinated Security pursuant to
this Section 2.8 shall be registered in such names and in such authorized
denominations as the Depositary for such Registered Global Subordinated
Security, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee or an agent of the Company or the Trustee.
The Trustee or such agent shall deliver such Subordinated Securities to or as
directed by the Persons in whose names such Subordinated Securities are so
registered.
All Subordinated Securities issued upon any transfer or
exchange of Subordinated Securities shall be valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Subordinated Indenture, as the Subordinated Securities surrendered upon such
transfer or exchange.
Notwithstanding anything herein or in the terms of any
series of Subordinated Securities to the contrary, none of the Company, the
Trustee or any agent of the Company or the Trustee (any of which, other than the
Company, shall rely on an Officer's Certificate and an Opinion of Counsel) shall
be required to exchange any Unregistered Subordinated Security for a Registered
Subordinated Security if such exchange would result in Federal income tax
consequences adverse to the Company (such as, for example, the inability of the
Company to deduct from its income, as computed for Federal income tax purposes,
the interest payable on the Unregistered Subordinated Securities) under then
applicable United States Federal income tax laws.
(b)(i) Subordinated Securities that are distributed to
QIBs and to Non-U.S. Persons will be represented by a single, permanent global
Subordinated Security (which may be subdivided) in definitive form (the "Global
Subordinated Security").
Except as provided below, beneficial owners of a
Subordinated Security in global form shall not be entitled to
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have certificates registered in their names, will not receive or be entitled to
receive physical delivery of certificates in definitive form and will not be
considered Holders of such Subordinated Securities in global form.
(i) So long as the Subordinated Securities are eligible
for book-entry settlement, and to the extent that Subordinated Securities are
held by QIBs or Non-U.S. Persons, as the case may be, in a Global Subordinated
Security, or unless otherwise required by law, no definitive Subordinated
Security, or portion thereof, in respect of which the Company or an Affiliate of
the Company held any beneficial interest shall be included in such Global
Subordinated Security until such definitive Subordinated Security is freely
tradable in accordance with Rule 144K; provided that the Trustee shall, at the
written request of the Company, issue Subordinated Securities in definitive form
upon any transfer of a beneficial interest in the Global Subordinated Security
to the Company or any Affiliate of the Company.
Any Global Subordinated Security may be endorsed with or
have incorporated in the text thereof such legends or
recitals or changes not inconsistent with the provisions of this Subordinated
Indenture as may be required by the Depositary, by the New York Stock Exchange
or by the National Association of Securities Dealers, Inc. in order for the
Subordinated Securities to be tradable on the PORTAL Market or as may be
required for the Subordinated Securities to be tradable on any other market
developed for trading of securities pursuant to Rule 144A or required to comply
with any applicable law or any regulation thereunder or with the rules and
regulations of any securities exchange upon which the Subordinated Securities
may be listed or traded or to conform with any usage with respect thereto, or to
indicate any special limitations or restrictions to which any particular
Subordinated Securities are subject.
(ii) Each Subordinated Security that bears or is required
to bear the legend set forth in this Section 2.8(b)(a "Restricted Subordinated
Security") shall be subject to the restrictions on transfer provided in the
legend set forth in this Section 2.8(b), unless such restrictions on transfer
shall be waived by the written consent of the Company, and the Holder of each
Restricted Subordinated Security, by such Holder's acceptance thereof, agrees to
be bound by such restrictions on transfer. As used in this Section 2.8(b), the
term "transfer" encompasses any sale, pledge, transfer or other disposition of
any Restricted Subordinated Security.
Prior to the Transfer Restriction Termination Date, any
certificate evidencing a Subordinated Security shall bear a legend in
substantially the following form, unless otherwise agreed by the Company (with
written notice thereof to the Trustee):
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THE SUBORDINATED SECURITY (THE "SECURITY") EVIDENCED HEREBY HAS NOT
BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF,
U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS
ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR"
(AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES
ACT) ("INSTITUTIONAL ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S.
PERSON AND IS ACQUIRING THE SECURITY EVIDENCED HEREBY IN AN OFFSHORE
TRANSACTION, (2) AGREES THAT IT WILL NOT PRIOR TO THE EXPIRATION OF
THE HOLDING PERIOD APPLICABLE TO SALES OF THE SECURITY EVIDENCED
HEREBY UNDER RULE 144(K) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR
PROVISION), RESELL OR OTHERWISE TRANSFER THE SECURITY EVIDENCED
HEREBY EXCEPT (A) TO QUADRAMED CORPORATION (THE "COMPANY") OR ANY
SUBSIDIARY THEREOF, (B) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, (C) TO A QUALIFIED INSTITUTIONAL
BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (D) TO
AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER,
FURNISHES TO THE TRUSTEE FOR THE SECURITIES A SIGNED LETTER
CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THE SECURITY EVIDENCED HEREBY (THE FORM
OF WHICH LETTER CAN BE OBTAINED FROM SUCH TRUSTEE), (E) OUTSIDE THE
UNITED STATES IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT OR
(F) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144
UNDER THE SECURITIES ACT (IF AVAILABLE) AND (3) AGREES THAT IT WILL
DELIVER TO EACH PERSON TO WHOM THE SECURITY EVIDENCED HEREBY IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN
CONNECTION WITH ANY TRANSFER OF THE SECURITY EVIDENCED HEREBY PRIOR
TO THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THE
SECURITY EVIDENCED HEREBY UNDER RULE 144(K) UNDER THE SECURITIES ACT
(OR ANY SUCCESSOR PROVISION), THE HOLDER MUST CHECK THE APPROPRIATE
BOX SET FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH
TRANSFER AND SUBMIT THIS CERTIFICATE TO THE TRUSTEE FOR THE
SECURITIES. IF THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED
INVESTOR OR A PURCHASER WHO IS NOT A U.S. PERSON, THE HOLDER MUST,
PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE FOR THE SECURITIES
SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THE
COMPANY OR THE TRUSTEE MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH
TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. THIS LEGEND WILL
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BE REMOVED AFTER THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO
SALES OF THE SECURITY EVIDENCED HEREBY UNDER RULE 144(K) UNDER THE
SECURITIES ACT. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION,"
"UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY
REGULATIONS UNDER THE SECURITIES ACT.
Following the Transfer Restriction Termination Date, any
Subordinated Security or security issued in exchange or substitution therefor
(other than Subordinated Securities acquired by the Company or any Affiliate
thereof since the issue date of the Subordinated Securities) may upon surrender
of such Subordinated Security for exchange to the Security Registrar in
accordance with the provisions of this Section 2.8, be exchanged for a new
Subordinated Security or Subordinated Securities, of like tenor and aggregate
principal amount, which shall not bear the restrictive legend required by this
Section 2.8(b).
Section 2.9. Mutilated, Defaced, Destroyed, Lost and Stolen Subordinated
Securities.
In case any temporary or definitive Subordinated Security
or any Coupon appertaining to any Subordinated Security shall be mutilated,
defaced, destroyed, lost or stolen, the Company in its discretion may execute
and, upon the written request of any officer of the Company, the Trustee shall
authenticate and deliver, a new Subordinated Security of the same series,
maturity date, interest rate and original issue date, bearing a number or other
distinguishing symbol not contemporaneously outstanding, in exchange and
substitution for the mutilated or defaced Subordinated Security, or in lieu of
and in substitution for the Subordinated Security so destroyed, lost or stolen
with Coupons corresponding to the Coupons appertaining to the Subordinated
Securities so mutilated, defaced, destroyed, lost or stolen, or in exchange or
substitution for the Subordinated Security to which such mutilated, defaced,
destroyed, lost or stolen Coupon appertained, with Coupons appertaining thereto
corresponding to the Coupons so mutilated, defaced, destroyed, lost or stolen.
In every case the applicant for a substitute Subordinated Security or Coupon
shall furnish to the Company and to the Trustee and any agent of the Company or
the Trustee such security or indemnity as may be required by them to indemnify
and defend and to save each of them harmless and, in every case of destruction,
loss or theft, evidence to their satisfaction of the destruction, loss or theft
of such Subordinated Security or Coupon and of the ownership thereof, and in the
case of mutilation or defacement shall surrender the Subordinated Security and
related Coupons to the Trustee or such agent.
Upon the issuance of any substitute Subordinated Security
or Coupon, the Company may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto and any
other expenses (including
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the fees and expenses of the Trustee) or its agent connected therewith. In case
any Subordinated Security or Coupon which has matured or is about to mature or
has been called for redemption in full shall become mutilated or defaced or be
destroyed, lost or stolen, the Company may instead of issuing a substitute
Subordinated Security, pay or authorize the payment of the same or the relevant
Coupon (without surrender thereof except in the case of a mutilated or defaced
Subordinated Security or Coupon), if the applicant for such payment shall
furnish to the Company and to the Trustee and any agent of the Company or the
Trustee such security or indemnity as any of them may require to save each of
them harmless, and, in every case of destruction, loss or theft, the applicant
shall also furnish to the Company and the Trustee and any agent of the Company
or the Trustee evidence to their satisfaction of the destruction, loss or theft
of such Subordinated Security or Coupons and of the ownership thereof.
Every substitute Subordinated Security or Coupon of any
series issued pursuant to the provisions of this Section by virtue of the fact
that any such Subordinated Security or Coupon is destroyed, lost or stolen shall
constitute an additional contractual obligation of the Company, whether or not
the destroyed, lost or stolen Subordinated Security or Coupon shall be at any
time enforceable by anyone and shall be entitled to all the benefits of (but
shall be subject to all the limitations of rights set forth in) this
Subordinated Indenture equally and proportionately with any and all other
Subordinated Securities or Coupons of such series duly authenticated and
delivered hereunder. All Subordinated Securities and Coupons shall be held and
owned upon the express condition that, to the extent permitted by law, the
foregoing provisions are exclusive with respect to the replacement or payment of
mutilated, defaced or destroyed, lost or stolen Subordinated Securities and
Coupons and shall preclude any and all other rights or remedies notwithstanding
any law or statute existing or hereafter enacted to the contrary with respect to
the replacement or payment of negotiable instruments or other securities without
their surrender.
Section 2.10. Cancellation of Subordinated Securities; Destruction Thereof.
All Subordinated Securities and Coupons surrendered for
payment, redemption, registration of transfer or exchange, or for credit against
any payment in respect of a sinking or analogous fund, if any, if surrendered to
the Company or any agent of the Company or the Trustee or any agent of the
Trustee, shall be delivered to the Trustee or its agent for cancellation or, if
surrendered to the Trustee, shall be canceled by it; and no Subordinated
Securities or Coupons shall be issued in lieu thereof except as expressly
permitted by any of the provisions of this Subordinated Indenture. The Trustee
or its agent shall dispose of canceled Subordinated Securities and Coupons held
by it and return such cancelled Subordinated Securities to the
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Company. If the Company or its agent shall acquire any of the Subordinated
Securities or Coupons, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Subordinated Securities or
Coupons unless and until the same are delivered to the Trustee or its agent for
cancellation.
Section 2.11. Temporary Subordinated Securities.
Pending the preparation of definitive Subordinated
Securities for any series, the Company may execute and the Trustee shall
authenticate and deliver temporary Subordinated Securities for such series
(printed, lithographed, typewritten or otherwise reproduced, in each case in
form satisfactory to the Trustee). Temporary Subordinated Securities of any
series shall be issuable as Registered Subordinated Securities without coupons,
or as Unregistered Subordinated Securities with or without coupons attached
thereto, of any authorized denomination, and substantially in the form of the
definitive Subordinated Securities of such series but with such omissions,
insertions and variations as may be appropriate for temporary Subordinated
Securities, all as may be determined by the Company with the concurrence of the
Trustee as evidenced by the execution and authentication thereof. Temporary
Subordinated Securities may contain such references to any provisions of this
Subordinated Indenture as may be appropriate. Every temporary Subordinated
Security shall be executed by the Company and be authenticated by the Trustee
upon the same conditions and in substantially the same manner, and with like
effect, as the definitive Subordinated Securities. Without unreasonable delay
the Company shall execute and shall furnish definitive Subordinated Securities
of such series and thereupon temporary Registered Subordinated Securities of
such series may be surrendered in exchange therefor without charge at each
office or agency to be maintained by the Company for that purpose pursuant to
Section 3.2 and, in the case of Unregistered Subordinated Securities, at any
agency maintained by the Company for such purpose as specified pursuant to
Section 2.4, and the Trustee shall authenticate and deliver in exchange for such
temporary Subordinated Securities of such series an equal aggregate principal
amount of definitive Subordinated Securities of the same series having
authorized denominations and, in the case of Unregistered Subordinated
Securities, having attached thereto any appropriate Coupons. Until so exchanged,
the temporary Subordinated Securities of any series shall be entitled to the
same benefits under this Subordinated Indenture as definitive Subordinated
Securities of such series, unless otherwise established pursuant to Section 2.3.
The provisions of this Section are subject to any restrictions or limitations on
the issue and delivery of temporary Unregistered Subordinated Securities of any
series that may be established pursuant to Section 2.4 (including any provision
that Unregistered Subordinated Securities of such series initially be issued in
the form of a single global Unregistered Subordinated Security to be delivered
to a depositary or agency located outside the United
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States and the procedures pursuant to which definitive or global Unregistered
Subordinated Securities of such series would be issued in exchange for such
temporary global Unregistered Subordinated Security).
ARTICLE III.
COVENANTS OF THE COMPANY
Section 3.1. Payment of Principal and Interest.
The Company covenants and agrees for the benefit of each
series of Subordinated Securities that it will duly and punctually pay or cause
to be paid the principal of, and interest on, if any, each of the Subordinated
Securities of such series (together with any additional amounts payable pursuant
to the terms of such Subordinated Securities) at the place or places, at the
respective time or times and in the manner provided in such Subordinated
Securities and in the Coupons, if any, appertaining thereto and in this
Subordinated Indenture. The interest on Subordinated Securities with Coupons
attached (together with any additional amounts payable pursuant to the terms of
such Subordinated Securities) shall be payable only upon presentation and
surrender of the several Coupons for such interest installments as are evidenced
thereby as they severally mature. If any temporary Unregistered Subordinated
Security provides that interest thereon may be paid while such Subordinated
Security is in temporary form, the interest on any such temporary Unregistered
Subordinated Security (together with any additional amounts payable pursuant to
the terms of such Subordinated Security) shall be paid, as to the installments
of interest evidenced by Coupons attached thereto, if any, only upon
presentation and surrender thereof, and, as to the other installments of
interest, if any, only upon presentation of such Subordinated Securities for
notation thereon of the payment of such interest, in each case subject to any
restrictions that may be established pursuant to Section 2.4. The interest, if
any, on Registered Subordinated Securities (together with any additional amounts
payable pursuant to the terms of such Subordinated Securities) shall be payable
only to or upon the written order of the Holders thereof and, at the option of
the Company, may be paid by wire transfer or by mailing checks for such interest
payable to or upon the written order of such Holders at their last addresses as
they appear on the Security Register of the Company.
Section 3.2. Offices for Payments, Etc.
So long as any Registered Subordinated Securities are
authorized for issuance pursuant to this Subordinated Indenture or are
outstanding hereunder, the Company will maintain in the Borough of Manhattan,
The City of New York, an office or agency where the Registered Subordinated
Securities of each series may be presented for payment, where the Subordinated
Securities of
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each series may be presented for exchange as is provided in this Subordinated
Indenture, where the Subordinated Securities of each series may be surrendered
for conversion and, if applicable, pursuant to Section 2.4 and where the
Registered Subordinated Securities of each series may be presented for
registration of transfer as in this Subordinated Indenture provided.
