EXHIBIT 4.19
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SUBORDINATED INDENTURE
Between
PROVIDIAN FINANCIAL CORPORATION
and
THE BANK OF NEW YORK, AS TRUSTEE
Dated as of __________ __, 1998
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TABLE OF CONTENTS
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PAGE
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ARTICLE 1 DEFINITIONS...............................................................................1
Section 1.1. Certain Terms Defined................................................................1
ARTICLE 2 ISSUE, DESCRIPTION, EXECUTION, REGISTRATION,
TRANSFER AND EXCHANGE OF SECURITIES.......................................................7
Section 2.1. Amount, Series, Execution, Authentication and Delivery of
Subordinated Securities..............................................................7
Section 2.2. Form of Subordinated Securities and Trustee's Certificate of
Authentication..................................................................... 12
Section 2.3. Denominations; Payment of Interest on Fully Registered Subordinated
Securities......................................................................... 13
Section 2.4. Execution of Subordinated Securities............................................... 15
Section 2.5. Registration, Transfer and Exchange of Subordinated Securities..................... 16
Section 2.6. Temporary Subordinated Securities.................................................. 17
Section 2.7. Mutilated, Destroyed, Lost or Stolen Subordinated Securities....................... 17
Section 2.8. Cancellation and Destruction of Surrendered Subordinated Securities................ 18
Section 2.9. Subordinated Securities in Global Form; Depositories............................... 18
ARTICLE 3 REDEMPTION OF SECURITIES................................................................ 20
Section 3.1. Redemption of Subordinated Securities.............................................. 20
Section 3.2. Notice of Redemption............................................................... 20
Section 3.3. Selection of Subordinated Securities for Redemption................................ 21
Section 3.4. Partial Redemption of Registered Subordinated Security............................. 21
Section 3.5. Effect of Redemption............................................................... 21
ARTICLE 4 PARTICULAR COVENANTS OF THE CORPORATION................................................. 22
Section 4.1. Payment of Principal of and Interest on Subordinated Securities.................... 22
Section 4.2. Corporate Existence of the Corporation; Consolidation, Merger, Sale
or Transfer........................................................................ 22
Section 4.3. Limitations of Dividends........................................................... 23
Section 4.4. Maintenance of Offices or Agencies for Transfer, Registration,
Exchange and Payment of Subordinated Securities.................................... 23
Section 4.5. Appointment to Fill a Vacancy in the Office of Trustee............................. 24
Section 4.6. Duties of Paying Agent............................................................. 24
Section 4.7. Notice of Default.................................................................. 25
ARTICLE 5 SECURITYHOLDERS' LISTS AND REPORTS BY THE
CORPORATION AND THE TRUSTEE............................................................. 25
Section 5.1. Corporation to Furnish Trustee Information As to the Names and
Addresses of Subordinated Securityholders.......................................... 25
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Section 5.2. Preservation of Information; Communication to Subordinated
Securityholders.................................................................... 26
Section 5.3. Reports by Corporation............................................................. 27
Section 5.4. Reports by Trustee................................................................. 28
ARTICLE 6 REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON
EVENT OF DEFAULT........................................................................ 30
Section 6.1. Events of Default; Acceleration, Waiver of Default and Restoration of
Position and Rights................................................................ 30
Section 6.2. Covenant of Corporation to Pay to Trustee Whole Amount Due on
Subordinated Securities on Default in Payment of Interest or Principal............. 32
Section 6.3. Trustee May File Proofs of Claim................................................... 33
Section 6.4. Trustee May Enforce Claims Without Possession of Subordinated
Securities......................................................................... 34
Section 6.5. Application of Moneys Collected By Trustee......................................... 34
Section 6.6. Limitation on Suits By Holders of Subordinated Securities.......................... 35
Section 6.7. Rights and Remedies Cumulative..................................................... 36
Section 6.8. Delay or Omission Not Waiver....................................................... 36
Section 6.9. Control By Holders; Waiver of Past Defaults........................................ 36
Section 6.10. Trustee to Give Notice of Defaults Known to It, But May Withhold in
Certain Circumstances.............................................................. 37
Section 6.11. Requirement of an Undertaking to Pay Costs in Certain Suits Under
this Subordinated Indenture or Against the Trustee................................. 37
ARTICLE 7 CONCERNING THE TRUSTEE.................................................................. 38
Section 7.1. Certain Duties and Responsibilities of Trustee..................................... 38
Section 7.2. Certain Rights of Trustee.......................................................... 39
Section 7.3. Trustee Not Responsible for Recitals or Application of Proceeds.................... 40
Section 7.4. Trustee May Own Subordinated Securities............................................ 40
Section 7.5. Moneys Received by Trustee to be Held in Trust..................................... 41
Section 7.6. Trustee Entitled to Compensation, Reimbursement and Indemnity...................... 41
Section 7.7. Right of Trustee to Rely on Officer's Certificate Where No Other
Evidence Specifically Prescribed................................................... 41
Section 7.8. Disqualification; Conflicting Interest............................................. 41
Section 7.9. Requirements for Eligibility of Trustee............................................ 48
Section 7.10. Resignation and Removal of Trustee; Appointment of Successor....................... 49
Section 7.11. Acceptance of Appointment by Successor Trustee..................................... 50
Section 7.12. Successor to Trustee by Merger, Consolidation or Succession to
Business........................................................................... 51
Section 7.13. Preferential Collection of Claims Against Corporation.............................. 51
ARTICLE 8 CONCERNING THE SECURITYHOLDERS.......................................................... 56
Section 8.1. Evidence of Action by Subordinated Securityholders................................. 56
Section 8.2. Proof of Execution of Instruments and of Holding of Subordinated
Securities......................................................................... 56
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Section 8.3. Who May be Deemed Owners of Subordinated Securities................................ 57
Section 8.4. Subordinated Securities Owned by the Corporation or Controlled or
Controlling Persons Disregarded for Certain Purposes............................... 57
Section 8.5. Instruments Executed by Subordinated Securityholders Bind Future
Holders............................................................................ 58
ARTICLE 9 SECURITYHOLDERS' MEETINGS............................................................... 58
Section 9.1. Purposes for Which Meetings May be Called.......................................... 58
Section 9.2. Manner of Calling Meetings......................................................... 59
Section 9.3. Call of Meeting by the Corporation or Subordinated Securityholders................. 59
Section 9.4. Who May Attend and Vote at Meetings................................................ 59
Section 9.5. Regulations May be Made by Trustee; Conduct of the Meeting;
Voting Rights - Adjournment........................................................ 59
Section 9.6. Manner of Voting at Meetings and Record to be Kept................................. 60
Section 9.7. Exercise of Rights of Trustee and Subordinated Securityholders Not to
be Hindered or Delayed............................................................. 61
ARTICLE 10 SUPPLEMENTAL SUBORDINATED INDENTURES.................................................... 61
Section 10.1. Purposes for Which Supplemental Subordinated Indentures May be
Entered Into Without Consent of Subordinated Securityholders....................... 61
Section 10.2. Modification of Subordinated Indenture with Consent of Holders of
Subordinated Securities............................................................ 62
Section 10.3. Effect of Supplemental Subordinated Indentures..................................... 64
Section 10.4. Subordinated Securities May Bear Notation of Changes by
Supplemental Subordinated Indentures............................................... 64
ARTICLE 11 DISCHARGE; DEFEASANCE................................................................... 65
Section 11.1. Discharge of Subordinated Indenture................................................ 65
Section 11.2. Discharge of Liability on Subordinated Securities.................................. 65
Section 11.3. Discharge of Certain Covenants and Other Obligations............................... 65
Section 11.4. Discharge of Certain Obligations Upon Deposit of Money or
Subordinated Securities with Trustee............................................... 66
Section 11.5. Unclaimed Moneys................................................................... 67
ARTICLE 12 IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS
AND DIRECTORS........................................................................... 67
Section 12.1. Incorporators, Stockholders, Officers and Directors of Corporation
Exempt From Individual Liability................................................... 67
ARTICLE 13 MISCELLANEOUS PROVISIONS................................................................ 68
Section 13.1. Successors and Assigns of the Corporation Bound by Subordinated
Indenture.......................................................................... 68
Section 13.2. Notices; Effectiveness............................................................. 68
Section 13.3. Compliance Certificates and Opinions............................................... 69
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Section 13.4. Days on Which Payment to be Made, Notice Given or Other Action
Taken.............................................................................. 70
Section 13.5. Provisions Required by Trust Indenture Act of 1939 to Control...................... 71
Section 13.6. Governing Law...................................................................... 71
Section 13.7. Provisions of this Subordinated Indenture and Subordinated Securities
for the Sole Benefit of the Parties and the Subordinated
Securityholders.................................................................... 71
Section 13.8. Subordinated Indenture May be Executed in Counterparts............................. 71
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TABLE SHOWING REFLECTION IN THIS SUBORDINATED INDENTURE OF
CERTAIN PROVISIONS OF THE TRUST INDENTURE ACT OF 19391
Section Section
of Act of Subordinated Indenture
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310(a)(1) .................................... 7.9
310(a)(2) .................................... 7.9
310(a)(3) .................................... Inapplicable
310(a)(4) .................................... Inapplicable
310(a)(5) .................................... 7.9
310(b) .................................... 7.8, 7.10
310(c) .................................... Inapplicable
311(a) .................................... 7.13(a), 7.13(c)
311(b) .................................... 7.13(b), 7.13(c)
311(c) .................................... Inapplicable
312(a) .................................... 5.1, 5.2(a)
312(b) .................................... 5.2(b)
312(c) .................................... 5.2(c)
313(a) .................................... 5.4(a)
313(b)(1) .................................... Inapplicable
313(b)(2) .................................... 5.4(b)
313(c) .................................... 5.4(c)
313(d) .................................... 5.4(d)
314(a)(1) .................................... 5.3(a)
314(a)(2) .................................... 5.3(b)
314(a)(3) .................................... 5.3(c)
314(a)(4) .................................... 5.3(d)
314(b) .................................... Inapplicable
314(c) .................................... 13.3
314(d) .................................... Inapplicable
314(e) .................................... 13.3
314(f) .................................... Omitted
315(a) .................................... 7.1
315(b) .................................... 6.10
315(c) .................................... 7.1
315(d) .................................... 7.1
315(e) .................................... 6.11
316(a)(1) .................................... 6.9
316(a)(2) .................................... Omitted
316(b) .................................... 6.6
316(c) .................................... 6.9
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1 This Table is not part of the Subordinated Indenture.
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317(a) .................................... 6.2, 6.3
317(b) .................................... 4.8
318(a) .................................... 00.0
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XXXXXXXXXXXX XXXXXXXXX
THIS SUBORDINATED INDENTURE, dated as of __________ __, 1998, between
PROVIDIAN FINANCIAL CORPORATION, a Delaware corporation (the "Corporation"), and
THE BANK OF NEW YORK, a New York banking corporation (the "Trustee"),
W I T N E S S E T H :
WHEREAS, the Corporation has duly authorized the issuance, sale,
execution and delivery, from time to time, of its unsecured evidences of
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 Corporation 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 Corporation and authenticated and delivered by
the Trustee as in this Subordinated Indenture provided, the valid, binding and
legal obligations of the Corporation, 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;
NOW, THEREFORE, THIS SUBORDINATED INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which the
Subordinated Securities are to be issued, authenticated and delivered, and in
consideration of the premises and of the purchase and acceptance of the
Subordinated Securities by the Holders thereof, the Corporation covenants and
agrees with the Trustee, for the equal and proportionate benefit of the
respective Holders from time to time of the Subordinated Securities or of any
Series thereof, as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.1. CERTAIN TERMS DEFINED. For all purposes of this
Subordinated Indenture, except as otherwise expressly provided or unless the
context otherwise requires:
(a) the terms defined in this Article One have the meanings
assigned to them in this Article One, and include the plural as well as
the singular;
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(b) all other terms used herein which are defined in the Trust
Indenture Act of 1939, either directly or by reference therein, have
the meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein shall
have the meanings assigned to them and all computations herein provided
for shall be made, in accordance with generally accepted accounting
principles, and the term "generally accepted accounting principles"
shall mean such principles as they exist at the date of applicability
thereof; and
(d) 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.
BOARD OF DIRECTORS
The term "Board of Directors" shall mean the Board of Directors of the
Corporation, or any duly authorized committee of such Board of Directors.