The Company will maintain one or more offices or agencies
in a city or cities located outside the United States (including any city in
which such an agency is required to be maintained under the rules of any stock
exchange on which the Subordinated Securities of such series are listed) where
the Unregistered Subordinated Securities, if any, of each series and Coupons, if
any, appertaining thereto may be presented for payment. No payment on any
Unregistered Subordinated Security or Coupon will be made upon presentation of
such Unregistered Subordinated Security or Coupon at an agency of the Company
within the United States nor will any payment be made by transfer to an account
in, or by mail to an address in, the United States unless pursuant to applicable
United States laws and regulations then in effect such payment can be made
without tax consequences adverse to the Company. Notwithstanding the foregoing,
payments in Dollars of Unregistered Subordinated Securities of any series and
Coupons appertaining thereto which are payable in Dollars may be made at an
agency of the Company maintained in the Borough of Manhattan, The City of New
York if such payment in Dollars at each agency maintained by the Company outside
the United States for payment on such Unregistered Subordinated Securities is
illegal or effectively precluded by exchange controls or other similar
restrictions.
The Company will maintain in the Borough of Manhattan, The
City of New York, an office or agency where notices and demands to or upon the
Company in respect of the Subordinated Securities of any series, the Coupons
appertaining thereto or this Subordinated Indenture may be served.
The Company will give to the Trustee written notice of the
location of each such office or agency and of any change of location thereof. In
case the Company shall fail to maintain any agency required by this Section to
be located in the Borough of Manhattan, The City of New York, or shall fail to
give such notice of the location or for any change in the location of any of the
above agencies, presentations and demands may be made and notices may be served
at the Corporate Trust Office of the Trustee.
The Company may from time to time designate one or more
additional offices or agencies where the Subordinated Securities of a series and
any Coupons appertaining thereto may be presented for payment, where the
Subordinated Securities of that series may be presented for exchange as provided
in this Subordinated Indenture and pursuant to Section 2.4 and where the
Registered Subordinated Securities of that series may be presented for
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registration of transfer as in this Subordinated Indenture provided, and the
Company may from time to time rescind any such designation, as the Company may
deem desirable or expedient; provided, that no such designation or rescission
shall in any manner relieve the Company of its obligations to maintain the
agencies provided for in this Section. The Company shall give to the Trustee
prompt written notice of any such designation or rescission thereof.
Section 3.3. Appointment to Fill a Vacancy in Office of Trustee.
The Company, whenever necessary to avoid or fill a vacancy
in the office of Trustee, will appoint, in the manner provided in Section 6.10,
a Trustee, so that there shall at all times be a Trustee with respect to each
series of Subordinated Securities hereunder.
Section 3.4. Paying Agents.
Whenever the Company shall appoint a Paying Agent other
than the Trustee with respect to the Subordinated Securities of any series, it
will cause such Paying Agent to execute and deliver to the Trustee an instrument
in which such agent shall agree with the Trustee, subject to the provisions of
this Section,
(a) that it will hold all sums received by it as such agent
for the payment of the principal of or interest on the Subordinated
Securities of such series (whether such sums have been paid to it by
the Company or by any other obligor on the Subordinated Securities of
such series) in trust for the benefit of the Holders of the
Subordinated Securities of such series, or Coupons appertaining
thereto, if any, or of the Trustee;
(b) that it will give the Trustee notice of any failure by
the Company (or by any other obligor on the Subordinated Securities
of such series) to make any payment of the principal of or interest
on the Subordinated Securities of such series when the same shall be
due and payable; and
(c) that it will pay any such sums so held in trust by it
to the Trustee upon the Trustee's written request at any time during
the continuance of the failure referred to in the foregoing clause
(b).
The Company will, on or prior to each due date of the
principal of or interest on the Subordinated Securities of such series, deposit
with the Paying Agent a sum sufficient to pay such principal or interest so
becoming due, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of any failure to take such action.
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If the Company shall act as its own Paying Agent with
respect to the Subordinated Securities of any series, it will, on or before each
due date of the principal of or interest on the Subordinated Securities of such
series, set aside, segregate and hold in trust for the benefit of the Holders of
the Subordinated Securities of such series or the Coupons appertaining thereto a
sum sufficient to pay such principal or interest so becoming due. The Company
will promptly notify the Trustee of any failure to take such action.
Anything in this Section to the contrary notwithstanding,
but subject to Section 10.1, the Company may at any time, for the purpose of
obtaining a satisfaction and discharge with respect to one or more or all series
of Subordinated Securities hereunder, or for any other reason, pay or cause to
be paid to the Trustee all sums held in trust for any such series by the Company
or any Paying Agent hereunder, as required by this Section, such sums to be held
by the Trustee upon the trusts herein contained.
Anything in this Section to the contrary notwithstanding,
the agreement to hold sums in trust as provided in this Section is subject to
the provisions of Sections 10.3 and 10.4.
Section 3.5. Compliance Certificates.
The Company will furnish to the Trustee on or before
January 31 in each year (beginning with January 31, 1999) a brief certificate
(which need not comply with Section 11.5) from the principal executive,
financial or accounting officer of the Company stating that in the course of the
performance by the signer of his or her duties as an officer of the Company he
or she would normally have knowledge of any default or non-compliance by the
Company in the performance of any covenants or conditions contained in this
Subordinated Indenture, stating whether or not he or she has knowledge of any
such default or non-compliance and, if so, describing each such default or non-
compliance of which the signer has knowledge and the nature thereof.
Section 3.6. Corporate Existence.
Subject to Article IX, the Company will do or cause to be
done all things necessary to preserve and keep in full force and effect its
corporate existence and the rights (charter and statutory), licenses and
franchises of the Company and its Subsidiaries; provided, that the Company shall
not be required to preserve any such right, license or franchise, if, in the
judgment of the Company, the preservation thereof is no longer desirable in the
conduct of the business of the Company and its Subsidiaries taken as a whole and
the loss thereof is not disadvantageous in any material respect to the
Securityholders.
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Section 3.7. Maintenance of Properties.
The Company will cause all properties used in or useful in
the conduct of its business or the business of any Subsidiary to be maintained
and kept in good condition, repair, and working order and supplied with all
necessary equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary, so that the business carried on in connection
therewith may be properly and advantageously conducted at all time except to the
extent that the Company may be prevented from so doing by circumstances beyond
its control; provided, that nothing in this Section shall prevent the Company
from discontinuing the operation or maintenance of any of such properties, or
disposing of any of them, if such discontinuance or disposal is, in the judgment
of the Company desirable in the conduct of the business of the Company or any
Subsidiary and not disadvantageous in any material respect to the
Securityholders.
Section 3.8. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent: (a) all taxes, assessments
and governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary; and (b)
all lawful claims for labor, materials, and supplies, which, if unpaid, might by
law become a lien upon the property of the Company or any Subsidiary; provided,
that the Company shall not be required to pay or discharge or cause to be paid
or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings; and provided further that the Company shall not be required to
cause to be paid or discharged any such tax, assessment, charge or claim if the
Company shall determine that such payment is not advantageous to the conduct of
the business of the Company and its Subsidiaries taken as a whole and that the
failure so to pay or discharge is not disadvantageous in any material respect to
the Securityholders.
Section 3.9. Luxembourg Publications.
In the event of the publication of any notice pursuant to
Section 5.15, 6.11(a), 6.12, 8.2, 10.4 or 13.2, the party making such
publication in the Borough of Manhattan, The City of New York and London shall
also, to the extent that notice is required to be given to Holders of
Subordinated Securities of any series by applicable Luxembourg law or stock
exchange regulation, as evidenced by an Officer's Certificate delivered to such
party, make a similar publication in Luxembourg.
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Section 3.10. Usury Laws.
The Company covenants and agrees: (a) not to insist upon, or plead,
or in any manner whatsoever claim the benefit or the advantage of the usury law
of any jurisdiction against the Trustee or the Holders in connection with any
claim, action or proceeding which may be brought by the Trustee or the Holders
in order to enforce any right or remedy under this Subordinated Indenture; and
(b) to resist any and all efforts to compel the Company to claim the benefit or
the advantage of the usury law of any jurisdiction against the Trustee or the
Holders in connection with any claim, action or proceeding which may be brought
by the Trustee or the Holders in order to enforce any right or remedy under this
Indenture.
ARTICLE IV.
SECURITYHOLDER LISTS AND REPORTS BY THE
COMPANY AND THE TRUSTEE
Section 4.1. Company to Furnish Trustee Information as to Names and Addresses of
Securityholders.
If and so long as the Trustee shall not be the Security
Registrar for the Subordinated Securities of any series, the Company and any
other obligor on the Subordinated Securities will furnish or cause to be
furnished to the Trustee a list in such form as the Trustee may reasonably
require of the names and addresses of the Holders of the Registered Subordinated
Securities of such series pursuant to Section 312 of the Trust Indenture Act:
(a) semi-annually not more than 5 days after each Regular
Record Date for the payment of interest on such Registered
Subordinated Securities, as hereinabove specified, as of such record
date and on dates to be determined pursuant to Section 2.4 for
non-interest bearing Registered Subordinated Securities in each year;
and
(b) at such other times as the Trustee may reasonably
request in writing, within thirty days after receipt by the Company
of any such request as of a date not more than 15 days prior to the
time such information is furnished.
Section 4.2. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the most
recent list furnished to the Trustee as provided in Section 4.1 and the names
and addresses of Holders received by the Trustee in its capacity as Subordinated
Security Registrar. The Trustee may destroy any list furnished to it as provided
in Section 4.1 upon receipt of a new list so furnished.
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(b) The rights of Holders to communicate with other Holders
with respect to their rights under this Subordinated Indenture or under the
Subordinated Securities, and the corresponding rights and duties of the Trustee,
shall be as provided by the Trust Indenture Act.
(c) Every Holder of Subordinated Securities, by receiving
and holding the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any agent of either of them shall be held
accountable by reason of any disclosure of information as to names and addresses
of Holders made pursuant to the Trust Indenture Act.
Section 4.3. Reports by Trustee.
(a) Within 60 days after May 15 of each year, commencing
May 15, 1998, the Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Subordinated Indenture as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided
pursuant thereto.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which the Subordinated Securities are listed, with the Commission and with the
Company. The Company will notify the Trustee when the Subordinated Securities
are listed on any stock exchange.
Section 4.4. Reports by Company.
The Company shall file with the Trustee and the Commission,
and transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to such Act; provided, that any such
information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act, shall be filed with the
Trustee within 15 days after the same is so required to be filed with the
Commission. Delivery of such reports, information and documents to the Trustee
is for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein, including
the Company's compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers' Certificates).
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ARTICLE V.
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
Section 5.1. Event of Default Defined, Acceleration of Maturity; Waiver of
Default.
"Event of Default" with respect to Subordinated Securities
of any series, wherever used herein, means each one of the following events
which shall have occurred and be continuing (whatever the reason for such Event
of Default and whether it shall be occasioned by the subordination provisions of
any series of Subordinated Securities or be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body):
(a) default in the payment of any installment of interest
upon any of the Subordinated Securities of such series as and when
the same shall become due and payable, and continuance of such
default for a period of 30 days; or
(b) default in the payment of all or any part of the
principal, or any premium, on any of the Subordinated Securities of
such series as and when the same shall become due and payable either
at Maturity, upon any redemption, by declaration or otherwise; or
(c) default in the payment of any sinking fund installment
as and when the same shall become due and payable by the terms of the
Subordinated Securities of such series; or
(d) failure on the part of the Company duly to observe or
perform any other of the covenants or agreements on the part of the
Company in the Subordinated Securities of such series or contained in
this Subordinated Indenture (other than a covenant or agreement
included in this Subordinated Indenture solely for the benefit of a
series of Subordinated Securities other than such series) for a
period of 60 days after the date on which written notice specifying
such failure, stating that such notice is a "Notice of Default"
hereunder and demanding that the Company remedy the same, shall have
been given by registered or certified mail, return receipt requested,
to the Company by the Trustee, or to the Company and the Trustee by
the holders of at least 25% in aggregate principal amount of the
Outstanding Subordinated Securities of the series to which such
covenant or agreement relates; or
(e) default under any bond, debenture, note or other
evidence of indebtedness for money borrowed by the Company or any
Subsidiary or under any mortgage, indenture or
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instrument under which there may be issued or by which there may be
secured or evidenced any indebtedness for money borrowed by the
Company or any Subsidiary, whether such indebtedness now exists or
shall hereafter be created, which default shall constitute a failure
to pay the principal of indebtedness in excess of $5,000,000 when due
and payable after the expiration of any applicable grace period with
respect thereto or shall have resulted in indebtedness in excess of
$5,000,000 becoming or being declared due and payable prior to the
date on which it would otherwise have become due and payable, without
such indebtedness having been discharged, or such acceleration having
been rescinded or annulled, within a period of 10 days after there
shall have been given to the Company by the Trustee or to the Company
and the Trustee by the Holders of at 25% in aggregate principal
amount of the Subordinated Securities of each such affected series
then Outstanding hereunder a written notice specifying such default
and requiring the Company to cause such indebtedness to be discharged
or cause such acceleration to be rescinded or annulled; or
(f) a court having jurisdiction in the premises shall enter
a decree or order for relief in respect of the Company or any
Significant Subsidiary in an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in
effect, or appointing a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of the Company or any
Significant Subsidiary for any substantial part of its or their
property or ordering the winding up or liquidation of its or their
affairs, and such decree or order shall remain unstayed and in effect
for a period of 60 consecutive days; or
(g) the Company or any Significant Subsidiary shall
commence a voluntary case under any applicable bankruptcy, insolvency
or other similar law now or hereafter in effect, or consent to the
entry of an order for relief in an involuntary case under any such
law, or consent to the appointment or taking possession by a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or
similar official) of the Company or any Significant Subsidiary or for
any substantial part of its or their property, or make any general
assignment for the benefit of creditors; or
(h) any other Event of Default provided in the supplemental
indenture, Board Resolution or Officer's Certificate under which such
series of Subordinated Securities is issued or in the form of
Subordinated Security for such series.
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Section 5.2. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default described in clause (a), (b), (c),
(d), (e) or (h) of Section 5.1 (if the Event of Default under clause (d) or (h),
as the case may be, is with respect to less than all series of Subordinated
Securities then Outstanding) occurs and is continuing, then, and in each and
every such case, except for any series of Subordinated Securities the principal
of which shall have already become due and payable, either the Trustee or the
Holders of not less than 25% in aggregate principal amount of the Subordinated
Securities of each such affected series then Outstanding hereunder (each such
series voting as a separate class) by notice in writing to the Company (and to
the Trustee if given by Securityholders), may declare the entire principal (or,
if the Subordinated Securities of any such affected series are Original Issue
Discount Subordinated Securities, such portion of the principal amount as may be
specified in the terms of such series) of all Subordinated Securities of all
such affected series, and the interest accrued thereon, if any, to be due and
payable immediately, and upon any such declaration, the same shall become
immediately due and payable.
If an Event of Default described in clause (d) or (h) of
Section 5.1 with respect to all series of Subordinated Securities then
Outstanding, occurs and is continuing, then, and in each and every such case,
unless the principal of all of the Subordinated Securities shall have already
become due and payable, either the Trustee or the Holders of not less than 25%
in aggregate principal amount of all of the Subordinated Securities then
Outstanding hereunder (treated as one class) by notice in writing to the Company
(and to the Trustee if given by Securityholders), may declare the entire
principal (or, if the Subordinated Securities of any series are Original Issue
Discount Subordinated Securities, such portion of the principal amount as may be
specified in the terms of such series) of all of the Subordinated Securities
then Outstanding, and the interest accrued thereon, if any, to be due and
payable immediately, and upon such declaration, the same shall become
immediately due and payable. If an Event of Default described in clause (f) or
(g) of Section 5.1 shall occur, the principal amount of all outstanding
Subordinated Securities shall ipso facto become and be immediately due and
payable without any declaration or other act on the part of the Trustee or any
Holder.
The foregoing provisions are subject to the condition that
if, at any time after the principal (or, if the Subordinated Securities are
Original Issue Discount Subordinated Securities, such portion of the principal
as may be specified in the terms thereof) of the Subordinated Securities of any
series (or of all the Subordinated Securities, as the case may be) shall have
been so declared due and payable, and before any judgment or decree
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for the payment of the moneys due shall have been obtained or entered as
hereinafter provided,
(A) the Company shall pay or shall deposit with the
Trustee a sum sufficient to pay
(i) all matured installments of interest upon all
the Subordinated Securities of each such series (or all the
Subordinated Securities, as the case may be); and
(ii) the principal of any and all Subordinated
Securities of each such series (or of all the Subordinated
Securities, as the case may be) which shall have become due
otherwise than by acceleration; and
(iii) interest upon such principal and, to the
extent that payment of such interest is enforceable under
applicable law, on overdue installments of interest, at the
same rate as the rate of interest or Yield to Maturity (in
the case of Original Issue Discount Subordinated
Securities) specified in the Subordinated Securities of
each such series (or at the respective rates of interest or
Yields to Maturity of all the Subordinated Securities, as
the case may be) to the date of such payment or deposit;
and
(iv) all amounts payable to the Trustee pursuant
to Section 6.6; and
(B) all Events of Default under the Subordinated Indenture,
other than the non-payment of the principal of Subordinated
Securities which shall have become due by acceleration, shall have
been cured, waived or otherwise remedied as provided herein,
then and in every such case the Holders of a majority in aggregate principal
amount of all the Subordinated Securities of each such series, each such series
voting as a separate class (or of all the Subordinated Securities, as the case
may be, voting as a single class), then Outstanding, by written notice to the
Company and to the Trustee, may waive all defaults with respect to each such
series (or with respect to all the Subordinated Securities, as the case may be)
and rescind and annul such declaration and its consequences, but no such waiver
or rescission and annulment shall extend to or shall affect any subsequent
default or shall impair any right consequent thereon.
For all purposes under this Subordinated Indenture, if a
portion of the principal of any Original Issue Discount Subordinated Securities
shall have been accelerated and declared due and payable pursuant to the
provisions hereof, then, from and after such declaration, unless such
declaration has been
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rescinded and annulled, the principal amount of such Original Issue Discount
Subordinated Securities shall be deemed, for all purposes hereunder, to be such
portion of the principal thereof as shall be due and payable as a result of such
acceleration, and payment of such portion of the principal thereof as shall be
due and payable as a result of such acceleration, together with interest, if
any, thereon and all other amounts owing thereunder, shall constitute payment in
full of such Original Issue Discount Subordinated Securities.
Section 5.3. Collection of Indebtedness by Trustee; Trustee May Prove Debt.
The Company covenants that (a) in case default shall be
made in the payment of any installment of interest on any of the Subordinated
Securities of any series when such interest shall have become due and payable,
and such default shall have continued for a period of 30 days, or (b) in case
default shall be made in the payment of all or any part of the principal of any
of the Subordinated Securities of any series when the same shall have become due
and payable, whether upon Maturity of the Subordinated Securities of such series
or upon any redemption or by declaration or otherwise, then upon demand of the
Trustee, the Company will pay to the Trustee for the benefit of the Holders of
the Subordinated Securities of such series the whole amount that then shall have
become due and payable on all Subordinated Securities of such series, and such
Coupons, for principal and interest, as the case may be (with interest to the
date of such payment upon the overdue principal and, to the extent that payment
of such interest is enforceable under applicable law, on overdue installments of
interest at the same rate as the rate of interest or Yield to Maturity (in the
case of Original Issue Discount Subordinated Securities) specified in the
Subordinated Securities of such series); and in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection, and
such other amount due the Trustee under Section 6.6 in respect of Subordinated
Securities of such series.
Until such demand is made by the Trustee, the Company may
pay the principal of and interest on the Subordinated Securities of any series
to the registered Holders, whether or not the Subordinated Securities of such
series be overdue.
Section 5.4. Trustee May File Proofs of Claims.
In case the Company shall fail forthwith to pay such
amounts upon such demand, the Trustee, in its own name as
trustee of an express trust, shall be entitled and empowered to institute any
action or proceedings at law or in equity for the collection of the sums so due
and unpaid, and may prosecute any such action or proceedings to judgment or
final decree, and may enforce any such judgment or final decree against the
Company or other obligor upon the Subordinated Securities and collect in the
manner provided by law out of the property of the Company or
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other obligor upon the Subordinated Securities, wherever situated, all the
moneys adjudged or decreed to be payable.
In case there shall be pending proceedings relative to the
Company or any other obligor upon the Subordinated
Securities under Title 11 of the United States Code or any other applicable
Federal or state bankruptcy, insolvency or other similar law, or in case a
receiver, assignee or trustee in bankruptcy or reorganization, liquidator,
sequestrator or similar official shall have been appointed for or taken
possession of the Company or its property or such other obligor, or in case of
any other comparable judicial proceedings relative to the Company or other
obligor upon the Subordinated Securities, or to the creditors or property of the
Company or such other obligor, the Trustee, irrespective of whether the
principal of the Subordinated Securities shall then be due and payable as
therein expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand pursuant to the provisions of this Section,
shall be entitled and empowered, by intervention in such proceedings or
otherwise:
(a) to file and prove a claim or claims for the whole
amount of principal and interest (or, if the Subordinated Securities
of any series are Original Issue Discount Subordinated Securities,
such portion of the principal amount as may be specified in the terms
of such series) owing and unpaid in respect of the Subordinated
Securities of any series, 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 amounts payable to the Trustee under
Section 6.6) and of the Securityholders allowed in any judicial
proceedings relative to the Company or other obligor upon the
Subordinated Securities, or to the creditors or property of the
Company or such other obligor; and
(b) unless prohibited by applicable law and regulations, to
vote on behalf of the holders of the Subordinated Securities of any
series in any election of a receiver, assignee, trustee or a standby
trustee in arrangement, reorganization, liquidation or other
bankruptcy or insolvency proceedings, custodian or other person
performing similar functions in respect of any such proceedings; and
(c) to collect and receive any moneys or other property
payable or deliverable on any such claims, and to distribute all
amounts received with respect to the claims of the Securityholders
and of the Trustee on their behalf; and any trustee, receiver, or
liquidator, custodian or other similar official performing similar
functions in respect of any such proceedings is hereby authorized by
each of the Securityholders to make payments to the Trustee, and, in
the event that the Trustee shall consent to the making of
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payments directly to the Securityholders, to pay to the Trustee its
costs and expenses of collection and all other amounts due to it
pursuant to Section 6.6.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or vote for or accept or adopt on behalf of
any Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Subordinated Securities of any series or the rights of
any Holder thereof, or to authorize the Trustee to vote in respect of the claim
of any Securityholder in any such proceeding, except as aforesaid in clause (b).
Section 5.5. Trustee May Enforce Claims Without Possession of Subordinated
Securities.
All rights of action and of asserting claims under this
Subordinated Indenture, or under any of the Subordinated Securities of any
series or Coupons appertaining to such Subordinated Securities, may be enforced
by the Trustee without the possession of any of the Subordinated Securities of
such series or Coupons appertaining to such Subordinated Securities or the
production thereof in any trial or other proceedings relative thereto, and any
such action or proceedings instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment shall awarded
to the Trustee for ratable distribution to the Holders of the Subordinated
Securities or Coupons appertaining to such Subordinated Securities in respect of
which such action was taken, after payment of all sums due to the Trustee under
Section 6.6 in respect of such Subordinated Securities.
In any proceedings brought by the Trustee (and also any
proceedings involving the interpretation of any provision of this Subordinated
Indenture to which the Trustee shall be a party) the Trustee shall be held to
represent all the Holders of the Subordinated Securities or Coupons appertaining
to such Subordinated Securities in respect to which such action was taken, and
it shall not be necessary to make any Holders of such Subordinated Securities or
Coupons appertaining to such Subordinated Securities parties to any such
proceedings.
Section 5.6. Application of Proceeds.
Any moneys collected by the Trustee pursuant to this
Article in respect of any series shall be applied in the following order at the
date or dates fixed by the Trustee and, in case of the distribution of such
moneys on account of principal or interest, upon presentation of the several
Subordinated Securities and Coupons appertaining to such Subordinated Securities
in respect of which monies have been collected and stamping (or otherwise
noting) thereon the payment, or issuing Subordinated Securities of such series
in reduced principal amounts in exchange for the presented Subordinated
Securities of
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like series if only partially paid, or upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses applicable to
such series of Subordinated Securities in respect of which monies
have been collected, including all amounts due to the Trustee and
each predecessor Trustee pursuant to Section 6.6 in respect to such
series of Subordinated Securities;
SECOND: In case the principal of the Subordinated
Securities of such series in respect of which moneys have been
collected shall not have become and be then due and payable, to the
payment of interest on the Subordinated Securities of such series in
default in the order of the Maturity of the installments on such
interest, with interest (to the extent that such interest has been
collected by the Trustee and is permitted by applicable law) upon the
overdue installments of interest at the same rate as the rate of
interest or Yield to Maturity (in the case of Original Issue Discount
Subordinated Securities) specified in such Subordinated Securities,
such payments to be made ratably to the persons entitled thereto,
without discrimination or preference;
THIRD: In case the principal of the Subordinated Securities
of such series in respect of which moneys have been collected shall
have become and shall be then due and payable, to the payment of the
whole amount then owing and unpaid upon all the Subordinated
Securities of such series for principal and interest, with interest
upon the overdue principal, and (to the extent that such interest has
been collected by the Trustee and is permitted by applicable law)
upon the overdue installations of interest at the same rate as the
rate of interest or Yield to Maturity (in the case of Original Issue
Discount Subordinated Securities) specified in the Subordinated
Securities of such series; and in case such moneys shall be
insufficient to pay in full the whole amount so due and unpaid upon
the Subordinated Securities of such series, then to the payment of
such principal and interest or Yield to Maturity, without preference
or priority of principal over interest or Yield to Maturity, or of
interest or Yield to Maturity over principal, or of any installment
of interest over any other installment of interest or of any
Subordinated Security of such series over any other Subordinated
Security of such series, ratably to the aggregate of such principal
and accrued and unpaid interest or Yield to Maturity; and
FOURTH: To the payment of the remainder, if any, to the
Company or any other person lawfully entitled thereto.
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Section 5.7. Suits for Enforcement.
In case an Event of Default has occurred, has not been
waived and is continuing, the Trustee may in its discretion proceed to protect
and enforce the rights vested in it by this Subordinated Indenture by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any of such rights, either at law or in equity or in
bankruptcy or otherwise, whether for the specific enforcement of any covenant or
agreement contained in this Subordinated Indenture or in aid of the exercise of
any power granted in this Subordinated Indenture or to enforce any other legal
or equitable right vested in the Trustee by this Subordinated Indenture or by
law.
Section 5.8. Limitations on Suits by Subordinated Security Holders.
No Holder of any Subordinated Security of any series or of
any Coupon appertaining thereto shall have any right by virtue or by availing of
any provision of this Subordinated Indenture to institute any action or
proceeding at law or in equity or in bankruptcy or otherwise upon or under or
with respect to this Subordinated Indenture or such Subordinated Security, or
for the appointment of a trustee, receiver, liquidator, custodian or other
similar official or for any other remedy hereunder or thereunder, unless (a)
such Holder previously shall have given to the Trustee written notice of an
Event of Default with respect to Subordinated Securities of such series and of
the continuance thereof, as hereinbefore provided, and (b) the Holders of not
less than 25% in aggregate principal amount of the Subordinated Securities of
such affected series then Outstanding (treated as a single class) shall have
made written request upon the Trustee to institute such action or proceedings in
its own name as Trustee hereunder and shall have offered to the Trustee such
indemnity as it may require against the costs, expenses and liabilities to be
incurred therein or thereby, and (c) the Trustee for 60 days after its receipt
of such notice, request and offer of indemnity shall have failed to institute
any such action or proceeding, and (d) no direction inconsistent with such
written request shall have been given to the Trustee pursuant to Section 5.13;
it being understood and intended, and being expressly covenanted by the taker
and Holder of every Subordinated Security or Coupon with every other taker and
Holder and the Trustee, that no one or more Holders of Subordinated Securities
of any series or Coupons appertaining to such Subordinated Securities shall have
any right in any manner whatever by virtue or by availing of any provision of
this Subordinated Indenture or any Subordinated Security to affect, disturb or
prejudice the rights of any other such taker or Holder of Subordinated
Securities or Coupons appertaining to such Subordinated Securities, or to obtain
or seek to obtain priority over or preference to any other such taker or Holder
or to enforce any right under this Subordinated Indenture or any Subordinated
Security, except in the manner herein provided and for the equal, ratable and
common benefit of all Holders of
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Subordinated Securities of the applicable series and Coupons appertaining to
such Subordinated Securities. For the protection and enforcement of the
provisions of this Section, each and every Securityholder and the Trustee shall
be entitled to such relief as can be given either at law or in equity.
Section 5.9. Unconditional Right of Securityholders to Institute Certain Suits.
Notwithstanding any other provision in this Subordinated
Indenture and any provision of any Subordinated Security, the right of any
Holder of any Subordinated Security or Coupon to receive payment of the
principal of and interest on such Subordinated Security or Coupon on or after
the respective due dates expressed in such Subordinated Security or Coupon or
the applicable redemption dates provided for in such Subordinated Security, to
convert such Subordinated Securities of any series in accordance with terms that
may be established pursuant to Section 2.3, or to institute suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such Holder.
Section 5.10. Restoration of Rights on Abandonment of Proceedings.
In case the Trustee shall have proceeded to enforce any
right under this Subordinated Indenture and such proceedings shall have been
discontinued or abandoned for any reason, or shall have been determined
adversely to the Trustee, then and in every such case the Company and the
Trustee shall be restored respectively to their former positions and rights
hereunder, and all rights, remedies and powers of the Company, the Trustee and
the Securityholders shall continue as though no such proceedings had been taken.
Section 5.11. Powers and Remedies Cumulative; Delay or Omission Not Waiver of
Default.
Except as provided in Section 5.8, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders of
Subordinated Securities or Coupons 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 5.12. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of
Subordinated Securities or Coupons to exercise any right or power accruing upon
any Event of Default occurring and continuing as
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aforesaid shall impair any such right or power or shall be construed to be a
waiver of any such Event of Default or an acquiescence therein. Every power and
remedy given by this Subordinated Indenture, any Subordinated Security or law to
the Trustee or to the Holders of Subordinated Securities or Coupons may be
exercised from time to time, and as often as shall be deemed expedient, by the
Trustee or, subject to Section 5.8, by the Holders of Subordinated Securities or
Coupons.
Section 5.13. Control by Holders of Subordinated Securities.