BUSINESS DAY
The term "Business Day" shall mean any day which is not a Saturday or
Sunday or which in the City and County of San Francisco or in The City of New
York is neither a legal holiday nor a day on which banking institutions are
authorized by law or regulation to close.
CERTIFIED RESOLUTION
The term "Certified Resolution" shall mean a resolution of the Board of
Directors of the Corporation certified by the Secretary or by an Assistant
Secretary of the Corporation to have been duly adopted by the Board of Directors
of the Corporation and to be in full force and effect on the date of such
certification.
COMMISSION
The term "Commission" shall mean the Securities and Exchange
Commission, as from time to time constituted, created under the Securities
Exchange Act of 1934, as amended, or if at any time after the execution of this
Subordinated Indenture such Commission is not existing and performing the duties
theretofore assigned to it under the Trust Indenture Act of 1939, then the body
performing such duties at such time.
CORPORATION
The term "Corporation" shall mean Providian Financial Corporation, a
Delaware corporation, until a successor entity shall have become such pursuant
to the applicable provisions hereof, and thereafter "Corporation" shall mean
such successor entity.
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DEPOSITORY
The term "Depository" shall mean, with respect to the Subordinated
Securities of any Series issuable or issued in whole or in part in the form of
one or more Global Subordinated Securities, the Person designated as Depository
by the Corporation pursuant to Section 2.1 of this Subordinated Indenture until
a successor Depository shall have become such pursuant to the applicable
provisions of this Subordinated Indenture, and thereafter the term "Depository"
shall mean or include each Person who is then a Depository hereunder, and if at
any time there is more than one such Person, "Depository" as used with respect
to the Subordinated Securities of any such Series shall mean the Depository with
respect to the Subordinated Securities of that Series.
EVENT OF DEFAULT
The term "Event of Default" with respect to Subordinated Securities of
any Series shall mean any event specified as such in Section 6.1 and any other
event as may be established with respect to the securities of such Series as
permitted by Section 2.1. An Event of Default shall "exist" if an Event of
Default shall have occurred and be continuing.
GLOBAL SUBORDINATED SECURITY
The term "Global Subordinated Security" shall mean a Subordinated
Security evidencing all or a portion of a Series of Subordinated Securities,
issued under this Subordinated Indenture and delivered to the Depository for
such Series in accordance with Section 2.9 of this Subordinated Indenture, and
bearing the legend prescribed in such Section 2.9.
INTEREST PAYMENT DATE
The term "Interest Payment Date" when used with respect to any
Subordinated Security means the Stated Maturity of an installment of interest on
such Subordinated Security.
OFFICER'S CERTIFICATE
The term "Officer's Certificate" shall mean a certificate signed by the
Chairman of the Board, any Vice-Chairman of the Board or the President, any
Vice-President, the Treasurer, any Assistant Treasurer, the Secretary or any
Assistant Secretary of the Corporation. Each such certificate shall include the
statements provided for in Section 13.3, if and to the extent required by the
provisions of such Section.
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OPINION OF COUNSEL
The term "Opinion of Counsel" shall mean a written opinion of counsel,
who may be counsel to the Corporation. Each such opinion shall include the
statements provided for in Section 13.3, if and to the extent required by the
provisions of such Section.
ORIGINAL ISSUE DISCOUNT SUBORDINATED SECURITY
The term "Original Issue Discount Subordinated Security" shall mean (a)
any Subordinated Security which provides for an amount less than the principal
amount thereof to be due and payable upon declaration of acceleration of the
maturity thereof pursuant to Section 6.1 or (b) any other Subordinated Security
which for United States Federal income tax purposes would be considered an
original issue discount security.
OUTSTANDING
The term "Outstanding" when used with reference to Subordinated
Securities shall, subject to the provisions of Section 8.4, mean, as of the date
of determination, all Subordinated Securities theretofore authenticated and
delivered under this Subordinated Indenture, except:
(a) Subordinated Securities theretofore canceled by the
Trustee or delivered to the Trustee for cancellation;
(b) Subordinated Securities for whose payment or redemption
moneys in the necessary amount have been theretofore deposited with the
Trustee or with any Paying Agent in trust for the Holders of such
Subordinated Securities, provided that if such Subordinated Securities
are to be redeemed, notice of such redemption has been duly given as
provided in Article Three hereof, or provision therefor satisfactory to
the Trustee has been made;
(c) Subordinated Securities in exchange for or in lieu of
which other Subordinated Securities shall have been authenticated and
delivered under this Subordinated Indenture; and
(d) Subordinated Securities alleged to have been destroyed,
lost or stolen which have been paid as provided in Section 2.7 hereof.
In determining whether the Holders of the requisite principal amount of
Outstanding Subordinated Securities 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 as if a
declaration of acceleration of the maturity thereof pursuant to Section 6.1 had
been made.
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PAYING AGENT
The term "Paying Agent" means any Person authorized by the Corporation
to pay the principal of and any interest and premium on any Subordinated
Securities on behalf of the Corporation.
PERIODIC OFFERING
The term "Periodic Offering" means an offering from time to time of
Subordinated Securities of a Series, the specific terms of which (including,
without limitation, the rate or rates of interest, if any, thereon or any
methods of calculating such, the maturity date or dates thereof and any
redemption provisions with respect thereto) are to be determined by the
Corporation or its agents upon the issuance of such Series of Subordinated
Securities.
PERSON
The term "Person" shall mean an individual, a corporation, a
partnership, a joint venture, an association, a joint stock company, a trust, an
unincorporated organization, or a government or any agency, authority or
political subdivision thereof.
PRINCIPAL OFFICE OF THE TRUSTEE
The term "Principal Office of the Trustee" shall mean the principal
office of the Trustee in New York at which at any particular time
its corporate trust business shall be administered, except that with respect to
presentation of Subordinated Securities for payment such term shall mean the
office or agency of the Trustee at which at any particular time its corporate
agency business shall be conducted. The present address of the principal office
at which the corporate trust business of the Trustee is administered is
000 Xxxxxxx Xxxxxx, Xxxxx 00X, Xxx Xxxx, XX 00000.
RECORD DATE
The term "Record Date" for the interest payable on any Interest Payment
Date on any Series of Subordinated Securities shall mean the date specified as
such in the Subordinated Securities of such Series.
REDEMPTION DATE
The term "Redemption Date" when used with respect to any Subordinated
Security to be redeemed means the date fixed for such redemption pursuant to
this Subordinated Indenture.
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REDEMPTION PRICE
The term "Redemption Price" when used with respect to any Subordinated
Security to be redeemed means the price at which it is to be redeemed pursuant
to this Subordinated Indenture. It includes any applicable premium but does not
include installments of interest whose Stated Maturity is on or before the
Redemption Date.
REGISTER
The term "Register" shall mean the books for the registration and
transfer of Subordinated Securities which books are kept by the Trustee pursuant
to Section 2.5.
RESPONSIBLE OFFICER
The term "Responsible Officer" when used with respect to the Trustee
shall mean the chairman and vice-chairman of the board of directors, the
chairman and vice-chairman of the executive committee of said board, the
president, any vice-president or second vice-president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any corporate trust officer, the controller, any assistant
controller or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers and also
means, with respect to a particular corporate trust matter, any other officer of
the Trustee to whom such matter is referred because of such Person's knowledge
of and familiarity with the particular subject.
SERIES
The term "Series" shall mean an issue of Subordinated Securities under
this Subordinated Indenture.
STATED MATURITY
The term "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.
SUBORDINATED INDENTURE
The term "Subordinated Indenture" shall mean this instrument as
originally executed, or as it may from time to time be supplemented, modified or
amended, as provided herein, and shall include the form and terms of particular
Series of Subordinated Securities established in accordance with the provisions
of Sections 2.1 and 2.2.
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SUBORDINATED SECURITY OR SUBORDINATED SECURITIES
The terms "Subordinated Security" or "Subordinated Securities" shall
mean any security or securities of the Corporation without regard to Series,
authenticated and delivered under this Subordinated Indenture.
SUBORDINATED SECURITYHOLDER; HOLDER
The terms "Subordinated Securityholder" or "Holder", whenever employed
herein with respect to a Subordinated Security, shall mean the Person in whose
name such Subordinated Security shall be registered on the Register.
SUPPLEMENTAL SUBORDINATED INDENTURE
The term "Supplemental Subordinated Indenture" shall mean an indenture
supplemental hereto as such Supplemental Subordinated Indenture may be
originally executed, or as it may from time to time be supplemented, modified or
amended, as provided herein and therein.
TRUSTEE
The term "Trustee" shall mean The Bank of New York until a successor
Trustee shall have become such pursuant to the applicable provisions of this
Subordinated Indenture, and thereafter "Trustee" shall mean such successor
Trustee.
TRUST INDENTURE ACT OF 1939
The term "Trust Indenture Act of 1939" shall mean the Trust Indenture
Act of 1939, as amended as of the date of this Subordinated Indenture.
UNITED STATES DOLLARS
The term "United States Dollars" shall mean the lawful currency of the
United States of America.
ARTICLE 2
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION,
TRANSFER AND EXCHANGE OF SECURITIES
SECTION 2.1. AMOUNT, SERIES, EXECUTION, AUTHENTICATION AND DELIVERY OF
SUBORDINATED SECURITIES. The aggregate principal amount of Subordinated
Securities which may be authenticated and delivered under this Subordinated
Indenture is not limited. The Subordinated Securities may be issued in one or
more Series.
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(A) The following terms and provisions of each Series of Subordinated
Securities shall be established by a resolution of the Board of Directors and
set forth in either a Certified Resolution or a Supplemental Subordinated
Indenture:
(1) the designation of the Series of Subordinated Securities
(which shall distinguish the Subordinated Securities of such
Series from all other Series of Subordinated Securities),
(2) any limit upon the aggregate principal amount of the
particular Series of Subordinated Securities which may be
executed, authenticated and delivered under this Subordinated
Indenture; PROVIDED, HOWEVER, that nothing contained in this
Section 2.1 or elsewhere in this Subordinated Indenture or in
the Subordinated Securities or in such Certified Resolution or
in a Supplemental Subordinated Indenture is intended to or
shall limit execution by the Corporation or authentication and
delivery by the Trustee of Subordinated Securities under the
circumstances contemplated by Sections 2.5, 2.6, 2.7, 3.4 and
10.4,
(3) the currency or currencies or composite currency in which
principal of and interest and any premium on such Series of
Subordinated Securities shall be payable (if other than in
United States Dollars),
(4) the Stated Maturity for payment of principal of such Series of
Subordinated Securities and any sinking fund or analogous
provisions,
(5) the rate or rates at which such Series of Subordinated
Securities shall bear interest or the method of calculating
such rate or rates of interest and the Interest Payment Dates
for such Series of Subordinated Securities,
(6) the place or places where such Series of Subordinated
Securities may be presented for payment and for the other
purposes provided in Section 4.6,
(7) any Redemption Price or Prices, the Redemption Date or Dates
and other applicable redemption or repurchase provisions for
such Series of Subordinated Securities,
(8) whether such Series of Subordinated Securities shall be
issuable as one or more Global Subordinated Securities and the
form of such Series of Subordinated Securities,
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(9) if the Subordinated Securities of such Series shall be issued
in whole or in part as one or more Global Subordinated
Securities, the Depository for such Global Subordinated
Security or Securities and any additional terms and conditions
relating to such Global Subordinated Securities not set forth
in this Subordinated Indenture,
(10) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which such Series of
Subordinated Securities shall be issuable,
(11) the date from which interest on such Subordinated Securities
shall accrue,
(12) the basis upon which interest on such Series of Subordinated
Securities shall be computed (if other than on the basis of a
360- day year of twelve 30-day months),
(13) if other than the principal amount thereof, the portion of the
principal amount of such Series of Subordinated Securities
which shall be payable upon declaration of acceleration of the
maturity thereof pursuant to Section 6.1,
(14) the Person or Persons who shall be registrar for such Series
of Subordinated Securities, and the place or places where the
Register of such Series of Subordinated Securities shall be
kept,
(15) any additional events of default with respect to the
Subordinated Securities of a particular Series not set forth
herein,
(16) any additional covenants of the Corporation with respect to
the Subordinated Securities of a particular Series not set
forth herein,
(17) the terms of subordination applicable to such Series of
Subordinated Securities,
(18) the terms and conditions, if any, upon which any Subordinated
Securities of such Series may or shall be converted into other
instruments or other forms of property, and
(19) any other terms of such Series of Subordinated Securities
(which terms shall not be inconsistent with the provisions of
this Subordinated Indenture).