The Holders of a majority in aggregate principal amount of
the Subordinated Securities of each series affected (with each such series
voting as a separate class) at the time Outstanding 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 Subordinated Securities of such series by this
Subordinated Indenture; provided, that such direction shall not be otherwise
than in accordance with law and the provisions of this Subordinated Indenture
and provided, further, that (subject to the provisions of Section 6.1) the
Trustee shall have the right to decline to follow any such direction if (a) the
Trustee, being advised by counsel, shall determine that the action or proceeding
so directed may not lawfully be taken; or (b) if the Trustee by its board of
directors, the executive committee, or a trust committee of directors or
Responsible Officers of the Trustee shall determine in good faith that the
action or proceedings so directed would involve the Trustee in personal
liability; or (c) if the Trustee in good faith shall so determine that the
actions or forbearances specified in or pursuant to such direction would be
unduly prejudicial to the interests of Holders of the Subordinated Securities of
all affected series not joining in the giving of said direction, it being
understood that (subject to Section 6.1) the Trustee shall have no duty to
ascertain whether or not such actions or forbearances are unduly prejudicial to
such Holders.
Nothing in this Subordinated Indenture shall impair the
right of the Trustee in its discretion to take any action deemed proper by the
Trustee and which is not inconsistent with such direction or directions by
Securityholders.
Section 5.14. Waiver of Past Defaults.
Prior to the declaration of acceleration of the Maturity of
any Subordinated Securities as provided in Section 5.2, the Holders of a
majority in aggregate principal amount of the Subordinated Securities of such
series (each series voting as a separate class) at the time Outstanding with
respect to which an Event of Default shall have occurred and be continuing
(voting as a single class) may on behalf of the Holders of all such Subordinated
Securities waive any past default or Event of
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Default described in Section 5.1 and its consequences, except a default in
respect of a covenant or provision hereof which cannot be modified or amended
without the consent of the Holder of each Subordinated Security affected. In the
case of any such waiver, the Company, the Trustee and the Holders of all such
Subordinated Securities shall be restored to their former positions and rights
hereunder, respectively, and such default shall cease to exist and be deemed to
have been cured and not to have occurred for purposes of this Subordinated
Indenture; but no such waiver shall extend to any subsequent or other default or
impair any right consequent thereon.
Section 5.15. Trustee to Give Notice of Default, But May Withhold in Certain
Circumstances.
The Trustee shall, within 90 days after the occurrence of a
default with respect to the Subordinated Securities of any series actually known
to a Responsible Officer of the Trustee, give notice of all defaults with
respect to that series known to the Trustee (i) if any Unregistered Subordinated
Securities of that series are then Outstanding, to the Holders thereof, by
publication at least once in an Authorized Newspaper in the Borough of
Manhattan, The City of New York and at least once in an Authorized Newspaper in
London (and, if required by Section 3.9, at least once in an Authorized
Newspaper in Luxembourg) and (ii) to all Holders of Subordinated Securities of
such series in the manner and to the extent provided in Section 313(c) of the
Trust Indenture Act, unless in each case such defaults shall have been cured
before the mailing or publication of such notice (the term "default" for the
purpose of this Section being hereby defined to mean any event or condition
which is, or with notice or lapse of time or both would become, an Event of
Default); provided, that, except in the case of default in the payment of the
principal of or interest on any of the Subordinated Securities of such series,
or in the payment of any sinking fund installment on such series, the Trustee
shall be protected in withholding such notice if and so long as the board of
directors, the executive committee, or a trust committee of directors or
trustees and/or Responsible Officers of the Trustee in good faith determines
that the withholding of such notice is in the interests of the Securityholders
of such series.
Section 5.16. Right of Court to Require Filing of Undertaking to Pay Costs.
All parties to this Subordinated Indenture agree, and each
Holder of any Subordinated Security or Coupon by his acceptance thereof shall be
deemed to have agreed, that any court may in its discretion require, in any suit
for the enforcement of any right or remedy under this Subordinated 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,
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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 Securityholder or
group of Securityholders of any series holding in the aggregate more than 10% in
aggregate principal amount of the Subordinated Securities of such series, or, in
the case of any suit relating to or arising under clause (d) or (h) of Section
5.1 (if the suit relates to Subordinated Securities of more than one but less
than all series), 10% in aggregate principal amount of Subordinated Securities
then Outstanding and affected thereby, or in the case of any suit relating to or
arising under clause (d) or (h) (if the suit under clause (d) or (h) relates to
all the Subordinated Securities then Outstanding), (f) or (g) of Section 5.1,
10% in aggregate principal amount of all Subordinated Securities then
Outstanding, or to any suit instituted by any Securityholder for the enforcement
of the payment of the principal of or interest on any Subordinated Security on
or after the due date expressed in such Subordinated Security or any date fixed
for redemption.
Section 5.17. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully
do so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Subordinated Indenture; and the Company (to
the extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law and covenants that it will not hinder, delay or impede
the execution of any power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such law had been enacted.
ARTICLE VI.
CONCERNING THE TRUSTEE
Section 6.1. Duties and Responsibilities of the Trustee; During Default; Prior
to Default.
Prior to the occurrence of an Event of Default with respect
to the Subordinated Securities of a particular series and after the curing or
waiving of all Events of Default which may have occurred with respect to such
series, the Trustee undertakes to perform such duties and only such duties as
are specifically set forth in this Subordinated Indenture with respect to such
series of Subordinated Securities. In case an Event of Default with respect to
the Subordinated Securities of a series has occurred and has not been cured or
waived, the Trustee shall exercise with respect to such series of Subordinated
Securities such of the rights and powers vested in it by this Subordinated
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Indenture with respect to such series of Subordinated Securities, and use the
same degree of care and skill in their exercise, as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
No provision of this Subordinated 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
(a) prior to the occurrence of an Event of Default with
respect to the Subordinated Securities of any series and after the
curing or waiving of all such Events of Default with respect to such
series which may have occurred:
(i) the duties and obligations of the Trustee
with respect to the Subordinated Securities of any series
shall be determined solely by the express provisions of
this Subordinated Indenture, and the Trustee shall not be
liable except for the performance of such duties and
obligations as are specifically set forth in this
Subordinated Indenture, and no implied covenants or
obligations shall be read into this Subordinated Indenture
against the Trustee; and
(ii) the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions
expressed therein, upon any statements, certificates or
opinions furnished to the Trustee and conforming to the
requirements of this Subordinated Indenture; but in the
case of any such statements, certificates or opinions which
by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty
to examine the same to determine whether or not they
conform to the requirements of this Subordinated Indenture;
(b) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless it shall be proved that the Trustee
was negligent in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance
with the direction of the Holders pursuant to Section 5.13 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 Subordinated Indenture.
None of the provisions contained in this Subordinated
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur personal financial liability in the
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performance of any of its duties or in the exercise of any of its rights or
powers, if there shall be reasonable ground for believing that the repayment of
such funds or adequate indemnity against such liability is not reasonably
assured to it.
The provisions of this Section 6.1 are in furtherance of
and subject to Section 315 of the Trust Indenture Act.
Section 6.2. Certain Rights of the Trustee.
In furtherance of and subject to the Trust Indenture Act,
and subject to Section 6.1:
(a) the Trustee may conclusively rely and shall be
protected in acting or refraining from acting upon any resolution,
Officer's Certificate or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, bond,
debenture, note, coupon, security or other paper or document believed
by it to be genuine and to have been signed or presented by the
proper party or parties;
(b) any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by an Officer's
Certificate (unless other evidence in respect thereof is specifically
prescribed herein or in the terms established in respect of any
series); and any resolution of the Board of Directors may be
evidenced to the Trustee by a copy thereof certified by the secretary
or an assistant secretary of the Company;
(c) the Trustee may consult with counsel of its selection
and any advice or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted to be taken by it hereunder in good faith and in reliance
thereon in accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise
any of the trusts or powers vested in it by this Subordinated
Indenture at the request, order or direction of any of the
Securityholders pursuant to the provisions of this Subordinated
Indenture, unless such Securityholders shall have offered to the
Trustee security or indemnity satisfactory to the Trustee against the
costs, expenses and liabilities which might be incurred therein or
thereby;
(e) 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
Subordinated Indenture;
(f) prior to the occurrence of an Event of Default
hereunder and after the curing or waiving of all Events of
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Default, 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, consent,
order, approval, appraisal, bond, debenture, note, coupon, security,
or other paper or document unless requested in writing so to do by
the Holders of not less than a majority in aggregate principal amount
of the Subordinated Securities of all series affected then
Outstanding; provided, that, if the payment within a reasonable time
to the Trustee of the costs, expenses or liabilities likely to be
incurred by it in the making of such investigation is, in the opinion
of the Trustee, not reasonably assured to the Trustee by the security
afforded to it by the terms of this Subordinated Indenture, the
Trustee may require reasonable indemnity against such expenses or
liabilities as a condition to proceeding; the reasonable expenses of
every such investigation shall be paid by the Company or, if paid by
the Trustee or any predecessor trustee, shall be repaid by the
Company upon demand; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys not regularly in its employ and the
Trustee shall not be responsible for any misconduct or negligence on
the part of any such agent or attorney appointed with due care by it
hereunder.
Section 6.3. Trustee Not Responsible for Recitals, Disposition of Subordinated
Securities or Application of Proceeds Thereof.
The recitals contained herein and in the Subordinated
Securities, except the Trustee's certificates of authentication, shall be taken
as the statements of the Company, and the Trustee assumes no responsibility for
the correctness of the same. The Trustee makes no representation as to the
validity or sufficiency of this Subordinated Indenture or of the Subordinated
Securities or Coupons. The Trustee shall not be accountable for the use or
application by the Company of any of the Subordinated Securities or of the
proceeds thereof.
Section 6.4. Trustee and Agents May Hold Subordinated Securities or Coupons;
Collections, Etc.
The Trustee or any agent of the Company or of the Trustee,
in its individual or any other capacity, may become the owner or pledgee of
Subordinated Securities or Coupons with the same rights it would have if it were
not the Trustee or such agent and may otherwise deal with the Company and
receive, collect, hold and retain collections from the Company with the same
rights it would have if it were not the Trustee or such agent.
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Section 6.5. Moneys Held by Trustee.
Subject to the provisions of Section 10.4 hereof, all
moneys received by the Trustee shall, until used or applied as herein provided,
be held in trust for the purposes for which they were received, but need not be
segregated from other funds except to the extent required by mandatory
provisions of law. Neither the Trustee nor any agent of the Company or the
Trustee shall be under any liability for interest on any moneys received by it
hereunder.
Section 6.6. Compensation and Indemnification of Trustee and Its Prior Claim.
The Company covenants and agrees to pay to the Trustee from
time to time, and the Trustee shall be entitled to such compensation as the
parties shall agree in writing from time to time (which shall not be limited by
any provision of law in regard to the compensation of a trustee of an express
trust) and the Company covenants and agrees to pay or reimburse the Trustee and
each predecessor trustee upon its request for all reasonable expense,
disbursements and advances incurred or made by or on behalf of it in accordance
with any of the provisions of this Subordinated Indenture (including the
compensation and the expenses and disbursements of its counsel and of all agents
and other persons not regularly in its employ) except any such expense,
disbursement or advance as may arise from its negligence or bad faith. The
Company also covenants to indemnify the Trustee and each predecessor trustee
for, and to hold it harmless against, any loss, liability or expense incurred
without negligence or bad faith on its part, arising out of or in connection
with the acceptance or administration of this Subordinated Indenture or the
trusts hereunder and its duties hereunder, including the costs and expenses of
defending itself against or investigating any claim of liability in the
premises. The obligations of the Company under this Section to compensate and
indemnify the Trustee and each predecessor trustee and to pay or reimburse the
Trustee and each predecessor trustee for expenses, disbursements and advances
shall constitute additional indebtedness hereunder and shall survive the
satisfaction and discharge of this Subordinated Indenture. Such additional
indebtedness shall be a senior claim to that of the Subordinated Securities upon
all property and funds held or collected by the Trustee as such, except funds
held in trust for the benefit of the Holders of particular Subordinated
Securities or Coupons, and the Subordinated Securities are hereby subordinated
to such senior claim.
Section 6.7. Right of Trustee to Rely on Officer's Certificate, Etc.
Subject to Sections 6.1 and 6.2, whenever in the
administration of the trusts of this Subordinated Indenture the Trustee shall
deem it necessary or desirable that a matter be
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proved or established prior to taking or suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may be deemed to be conclusively proved and established
by an Officer's Certificate delivered to the Trustee, and such certificate, in
the absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted by it under the
provisions of this Subordinated Indenture upon the faith thereof.
Section 6.8. Subordinated Indentures Not Creating Potential Conflicting
Interests for the Trustee.
The following indentures are hereby specifically described
for the purposes of Section 310(b)(1) of the Trust Indenture Act: this
Subordinated Indenture with respect to the Subordinated Securities of any other
series.
Section 6.9. Qualification of Trustee: Conflicting Interests.
The Trustee shall comply with Section 310(b) of the Trust
Indenture Act.
Section 6.10. Persons Eligible for Appointment as Trustee.
The Trustee for each series of Subordinated Securities
hereunder shall at all times be a corporation or banking association organized
and doing business under the laws of the United States of America, any State
thereof or the District of Columbia, that has (or, in the case of a corporation
or banking association included in a bank holding company system, whose related
bank holding company has) a combined capital and surplus of at least
$50,000,000, and which is authorized under such laws to exercise corporate trust
powers and is subject to supervision or examination by Federal, state or
District of Columbia authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. In case at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, the Trustee shall
resign immediately in the manner and with the effect specified in Section 6.11.
The provisions of this Section 6.10 are in furtherance of
and subject to Section 310(a) of the Trust Indenture Act.
Section 6.11. Resignation and Removal; Appointment of Successor Trustee.
(a) The Trustee, or any trustee or trustees hereafter
appointed, may at any time resign with respect to one or more or
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all series of Subordinated Securities by giving written notice of resignation to
the Company. Upon receiving such notice of resignation, the Company shall
promptly appoint a successor trustee or trustees with respect to the applicable
series by written instrument in duplicate, executed by authority of the Board of
Directors, one copy of which instrument shall be delivered to the resigning
Trustee and one copy to the successor trustee or trustees. If no successor
trustee shall have been so appointed with respect to any series and have
accepted appointment within 30 days after the mailing of such notice of
resignation, the resigning trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee, or any Securityholder
who has been a bona fide Holder of a Subordinated Security or Subordinated
Securities of the applicable series for at least six months may, subject to the
provisions of Section 5.12, on behalf of himself and all others similarly
situated, petition any such court for the appointment of a successor trustee.
Such court may thereupon, after such notice, if any, as it may deem proper and
prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of
Section 310(b) of the Trust Indenture Act with respect to any series
of Subordinated Securities after written request therefor by the
Company or by any Securityholder who has been a bona fide Holder of a
Subordinated Security or Subordinated Securities of such series for
at least six months; or
(ii) the Trustee shall cease to be eligible in accordance
with the provisions of Section 6.10 and Section 310(a) of the Trust
Indenture Act and shall fail to resign after written request therefor
by the Company or by any Securityholder; or
(iii) the Trustee shall become incapable of acting with
respect to any series of Subordinated Securities, or shall be
adjudged a bankrupt or insolvent, or a receiver or liquidator of the
Trustee or of its property shall be appointed, or any public officer
shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation;
then, in any such case, the Company may remove the Trustee with respect to the
applicable series of Subordinated Securities and appoint a successor trustee for
such series by written instrument, in duplicate, executed by order of the Board
of Directors of the Company, one copy of which instrument shall be delivered to
the Trustee so removed and one copy to the successor trustee, or, subject to the
provisions of Section 315(e) of the Trust Indenture Act, any Securityholder who
has been a bona fide
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Holder of a Subordinated Security or Subordinated Securities of such series for
at least six months may on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor trustee with respect to such series. Such court
may thereupon, after such notice, if any, as it may deem proper and prescribe,
remove the Trustee and appoint a successor trustee. If no successor trustee
shall have been so appointed with respect to any series and have accepted
appointment within 30 days after such removal, the removed trustee may petition
any court of competent jurisdiction for the appointment of a successor trustee.
(c) The Holders of a majority in aggregate principal amount
of the Subordinated Securities of each series at the time outstanding may at any
time remove the Trustee with respect to Subordinated Securities of such series
and appoint a successor trustee with respect to the Subordinated Securities of
such series by delivering to the Trustee so removed, to the successor trustee so
appointed and to the Company the evidence provided for in Section 7.1 of the
action in that regard taken by the Securityholders.
(d) Any resignation or removal of the Trustee with respect
to any series and any appointment of a successor trustee with respect to such
series pursuant to any of the provisions of this Section 6.11 shall become
effective upon acceptance of appointment by the successor trustee as provided in
Section 6.12.
Section 6.12. Acceptance of Appointment by Successor Trustee.
Any successor trustee appointed as provided in Section 6.11
shall execute and deliver to the Company and to its predecessor trustee an
instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the predecessor trustee with respect to all or any applicable
series shall become effective and such successor trustee, without any further
act, deed or conveyance, shall become vested with all rights, powers, duties and
obligations with respect to such series of its predecessor hereunder, with like
effect as if originally named as trustee for such series hereunder; but,
nevertheless, on the written request of the Company or of the successor trustee,
upon payment of its charges then unpaid, the trustee ceasing to act shall,
subject to Section 10.4, pay over to the successor trustee all moneys at the
time held by it hereunder and shall execute and deliver an instrument
transferring to such successor trustee all such rights, powers, duties and
obligations. Upon request of any such successor trustee, the Company shall
execute any and all instruments in writing for more fully and certainly vesting
in and confirming to such successor trustee all such rights and powers. Any
trustee ceasing to act shall, nevertheless, retain a prior claim upon all
property or funds held or collected by such trustee to secure any amounts then
due it pursuant to the provisions of Section 6.6.
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If a successor trustee is appointed with respect to the
Subordinated Securities of one or more (but not all) series, the Company, the
predecessor trustee and each successor trustee with respect to the Subordinated
Securities of any applicable series shall execute and deliver an indenture
supplemental hereto which shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and duties
of the predecessor trustee with respect to the Subordinated Securities of any
series as to which the predecessor trustee is not retiring shall continue to be
vested in the predecessor trustee, and shall add to or change any of the
provisions of this Subordinated Indenture as shall be necessary to provide for
or facilitate the administration of the trusts hereunder by more than one
trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such trustees co-trustees of the same trust and that
each such trustee shall be trustee of a trust or trusts under separate
indentures.
No successor trustee with respect to any series of
Subordinated Securities shall accept appointment as provided in this Section
6.12 unless at the time of such acceptance such successor trustee shall be
qualified under Section 310(b) of the Trust Indenture Act and eligible under the
provisions of Section 6.10.
Upon acceptance of appointment by any successor trustee as
provided in this Section 6.12, the Company shall give notice thereof (a) if any
Unregistered Subordinated Securities of a series affected are then Outstanding,
to the Holders thereof, by publication of such notice at least once in an
Authorized Newspaper in the Borough of Manhattan, The City of New York and at
least once in an Authorized Newspaper in London (and, if required by Section
3.9, at least once in an Authorized Newspaper in Luxembourg), (b) if any
Unregistered Subordinated Securities of a series affected are then Outstanding,
to the Holders thereof who have filed their names and addresses with the Trustee
pursuant to Section 313(c)(2) of the Trust Indenture Act, by mailing such notice
to such Holders at such addresses as were so furnished to the Trustee (and the
Trustee shall make such information available to the Company for such purpose)
and (c) to the Holders of Registered Subordinated Securities of each series
affected, by mailing such notice to such Holders at their addresses as they
shall appear on the registry books. If the acceptance of appointment is
substantially contemporaneous with the resignation, then the notice called for
by the preceding sentence may be combined with the notice called for by Section
6.11. If the Company fails to give such notice within ten days after acceptance
of appointment by the successor trustee, the successor trustee shall cause such
notice to be given at the expense of the Company.
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Section 6.13. Merger, Conversion, Consolidation or Succession to Business of
Trustee.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided, that such corporation shall be qualified under Section
310(b) of the Trust Indenture Act and eligible under the provisions of Section
6.10, without the execution or filing of any paper or any further act on the
part of any of the parties hereto, anything herein to the contrary
notwithstanding.
In case at the time such successor to the Trustee shall
succeed to the trusts created by this Subordinated Indenture any of the
Subordinated Securities of any series shall have been authenticated but not
delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee and deliver such Subordinated
Securities so authenticated; and, in case at that time any of the Subordinated
Securities of any series shall not have been authenticated, any successor to the
Trustee may authenticate such Subordinated Securities either in the name of any
predecessor hereunder or in the name of the successor Trustee; and in all such
cases such certificate shall have the full force which it is anywhere in the
Subordinated Securities of such series or in this Subordinated Indenture
provided that the certificate of the Trustee shall have; provided, that the
right to adopt the certificate of authentication of any predecessor trustee or
to authenticate Subordinated Securities of any series in the name of any
predecessor trustee shall apply only to its successor or successors by merger,
conversion or consolidation.
Section 6.14. Preferential Collection of Claims Against the Company.
If this Subordinated Indenture is qualified under the Trust
Indenture Act, the Trustee shall comply with Section 311(a) of the Trust
Indenture Act, excluding any creditor relationship listed in Section 311(b) of
the Trust Indenture Act. A Trustee who has resigned or been removed shall be
subject to Section 311(a) of the Trust Indenture Act to the extent indicated.
Section 6.15. Appointment of Authenticating Agent.
As long as any Subordinated Securities of a series remain
Outstanding, the Trustee may, by an instrument in writing, appoint with the
approval of the Company an authenticating agent (the "Authenticating Agent")
which shall be authorized to act on behalf of the Trustee to authenticate
Subordinated Securities, including Subordinated Securities issued upon exchange,
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registration of transfer, partial redemption or pursuant to Section 2.9.
Subordinated Securities of each such series authenticated by such Authenticating
Agent shall be entitled to the benefits of this Subordinated Indenture and shall
be valid and obligatory for all purposes as if authenticated by the Trustee.
Whenever reference is made in this Subordinated Indenture to the authentication
and delivery of Subordinated Securities of any series 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 for such series and a Certificate of Authentication
executed on behalf of the 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 $45,000,000 (determined as provided in Section
6.10 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 agency business of any Authenticating Agent,
shall continue to be the authenticating Agent with respect to all series of
Subordinated Securities for which it served as 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 Trustee and to the Company.
Upon receiving such a notice of resignation or upon such a
termination, or in case at any time any Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section 6.15 with respect to
one or more series of Subordinated Securities, the Trustee shall upon receipt of
a Company Order appoint a successor Authenticating Agent and the Company shall
provide notice of such appointment to all Holders of Subordinated Securities of
such series in the manner and to the extent provided in Section 11.4. 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 Company agrees to pay to the Authenticating Agent for such series
from time to time reasonable compensation. The Authenticating Agent for the
Subordinated Securities of any series shall have no responsibility or liability
for any action taken by it as such at the direction of the Trustee.
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Sections 6.2, 6.3, 6.4, 6.6 and 7.3 shall be applicable to
any Authenticating Agent.
ARTICLE VII.
CONCERNING THE SECURITYHOLDERS
Section 7.1. Evidence of Action Taken by Securityholders.
Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Subordinated Indenture to be
given or taken by a specified percentage in principal amount of the
Securityholders of any or all series may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by such specified
percentage of Securityholders in person or by agent duly appointed in writing;
and, except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee.
Proof of execution of any instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Subordinated Indenture and (subject
to Sections 6.1 and 6.2) conclusive in favor of the Trustee and the Company, if
made in the manner provided in this Article.
Section 7.2. Proof of Execution of Instruments and of Holding of Subordinated
Securities.
Subject to Sections 6.1 and 6.2, the execution of any
instrument by a Securityholder or his agent or proxy may be proved in accordance
with such reasonable rules and regulations as may be prescribed by the Trustee
or in such manner as shall be satisfactory to the Trustee. The holding or
Subordinated Securities shall be proved by the Security Register or by a
certificate of the registrar thereof.
Section 7.3. Holders to be Treated as Owners.
The Company, the Trustee and any agent of the Company or
the Trustee may deem and treat the person in whose name any Subordinated
Security shall be registered upon the Security Register for such series as the
absolute owner of such Subordinated Security (whether or not such Subordinated
Security shall be overdue and notwithstanding any notation of ownership or other
writing thereon) for the purpose of receiving payment of or on account of the
principal of and, subject to the provisions of this Subordinated Indenture,
interest on such Subordinated Security and for all other purposes; and neither
the Company nor the Trustee nor any agent of the Company or the Trustee shall be
affected by any notice to the contrary. The Company, the Trustee and any agent
of the Company or the Trustee may treat the Holder of any Unregistered
Subordinated Security and the Holder of any Coupon as the absolute owner of such
Unregistered Subordinated Security or Coupon (whether or not such Unregistered
Subordinated
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Security or Coupon shall be overdue) for the purpose of receiving payment
thereof or on account thereof and for all other purposes and neither the
Company, the Trustee, nor any agent of the Company or the Trustee shall be
affected by any notice to the contrary. All such payments so made to any such
person, or upon his order, shall be valid, and, to the extent of the sum or sums
so paid, effectual to satisfy and discharge the liability for moneys payable
upon any such Unregistered Subordinated Security or Coupon.
If the Subordinated Securities of any series are issued in
the form of one or more Global Subordinated Securities, the Depository therefor
may grant proxies to Persons having a beneficial ownership in such Global
Subordinated Security or Subordinated Securities for purposes of voting or
otherwise responding to any request for consent, waiver or other action which
the Holder of such Subordinated Security is entitled to grant or take under this
Subordinated Indenture and the Trustee shall accept such proxies for the
purposes granted; provided that neither the Trustee nor the Company shall have
any obligation with respect to the grant of or solicitation by the Depository of
such proxies.
Section 7.4. Subordinated Securities Owned by Company Deemed Not Outstanding.
In determining whether the Holders of the requisite
aggregate principal amount of Outstanding Subordinated Securities of any or all
series have concurred in any request, demand, authorization, direction, notice,
consent, waiver or other action by Securityholders under this Subordinated
Indenture, Subordinated Securities which are owned by the Company or any other
obligor on the Subordinated Securities with respect to which such determination
is being made or by any person directly or indirectly controlling or controlled
by or under direct or indirect common control with the Company or any other
obligor on the Subordinated Securities with respect to which such determination
is being made shall be disregarded and deemed not to be Outstanding for the
purpose of any such determination, except that for the purpose of determining
whether the Trustee shall be protected in relying on any such action only
Subordinated Securities which a Responsible Officer of the Trustee knows are so
owned shall be so disregarded. Subordinated Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Trustee the pledgee's right so to act with respect to
such Subordinated Securities and that the pledgee is not the Company or any
other obligor upon the Subordinated Securities or any person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company or any other obligor on the Subordinated Securities. In
case of a dispute as to such right, the advice of counsel shall be full
protection in respect of any decision made by the Trustee in accordance with
such advice. Upon request of the Trustee, the
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Company shall furnish to the Trustee promptly an Officer's Certificate listing
and identifying all Subordinated Securities, if any, known by the Company to be
owned or held by or for the account of any of the above-described persons; and,
subject to Sections 6.1 and 6.2, the Trustee shall be entitled to accept such
Officer's Certificate as conclusive evidence of the facts therein set forth and
of the fact that all Subordinated Securities not listed therein are Outstanding
for the purpose of any such determination.
Section 7.5. Right of Revocation of Action Taken.
At any time prior to (but not after) the evidencing to the
Trustee, as provided in Section 7.1, of the taking of any action by the Holders
of the percentage in aggregate principal amount of the Subordinated Securities
of any or all series, as the case may be, specified in this Subordinated
Indenture in connection with such action, any Holder of a Subordinated Security
the serial number of which is shown by the evidence to be included among the
serial numbers of the Subordinated Securities the Holders of which have
consented to such action may, by filing written notice at the Corporate Trust
Office and upon proof of holding as provided in this Article, revoke such action
so far as concerns such Subordinated Security. Except as aforesaid any such
action taken by the Holder of any Subordinated Security shall be conclusive and
binding upon such Holder and upon all future Holders and owners of such
Subordinated Security and of any Subordinated Securities issued in exchange or
substitution therefor or on registration of transfer thereof, irrespective of
whether or not any notation in regard thereto is made upon any such Subordinated
Security. Any action taken by the Holders of the percentage in aggregate
principal amount of the Subordinated Securities of any or all series, as the
case may be, specified in this Subordinated Indenture in connection with such
action shall be conclusively binding upon the Company, the Trustee and the
Holders of all the Subordinated Securities affected by such action.
ARTICLE VIII.
SUPPLEMENTAL SUBORDINATED INDENTURES
Section 8.1. Supplemental Subordinated Indentures Without Consent of
Securityholders.
The Company, when authorized by a resolution of its Board
of Directors (which resolution may provide general terms or parameters for such
action and may provide that the specific terms of such action may be determined
in accordance with or pursuant to a Company Order), and the Trustee may from
time to time and at any time enter into an indenture or indentures supplemental
hereto for one or more of the following purposes:
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(a) to cause the Subordinated Indenture to be qualified
under the Trust Indenture Act; or
(b) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Subordinated Securities; or
(c) to add to the covenants of the Company for the benefit
of the Holders of all or any series of Subordinated Securities (and
if such covenants are to be for the benefit of less than all series
of Subordinated Securities, stating that such covenants are expressly
being included solely for the benefit of such series) or to surrender
any right or power herein conferred upon the Company; or
(d) to add any additional Events of Default for the
benefit of the Holders of all or any series of Subordinated
Securities (and if such additional Events of Default are to be for
the benefit of less than all series of Subordinated Securities,
stating that such additional Events of Default are expressly being
included solely for the benefit of such series); or
(e) to add to or change any of the provisions of this
Subordinated Indenture to such extent as shall be necessary to permit
or facilitate the issuance of Subordinated Securities in bearer form,
registrable or not registrable as to principal, and with or without
interest coupons, or to permit or facilitate the issuance of
Subordinated Securities in uncertificated form; or
(f) to add to, change or eliminate any of the provisions
of this Subordinated Indenture in respect of one or more series of
Subordinated Securities, provided that any such addition, change or
elimination (A) shall neither (i) apply to any Subordinated Security
of any series created prior to the execution of such supplemental
indenture and entitled to the benefit of such provision nor (ii)
modify the rights of the Holder of any such Subordinated Security
with respect to such provision or (B) shall become effective only
when there is no such Subordinated Security Outstanding; or
(g) to secure the Subordinated Securities; or
(h) to establish the form or terms of Subordinated
Securities of any series as permitted by Sections 2.1 and 2.3; or
(i) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Subordinated Securities of one or more series and to add to or change
any of the provisions of this Subordinated
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Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 6.11; or
(j) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any
other provision herein, or to make any other provisions with respect
to matters or questions arising under this Subordinated Indenture,
provided that such action pursuant to this Clause (j) shall not
adversely affect the interests of the Holders of Subordinated
Securities of any series in any material respect; or
(k) to make provision with respect to the conversion
rights of Holders in the event of a consolidation, merger or sale of
assets involving the Company, as required in this Subordinated
Indenture; or
(l) to supplement any of the provisions of the
Subordinated Indenture to such extent as shall be necessary to permit
or facilitate the defeasance and discharge of any series of
Subordinated Securities pursuant to Article X, provided that any such
action shall not adversely affect the interests of the Holders of
Subordinated Securities of such series or any other series of
Subordinated Securities in any material respect.