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All Subordinated Securities of any one Series shall be substantially
identical except that any Series may have serial maturities and different
interest rates for different maturities and except as to denomination and the
differences herein specified between Global Subordinated Securities and
Subordinated Securities issued in definitive form and except as may otherwise be
provided in or pursuant to the Certified Resolution or Supplemental Subordinated
Indenture relating to such Series of Subordinated Securities. All Subordinated
Securities of any one Series need not be issued at the same time, and, unless
otherwise provided in the Certified Resolution or Supplemental Subordinated
Indenture relating to such Series, a Series may be reopened for issuances of
additional Subordinated Securities of such Series.
(B) At any time and from time to time after the execution and delivery
of this Subordinated Indenture, the Corporation may deliver any Series of
Subordinated Securities executed by the Corporation to the Trustee for
authentication by it, and the Trustee shall thereupon authenticate and deliver
said Subordinated Securities (or if only a single Global Subordinated Security,
such Global Subordinated Security) to or upon the written order of the
Corporation, signed by an officer of the Corporation, without any further
corporate action. In authenticating such Subordinated Securities and accepting
the additional responsibilities under this Subordinated Indenture in relation to
such Subordinated Securities and except as hereinafter provided with respect to
a Series of Subordinated Securities subject to a Periodic Offering, the Trustee
shall be entitled to receive, and (subject to Section 7.1) shall be fully
protected in relying upon:
(1) each Certified Resolution relating to such Series of
Subordinated Securities,
(2) an executed Supplemental Subordinated Indenture, if any,
relating to such Series of Subordinated Securities,
(3) an Opinion of Counsel to the effect that:
(a) the terms and form of such Subordinated Securities
have been established as permitted by Sections 2.1 and
2.2 in conformity with the provisions of this
Subordinated Indenture,
(b) such Subordinated Securities, when executed and issued
by the Corporation and authenticated and delivered by
the Trustee in accordance with the provisions of this
Subordinated Indenture and subject to any conditions
specified in such Opinion of Counsel, will constitute
valid and binding obligations of the Corporation,
except as any rights thereunder may be limited by the
effect of bankruptcy, insolvency, reorganization,
receivership, conservatorship, arrangement, moratorium
or other laws
-10-
affecting or relating to the rights of creditors
generally; the rules governing the availability of
specific performance, injunctive relief or other
equitable remedies and general principles of equity,
regardless of whether considered in a proceeding in
equity or at law; the effect of applicable court
decisions invoking statutes or principles of equity,
which have held that certain covenants and provisions
of agreements are unenforceable where the breach of
such covenants or provisions imposes restrictions or
burdens upon a borrower, and it cannot be demonstrated
that the enforcement of such restrictions or burdens
is necessary for the protection of the creditor, or
which have held that the creditor's enforcement of
such covenants or provisions under the circumstances
would have violated the creditor's covenants of good
faith and fair dealing implied under California law;
and the effect of California statutes and rules of law
which cannot be waived prospectively by a borrower,
and
(c) the Corporation has complied with all applicable
Federal laws and requirements in respect of the
execution and delivery of such Subordinated
Securities.
With respect to a Series of Subordinated Securities subject to a Periodic
Offering, the Trustee shall be entitled to receive, and, subject to Section 7.1,
shall be fully protected in relying upon the documents described in the
foregoing subsections (1), (2) and (3) of this Section 2.1(B); PROVIDED THAT (i)
the Certified Resolution may be delivered to the Trustee prior to the delivery
to the Trustee of such Subordinated Securities for authentication and delivery,
(ii) the Trustee shall authenticate and deliver Subordinated Securities of such
Series for original issue from time to time, in an aggregate principal amount
not exceeding the aggregate principal amount, if any, established for such
Series, pursuant to such Certified Resolution or pursuant to such procedures as
may be specified from time to time by a Certified Resolution, (iii) the maturity
date or dates, original issue date or dates, interest rate or rates or the
method or methods of calculating such and any other terms of the Subordinated
Securities of such Series shall be determined by the Certified Resolution or
pursuant to such procedures, (iv) if provided for in such procedures, such
Certified Resolution may authorize authentication and delivery pursuant to oral
or electronic instructions from the Corporation or its duly authorized agent or
agents, which oral instructions shall be promptly confirmed in writing and (v)
the Trustee shall be entitled to receive an Opinion of Counsel only once at or
prior to the time of the first authentication of Subordinated Securities of such
Series and the opinions described in the foregoing subsections (3)(a) and (3)(b)
of this Section 2.1(B) may be to the effect that:
(x) the form of the Subordinated Securities of such Series has
been duly authorized by the Corporation and has been established in
conformity with the provisions of this Subordinated Indenture and that,
when the terms of such
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Subordinated Securities shall have been established pursuant to a
Certified Resolution or pursuant to such procedures as may be specified
from time to time by a Certified Resolution, such terms will have been
duly authorized by the Corporation and will have been established in
conformity with the provisions of this Subordinated Indenture, and
(y) Subordinated Securities of such Series, when executed and
issued by the Corporation and completed, authenticated and delivered by
the Trustee in accordance with the provisions of this Subordinated
Indenture and subject to any conditions specified in such Opinion of
Counsel and when paid for, all as contemplated by and in accordance
with the Certified Resolution or specified procedures, as the case may
be, will constitute valid and binding obligations of the Corporation,
except as any rights thereunder may be limited by the effect of
bankruptcy, insolvency, reorganization, receivership, conservatorship,
arrangement, moratorium or other laws affecting or relating to the
rights of creditors generally; the rules governing the availability of
specific performance, injunctive relief or other equitable remedies and
general principles of equity, regardless of whether considered in a
proceeding in equity or at law; the effect of applicable court
decisions invoking statutes or principles of equity, which have held
that certain covenants and provisions of agreements are unenforceable
where the breach of such covenants or provisions imposes restrictions
or burdens upon a borrower, and it cannot be demonstrated that the
enforcement of such restrictions or burdens is necessary for the
protection of the creditor, or which have held that the creditor's
enforcement of such covenants or provisions under the circumstances
would have violated the creditor's covenants of good faith and fair
dealing implied under California law; and the effect of California
statutes and rules of law which cannot be waived prospectively by a
borrower.
With respect to Subordinated Securities of a Series offered in a Periodic
Offering, the Trustee may rely, as to the authorization by the Corporation of
any such Subordinated Securities, the form and terms thereof and the valid and
binding effect thereof, upon the Opinion of Counsel and other documents
delivered pursuant to this Section 2.1 in connection with the first
authentication of Subordinated Securities of such Series unless and until such
Opinion of Counsel or other documents shall have been superseded or revoked. In
connection with the authentication and delivery of Subordinated Securities of a
Series subject to a Periodic Offering, the Trustee shall be entitled to assume
that the instructions of the Corporation to authenticate and deliver such
Subordinated Securities do not violate any rules, regulations or orders of any
governmental agency having jurisdiction over the Corporation.
Each fully registered Subordinated Security shall be dated the date of
its authentication.
SECTION 2.2. FORM OF SUBORDINATED SECURITIES AND TRUSTEE'S CERTIFICATE
OF AUTHENTICATION. The Subordinated Securities of each Series shall be
substantially of the tenor
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and purport as shall be authorized by the related Certified Resolution or
Supplemental Subordinated Indenture, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Subordinated Indenture, and may have such letters, numbers or
other marks of identification or designation and such legends or endorsements
thereon as the Board of Directors may deem appropriate and as are not
inconsistent with the provisions of this Subordinated Indenture, or as may be
required to comply with any law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange on which the
Subordinated Securities of such Series may be listed, or to conform to usage.
The definitive Subordinated Securities and each Global Subordinated
Security may be printed, lithographed or fully or partly engraved or produced in
any other manner, all as determined by the officers executing such Subordinated
Securities, as evidenced by their execution thereof.
The Trustee's certificate of authentication shall be in substantially
the following form:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Subordinated Securities, of the Series
designated herein, referred to in the within-mentioned Subordinated
Indenture.
The Bank of New York, as Trustee
By
--------------------------------------
Authorized Signatory
SECTION 2.3. DENOMINATIONS; PAYMENT OF INTEREST ON FULLY REGISTERED
SUBORDINATED SECURITIES. The Subordinated Securities of each Series may be
issued as fully registered Subordinated Securities in denominations as shall be
specified as contemplated by Section 2.1. In the absence of such provisions with
respect to the Subordinated Securities of any Series, the Subordinated
Securities of such Series (other than any Global Subordinated Securities) shall
be issued in denominations of $1,000 and any integral multiple thereof.
If the Subordinated Securities of any Series shall bear interest, each
Subordinated Security of such Series shall bear interest from the applicable
date at the rate per annum specified in the Certified Resolution or Supplemental
Subordinated Indenture with respect to such Series of Subordinated Securities.
Unless otherwise specified in the Certified Resolution or Supplemental
Subordinated Indenture with respect to the Subordinated Securities of any
Series, interest on the Subordinated Securities of such Series shall be computed
on the basis of a 360-day year of twelve 30-day months. Such interest shall be
payable on the Interest Payment Dates specified in the Certified Resolution or
Supplemental Subordinated Indenture with respect to such Series of Subordinated
Securities. The Person in whose name any
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Subordinated Security is registered at the close of business on the applicable
Record Date for the Series of which such Subordinated Security is a part shall
be entitled to receive the interest payable thereon on such Interest Payment
Date notwithstanding the cancellation of such Subordinated Security upon any
transfer or exchange thereof subsequent to such Record Date and prior to such
Interest Payment Date unless such Subordinated Security shall have been called
for redemption on a Redemption Date which is subsequent to such Record Date and
prior to such Interest Payment Date or unless the Corporation shall default in
the payment of interest due on such Interest Payment Date on any Subordinated
Security of such Series.
Any interest on any Subordinated Security of any Series 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 registered Holder on the relevant Record Date solely by virtue of
such Holder having been such Holder; and such Defaulted Interest may be paid by
the Corporation, at its election in each case, as provided in subsection A or B
below:
A. The Corporation may elect to make payment of any Defaulted
Interest on the Subordinated Securities of any Series to the Persons in
whose names such 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 Corporation
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 (which date shall be such as will enable the Trustee
to comply with the next sentence hereof), and at the same time the
Corporation 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 subsection provided. Thereupon
the Trustee shall fix a special record date (the "Special Record Date")
for the payment of such Defaulted Interest which shall be not more than
15 nor 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 Corporation
of such Special Record Date and, in the name and at the expense of the
Corporation, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder of a Subordinated Security
of such Series at such Holder's 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 mailed as
aforesaid, such Defaulted Interest shall be paid to the Persons in
whose names the Subordinated Securities of such Series are registered
on such Special Record Date and shall no longer be payable pursuant to
the following subsection B.
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B. The Corporation may make payment of any Defaulted Interest
on the Subordinated Securities of any Series in any other lawful manner
not inconsistent with the requirements of any securities exchange on
which such Subordinated Securities may be listed and upon such notice
as may be required by such exchange, if, after notice given by the
Corporation to the Trustee of the proposed payment pursuant to this
subsection, such payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section 2.3, each
Subordinated Security delivered under this Subordinated Indenture upon transfer
of or in exchange for or in lieu of any other Subordinated Security shall carry
all the rights to interest accrued and unpaid, and to accrue, which were carried
by such other Subordinated Security and each such Subordinated Security shall
bear interest from such date, such that neither gain nor loss in interest shall
result from such transfer, exchange or substitution.
SECTION 2.4. EXECUTION OF SUBORDINATED SECURITIES. The Subordinated
Securities shall be executed manually or in facsimile, by an officer and the
Secretary or an Assistant Secretary of the Corporation under its corporate seal,
which may be affixed thereto or printed, engraved or otherwise reproduced
thereon, by facsimile or otherwise. Only such Subordinated Securities as shall
bear thereon a certificate of authentication substantially in the form recited
herein, executed by the Trustee manually by an authorized officer, shall be
entitled to the benefits of this Subordinated Indenture or be valid or
obligatory for any purpose. Such certificate of authentication of the Trustee
upon any Subordinated Security executed by the Corporation 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. Typographical or other errors or
defects in the seal or facsimile signature on any Subordinated Security or in
the text thereof shall not affect the validity or enforceability of such
Subordinated Security if it has been duly authenticated and delivered by the
Trustee.