Section 8.2. Supplemental Subordinated Indentures with Consent of
Securityholders.
With the consent of the Holders of a majority in principal
amount of the Outstanding Subordinated Securities of each series affected by
such supplemental indenture, by act of said Holders delivered to the Company and
the Trustee, the Company, when authorized by a Board Resolution, and the Trustee
may enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner eliminating any of the
provisions of this Subordinated Indenture or of modifying in any manner the
rights of the Holders of Subordinated Securities of such series under this
Subordinated Indenture; provided, however, that no such supplemental indenture
shall, without the consent of the Holder of each Outstanding Subordinated
Security affected thereby,
(a) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Subordinated
Security, or reduce the principal amount thereof or the rate of
interest thereon or any premium payable upon the redemption thereof,
or reduce the amount of the principal of an Original Issue Discount
Subordinated Security or any other Subordinated Security which would
be due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 5.2, or change any place of payment
where, or the coin or currency in which,
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any Subordinated Security or any premium or interest thereon is
payable, or impair the right to institute suit for the enforcement of
any such payment on or after the Stated Maturity thereof (or, in the
case of redemption, on or after the Redemption Date), or modify the
provisions of this Subordinated Indenture with respect to the
subordination of the Subordinated Securities in a manner adverse to
the Holders, or
(b) reduce the percentage in principal amount of the
Outstanding Subordinated Securities of any series, the consent of
whose Holders is required for any such supplemental indenture, or the
consent of whose Holders is required for any waiver (of compliance
with certain provisions of this Subordinated Indenture or certain
defaults hereunder and their consequences) provided for in this
Subordinated Indenture, or
(c) modify any of the provisions of this Section 8.2 or
Section 5.14, except to increase any such percentage or to provide
that certain other provisions of this Subordinated Indenture cannot
be modified or waived without the consent of the Holder of each
Outstanding Subordinated Security affected thereby; provided,
however, that this clause shall not be deemed to require the consent
of any Holder with respect to changes in the references to "the
Trustee" and concomitant changes in this Section 8.2, or the deletion
of this proviso, in accordance with the requirements of Sections 6.11
and 8.1(i).
A supplemental indenture which changes or eliminates any
covenant or other provision of this Subordinated Indenture which has expressly
been included solely for the benefit of one or more particular series of
Subordinated Securities, or which modifies the rights of Holders of Subordinated
Securities of such series, or of Coupons appertaining to such Subordinated
Securities, with respect to such covenant or provision, shall be deemed not to
affect the rights under this Subordinated Indenture of the Holders of
Subordinated Securities of any other series or of the Coupons appertaining to
such Subordinated Securities.
Upon the request of the Company, accompanied by a copy of a
resolution of the Board of Directors (which resolution may provide general terms
or parameters for such action and may provide that the specific terms of such
action may be determined in accordance with or pursuant to a Company Order)
certified by the secretary or an assistant secretary of the Company authorizing
the execution of any such supplemental indenture, and upon the filing with the
Trustee of evidence of the consent of the Holders of the Subordinated Securities
as aforesaid and other documents, if any, required by Section 7.1, the Trustee
shall join with the Company in the execution of such supplemental indenture
unless such supplemental indenture affects the Trustee's own rights, duties or
immunities under this
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Subordinated Indenture or otherwise, in which case the Trustee may in its
discretion, but shall not be obligated to, enter into such supplemental
indenture.
It shall not be necessary for the consent of the
Securityholders under this Section to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient if such consent
shall approve the substance thereof.
Section 8.3. Effect of Supplemental Subordinated Indenture.
Upon the execution of any supplemental indenture pursuant
to the provisions hereof, this Subordinated Indenture shall be and be deemed to
be modified and amended in accordance therewith and the respective rights,
limitations of rights, obligations, duties and immunities under this
Subordinated Indenture of the Trustee, the Company and the Holders of
Subordinated Securities of each series affected thereby shall thereafter be
determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Subordinated Indenture for any and all purposes.
Section 8.4. Documents to be Given to Trustee.
The Trustee, subject to the provisions of Sections 6.1 and
6.2, may receive an Officer's Certificate and an Opinion of Counsel as
conclusive evidence that any supplemental indenture executed pursuant to this
Article VIII complies with the applicable provisions of this Subordinated
Indenture.
Section 8.5. Notation on Subordinated Securities in Respect of Supplemental
Subordinated Indentures.
Subordinated Securities of any series authenticated and
delivered after the execution of any supplemental indenture pursuant to the
provisions of this Article may bear a notation in form approved by the Trustee
for such series as to any matter provided for by such supplemental indenture or
as to any action taken by Securityholders. If the Company or the Trustee shall
so determine, new Subordinated Securities of any series so modified as to
conform, in the opinion of the Trustee and the Board of Directors, to any
modification of this Subordinated Indenture contained in any such supplemental
indenture may be prepared by the Company, authenticated by the Trustee and
delivered in exchange for the Subordinated Securities of such series then
Outstanding.
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ARTICLE IX.
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 9.1. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any
other Person, or convey, transfer or lease its properties and assets
substantially as an entirety to any other Person, and the Company shall not
permit any other Person to consolidate with or merge into the Company or convey,
transfer or lease its properties and assets substantially as an entirety to the
Company, unless:
(a) in case the Company shall consolidate with or merge
into another Person or convey, transfer or lease its properties and
assets substantially as an entirety to any Person, the Person formed
by such consolidation or into which the Company is merged or the
Person which acquires by conveyance or transfer, or which leases, the
properties and assets of the Company substantially as an entirety
shall be a corporation, partnership or trust, shall be organized and
validly existing under the laws of the United States of America, any
State 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 any premium and interest on all the
Subordinated Securities and the performance or observance of every
covenant of this Subordinated Indenture on the part of the Company to
be performed or observed and any conversion rights shall be provided
for in accordance with the terms that may be established pursuant to
Section 2.3, if applicable, or as otherwise specified pursuant to
Section 2.3, by supplemental indenture satisfactory in form to the
Trustee, executed and delivered to the Trustee, by the Person (if
other than the Company) formed by such consolidation or into which
the Company shall have been merged or by the Person which shall have
acquired the Company's assets;
(b) immediately after giving effect to such consolidation,
merger, conveyance, transfer or lease, no Event of Default, and no
event which, after notice or lapse of time or both, would become an
Event of Default, shall have happened and be continuing;
(c) such consolidation, merger, conveyance, transfer or
lease does not adversely affect the validity or enforceability of the
Subordinated Securities; and
(d) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
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stating that such consolidation, merger, conveyance, transfer or
lease and, if a supplemental indenture is required in connection with
such transaction, such supplemental indenture (if any), comply with
this Subordinated Indenture and the Subordinated Securities and that
all conditions precedent herein provided for relating to such
transaction have been satisfied.
Section 9.2. Successor Corporation Substituted.
The successor corporation formed by such consolidation or
into which the Company is merged or to which such conveyance, transfer or lease
is made shall succeed to and be substituted for, and may exercise every right
and power of, the Company under this Subordinated Indenture with the same effect
as if such successor corporation had been named as the Company herein, and
thereafter (except in the case of a lease to another Person) the predecessor
corporation shall be relieved of all obligations and covenants under the
Subordinated Indenture and the Subordinated Securities and, in the event of such
conveyance or transfer, any such predecessor corporation may be dissolved and
liquidated.
ARTICLE X.
SATISFACTION AND DISCHARGE
Section 10.1. Satisfaction and Discharge of Subordinated Indenture.
(A) If at any time (i) the Company shall have paid or
caused to be paid the principal of and interest on all the Subordinated
Securities of any series Outstanding hereunder and all unmatured Coupons
appertaining thereto (other than Subordinated Securities of such series and
Coupons appertaining thereto which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 2.9) as and when the same
shall have become due and payable, or (ii) the Company shall have delivered to
the Trustee for cancellation all Subordinated Securities of any series
theretofore authenticated and all unmatured Coupons appertaining thereto (other
than any Subordinated Securities of such series and Coupons appertaining thereto
which shall have been destroyed, lost or stolen and which shall have been
replaced or paid as provided in Section 2.9) or (iii) in the case of any series
of Subordinated Securities where the exact amount (including the currency of
payment) of principal of and interest due on which can be determined at the time
of making the deposit referred to in clause (b) below, (a) all the Subordinated
Securities of such series and all unmatured Coupons appertaining thereto not
theretofore delivered to the Trustee for cancellation shall have become due and
payable, or are by their terms to become due and payable within one year or are
to be called for redemption within one year under arrangements satisfactory to
the Trustee for the giving of notice of redemption, and (b) the Company shall
have irrevocably deposited
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or caused to be deposited with the Trustee as trust funds in trust the entire
amount in (i) cash (other than moneys repaid by the Trustee or any Paying Agent
to the Company in accordance with Section 10.4), (ii) in the case of any series
of Subordinated Securities the payments on which may only be made in Dollars,
direct obligations of the United States of America, backed by its full faith and
credit ("U.S. Government Obligations"), maturing as to principal and interest at
such times and in such amounts as will insure the availability of cash
sufficient to pay at such Maturity or upon such redemption, as the case may be,
or (iii) a combination thereof, sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay (a) the principal and
interest on all Subordinated Securities of such series and Coupons appertaining
thereto on each date that such principal or interest is due and payable and (b)
any mandatory sinking fund payments on the dates on which such payments are due
and payable in accordance with the terms of the Subordinated Indenture and the
Subordinated Securities of such series; (x) the principal and interest on all
Subordinated Securities of such series and Coupons appertaining thereto on each
date that such principal or interest is due and payable and (y) any mandatory
sinking fund payments on the dates on which such payments are due and payable in
accordance with the terms of the Subordinated Indenture and the Subordinated
Securities of such series; and if, in any such case, the Company shall also pay
or cause to be paid all other sums payable hereunder by the Company, then this
Subordinated Indenture shall cease to be of further effect (except as to (i)
rights of registration of transfer and exchange of Subordinated Securities of
such Series and of Coupons appertaining thereto and the Company's right of
optional redemption, if any, (ii) substitution of mutilated, defaced, destroyed,
lost or stolen Subordinated Securities or Coupons, (iii) rights of holders of
Subordinated Securities and Coupons appertaining thereto to receive payments of
principal thereof and interest thereon, upon the original stated due dates
therefor (but not upon acceleration), and remaining rights of the Holders to
receive mandatory sinking fund payments, if any, (iv) any optional redemption
rights of such series of Subordinated Securities to the extent to be exercised
to make such call for redemption within one year, (v) the rights, obligations,
duties and immunities of the Trustee hereunder, including those under Section
6.6, (vi) the rights of the Holders of securities of such series and Coupons
appertaining thereto as beneficiaries hereof with respect to the property so
deposited with the Trustee payable to all or any of them, and (vii) the
obligations of the Company under Section 3.2 and the Trustee, on demand of the
Company accompanied by an Officer's Certificate and an Opinion of Counsel and at
the cost and expense of the Company, shall execute proper instruments
acknowledging such satisfaction of and discharging this Subordinated Indenture;
provided, that the rights of Holders of the Subordinated Securities and Coupons
to receive amounts in respect of principal of and interest on the Subordinated
Securities and Coupons held by them shall not be
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delayed longer than required by then applicable mandatory rules or policies of
any securities exchange upon which the Subordinated Securities are listed. The
Company agrees to reimburse the Trustee for any costs or expenses thereafter
reasonably and properly incurred and to compensate the Trustee for any services
thereafter rendered by the Trustee in connection with this Subordinated
Indenture or the Subordinated Securities of such series.
(B) The following provisions shall apply to the
Subordinated Securities of each series unless specifically otherwise provided in
a Board Resolution, Officer's Certificate or indenture supplemental hereto
provided pursuant to Section 2.3. In addition to discharge of the Subordinated
Indenture pursuant to the next preceding paragraph, in the case of any series of
Subordinated Securities the exact amounts (including the currency of payment) of
principal of and interest due on which can be determined at the time of making
the deposit referred to in clause (a) below, the Company shall be deemed to have
paid and discharged the entire indebtedness on all the Subordinated Securities
of such a series and the Coupons appertaining thereto on the date of the deposit
referred to in subparagraph (a) below, and the provisions of this Subordinated
Indenture with respect to the Subordinated Securities of such series and Coupons
appertaining thereto shall no longer be in effect (except as to (i) rights of
registration of transfer and exchange of Subordinated Securities of such series
and of Coupons appertaining thereto and the Company's right of optional
redemption, if any, (ii) substitution of mutilated, defaced, destroyed, lost or
stolen Subordinated Securities or Coupons, (iii) rights of Holders of
Subordinated Securities and Coupons appertaining thereto to receive payments of
principal thereof and interest thereon, upon the original stated due dates
therefor (but not upon acceleration), and remaining rights of the Holders to
receive mandatory sinking fund payments, if any, (iv) any optional redemption
rights of such series of Subordinated Securities to the extent to be exercised
to make such call for redemption within one year, (v) the rights, obligations,
duties and immunities of the Trustee hereunder, (vi) the rights of the Holders
of Subordinated Securities of such series and Coupons appertaining thereto as
beneficiaries hereof with respect to the property so deposited with the Trustee
payable to all or any of them and (vii) the obligations of the Company under
Section 3.2 and the Trustee, at the expense of the Company, shall at the
Company's request, execute proper instruments acknowledging the same, if
(a) with reference to this provision the Company has
irrevocably deposited or caused to be irrevocably deposited with the
Trustee as trust funds in trust, specifically pledged as security
for, and dedicated solely to, the benefit of the Holders of the
Subordinated Securities of such series and Coupons appertaining
thereto (i) cash in an amount, or (ii) in the case of any series of
Subordinated
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Securities the payments on which may only be made in Dollars, U.S.
Government Obligations, maturing as to principal and interest at such
times and in such amounts as will insure the availability of cash or
(iii) a combination thereof, sufficient, in the opinion of a
nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the
Trustee, to pay (a) the principal and interest on all Subordinated
Securities of such series and Coupons appertaining thereto on each
date that such principal or interest is due and payable and (b) any
mandatory sinking fund payments on the dates on which such payments
are due and payable in accordance with the terms of the Subordinated
Indenture and the Subordinated Securities of such series;
(b) such deposit will not result in a breach or violation
of, or constitute a default under, any agreement or instrument to
which the Company is a party or by which it is bound;
(c) the Company has delivered to the Trustee an Opinion of
Counsel based on the fact that (x) the Company has received from, or
there has been published by, the IRS a ruling or (y) since the date
hereof, there has been a change in the applicable Federal income tax
law, in either case to the effect that, and such opinion shall
confirm that, the Holders of the Subordinated Securities of such
series and Coupons appertaining thereto will not recognize income,
gain or loss for United States Federal income tax purposes as a
result of such deposit, defeasance and discharge and will be subject
to United States Federal income tax on the same amount and in the
same manner and at the same times, as would have been the case if
such deposit, defeasance and discharge had not occurred; and
(d) the Company has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to the defeasance
contemplated by this provision have been complied with.
(C) The Company shall be released from its obligations
under Sections 3.6 and 9.1 and unless otherwise provided for in the Board
Resolution, Officer's Certificate or Subordinated Indenture supplemental hereto
establishing such series of Subordinated Securities, from all covenants and
other obligations referred to in Section 2.3(18) or 2.3(20) with respect to such
series of Subordinated Securities, and any Coupons appertaining thereto,
outstanding on and after the date the conditions set forth below are satisfied
(hereinafter, "covenant defeasance"). For this purpose, such covenant defeasance
means that, with respect to the Outstanding Subordinated Securities of any
series, the Company may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in such
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Section, whether directly or indirectly by reason of any reference elsewhere
herein to such Section or by reason of any reference in such Section to any
other provision herein or in any other document and such omission to comply
shall not constitute an Event of Default under Section 5.1, but the remainder of
this Subordinated Indenture and such Subordinated Securities and Coupons shall
be unaffected thereby. The following shall be the conditions to application of
this subsection (C) of this Section 10.1:
(a) The Company has irrevocably deposited or caused to be
deposited with the Trustee as trust funds in trust for the purpose of
making the following payments, specifically pledged as security for,
and dedicated solely to, the benefit of the holders of the
Subordinated Securities of such series and coupons appertaining
thereto, (i) cash in an amount, or (ii) in the case of any series of
Subordinated Securities the payments on which may only be made in
Dollars, U.S. Government Obligations maturing as to principal and
interest at such times and in such amounts as will insure the
availability of cash or (iii) a combination thereof, sufficient, in
the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to
the Trustee, to pay (a) the principal and interest on all
Subordinated Securities of such series and Coupons appertaining
thereof and (b) any mandatory sinking fund payments on the day on
which such payments are due and payable in accordance with the terms
of the Subordinated Indenture and the Subordinated Securities of such
series;
(b) No Event of Default or event which with notice or lapse
of time or both would become an Event of Default with respect to the
Subordinated Securities shall have occurred and be continuing on the
date of such deposit;
(c) Such covenant defeasance shall not cause the Trustee to
have a conflicting interest as defined in Section 6.9 and for
purposes of the Trust Indenture Act with respect to any securities of
the Company;
(d) Such covenant defeasance shall not result in a breach
or violation of, or constitute a default under, this Subordinated
Indenture or any other agreement or instrument to which the Company
is a party or by which it is bound;
(e) Such covenant defeasance shall not cause any
Subordinated Securities then listed on any registered national
securities exchange under the Exchange Act to be delisted;
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(f) The Company shall have delivered to the Trustee an
Officer's Certificate and Opinion of Counsel to the effect that the
Holders of the Subordinated Securities of such series and Coupons
appertaining thereto will not recognize income, gain or loss for
United States Federal income tax purposes as a result of such
covenant defeasance and will be subject to United States Federal
income tax on the same amounts, in the same manner and at the same
times as would have been the case if such covenant defeasance had not
occurred; and
(g) The Company shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each stating that
all conditions precedent provided for relating to the covenant
defeasance contemplated by this provision have been complied with.
Section 10.2. Application by Trustee of Funds Deposited for Payment of
Subordinated Securities.
Subject to Section 10.4, all moneys deposited with the
Trustee (for other trustee) pursuant to Section 10.1 shall be held in trust and
applied by it to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent), to the Holders of the
particular Subordinated Securities of such series and of Coupons appertaining
thereto for the payment or redemption of which such moneys have been deposited
with the Trustee, of all sums due and to become due thereon for principal and
interest; but such money need not be segregated from other funds except to the
extent required by law.
Section 10.3. Repayment of Moneys Held by Paying Agent.
In connection with the satisfaction and discharge of this
Subordinated Indenture with respect to Subordinated Securities of any series,
all moneys then held by any Paying Agent under the provisions of this
Subordinated Indenture with respect to such series of Subordinated Securities
shall, upon demand of the Company, 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 10.4. Return of Moneys Held by Trustee and Paying Agent Unclaimed for
Two Years.
Any moneys deposited with or paid to the Trustee or any
Paying Agent for the payment of the principal of and any premium and interest on
any Subordinated Security and any series of Coupons attached thereto and not so
applied but remaining unclaimed for two years under applicable law shall be
transferred by the Trustee to the Company in accordance with applicable laws,
and the Holder of such Subordinated Security of such series and of any Coupons
appertaining thereto shall thereafter look only to
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such Persons for any payment which such Holder may be entitled to collect and
all liability of the Trustee and such Paying Agent with respect to such moneys
shall thereupon cease.
Section 10.5. Indemnity for U.S. Government of Obligations.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 10.1 or the principal or interest
received in respect of such obligations.
ARTICLE XI.
MISCELLANEOUS PROVISIONS
Section 11.1. Incorporators, Stockholders, Officers and Directors of Company
Exempt from Individual Liability.
No recourse under or upon any obligation, covenant or
agreement contained in this Subordinated Indenture, or in any Subordinated
Security, or because of any indebtedness evidenced thereby, shall be had against
any incorporator, as such or against any past, present or future stockholder,
officer or director, as such, of the Company or of any successor, either
directly or through the Company or any successor, under any rule of law, statute
or constitutional provision or by the enforcement of any assessment or by any
legal or equitable proceeding or otherwise, all such liability being expressly
waived and released by the acceptance of the Subordinated Securities and the
Coupons, if any, appertaining thereto by the Holders thereof and as part of the
consideration for the issue of the Subordinated Securities and the Coupons
appertaining thereto.
Section 11.2. Provisions of Subordinated Indenture for the Sole Benefit of
Parties and Holders of Subordinated Securities and Coupons.
Nothing in this Subordinated Indenture, in the Subordinated
Securities or in the Coupons appertaining thereto, expressed or implied, shall
give or be construed to give to any person, firm or corporation, other than the
parties thereto and their successors and the Holders of the Subordinated
Securities or Coupons, if any, any legal or equitable right, remedy or claim
under this Subordinated Indenture or under any covenant or provision herein
contained, all such covenants and provisions being for the sole benefit of the
parties hereto and their successors and of the Holders of the Subordinated
Securities or Coupons, if any.
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Section 11.3. Successors and Assigns of Company Bound by Subordinated Indenture.
All the covenants, stipulations, promises and agreements in
this Subordinated Indenture contained by or in behalf of the Company shall bind
its successors and assigns, whether so expressed or not.
Section 11.4. Notices and Demands on Company, Trustee and Holders of
Subordinated Securities and Coupons.
Any notice or demand which by any provision of this
Subordinated Indenture is required or permitted to be given or served by the
Trustee or by the Holders of Subordinated Securities or Coupons, if any, to or
on the Company may be given or served by being deposited postage prepaid,
first-class mail (except as otherwise specifically provided herein) addressed
(until another address of the Company is filed by the Company with the Trustee)
to QuadraMed Corporation, 00 Xxxx Xxx Xxxxxxx Xxxxx Xxxx., Xxx. 0X, Xxxxxxxx, XX
00000, Attention: Secretary. Any notice, direction, request or demand by the
Company or any Holder of Subordinated Securities or Coupons, if any, to or upon
the Trustee shall be deemed to have been sufficiently given or served by being
deposited postage prepaid, first-class mail (except as otherwise specifically
provided herein) addressed (until another address of the Trustee is filed by the
Trustee with the Company) to The Bank of New York, 000 Xxxxxxx xxxxxx, 0XX, Xxx
Xxxx, XX 00000, Attention: Corporate Trust Administration.
Where this Subordinated Indenture provides for notice to
Holders of Registered Subordinated Securities, such notice shall be sufficiently
given (unless otherwise herein expressly provided) if in writing and mailed,
first-class mail, postage prepaid, to each Holder entitled thereto, at his last
address as it appears in the Security Register. In any case where notice to such
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Where this
Subordinated Indenture provides for notice in any manner, such notice may be
waived in writing by the person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
In case, by reason of the suspension of or irregularities
in regular mail service, it shall be impracticable to mail notice to the Company
when such notice is required to the given pursuant to any provision of this
Subordinated Indenture, then any manner of giving such notice as shall be
reasonably satisfactory to the Trustee shall be deemed to be a sufficient giving
of such notice.
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Section 11.5. Officer's Certificates and Opinions of Counsel; Statements to be
Contained Therein.
Upon any application or demand by the Company to the
Trustee to take any action under any of the provisions of this Subordinated
Indenture, the Company shall furnish to the Trustee an Officer's Certificate
stating that all conditions precedent provided for in this Subordinated
Indenture relating to the proposed action have been complied with and an Opinion
of Counsel stating that in the opinion of such counsel all such conditions
precedent have been complied with, except that in the case of any such
application or demand as to which the furnishing of such documents is
specifically required by any provision of this Subordinated Indenture relating
to such particular application or demand, no additional certificate or opinion
need be furnished.
Each certificate or opinion provided for in this
Subordinated Indenture and delivered to the Trustee with respect to compliance
with a condition or covenant provided for in this Subordinated Indenture shall
include (a) a statement that the person making such certificate or opinion has
read such covenant or condition, (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 such person, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to whether or not such
covenant or condition has been complied with and (d) a statement as to whether
or not, in the opinion of such person, such condition or covenant has been
complied with.
Any certificate, statement or opinion of an officer of the
Company may be based, insofar as it relates to legal matters, upon a certificate
or opinion of or representations by counsel, unless such officer knows that the
certificate or opinion or representations with respect to the matters upon which
his certificate, statement or opinion may be based as aforesaid are erroneous,
or in the exercise of reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of counsel may be based, insofar as it
relates to factual matters or information with respect to which is in the
possession of the Company, upon the certificate, statement or opinion of or
representations by an officer of officers of the Company, unless such counsel
knows that the certificate, statement or opinion or representations with respect
to the matters upon which his certificate, statement or opinion may be based as
aforesaid are erroneous, or in the exercise of reasonable care should know that
the same are erroneous.
Any certificate, statement or opinion of an officer of the
Company or of counsel may be based, insofar as it relates to accounting matters,
upon a certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Company, unless such officer or counsel, as the
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case may be, knows that the certificate or opinion of or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of
public accountants filed with and directed to the Trustee shall contain a
statement that such firm is independent.
Section 11.6. Payments Due on Saturdays, Sundays and Holidays.
If the date of Maturity of interest on or principal of the
Subordinated Securities of any series or any Coupons appertaining thereto or the
date fixed for redemption or repayment of any such Subordinated Security or
Coupon shall not be a Business Day, then payment of interest or principal need
not be made on such date, but may be made on the next succeeding Business Day
with the same force and effect as if made on the date of Maturity or the date
fixed for redemption, and no interest shall accrue for the period after such
date.
Section 11.7. Conflict of Any Provision of Subordinated Indenture with Trust
Indenture Act.
If and to the extent that any provision of this
Subordinated Indenture limits, qualifies or conflicts with duties imposed by, or
with another provision (an "incorporated provision") included in this
Subordinated Indenture by operation of Sections 310 to 318, inclusive, of the
Trust Indenture Act, such imposed duties or incorporated provision shall
control.
Section 11.8. New York Law to Govern.
THIS SUBORDINATED INDENTURE AND EACH SUBORDINATED SECURITY
AND COUPON SHALL BE DEEMED TO BE A CONTRACT UNDER THE LAWS OF THE STATE OF NEW
YORK, AND FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF
SUCH STATE, WITHOUT REGARD TO THE CONFLICTS OF LAW PRINCIPLES THEREOF.
Section 11.9. Counterparts.
This Subordinated Indenture may be executed in any number
of counterparts, each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
Section 11.10. Effect of Headings.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
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Section 11.11. Subordinated Securities in a Foreign Currency or in ECU.
Unless otherwise specified in an Officer's Certificate
delivered pursuant to Section 2.3 of this Subordinated Indenture with respect to
a particular series of Subordinated Securities, whenever for purposes of this
Subordinated Indenture any action may be taken by the Holders of a specified
percentage in aggregate principal amount of Subordinated Securities of all
series or all series affected by a particular action at the time Outstanding
and, at such time, there are Outstanding Subordinated Securities of any series
which are denominated in a coin or currency other than Dollars (including ECUs),
then the principal amount of Subordinated Securities of such series which shall
be deemed to be Outstanding for the purpose of taking such action shall be that
amount of Dollars that could be obtained for such amount at the Market Exchange
Rate. For purposes of this Section 11.11, Market Exchange Rate shall mean the
noon Dollar buying rate in The New York City for cable transfers of that
currency as published by the Federal Reserve Bank of New York; provided, in the
case of ECUs, Market Exchange Rate shall mean the rate of exchange determined by
the Commission of the European Communities (or any successor thereto) as
published in the Official Journal of the European Communities (such publication
or any successor publication, the "Journal"). If such Market Exchange Rate is
not available for any reason with respect to such currency, the Trustee shall be
provided with such quotation of the Federal Reserve Bank of New York or, in the
case of ECUs, the rate of exchange as published in the Journal, as of the most
recent available date, or quotations or, in the case of ECUs, rates of exchange
from one or more major banks in The City of New York or in the country of issue
of the currency in question, which for purposes of the ECU shall be Brussels,
Belgium, or such other quotations or, in the case of ECU, rates of exchange as
the Trustee shall deem appropriate. The provisions of this paragraph shall apply
in determining the equivalent principal amount in respect of Subordinated
Securities of a series denominated in a currency other than Dollars in
connection with any action taken by Holders of Subordinated Securities pursuant
to the terms of this Subordinated Indenture.
Section 11.12. Judgment Currency.
The Company agrees, to the fullest extent that it may
effectively do so under applicable law, that (a) if for the purpose of obtaining
judgment in any court it is necessary to convert the sum due in respect of the
principal of or interest on the Subordinated Securities of any series (the
"Required Currency") into a currency in which a judgment will be rendered (the
"Judgment Currency"), the rate of exchange used shall be the rate at which in
accordance with normal banking procedures the Trustee could purchase in The City
of New York the Required Currency with the Judgment Currency on the day on which
final unappealable judgment is entered, unless such day is not a New
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York Banking Day, then, to the extent permitted by applicable law, the rate of
exchange used shall be the rate at which in accordance with normal banking
procedures the Trustee could purchase in The City of New York the Required
Currency with the Judgment Currency on the New York Banking Day preceding the
day on which final unappealable judgment is entered and (b) its obligations
under this Subordinated Indenture to make payments in the Required Currency (i)
shall not be discharged or satisfied by any tender, or any recovery pursuant to
any judgment (whether or not entered in accordance with subsection (a)), in any
currency other than the Required Currency, except to the extent that such tender
or recovery shall result in the actual receipt, by the payee, of the full amount
of the Required Currency expressed to be payable in respect of such payments,
(ii) shall be enforceable as an alternative or additional cause of action for
the purpose of recovering in the Required Currency the amount, if any, by which
such actual receipt shall fall short of the full amount of the Required Currency
so expressed to be payable and (iii) shall not be affected by judgment being
obtained for any other sum due under this Subordinated Indenture. For purposes
of the foregoing, "New York Banking Day" means any day except a Saturday, Sunday
or a legal holiday in The City of New York or a day on which banking
institutions in The City of New York are authorized or required by law or
executive order to close.
ARTICLE XII.
REDEMPTION OF SUBORDINATED SECURITIES AND SINKING FUNDS
Section 12.1. Applicability of Article.
The provisions of this Article shall be applicable to the
Subordinated Securities of any series which are redeemable before their Maturity
or to any sinking fund for the retirement of Subordinated Securities of a series
except as otherwise specified as contemplated by Section 2.3 for Subordinated
Securities of such series.