In case any officer of the Corporation who shall have signed any of the
Subordinated Securities (manually or in facsimile) shall cease to be such
officer before the Subordinated Securities so signed shall have been
authenticated and delivered by the Trustee, or disposed of by the Corporation,
such Subordinated Securities nevertheless may be authenticated and delivered or
disposed of as though the Person who signed such Subordinated Securities had not
ceased to be such officer of the Corporation. Also, any Subordinated Security
may be signed on behalf of the Corporation by such Persons as on the actual date
of execution of such Subordinated Security shall be the proper officers of the
Corporation, although at the date of the execution of this Subordinated
Indenture or on the nominal date of such Subordinated Security any such Person
was not such officer.
SECTION 2.5. REGISTRATION, TRANSFER AND EXCHANGE OF SUBORDINATED
SECURITIES. Except as specifically otherwise provided herein with respect to
Global Subordinated Securities, Subordinated Securities of any Series may be
exchanged for a like aggregate principal amount of Subordinated Securities of
the same Series of other authorized
-15-
denominations. Subordinated Securities to be exchanged shall be surrendered at
the offices or agencies to be maintained in accordance with the provisions of
Section 4.4 and the Corporation shall execute the Subordinated Security or
Securities, and the Trustee shall authenticate and deliver in exchange therefor
the Subordinated Security or Securities which the Subordinated Securityholder
making the exchange shall be entitled to receive.
The Corporation shall keep or cause to be kept, at one or more of the
offices or agencies to be maintained by the Corporation in accordance with the
provisions of Section 4.4 with respect to the Subordinated Securities of each
Series, the Register in which, subject to such reasonable regulations as it may
prescribe, the Corporation shall provide for the registration of the
Subordinated Securities of such Series and the transfer of Subordinated
Securities of such Series as in this Article provided. The Register shall be in
written form or in any other form capable of being converted into written form
within a reasonable time. At all reasonable times the Register shall be open for
inspection by the Trustee and any registrar of the Subordinated Securities of
such Series other than the Trustee. Upon due presentment for transfer of any
Subordinated Security of any Series at the offices or agencies of the
Corporation to be maintained in accordance with Section 4.4 with respect to the
Subordinated Securities of such Series, the Corporation shall execute a new
Subordinated Security and the Trustee shall authenticate and deliver in the name
of the transferee or transferees a new Subordinated Security or Securities of
the same Series for a like aggregate principal amount of authorized
denominations.
Notwithstanding any other provisions of this Section 2.5, unless and
until it is exchanged in whole or in part for Subordinated Securities in
definitive form, a 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 Depository for such Series to a nominee of such Depository or by a
nominee of such Depository to such Depository or another nominee of such
Depository or by such Depository or any such nominee to a successor Depository
for such Series or a nominee of such successor Depository.
All Subordinated Securities of any Series presented or surrendered for
exchange, transfer, redemption, conversion or payment shall, if so required by
the Corporation or any registrar of the Subordinated Securities of such Series,
be accompanied by a written instrument or instruments of transfer, in form
satisfactory to the Corporation and such registrar, duly executed by the
registered Holder or by such Person's attorney duly authorized in writing.
No service charge shall be made for any exchange or registration of
transfer of Subordinated Securities, but the Corporation may require payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto.
The Corporation shall not be required to exchange or transfer (a) any
Subordinated Securities of any Series during a period beginning at the opening
of business 15 days before the day of the first publication or the mailing (if
there is no publication) of a notice of redemption of Subordinated Securities of
such Series and ending at the close of business on
-16-
the day of such publication or mailing, (b) any Subordinated Securities called
or selected for redemption in whole or in part, except, in the case of
Subordinated Securities called for redemption in part, the portion thereof not
so called for redemption in whole or in part or during a period beginning at the
opening of business on any Record Date for such Series and ending at the close
of business on the relevant Interest Payment Date therefor.
SECTION 2.6. TEMPORARY SUBORDINATED SECURITIES. Pending the preparation
of definitive Subordinated Securities of any Series, the Corporation may execute
and the Trustee shall authenticate and deliver temporary Subordinated Securities
of such Series which are printed, lithographed, typewritten or otherwise
produced, in any denomination substantially of the tenor of the definitive
Subordinated Securities in lieu of which they are issued, in registered form and
with such appropriate omissions, insertions, substitutions and other variations
as the officers executing such Subordinated Securities may determine, as
evidenced by their execution of such Subordinated Securities. Every such
temporary Subordinated Security shall be authenticated by the Trustee upon the
same conditions and in substantially the same manner, and with the same effect,
as the definitive Subordinated Securities. If temporary Subordinated Securities
are issued, the Corporation will cause definitive Subordinated Securities to be
prepared without unreasonable delay. After the preparation of definitive
Subordinated Securities, the temporary Subordinated Securities of such Series
shall be exchangeable for definitive Subordinated Securities upon surrender of
the temporary Subordinated Securities without charge to the Holder at the
offices or agencies to be maintained by the Corporation as provided in Section
4.4 with respect to the Subordinated Securities of such Series. Upon surrender
for cancellation of any one or more temporary Subordinated Securities the
Corporation shall execute and the Trustee shall authenticate and deliver in
exchange for such temporary Subordinated Securities an equal aggregate principal
amount of definitive Subordinated Securities of such Series. Until so exchanged,
the temporary Subordinated Securities of any Series shall in all respects be
entitled to the benefits of this Subordinated Indenture and interest thereon,
when and as payable, shall be paid to the registered owners thereof.
SECTION 2.7. MUTILATED, DESTROYED, LOST OR STOLEN SUBORDINATED
SECURITIES. If (i) any mutilated Subordinated Security is surrendered to the
Trustee, or the Corporation and the Trustee receive evidence to their
satisfaction of the destruction, loss or theft of any Subordinated Security, and
(ii) there is delivered to the Corporation and the Trustee such security or
indemnity as may be required by them to save each of them harmless, then, in the
absence of notice to the Corporation or the Trustee that such Subordinated
Security has been acquired by a bona fide purchaser, the Corporation shall
execute and upon its request the Trustee shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Subordinated Security, a new Subordinated Security of the same Series and of
like tenor and principal amount, bearing a number not contemporaneously
Outstanding.
In case any such mutilated, destroyed, lost or stolen Subordinated
Security has become or is about to become due and payable, the Corporation in
its discretion may, instead of issuing a new Subordinated Security, pay such
Subordinated Security.
-17-
Upon the issuance of any new Subordinated Security under this Section
2.7, the Corporation 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 connected therewith.
Every new Subordinated Security issued pursuant to this Section 2.7 in
exchange for or in lieu of any mutilated, destroyed, lost or stolen Subordinated
Security shall constitute an original additional contractual obligation of the
Corporation, whether or not the mutilated, destroyed, lost or stolen
Subordinated Security shall be at any time enforceable by anyone, and shall be
entitled to all the security and benefits of this Subordinated Indenture equally
and ratably with all other Outstanding Subordinated Securities of such Series.
The provisions of this Section 2.7 are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Subordinated Securities.
SECTION 2.8. CANCELLATION OF SURRENDERED SUBORDINATED SECURITIES. All
Subordinated Securities surrendered for payment, redemption, transfer,
conversion or exchange shall, if surrendered to the Corporation, the Trustee or
any agent of the Corporation or of the Trustee, be delivered to the Trustee, and
the same, together with Subordinated Securities surrendered to the Trustee for
cancellation, shall be canceled by it and thereafter disposed of by it as
directed by the Corporation, and no Subordinated Securities shall be issued in
lieu thereof except as expressly permitted by any of the provisions of this
Subordinated Indenture. The Trustee shall return canceled Subordinated
Securities to the Corporation upon receipt of an Officer's Certificate of the
Corporation, pursuant to which the Corporation shall direct that canceled
Subordinated Securities be returned to it. If the Corporation shall purchase or
otherwise acquire any of the Subordinated Securities, however, such purchase or
acquisition shall not operate as a payment, redemption or satisfaction of the
indebtedness represented by such Subordinated Securities unless and until the
Corporation, at its option, shall deliver or surrender the same to the Trustee
for cancellation.
SECTION 2.9. SUBORDINATED SECURITIES IN GLOBAL FORM; DEPOSITORIES.
(a) Each Global Subordinated Security shall: (i) represent and be
denominated in an aggregate amount equal to the aggregate principal amount of
the Subordinated Securities of the Series to be represented by such Global
Subordinated Security, (ii) be registered in the name of either the Depository
for such Global Subordinated Security or the nominee of such Depository, (iii)
be delivered by the Trustee to such Depository or pursuant to such Depository's
written instruction and (iv) bear a legend substantially to the following
effect: "Unless and until it is exchanged in whole or in part for Subordinated
Securities in definitive form, this Global Subordinated Security may not be
transferred except as a whole by the Depository to a nominee of the Depository
or by a nominee of the Depository to the Depository or another nominee of the
Depository or by the Depository or any nominee to a successor Depository or a
nominee of any successor Depository." The notation of the record owner's
interest in such Global Subordinated Security upon the original issuance thereof
shall
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be deemed to be delivery in connection with the original issuance
of each beneficial owner's interest in such Global Subordinated Security.
Without limiting the foregoing, the Corporation and the Trustee shall have no
responsibility, obligation or liability with respect to: (x) the maintenance,
review or accuracy of the records of the Depository or of any of its
participating organizations with respect to any ownership interest in or
payments with respect to such Global Subordinated Security, (y) any
communication with or delivery of any notice (including notices of redemption)
with respect to the Series of Subordinated Securities represented by the Global
Subordinated Security to any Person having any ownership interest in such Global
Subordinated Security or to any of the Depository's participating organizations
or (z) any payment made on account of any beneficial ownership interest in such
Global Subordinated Security.
(b) If any Subordinated Security of a Series is issuable in the form of
one or more Global Subordinated Securities, each such Global Subordinated
Security may provide that it shall represent the aggregate amount of Outstanding
Subordinated Securities of such Series from time to time endorsed thereon and
may also provide that the aggregate amount of Outstanding Subordinated
Securities of such Series represented thereby may from time to time be reduced
to reflect exchanges. Any endorsement of a Global Subordinated Security to
reflect the amount of Outstanding Subordinated Securities of a Series
represented thereby shall be made by the Trustee and in such manner as shall be
specified on such Global Subordinated Security. Any instructions by the
Corporation with respect to a Global Subordinated Security, after its initial
issuance, shall be in writing but need not comply with Section 13.3 of this
Subordinated Indenture.
(c) Each Depository designated pursuant to the provisions of Section
2.1 of this Subordinated Indenture for a Global Subordinated Security must, at
the time of its designation and at all times while it serves as a depositary, be
a clearing agency registered under the Securities Exchange Act of 1934, as
amended, and any other applicable statute or regulation. If at any time the
Depository for the Subordinated Securities of a Series notifies the Corporation
that it is unwilling or unable to continue as Depository for the Subordinated
Securities of such Series or if at any time the Depository for the Subordinated
Securities of such Series shall no longer be eligible under this Section 2.9,
the Corporation shall appoint a successor Depository with respect to the
Subordinated Securities of such Series. If a successor Depository for the
Subordinated Securities of such Series is not appointed by the Corporation
within 90 days after the Corporation receives such notice or learns of such
ineligibility, the Corporation shall execute, and the Corporation shall direct
the Trustee to authenticate and deliver, definitive Subordinated Securities of
such Series in authorized denominations in exchange for the Global Subordinated
Security or Securities. Upon receipt of such direction, the Trustee shall
thereupon authenticate and deliver the definitive Subordinated Securities of
such Series in the same aggregate principal amount as the Global Subordinated
Security or Securities representing such Series in exchange for such Global
Subordinated Security or Securities, in accordance with the provisions of
subsection (e) of this Section 2.9, without any further corporate action by the
Corporation.
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(d) The Corporation may at any time and in its sole discretion
determine that the Subordinated Securities of any Series issued in the form of
one or more Global Subordinated Securities shall no longer be represented by
such Global Subordinated Security or Securities. In such event, the Corporation
will execute and upon receipt of a written order from the Corporation, the
Trustee shall thereupon authenticate and deliver Subordinated Securities of such
Series in definitive form and in authorized denominations in an aggregate
principal amount equal to the principal amount of the Global Subordinated
Security or Securities representing such Series in exchange for such Global
Subordinated Security or Securities, in accordance with the provisions of
subsection (e) of this Section 2.9 without any further corporate action by the
Corporation.
(e) Upon any exchange hereunder of the Global Subordinated Security or
Securities for Subordinated Securities in definitive form, such Global
Subordinated Security or Securities shall be canceled by the Trustee.