Section 12.2. Notice of Redemption; Partial Redemptions.
Notice of redemption to the Holders of Registered
Subordinated Securities of any series to be redeemed as a whole or in part at
the option of the Company shall be given by mailing notice of such redemption by
first class mail, postage prepaid, at least 30 days and not more than 60 days
prior to the date fixed for redemption to such Holders of Subordinated
Securities of such series at their last addresses as they shall appear upon the
registry books. Notice of redemption to the Holders of Unregistered Subordinated
Securities to be redeemed as a whole or in part, who have filed their names and
addresses with the Trustee pursuant to Section 313(c)(2) of the Trust Indenture
Act shall be given by mailing notice of such redemption, by first class mail,
postage prepaid, at least 30 days and not more than 60 prior to the date fixed
for redemption, to such Holders at
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such addresses as were so furnished to the Trustee (and, in the case of any such
notice given by the Company, the Trustee shall make such information available
to the Company for such purpose). Notice of redemption to all other Holders of
Unregistered Subordinated Securities shall be published in an Authorized
Newspaper in the Borough of Manhattan, The City of New York and in an Authorized
Newspaper in London (and, if required by Section 3.9, in an Authorized Newspaper
in Luxembourg), in each case, once in each of two successive calendar weeks, the
first publication to be not less than 30 nor more than 60 days prior to the date
fixed for redemption. Any notice which is mailed in the manner herein provided
shall be conclusively presumed to have been duly given, whether or not the
Holder receives the notice. Failure to give notice by mail, or any defect in the
notice to the Holder of any Subordinated Security of a series designated for
redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of such Subordinated Security of such series.
The notice of redemption shall include a description of the
Subordinated Securities, including CUSIP number, the date fixed for redemption,
the redemption price, the place or places of payment, that payment will be made
upon presentation and surrender of such Subordinated Securities and, in the case
of Subordinated Securities with Coupons attached thereto, of all Coupons
appertaining thereto maturing after the date fixed for redemption, that such
redemption is pursuant to the mandatory or optional sinking fund, or both, if
such be the case, that interest accrued to the date fixed for redemption will be
paid as specified in such notice and that on and after said date interest
thereon or on the portions thereof to be redeemed will cease to accrue. In case
any Subordinated Security of a series is to be redeemed in part only the notice
of redemption shall state the portion of the principal amount thereof to be
redeemed and shall state that on and after the date fixed for redemption, upon
surrender of such Subordinated Security, a new Subordinated Security or
Subordinated Securities of such series in principal amount equal to the
unredeemed portion thereof will be issued.
The notice of redemption of Subordinated Securities of any
series to be redeemed at the option of the Company shall be given by the Company
or, at the Company's request, by the Trustee in the name and at the expense of
the Company.
On or before the redemption date specified in the notice of
redemption given as provided in this Section, the Company will deposit with the
Trustee or with one or more Paying Agents (or, if the Company is acting as its
own Paying Agent, set aside, segregate and holder in trust as provided in
Section 3.4) an amount of money sufficient to redeem on the redemption date all
the Subordinated Securities of such series so called for redemption at the
appropriate redemption price, together with accrued interest to the date fixed
for redemption. The Company will deliver to the Trustee at least 70 days prior
to the date
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fixed for redemption, or such shorter period as shall be acceptable to the
Trustee, an Officer's Certificate stating the aggregate principal amount of
Subordinated Securities to be redeemed, the redemption price and the date fixed
for redemption. In case of a redemption at the election of the Company prior to
the expiration of any restriction on such redemption, the Company shall deliver
to the Trustee, prior to the giving of any notice of redemption to Holders
pursuant to this Section, an Officer's Certificate stating that such restriction
has been complied with.
If less than all the Subordinated Securities of a series
are to be redeemed, the Trustee shall select by lot, pro rata or in such manner
as it shall deemed appropriate and fair, in its sole discretion, Subordinated
Securities of such series to be redeemed in whole or in part. Subordinated
Securities may be redeemed in part in multiples equal to the minimum authorized
denomination for Subordinated Securities of such series or any multiple thereof.
The Trustee shall promptly notify the Company in writing of the Subordinated
Securities of such series selected for redemption and, in the case of any
Subordinated Securities of such series selected for partial redemption, the
principal amount thereof to be redeemed. For all purposes of this Subordinated
Indenture, unless the context otherwise requires, all provisions relating to the
redemption of Subordinated Securities of any series shall relate, in the case of
any Subordinated Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Subordinated Security which has been or
is to be redeemed.
Section 12.3. Payment of Subordinated Securities Called for Redemption.
If notice of redemption has been given as above provided,
the Subordinated Securities or portions of Subordinated Securities specified in
such notice shall become due and payable on the date and at the place stated in
such notice at the applicable redemption price, together with interest accrued
to the date fixed for redemption, and on and after said date (unless the Company
shall default in the payment of such Subordinated Securities at the redemption
price, together with interest accrued to said date) interest on the Subordinated
Securities or portions of Subordinated Securities so called for redemption shall
cease to accrue, and the unmatured Coupons, if any, appertaining thereto shall
be void, and, except as provided in Sections 6.5 and 10.4, such Subordinated
Securities shall cease from and after the date fixed for redemption to be
entitled to any benefit or security under this Subordinated Indenture, and the
Holders thereof shall have no right in respect of such Subordinated Securities
except the right to receive the redemption price thereof and unpaid interest to
the date fixed for redemption. On presentation and surrender of such
Subordinated Securities at a place of payment specified in said notice, together
with all Coupons, if any, appertaining thereto maturing after the date fixed for
redemption, said Subordinated
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Securities or the specified portions thereof shall be paid and redeemed by the
Company at the applicable redemption price, together with interest accrued
thereon to the date fixed for redemption; provided, that payment of interest
becoming due on or prior to the date fixed for redemption shall be payable in
the case of Subordinated Securities with Coupons attached thereto, to the
Holders of the Coupons for such interest upon surrender thereof, and in the case
of Registered Subordinated Securities, to the Holder of such Registered
Subordinated Securities registered as such on the relevant record date, subject
to the terms and provisions of Section 2.3 and 2.7 hereof.
If the Company fails to deposit the funds for redemption
with the Trustee and any Subordinated Security called for redemption shall not
be so paid upon surrender thereof for redemption, the principal shall, until
paid or duly provided for, bear interest from the date fixed for redemption at
the rate of interest or Yield to Maturity (in the case of an Original Issue
Discount Subordinated Security) borne by such Subordinated Security.
If any Subordinated Security with Coupons attached thereto
is surrendered for redemption and is not accompanied by all appurtenant Coupons
maturing after the date fixed for redemption, the amount of Subordinated
Securities fixed for redemption shall be reduced by the amount of missing
Coupons; provided, however, that the surrender of such missing Coupon or Coupons
may be waived by the Company and the Trustee, if there be furnished to each of
them such security or indemnity as they may require to save each of them
harmless.
Upon presentation of any Subordinated Security redeemed in
part only, the Company shall execute and the Trustee shall authenticate and
deliver to or on the order of the Holder thereof, at the expense of the Company,
a new Subordinated Security or Subordinated Securities of such series, of
authorized denominations, in principal amount equal to the unredeemed portion of
the Subordinated Security so presented.
Section 12.4. Exclusion of Certain Subordinated Securities from Eligibility for
Selection for Redemption.
Subordinated Securities shall be excluded from eligibility
for selection for redemption if they are identified by registration and
certificate number in an Officer's Certificate delivered to the Trustee at least
40 days prior to the last date on which notice of redemption may be given as
being owned of record and beneficially by, and not pledged or hypothecated by,
either (a) the Company or (b) an entity specifically identified in such written
statement as directly or indirectly controlling or controlled by or under direct
or indirect common control with the Company.
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Section 12.5. Mandatory and Optional Sinking Funds.
The minimum amount of any sinking fund payment provided for
by the terms of the Subordinated Securities of any series is herein referred to
as a "mandatory sinking fund payment," and any payment in excess of such minimum
amount provided for by the terms of the Subordinated Securities of any series is
herein referred to as an "optional sinking fund payment." The date on which a
sinking fund payment is to be made is herein referred to as the "sinking fund
payment date."
In lieu of making all or any part of any mandatory sinking
fund payment with respect to any series of Subordinated Securities in cash, the
Company may at its option (a) deliver to the Trustee Subordinated Securities of
such series theretofore purchased or otherwise acquired (except upon redemption
pursuant to the mandatory sinking fund) by the Company or receive credit for
Subordinated Securities of such series (not previously so credited) theretofore
purchased or otherwise acquired (except as aforesaid) by the Company and
delivered to the Trustee for cancellation pursuant to Section 2.10, (b) receive
credit for optional sinking fund payments (not previously so credited) made
pursuant to this Section, or (c) receive credit for Subordinated Securities of
such series (not previously so credited) redeemed by the Company through any
optional redemption provision contained in the terms of such series.
Subordinated Securities so delivered or credited shall be received or credited
by the Trustee at the sinking fund redemption price specified in such
Subordinated Securities.
On or before the 60th day next preceding each sinking fund
payment date for any series, the Company will deliver to the Trustee an
Officer's Certificate (which need not contain the statements required by Section
11.5) (a) specifying the portion of the mandatory sinking fund payment to be
satisfied by payment of cash and the portion to be satisfied by credit of
Subordinated Securities of such series and the basis for such credit, (b)
stating that none of the Subordinated Securities of such series has theretofore
been so credited, (c) stating that no defaults in the payment of interest or
Events of Default with respect to such series have occurred (which have not been
waived or cured) and are continuing and (d) stating whether or not the Company
intends to exercise its right to make an optional sinking fund payment with
respect to such series and, if so, specifying the amount of such optional
sinking fund payment which the Company intends to pay on or before the next
succeeding sinking fund payment date. Any Subordinated Securities of such series
to be credited and required to be delivered to the Trustee in order for the
Company to be entitled to credit therefor as aforesaid which have not
theretofore been delivered to the Trustee shall be delivered for cancellation
pursuant to Section 2.10 to the Trustee with such Officer's Certificate (or
reasonably promptly thereafter if acceptable to the Trustee). Such Officer's
Certificate shall be irrevocable and upon its receipt by the
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Trustee the Company shall become unconditionally obligated to make all the cash
payments or payments therein referred to, if any, on or before the next
succeeding sinking fund payment date. Failure of the Company, on or before any
such 60th day, to deliver such Officer's Certificate and Subordinated Securities
specified in this paragraph, if any, shall not constitute a default but shall
constitute, on and as of such date, the irrevocable election of the Company (i)
that the mandatory sinking fund payment for such series due on the next
succeeding sinking fund payment date shall be paid entirely in cash without the
option to deliver or credit Subordinated Securities of such series in respect
thereof and (ii) that the Company will make no optional sinking fund payment
with respect to such series as provided in this Section.
If the sinking fund payment or payments (mandatory or
optional or both) to be made in cash on the next succeeding sinking fund payment
date plus any unused balance of any preceding sinking fund payments made in cash
shall exceed $50,000 (or the equivalent thereof in any Foreign Currency or ECU)
or a lesser sum in Dollars (or the equivalent thereof in any Foreign Currency or
ECU) if the Company shall so request with respect to the Subordinated Securities
of any particular series, such cash shall be applied on the next succeeding
sinking fund payment date to the redemption of Subordinated Securities of such
series at the sinking fund redemption price together with accrued interest to
the date fixed for redemption. If such amount shall be $50,000 (or the
equivalent thereof in any Foreign Currency or ECU) or less and the Company makes
no such request then it shall be carried over until a sum in excess of $50,000
(or the equivalent thereof in any Foreign Currency or ECU) is available. The
Trustee shall select, in the manner provided in Section 12.2, for redemption on
such sinking fund payment date a sufficient principal amount of Subordinated
Securities of such series to absorb said cash, as nearly as may be, and shall
(if requested in writing by the Company) inform the Company of the serial
numbers of the Subordinated Securities of such series (or portions thereof) so
selected. Subordinated Securities shall be excluded from eligibility for
redemption under this Section if they are identified by registration and
certificate number in an Officer's Certificate delivered to the Trustee at least
60 days prior to the sinking fund payment date as being owned of record and
beneficially by, and not pledged or hypothecated by, either (a) the Company or
(b) an entity specifically identified in such Officer's Certificate as directly
or indirectly controlling or controlled by or under direct or indirect common
control with the Company. The Trustee, in the name and at the expense of the
Company (or the Company, if it shall so request the Trustee in writing) shall
cause notice of redemption of the Subordinated Securities of such series to be
given in substantially the manner provided in Section 12.2 (and with the effect
provided in Section 12.3) for the redemption of Subordinated Securities of such
series in part at the option of the Company. The amount of any sinking fund
payments not so applied or allocated to the
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redemption of Subordinated Securities of such series shall be added to the next
cash sinking fund payment for such series and, together with such payment, shall
be applied in accordance with the provisions of this Section. Any and all
sinking fund moneys held on the Stated Maturity date of the Subordinated
Securities of any particular series (or earlier, if such maturity is
accelerated), which are not held for the payment or redemption of particular
Subordinated Securities of such series shall be applied, together with other
moneys, if necessary, sufficient for the purpose, to the payment of the
principal of, and interest on, the Subordinated Securities of such series at
Maturity.
On or before each sinking fund payment date, the Company
shall pay to the Trustee in cash or shall otherwise provide for the payment of
all interest accrued to the date fixed for redemption on Subordinated Securities
to be redeemed on the next following sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any
Subordinated Securities of a series with sinking fund moneys or give any notice
of redemption of Subordinated Securities for such series by operation of the
sinking fund during the continuance of a default in payment of interest on such
Subordinated Securities or of any Event of Default except that, where the giving
of notice of redemption of any Subordinated Securities shall theretofore have
been made, the Trustee shall redeem or cause to be redeemed such Subordinated
Securities, provided that it shall have received from the Company a sum
sufficient for such redemption. Except as aforesaid, any moneys in the sinking
fund for such series at the time when any such default or Event of Default shall
occur, and any moneys thereafter paid into the sinking fund, shall, during the
continuance of such default or Event of Default be deemed to have been collected
under Article V and held for the payment of all such Subordinated Securities. In
case such Event of Default shall have been waived as provided in Section 5.14 or
the default cured on or before the sixtieth day preceding the sinking fund
payment date in any year, such moneys shall thereafter be applied on the next
succeeding sinking fund payment date in accordance with this Section to the
redemption of such Subordinated Securities.
[Signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this
Subordinated Indenture to be duly executed and attested as of the date first
written above.
QUADRAMED CORPORATION
By: /s/ Xxxxx Xxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxx
Title: Executive Vice President
and General Counsel
Attest:
By:
-----------------------------
THE BANK OF NEW YORK
as Trustee
By: /s/ Xxxx Xxxx X. Xxxxxxx
-------------------------------------
Name: Xxxx Xxxx X. Xxxxxxx
Title: Assistant Vice President
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STATE OF CALIFORNIA )
: ss.:
COUNTY OF MARIN )
On the 30th day of April, 1998, before me personally came
Xxxxx Xxxxxxx, to me known, who, being by me duly sworn, did depose and say that
he is Executive Vice President and General Counsel of QuadraMed Corporation, one
of the corporations described in and which executed the foregoing instrument;
that he knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation; and that he signed his name thereto by
like authority.
[NOTARIAL SEAL] /s/ Xxxxxx Xxxxxxx
----------------------------------------
Notary Public
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