Subordinated Securities issued hereunder in exchange for the Global Subordinated
Security or Securities shall be registered in such names and in such authorized
denominations as the Depository for such Global Subordinated Security, pursuant
to instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such definitive Subordinated
Securities in exchange for the Global Subordinated Security or Securities to the
persons in whose name such definitive Subordinated Securities have been
registered in accordance with the directions of the Depository.
ARTICLE 3
REDEMPTION OF SECURITIES
SECTION 3.1. REDEMPTION OF SUBORDINATED SECURITIES. Subordinated
Securities of any Series may be made subject to redemption prior to their Stated
Maturity, as a whole or in part, at such time or times, upon payment of the
principal amount thereof plus such premium or premiums, if any, as shall be set
forth in the resolution of the Board of Directors or the Supplemental
Subordinated Indenture relating to such Series.
SECTION 3.2. NOTICE OF REDEMPTION. In all cases other than redemption
at the option of the Holders of Subordinated Securities, notice of redemption
shall be mailed, not less than 30 nor more than 60 days prior to the Redemption
Date, to each Person in whose name any Subordinated Security called for
redemption is registered on the Register as of the date of such notice, but
neither a failure to give notice by mail nor any defect in any notice so mailed
shall affect the validity of the proceedings for such redemption. Each notice of
redemption shall state the Redemption Date, the Redemption Price, the place of
redemption, the principal amount and, if less than all, the distinctive numbers
of the Subordinated Securities to be redeemed and shall also state that the
interest on the Subordinated Securities in such notice designated for redemption
shall cease to accrue from and after such Redemption Date.
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Notice of redemption of Subordinated Securities may be given by the
Corporation or, at the option of the Corporation, by the Trustee on behalf of
the Corporation. Upon receipt of any direction to give notice, the Trustee shall
as soon as practicable give such notice. The Corporation shall give the Trustee
notice of a redemption no less than 45 days prior to a Redemption Date. The
Trustee may rely upon such direction that all conditions precedent to the giving
of such direction have been complied with or done.
SECTION 3.3. SELECTION OF SUBORDINATED SECURITIES FOR REDEMPTION.
Whenever provision is made for the redemption of any Series of Subordinated
Securities or portion thereof and less than all of the Subordinated Securities
of such Series or portion thereof are called for redemption, the Trustee shall
select the Subordinated Securities to be redeemed, from the Outstanding
Subordinated Securities of such Series or portion thereof not previously called
for redemption, in any manner which the Trustee deems fair and appropriate. For
the purpose of any such selection, the Trustee shall assign a separate number
for each $1,000 principal amount of each Subordinated Security of a denomination
of more than $1,000 except that if the Subordinated Securities of any Series are
denominated in a currency other than United States Dollars, the Trustee shall
assign a separate number for each principal amount equal to the minimum
denomination of each Subordinated Security of such Series of a denomination
greater than such minimum denomination.
SECTION 3.4. PARTIAL REDEMPTION OF REGISTERED SUBORDINATED SECURITY.
Upon surrender of any registered Subordinated Security (including any Global
Subordinated Security) to be redeemed in part only, the Corporation shall
execute and the Trustee shall authenticate and deliver to the registered owner
thereof, without service charge, a new Subordinated Security (or in the case of
a Global Subordinated Security, a new Global Subordinated Security) of the same
Series and maturity and of authorized denomination or denominations as requested
by such registered owners, in aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal of the Subordinated
Security so surrendered.
SECTION 3.5. EFFECT OF REDEMPTION. If notice of redemption shall have
been duly given as provided in Section 3.2, the Subordinated Securities or
portions of Subordinated Securities specified in such notice shall become due
and payable on the Redemption Date and at the place or places stated in such
notice at the Redemption Price specified in such notice, and on and after such
Redemption Date (unless the Corporation shall default in the payment of such
Subordinated Securities at the applicable Redemption Price) such Subordinated
Securities or portions of Subordinated Securities shall cease to bear interest,
and such Subordinated Securities shall cease from and after the Redemption Date
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 any
unpaid interest accrued to the Redemption Date. Upon presentation and surrender
of such Subordinated Securities at said place of payment in said notice
specified, the said Subordinated Securities or portions thereof shall be paid
and redeemed by the Corporation at the applicable Redemption Price, together
with any interest accrued to the Redemption Date; PROVIDED, HOWEVER, that any
regular payment of interest becoming due on
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any Subordinated Securities on the Redemption Date shall be payable to the
registered ownersof such Subordinated Securities as of the Relevant Record Date
as provided in Article Two hereof. Upon presentation of any Subordinated
Security which is redeemed in part only, the Corporation shall execute a new
Subordinated Security and the Trustee shall authenticate and deliver at the
expense of the Corporation a new Subordinated Security of the same Series of
authorized denomination in principal amount equal to the unredeemed portion of
the Subordinated Security so presented.
If the Company shall fail to timely deposit the applicable Redemption
Price with the Trustee and if any Subordinated Security called for redemption
shall not be so paid upon surrender thereof for redemption, the principal
thereof shall, to the extent permitted by law, bear interest from the date fixed
for redemption at the rate borne by the Subordinated Security, or, in the case
of a Subordinated Security which does not bear interest, at the rate of interest
set forth therefor in the Subordinated Security, in either case until paid.
ARTICLE 4
PARTICULAR COVENANTS OF THE CORPORATION
SECTION 4.1. PAYMENT OF PRINCIPAL OF AND INTEREST ON SUBORDINATED
SECURITIES. The Corporation covenants that it will duly and punctually pay or
cause to be paid the principal of and any interest and premium on each of the
Subordinated Securities in accordance with the terms of the Subordinated
Securities and this Subordinated Indenture. Except with respect to any Global
Subordinated Securities, if the Subordinated Securities of any Series bear
interest, each installment of interest on the Subordinated Securities of such
Series may, at the option of the Corporation, be paid by mailing a check or
checks for such interest payable to the Person entitled thereto pursuant to
Section 2.3 to the address of such Person as it appears on the Register of the
Subordinated Securities of such Series on the applicable Record Date for such
interest payment.
SECTION 4.2. CORPORATE EXISTENCE OF THE CORPORATION; CONSOLIDATION,
MERGER, SALE OR TRANSFER. The Corporation covenants that so long as any of the
Subordinated Securities are Outstanding, it will maintain its existence, will
not dissolve, sell or otherwise dispose of all or substantially all of its
assets and will not consolidate with or merge into another entity or permit one
or more other entities to consolidate with or merge into it; provided that the
Corporation may, without violating the covenants in this Section 4.2 contained,
consolidate with or merge into another entity or permit one or more other
entities to consolidate with or merge into it, or sell or otherwise transfer to
another entity all or substantially all of its assets as an entirety and
thereafter dissolve, if the surviving, resulting or transferee entity, as the
case may be, (i) shall be organized and existing under the laws of one of the
States of the United States of America, (ii) assumes, if such entity is not the
Corporation, all of the obligations of the Corporation hereunder and (iii) is
not, after such transaction, otherwise in default under any provisions hereof.
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SECTION 4.3. LIMITATIONS OF DIVIDENDS. The provisions of this Section
4.3 shall apply so long as Subordinated Securities of any Series are
Outstanding, except to the extent that the provisions contained in this Section
4.3 are expressly made inapplicable to the Subordinated Securities of a
particular Series, as specified in the terms of such Series in accordance with
Section 2.1 hereof at the time of issuance of such series.
(a) If a particular Series of Subordinated Securities are issued to one
or more trusts established under the Delaware Business Trust Act in
connection with the issuance of securities by such trust and (1) there
shall have occurred any Event of Default or (2) the Corporation shall
be in default with respect to its payment of any obligation with
respect to any guaranty issued by the Corporation with respect to
securities issued by such trust, then (i) the Corporation shall not
declare or pay any dividend on, make any distributions with respect to,
or redeem, purchase or make a liquidation payment with respect to, any
of its capital stock and (ii) the Corporation shall not make any
payment of interest, principal or any premium on or repay, repurchase
or redeem any debt securities issued by the Corporation which rank PARI
PASSU with or junior to such Series of Subordinated Securities.
(b) If a particular Series of Subordinated Securities are issued to one
or more trusts established under the Delaware Business Trust Act in
connection with the issuance of securities by such trust and the
Corporation shall have exercised its right to defer payments of
interest on such Series of Subordinated Securities by extending the
Interest Payment Date in accordance with the provisions of the
Supplemental Subordinated Indenture or Certified Resolution
establishing the terms of such Series of Subordinated Securities or any
extension thereof shall be continuing, then (1) the Corporation shall
not declare or pay any dividend on, make any distributions with respect
to, or redeem, purchase or make a liquidation payment with respect to,
any of its capital stock and (2) the Corporation shall not make any
payment of interest, principal or any premium on or repay or repurchase
or redeem any debt securities issued by the Company which rank PARI
PASSU with such Series of Subordinated Securities.
(c) The restrictions set forth in Section 4.3(a)(i) and (b)(1) do not
apply to any stock dividend paid by the Corporation where the dividend
stock is of the same class as that of the stock held by the holder
receiving the dividend.
SECTION 4.4. MAINTENANCE OF OFFICES OR AGENCIES FOR TRANSFER,
REGISTRATION, EXCHANGE AND PAYMENT OF SUBORDINATED SECURITIES. So long as any of
the Subordinated Securities shall remain Outstanding, the Corporation covenants
that it will maintain an office or agency in either The City of New York, State
of New York, or the City and County of San Francisco, State of California, where
the Subordinated Securities may be presented for registration, exchange and
transfer as in this Subordinated Indenture provided, and where notices and
demands to or upon the Corporation in respect of the Subordinated Securities or
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of this Subordinated Indenture may be served, and where the Subordinated
Securities may be presented for payment. In case the Corporation shall designate
and maintain some office or agency other than a previously designated office or
agency, it shall give the Trustee notice thereof. In case the Corporation shall
fail to maintain any such office or agency or shall fail to give such notice of
the location or of any change in the location thereof to the Trustee,
presentations and demands may be made and notices may be served at the principal
office of the Trustee.
In addition to such office or agency, the Corporation may from time to
time constitute and appoint one or more other offices or agencies for such
purposes with respect to Subordinated Securities of any Series, and one or more
paying agents for the payment of Subordinated Securities of any Series, in such
cities or in one or more other cities, and may from time to time rescind such
appointments, as the Corporation may deem desirable or expedient, and as to
which the Corporation has notified the Trustee.
SECTION 4.5. APPOINTMENT TO FILL A VACANCY IN THE OFFICE OF TRUSTEE.
The Corporation, whenever necessary to avoid or fill a vacancy in the office of
Trustee, covenants that it will appoint, in the manner provided in Section 7.10,
a Trustee, so that there shall at all times be a Trustee with respect to the
Outstanding Subordinated Securities.
SECTION 4.6. DUTIES OF PAYING AGENT.
(a) If the Corporation shall appoint a Paying Agent other than the
Trustee with respect to 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 4.6 and Section 11.5,
(1) that it will hold all sums held by it as such agent for
the payment of the principal of or interest, if any, on the
Subordinated Securities of such Series (whether such sums have been
paid to it by the Corporation or by any other obligor on the
Subordinated Securities of such Series) in trust for the benefit of the
Holders of the Subordinated Securities entitled to such principal or
interest and will notify the Trustee of the receipt of sums to be so
held,
(2) that it will give the Trustee notice of any failure by the
Corporation (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
(3) that it will at any time during the continuance of any
Event of Default, upon the written request of the Trustee, deliver to
the Trustee all sums so held in trust by it.
(b) Whenever the Corporation shall have one or more Paying Agents with
respect to the Subordinated Securities of any Series, it will, prior to each due
date of the principal of
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or any interest on the Subordinated Securities of such Series, deposit with a
Paying Agent of such Series a sum sufficient to pay the principal or interest so
becoming due, such sum to be held in trust for the benefit of the Holders of
Subordinated Securities entitled to such principal or interest, and (unless such
Paying Agent is the Trustee) the Corporation will promptly notify the Trustee of
its action or failure so to act.
(c) If the Corporation shall act as its own Paying Agent with respect
to the Subordinated Securities of any Series, it will, on or before each Stated
Maturity of the principal of or any 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, a sum sufficient to pay
such principal and any interest so becoming due and will notify the Trustee of
such action, or any failure by it or any other obligor on the Subordinated
Securities of such Series to take such action and will at any time during the
continuance of any Event of Default, upon the written request of the Trustee,
deliver to the Trustee all sums so held in trust by it.
(d) Anything in this Section 4.6 to the contrary notwithstanding, the
Corporation may, at any time, for the purpose of obtaining a satisfaction and
discharge of this Subordinated Indenture 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 such Series by it, or
any Paying Agent hereunder, as required by this Section 4.6, and such sums are
to be held by the Trustee upon the trust herein contained.
SECTION 4.7. NOTICE OF DEFAULT. The Corporation covenants that, as soon
as is practicable, the Corporation will furnish the Trustee notice of any event
which is an Event of Default or which with the giving of notice or the passage
of time or both would constitute an Event of Default which has occurred and is
continuing on the date of such notice, which notice shall set forth the nature
of such event and the action which the Corporation proposes to take with respect
thereto.
ARTICLE 5
SECURITYHOLDERS' LISTS AND REPORTS
BY THE CORPORATION AND THE TRUSTEE
SECTION 5.1. CORPORATION TO FURNISH TRUSTEE INFORMATION AS TO THE NAMES
AND ADDRESSES OF SUBORDINATED SECURITYHOLDERS. The Corporation will furnish or
cause to be furnished to the Trustee, not less than 45 days nor more than 60
days after each (month and day) specified as an Interest Payment Date for the
Subordinated Securities of the first Series issued under this Subordinated
Indenture (whether or not any Subordinated Securities of that Series are then
Outstanding), but in no event less frequently than semiannually, and at such
other times as the Trustee may request in writing, within 30 days after receipt
by the Corporation of any such request, a list in such form as the Trustee may
reasonably require containing all the information in the possession or control
of the Corporation, or any of its
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Paying Agents other than the Trustee, as to the names and addresses of the
Holders of Subordinated Securities, obtained since the date as of which the next
previous list, if any, wasfurnished, EXCLUDING from any such list the names and
addresses received by the Trustee in its capacity as registrar (if so acting).
Any such list may be dated as of a date not more than 15 days prior to the time
such information is furnished and need not include information received after
such date.
SECTION 5.2. PRESERVATION OF INFORMATION; COMMUNICATION TO SUBORDINATED
SECURITYHOLDERS.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of the Holders of Subordinated Securities
of each Series (1) contained in the most recent list furnished to it as provided
in Section 5.1, (2) received by the Trustee in the capacity of Paying Agent or
registrar (if so acting) and (3) filed with the Trustee within the two preceding
years as provided for in Section 5.4(c). The Trustee may destroy any list
furnished to it as provided in Section 5.1 upon receipt of a new list so
furnished.
(b) If three or more Holders of Subordinated Securities (hereinafter
referred to as "applicants") apply in writing to the Trustee, and furnish to the
Trustee reasonable proof that each such applicant has owned a Subordinated
Security for a period of at least six months preceding the date of such
application, and such application states that the applicants desire to
communicate with other Holders of Subordinated Securities of any Series or with
Holders of all Subordinated Securities with respect to their rights under this
Subordinated Indenture or under such Subordinated Securities, and is accompanied
by a copy of the form of proxy or other communication which such applicants
propose to transmit, then the Trustee shall, within five Business Days after the
receipt of such application, at its election, either:
(1) afford such applicants access to the information preserved
at the time by the Trustee in accordance with the provisions of
subsection (a) of this Section 5.2 or
(2) inform such applicants as to the approximate number of
Holders of Subordinated Securities of such Series or all Subordinated
Securities, as the case may be, whose names and addresses appear in the
information preserved at the time by the Trustee in accordance with the
provisions of subsection (a) of this Section 5.2, and as to the
approximate cost of mailing to such Subordinated Securityholders the
form of proxy or other communications, if any, specified in such
application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each of the Holders of Subordinated Securities of such Series, or all
Subordinated Securities, as the case may be, whose name and address appear in
the information preserved at the time by the Trustee in accordance with the
provisions of subsection (a) of this Section 5.2, a copy of the form of proxy or
other communication which is specified in such request, with reasonable
promptness
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after a tender to the Trustee of the material to be mailed and of payment, or
provision for the payment, of the reasonable expenses of mailing, unless within
five days after such tender, theTrustee shall mail to such applicants and file
with the Commission, together with a copy of the material to be mailed, a
written statement to the effect that, in the opinion of the Trustee, such
mailing would be contrary to the best interests of the Holders of Subordinated
Securities of such Series or all Subordinated Securities, as the case may be, or
would be in violation of applicable law. Such written statement shall specify
the basis of such opinion. If the Commission, after opportunity for a hearing
upon the objections specified in the written statement so filed, shall enter an
order refusing to sustain any of such objections or if, after the entry of an
order sustaining one or more of such objections, the Commission shall find,
after notice and opportunity for hearing, that all the objections so sustained
have been met and shall enter an order so declaring, the Trustee shall mail
copies of such material to all such Subordinated Securityholders with reasonable
promptness after the entry of such order and the renewal of such tender;
otherwise the Trustee shall be relieved of any obligation or duty to such
applicants respecting their application.
(c) Each and every Holder of the Subordinated Securities, by receiving
and holding the same, agrees with the Corporation and the Trustee that neither
the Corporation nor the Trustee nor any Paying Agent nor any registrar shall be
held accountable by reason of the disclosure of any such information as to the
names and addresses of the Holders of Subordinated Securities in accordance with
the provisions of subsection (b) of this Section 5.2, regardless of the source
from which such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
said subsection (b).
SECTION 5.3. REPORTS BY CORPORATION.
(a) The Corporation covenants and agrees to file with the Trustee
within 15 days after the Corporation is required to file the same with the
Commission, copies of the annual reports and of the information, documents and
other reports (or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations prescribe) which the
Corporation may be required to file with the Commission pursuant to Section 13
or Section 15(d) of the Securities Exchange Act of 1934; or, if the Corporation
is not required to file information, documents or reports pursuant to either of
such sections, then to file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the Commission, such
of the supplementary and periodic information, documents and reports which may
be required pursuant to Section 13 of the Securities Exchange Act of 1934 in
respect of a security listed and registered on a national securities exchange as
may be prescribed from time to time in such rules and regulations.
(b) The Corporation covenants and agrees to file with the Trustee and
the Commission, in accordance with the rules and regulations prescribed from
time to time by the Commission, such additional information, documents and
reports with respect to compliance by the Corporation with the conditions and
covenants provided for in this Subordinated Indenture as may be required from
time to time by such rules and regulations.
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(c) The Corporation covenants and agrees to transmit to the Holders of
Subordinated Securities within 30 days after the filing thereof with the
Trustee, in the manner and to the extent provided in subsection (c) of Section
5.4 with respect to reports pursuant to subsection (a) of said Section 5.4, such
summaries of any information, documents and reports required to be filed by the
Corporation pursuant to subsections (a) and (b) of this Section 5.3 as may be
required by rules and regulations prescribed from time to time by the
Commission.
(d) The Corporation and any other obligor on the Subordinated
Securities each covenant and agree to furnish to the Trustee, not less than
annually, a brief certificate from the principal executive officer, principal
financial officer or principal accounting officer as to his or her knowledge of
the Corporation's compliance with all conditions and covenants of this
Subordinated Indenture (which compliance shall be determined without regard to
any period of grace or requirement of notice as provided in this Subordinated
Indenture). Such certificates need not comply with Section 13.3 of this
Subordinated Indenture.
SECTION 5.4. REPORTS BY TRUSTEE.
(a) On or before the first September 15th following the date of
execution of this Subordinated Indenture, and on or before September 15 in every
year thereafter, if and so long as any Subordinated Securities are Outstanding
hereunder, the Trustee shall transmit to the Subordinated Securityholders as
hereinafter in this Section 5.4 provided, a brief report dated as of the August
15 immediately preceding such September 15 with respect to any of the following
events which may have occurred within the 12 months preceding such August 15
(but if no such event has occurred within such period no report need be
transmitted):
(1) any change to its eligibility under Section 7.9, and its
qualifications under Section 7.8;
(2) the creation of or any material change to a relationship
specified in paragraph (1) through (10) of Section 7.8(d);
(3) the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the making
thereof) made by the Trustee (as such) which remain unpaid on the date
of such report, and for the reimbursement of which it claims or may
claim a lien or charge, prior to that of the Subordinated Securities of
any Series, on any property or funds held or collected by it as
Trustee, except that the Trustee shall not be required (but may elect)
to state such advances if such advances so remaining unpaid aggregate
not more than one-half of one percent of the principal amount of the
Subordinated Securities of such Series Outstanding on the date of such
report;
(4) the amount, interest rate and maturity date of all other
indebtedness owing by the Corporation (or by any other obligor on the
Subordinated Securities) to the Trustee in its individual capacity, on
the date of such report, with a brief description of any property held
as collateral security
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therefor, except indebtedness based upon a creditor relationship
arising in any manner described in paragraph (2), (3), (4) or (6) of
subsection (b) of Section 7.13;
(5) any change to the property and funds, if any, physically
in the possession of the Trustee (as such) on the date of such report;
(6) any additional issue of Subordinated Securities which the
Trustee has not previously reported; and
(7) any action taken by the Trustee in the performance of its
duties under this Subordinated Indenture which it has not previously
reported and which in its opinion materially affects the Subordinated
Securities, except action in respect of a default, notice of which has
been or is to be withheld by it in accordance with the provisions of
Section 6.10.
(b) The Trustee shall transmit to the Subordinated Securityholders, as
hereinafter provided, a brief report with respect to the character and amount of
any advances (and if the Trustee elects so to state, the circumstances
surrounding the making thereof) made by the Trustee (as such) since the date of
the last report transmitted pursuant to the provisions of subsection (a) of this
Section 5.4 (or if no such report has yet been so transmitted, since the date of
execution of this Subordinated Indenture), for the reimbursement of which it
claims or may claim a lien or charge prior to that of the Subordinated
Securities of any Series on property or funds held or collected by it as
Trustee, and which it has not previously reported pursuant to this subsection,
except that the Trustee shall not be required (but may elect) to report such
advances if such advances remaining unpaid at any time aggregate ten percent or
less of the principal amount of Subordinated Securities of such Series
Outstanding at such time, such report to be transmitted within 90 days after
such time.
(c) Reports pursuant to this Section 5.4 shall be transmitted by mail
(i) to all Holders of Subordinated Securities of any Series, as the names and
addresses of such Holders shall appear upon the Register of the Subordinated
Securities of such Series, (ii) to such Holders of Subordinated Securities as
have, within the two years preceding such transmission, filed their names and
addresses with the Trustee for that purpose and (iii) except in the case of
reports pursuant to subsection (b) of this Section 5.4 to each Holder whose name
and address are preserved at the time by the Trustee as provided in Section
5.2(a) hereof.
(d) A copy of each such report shall, at the time of such transmission
to Subordinated Securityholders, be filed by the Trustee with each stock
exchange upon which the Subordinated Securities of any Series are listed and
also with the Commission. The Corporation will notify the Trustee when and as
the Subordinated Securities of any Series become listed on any stock exchange.
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ARTICLE 6
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 6.1. EVENTS OF DEFAULT; ACCELERATION, WAIVER OF DEFAULT AND
RESTORATION OF POSITION AND RIGHTS. The term "Event of Default" whenever used
herein with respect to any particular Series of Subordinated Securities shall
mean any one of the following events:
(a) default in the payment of any installment of interest on
any Subordinated Security 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
of or any premium on any Subordinated Security of such Series as and
when the same shall become due and payable whether at maturity, by
proceedings for redemption, by declaration or otherwise, or
(c) default in the satisfaction of any sinking fund payment
obligation relating to such Series of Subordinated Securities, when and
as such obligation shall become due and payable, or
(d) failure on the part of the Corporation to observe or
perform in any material respect any other of the covenants or
agreements on its part in the Subordinated Securities or in this
Subordinated Indenture (including any Supplemental Subordinated
Indenture or pursuant to any Certified Resolution, as contemplated by
Section 2.1) specifically contained for the benefit of the Holders of
the Subordinated Securities of such Series, for a period of 90 days
after there has been given, by registered or certified mail, to the
Corporation by the Trustee, or to the Corporation and the Trustee by
the Holders of not less than 25% in principal amount of the
Subordinated Securities of such Series and all other Series so
benefitted (all Series voting as one class) at the time Outstanding
under this Subordinated Indenture a written notice specifying such
failure and stating that such is a "Notice of Default" hereunder, or
(e) the entry by a court having jurisdiction in the premises
of a decree or order for relief in respect of the Corporation 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 Corporation or for any substantial part of its
property, or ordering the winding up or liquidation of its affairs, if
such decree or order shall remain unstayed and in effect for a period
of 60 consecutive days, or
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(f) the commencement by the Corporation of a voluntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or the Corporation's consent to the entry of an
order for relief in any involuntary case under any such law, or its
consent to the appointment of or taking possession by a receiver,
liquidator, assignee, trustee, custodian, sequestrator (or similar
official) of the Corporation or for any substantial part of its
property, or the making by the Corporation of any general assignment
for the benefit of creditors, or its failure generally to pay its debts
as they become due or the taking by the Corporation of any corporate
action in furtherance of any of the foregoing.
If an Event of Default shall have occurred and be continuing with
respect to any one or more Series of Outstanding Subordinated Securities, then
and in each and every such case, unless the principal amount of all the
Subordinated Securities of each Series as to which there is an Event of Default
shall have already become due and payable, either the Trustee or the Holders of
not less than 25% in principal amount of the Subordinated Securities of such
Series then Outstanding hereunder (each such Series voting as a separate class)
by notice in writing to the Corporation (and to the Trustee if given by
Subordinated Securityholders) may declare the principal amount (or, if the
Subordinated Securities of any such 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 the Subordinated Securities of
such Series, together with any accrued interest, to be due and payable
immediately, and upon any such declaration the same shall be immediately due and
payable, anything in this Subordinated Indenture or in the Subordinated
Securities of such Series contained to the contrary notwithstanding. The
foregoing provisions, however, are subject to the condition that if, at any time
after the principal amount of the Subordinated Securities of any one or more
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 for the
payment of moneys due shall have been obtained or entered as hereinafter
provided, the Corporation shall pay or shall deposit with the Trustee a sum
sufficient to pay all matured installments of interest upon all the Subordinated
Securities of such Series (or upon all the Subordinated Securities, as the case
may be) and the principal of any and all Subordinated Securities of such Series
(or of any and all the Subordinated Securities, as the case may be) which shall
have become due otherwise than by declaration (with interest on overdue
installments of interest to the extent permitted by law and on such principal at
the rate or rates of interest borne by, or prescribed therefor in the
Subordinated Securities of such Series to the date of such payment or deposit)
and the amounts payable to the Trustee under Section 7.6 and any and all
defaults under this Subordinated Indenture with respect to Subordinated
Securities of such Series (or all Subordinated Securities, as the case may be),
other than the non-payment of principal of and any accrued interest on
Subordinated Securities of such Series (or any Subordinated Securities, as the
case may be) which shall have become due by declaration shall have been cured,
remedied or waived as provided in Section 6.9 -- then and in every such case the
Holders of a majority in principal amount of the Subordinated Securities of such
Series (or of all the Subordinated Securities, as the case may be) then
Outstanding (such Series or all Series voting as one class if more than one
Series are so entitled), by written notice to the
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Corporation and to the Trustee, may rescind and annul such declaration and its
consequences; but no such rescission and annulment shall extend to or shall
affect any subsequent default, or shall impair any right consequent thereon.
In case the Trustee shall have proceeded to enforce any right under
this Subordinated Indenture and such proceedings shall have been discontinued or
abandoned because of such rescission or annulment or for any other reason or
shall have been determined adversely to the Trustee, then and in every such case
the Corporation, the Trustee and the Holders of the Subordinated Securities of
such Series (or of all the Subordinated Securities, as the case may be) shall be
restored to their respective former positions and rights hereunder, and all
rights, remedies and powers of the Corporation and the Trustee and the Holders
of the Subordinated Securities of such Series (or of all the Subordinated
Securities, as the case may be) shall continue as though no such proceedings had
been taken.
SECTION 6.2. COVENANT OF CORPORATION TO PAY TO TRUSTEE WHOLE AMOUNT DUE
ON SUBORDINATED SECURITIES ON DEFAULT IN PAYMENT OF INTEREST OR PRINCIPAL. The
Corporation covenants that:
(1) in case default shall be made in the payment of any
installment of interest on any of the Subordinated Securities of any
Series as and when the same shall become due and payable, and such
default shall have continued for a period of 30 days or
(2) 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 at the
Stated Maturity of such Series or by any call for redemption or by
declaration of acceleration or otherwise or
(3) in case default shall be made in the satisfaction of any
sinking fund obligation when and as such obligation becomes due and
payable,
upon demand of the Trustee, the Corporation 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 such Subordinated
Securities of such Series for principal (and any premium) and interest and for
any overdue sinking fund payment together with interest upon the overdue
principal and installments of interest (to the extent permitted by law) at the
rate or rates of interest borne by, or prescribed therefor in, the Subordinated
Securities of such Series; and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expense of collection, including a
reasonable compensation to the Trustee, its agents and counsel, and any expenses
or liabilities incurred, and all advances made, by the Trustee hereunder other
than through its negligence or bad faith.
In case the Corporation shall fail forthwith to pay such amounts upon
such demand, the Trustee, in its own name and as Trustee of an express trust,
shall be entitled and
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empowered to institute any actions 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 Corporation or any other obligor upon such Subordinated
Securities, and collect in the manner provided by law out of the property of the
Corporation or any other obligor upon such Subordinated Securities wherever
situated the moneys adjudged or decreed to be payable.
If an Event of Default with respect to Subordinated Securities of any
Series occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Subordinated
Securities of such Series by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Subordinated Indenture or in aid of the exercise of any power granted herein, or
to enforce any other proper remedy.
SECTION 6.3. TRUSTEE MAY FILE PROOFS OF CLAIM. In case of the pendency
of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other similar judicial proceeding
relative to the Corporation or any other obligor upon the Subordinated
Securities or the property of the Corporation or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the
Subordinated Securities of any Series shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee
shall have made any demand on the Corporation for the payment of overdue
principal or interest) shall be entitled and empowered, to the fullest extent
permitted by law, by intervention in such proceeding or otherwise:
(i) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest owing and unpaid in
respect of the Subordinated Securities (or, if the Subordinated
Securities are Original Issue Discount Subordinated Securities, such
portion of the principal amount as may be specified in the terms of
such Subordinated Securities) and to file such other papers or
documents as may be necessary or advisable in order to have the claims
of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and
counsel) and of the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.6.
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Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the
Subordinated Securities or the rights of any Holder thereof or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.
SECTION 6.4. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SUBORDINATED SECURITIES. All rights of action and claims under this Subordinated
Indenture or the Subordinated Securities may be prosecuted and enforced by the
Trustee to the fullest extent permitted by law without the possession of any of
the Subordinated Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Subordinated Securities in respect of
which such judgment has been recovered.
SECTION 6.5. APPLICATION OF MONEYS COLLECTED BY TRUSTEE. Any moneys
collected by the Trustee pursuant to Section 6.3 shall be applied in the order
following, at the date or dates fixed by the Trustee for the distribution of
such moneys, upon presentation of the several Subordinated Securities in respect
of which moneys have been collected, and stamping thereon the payment, if only
partially paid, and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due to the Trustee under
Section 7.6;
SECOND: In case the principal of the Outstanding Subordinated
Securities in respect of which moneys have been collected shall not
have become due and be unpaid, to the payment of any interest on such
Subordinated Securities, in the order of the maturity of the
installments of such interest, with interest upon the overdue
installments of interest (so far as permitted by law and to the extent
that such interest has been collected by the Trustee at the rate or
rates of interest borne by such Subordinated Securities or prescribed
therefor therein) such payments to be made ratably to the Persons
entitled thereto, without discrimination or preference;
THIRD: In case the principal of the Outstanding Subordinated
Securities in respect of which such moneys have been collected shall
have become due, by declaration or otherwise, to the payment of the
whole amount then owing and unpaid upon such Subordinated Securities
for principal and interest, if any, with interest on the overdue
principal and any installments of interest (so far as permitted by law
and to the extent that such interest has been collected by the Trustee)
at the rate or rates of interest borne by, or prescribed therefor in,
such Subordinated Securities; and in case such moneys shall be
insufficient to pay in full the whole amount so due and unpaid upon
such
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Subordinated Securities, then to the payment of such principal and
interest, without preference or priority of principal over interest, or
of interest over principal, or of any installment of interest over any
other installment of interest, or of any Subordinated Security over any
other Subordinated Security, ratably to the aggregate of such principal
and accrued and unpaid interest; and
FOURTH: To the payment of the remainder, with appropriate
interest to the Corporation or its successors or assigns, or to
whosoever may be lawfully entitled to receive the same, or as a court
of competent jurisdiction may direct.
SECTION 6.6. LIMITATION ON SUITS BY HOLDERS OF SUBORDINATED SECURITIES.
No Holder of any Subordinated Security of any Series shall have any right by
virtue or by availing of any provision of this Subordinated Indenture to
institute any suit, action or proceeding in equity or at law upon or under or
with respect to this Subordinated Indenture or for the appointment of a receiver
or trustee, or for any other remedy hereunder, unless such Holder previously
shall have given to the Trustee written notice of a continuing Event of Default,
as hereinbefore provided, and unless also the Holders of not less than 25% in
principal amount of the Subordinated Securities of such Series then Outstanding
shall have made written request upon the Trustee to institute such action, suit
or proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs, expenses
and liabilities to be incurred therein or thereby (including the reasonable fees
of counsel for the Trustee), and the Trustee, for 60 days after its receipt of
such notice, request and offer of indemnity, shall have neglected or refused to
institute any such action, suit or proceeding and no direction inconsistent with
such written request shall have been given to the Trustee pursuant to this
Section 6.6; it being understood and intended, and being expressly covenanted by
the taker and Holder of every Subordinated Security with every other taker and
Holder and the Trustee, that no one or more Holders of Subordinated Securities
shall have any right in any manner whatever by virtue or by availing of any
provision of this Subordinated Indenture to affect, disturb or prejudice the
rights of the Holders of any other of such Subordinated Securities, or to obtain
or seek to obtain priority over or preference to any other such Holder, or to
enforce any right under this Subordinated Indenture, except in the manner herein
provided and for the equal, ratable and common benefit of all Holders of
Subordinated Securities. For the protection and enforcement of the provisions of
this Section 6.6, each and every Holder and the Trustee shall be entitled to
such relief as can be given either at law or in equity.
Notwithstanding any other provisions in this Subordinated Indenture,
the right of any Holder of any Subordinated Security to receive payment of the
principal of and interest on such Subordinated Security on or after the
respective due dates expressed in such Subordinated Security (or, in the case of
redemption, on or after the date fixed for redemption), 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.
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SECTION 6.7. RIGHTS AND REMEDIES CUMULATIVE. All powers and remedies
given by this Article Six to the Trustee or to the Holders shall, to the extent
permitted by law, be deemed cumulative and not exclusive of any thereof or of
any other powers and remedies available to the Trustee or the Holders, by
judicial proceedings or otherwise, to enforce the performance or observance of
the covenants and agreements contained in this Subordinated Indenture, and no
delay or omission of the Trustee or of any Holder of any of the Subordinated
Securities to exercise any right or power accruing upon any default occurring
and continuing as aforesaid shall impair any such right or power, or shall be
construed to be a waiver of any such default or an acquiescence therein; and,
subject to the provisions of Section 6.6, every power and remedy given by this
Article Six or by law to the Trustee or to the Holders may be exercised from
time to time, and as often as shall be deemed expedient, by the Trustee or by
the Holders. 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 6.8. DELAY OR OMISSION NOT WAIVER. No delay or omission of the
Trustee or of any Holder of any Subordinated Securities to exercise any right or
remedy accruing upon any Event of Default shall impair any such right or remedy
or constitute a waiver of any such Event of Default or an acquiescence therein.
Subject to the provisions of Section 6.6, every right and remedy given by this
Article Six or by law to the Trustee or to the Holders may be exercised from
time to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
SECTION 6.9. CONTROL BY HOLDERS; WAIVER OF PAST DEFAULTS. The Holders
of a majority in principal amount of the Subordinated Securities of all Series
(voting as one class) at the time Outstanding (determined as provided in Section
8.4) 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; PROVIDED, HOWEVER, that, subject to Section 7.1,
the Trustee shall have the right to decline to follow any such direction if the
Trustee in reliance upon an Opinion of Counsel determines that the action so
directed may not lawfully be taken, or if the Trustee in good faith shall, by a
Responsible Officer or Officers of the Trustee, determine that the proceedings
so directed would be illegal or involve it in personal liability or be unduly
prejudicial to the rights of Holders not parties to such direction, and provided
further that nothing in this Subordinated Indenture shall impair the right of
the Trustee to take any action deemed proper by the Trustee and which is not
inconsistent with such direction by the Holders.
The Corporation may set a special record date for purposes of
determining the identity of the Holders of Subordinated Securities entitled to
vote or consent to any action by vote or consent authorized or permitted by this
Section 6.9. Such record date shall be the later of 15 days prior to the first
solicitation of such consent or the date of the most recent list of Holders
furnished to the Trustee pursuant to Section 5.1 of this Subordinated Indenture
prior to such solicitation.
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The Holders of not less than a majority in principal amount of the
Subordinated Securities of any Series at the time Outstanding (determined as
provided in Section 8.4) may on behalf of the Holders of all the Subordinated
Securities of such Series waive any past Event of Default with respect to such
Series and its consequences (subject to Section 6.2), except a continuing Event
of Default specified in Section 6.1(a), (b) or (c), or in respect of a covenant
or provision of this Subordinated Indenture which under Article Ten cannot be
modified or amended without the consent of the Holder of each Subordinated
Security so affected. Upon any such waiver, the Corporation, the Trustee and the
Holders of the Subordinated Securities of such Series shall be restored to their
former positions and rights hereunder, respectively, and such Event of Default
shall be deemed to have been cured and not continuing for every purpose of this
Subordinated Indenture; but no such waiver shall extend to any subsequent or
other Event of Default or impair any right consequent thereon.
SECTION 6.10. TRUSTEE TO GIVE NOTICE OF DEFAULTS KNOWN TO IT, BUT MAY
WITHHOLD IN CERTAIN CIRCUMSTANCES. The Trustee shall, within 90 days after the
occurrence of any default hereunder with respect to the Subordinated Securities
of any Series, give to the Holders of the Subordinated Securities of such Series
in the manner and to the extent provided in subsection (c) of Section 5.4 with
respect to reports pursuant to subsection (a) of said Section 5.4, notice of
such default known to the Trustee unless such default shall have been cured,
remedied or waived before the giving of such notice (the term "default" for the
purposes of this Section 6.10 being hereby defined to be the events specified in
Section 6.1 and any additional events specified in the terms of any Series of
Subordinated Securities pursuant to Section 2.1 not including any periods of
grace provided for therein, and irrespective of the giving of written notice
specified in clause (d) of Section 6.1 and in any such terms); 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, the Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee, or a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determines that the withholding of such
notice is in the interest of the Holders of the Subordinated Securities of such
Series.
SECTION 6.11. REQUIREMENT OF AN UNDERTAKING TO PAY COSTS IN CERTAIN
SUITS UNDER THIS SUBORDINATED INDENTURE OR AGAINST THE TRUSTEE. All parties to
this Subordinated Indenture agree, and each Holder of any Subordinated Security
by such Holder's 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 or omitted by it as Trustee, the filing by any
party litigant in such suit of an undertaking to pay the costs of such suit, and
that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit, having due
regard to the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section 6.11 shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Holder of Subordinated
Securities of any Series, or group of such Holders, holding in the aggregate
more than ten percent in principal amount of the Subordinated Securities of such
Series Outstanding, or to any suit instituted by any Holder for the enforcement
of the
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payment of the principal of or any interest or premium on any Subordinated
Security, on or after the due date expressed in such Subordinated Security for
such interest (or in the case of any redemption, on or after the Redemption
Date).
ARTICLE 7
CONCERNING THE TRUSTEE
SECTION 7.1. CERTAIN DUTIES AND RESPONSIBILITIES OF TRUSTEE. The
Trustee, prior to the occurrence of an Event of Default and after the curing,
remedying or waiving of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Subordinated Indenture. In case an Event of Default has occurred
(which has not been cured, remedied or waived), the Trustee shall exercise such
of the rights and powers vested in it by this Subordinated Indenture, and use
the same degree of care and skill in their exercise, as a prudent man 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, PROVIDED, HOWEVER,
that:
(a) prior to the occurrence of an Event of Default and after
the curing, remedying or waving of all Events of Default which may have
occurred:
(1) the duties and obligations of the Trustee 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
(2) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the
Trustee and conforming to the requirements of this
Subordinated Indenture; but in the case of any such
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;
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(b) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer or 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 of Subordinated Securities pursuant to Section
6.9 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 performance of any of its duties hereunder or in the
exercise of any of its rights or powers, if there is reasonable ground for
believing that the repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it.
SECTION 7.2. CERTAIN RIGHTS OF TRUSTEE. Except as otherwise provided in
Section 7.1:
(a) The Trustee may conclusively rely and shall be protected
in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent,
order, approval, bond, debenture, note 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 Corporation
mentioned herein shall be sufficiently evidenced by an Officer's
Certificate (unless other evidence in respect thereof shall be herein
specifically prescribed); and any resolution of the Board of may be
evidenced to the Trustee by a Certified Resolution,
(c) The Trustee may consult with counsel of its selection and
the advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in accordance
with such written advice or Opinion of Counsel,
(d) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Subordinated Indenture at
the request, order or direction of any of the Subordinated
Securityholders, pursuant to the provisions of this Subordinated
Indenture, unless such Subordinated Securityholders shall have offered
to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which may be incurred therein or thereby,
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(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 or rights or powers conferred upon it by this
Subordinated Indenture,
(f) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent,
order, approval, bond, debenture, note or other paper or document,
unless requested in writing so to do by the Holders of Subordinated
Securities pursuant to Section 6.9; provided, however, 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 costs, expenses or liabilities as a condition to such
proceeding; and provided further, that nothing in this subsection (f)
shall require the Trustee to give the Subordinated Securityholders any
notice other than that required by Section 6.10. The reasonable expense
of every such examination shall be paid by the Corporation or, if paid
by the Trustee, shall be reimbursed by the Corporation upon demand,
(g) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder and
(h) The Trustee shall be under no responsibility for the
approval by it in good faith of any expert for any of the purposes
expressed in this Subordinated Indenture.
SECTION 7.3. TRUSTEE NOT RESPONSIBLE FOR RECITALS OR APPLICATION OF
PROCEEDS. The recitals contained herein and in the Subordinated Securities
(other than the certificate of authentication on the Subordinated Securities)
shall be taken as the statements of the Corporation, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no
representations as to the validity or sufficiency of this Subordinated Indenture
or of the Subordinated Securities. The Trustee shall not be accountable for the
use or application by the Corporation of any of the Subordinated Securities or
of the proceeds thereof.
SECTION 7.4. TRUSTEE MAY OWN SUBORDINATED SECURITIES. The Trustee, any
Paying Agent, registrar or any agent of the Corporation or of the Trustee, in
its individual or any other capacity, may become the owner or pledgee of
Subordinated Securities with the same rights it would have if it were not
Trustee, Paying Agent, registrar or such other agent.
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SECTION 7.5. MONEYS RECEIVED BY TRUSTEE TO BE HELD IN TRUST. Moneys
held by the Trustee in trust need not be segregated from other funds except to
the extent required by law. The Trustee shall be under no liability for interest
on any money received by it hereunder except as otherwise agreed with the
Corporation.
SECTION 7.6. TRUSTEE ENTITLED TO COMPENSATION, REIMBURSEMENT AND
INDEMNITY. The Corporation agrees to pay to the Trustee from time to time such
compensation as the parties shall agree from time to time (which shall not be
limited by any provision of law in regard to the compensation of a trustee of
any express trust), and the Corporation will pay or reimburse the Trustee upon
its request for all reasonable expenses, disbursements and advances incurred or
made by the Trustee in connection with the acceptance or administration of its
trust under this Subordinated Indenture (including the reasonable compensation
and the expenses and disbursements of its counsel and of all Persons not
regularly in its employ) except any such expense, disbursement or advance as may
arise from its negligence or bad faith. The Corporation also agrees to indemnify
the Trustee for, and to hold it harmless against, any loss, liability or expense
incurred without negligence or bad faith on the part of the Trustee and arising
out of or in connection with the acceptance or administration of this trust,
including the reasonable costs and expenses of defending itself against any
claim of liability in the premises. The obligations of the Corporation under
this Section to compensate the Trustee, to pay or reimburse the Trustee for
expenses, disbursements and advances and to indemnify and hold harmless the
Trustee shall constitute additional indebtedness hereunder and shall survive the
satisfaction and discharge of this Subordinated Indenture. Such additional
indebtedness shall be secured by a lien prior 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 payment of principal of or interest or
redemption premium on particular Subordinated Securities.
SECTION 7.7. RIGHT OF TRUSTEE TO RELY ON OFFICER'S CERTIFICATE WHERE NO
OTHER EVIDENCE SPECIFICALLY PRESCRIBED. Except as otherwise provided in Section
7.1, whenever in the administration of the provisions of this Subordinated
Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking, suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the
part of the Trustee, be deemed to be conclusively proved and established by an
Officer's Certificate of the Corporation delivered to the Trustee, and such
Officer's 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 7.8. DISQUALIFICATION; CONFLICTING INTEREST.
(a) If the Trustee has or shall acquire any conflicting interest, as
defined in this Section 7.8, it shall, within 90 days after ascertaining that it
has such conflicting interest, and if the Event of Default to which such
conflicting interest relates has not been cured or duly waived or otherwise
eliminated before the end of such 90-day period, the Trustee shall either
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eliminate such conflicting interest or, except as otherwise provided in this
Section 7.8, resign in the manner and with the effect specified in Section 7.10,
such resignation to become effective upon the appointment of a successor trustee
and such successor's acceptance of such appointment, and the Corporation shall
take prompt steps to appoint a successor in accordance with Section 7.10.
(b) In the event that the Trustee shall fail to comply with the
provisions of subsection (a) of this Section 7.8, the Trustee shall, within ten
days after the expiration of such 90-day period, transmit notice of such failure
to the Subordinated Securityholders in the manner and to the extent provided in
subsection (c) of Section 5.4 with respect to reports pursuant to subsection (a)
of said Section 5.4.
(c) Subject to the provisions of Section 6.11 of this Subordinated
Indenture, unless the Trustee's duty to resign is stayed as provided in
subsection (f) of this Section 7.8, any Holder who has been a BONA FIDE Holder
of Subordinated Securities for at least six months may, on such Holder's behalf
and on behalf of all other Holders similarly situated, petition any court of
competent jurisdiction for the removal of such Trustee and the appointment of a
successor, if such Trustee fails after written request thereof by such Holder to
comply with the provisions of subsection (a) of this Section 7.8.
(d) For the purposes of this Section 7.8 the Trustee shall be deemed to
have a conflicting interest with respect to the Subordinated Securities of any
Series if an Event of Default (exclusive of any period of grace or requirement
of notice) has occurred with respect to Subordinated Securities of such Series
and:
(1) the Trustee is trustee under another indenture under which
any other securities, or certificates of interest or participation in
any other securities, of the Corporation or any other obligor on the
Subordinated Securities are outstanding or is trustee for more than one
outstanding series of securities, as hereinafter defined, under a
single indenture of the Corporation or any other obligor on the
Subordinated Securities, unless such other indenture is a collateral
trust indenture under which the only collateral consists of
Subordinated Securities issued under this Subordinated Indenture,
PROVIDED THAT there shall be excluded from the operation of this
paragraph, this Subordinated Indenture with respect to the Subordinated
Securities of any other Series Outstanding, and any other indenture or
indentures under which other securities, or certificates of interest or
participation in other securities, of the Corporation or any other
obligor on the Subordinated Securities are outstanding, if (A) this
Subordinated Indenture is and such other indenture or indentures (and
all series of securities issued thereunder) are wholly unsecured and
rank equally, and such other indenture or indentures (and such series)
are hereafter qualified under the Trust Indenture Act of 1939, unless
the Commission shall have found and declared by order pursuant to
subsection (b) of Section 305 or subsection (c) of Section 307 of the
Trust Indenture Act of 1939, that differences exist between the
provisions of this Subordinated
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Indenture with respect to Subordinated Securities of such Series and
one or more other Series, or the provisions of this Subordinated
Indenture and the provisions of such other indenture or indentures (or
such series), which are so likely to involve a material conflict of
interest as to make it necessary in the public interest or for the
protection of investors to disqualify the Trustee from acting as such
under this Subordinated Indenture with respect to Subordinated
Securities of such Series and such other Series, or under this
Subordinated Indenture and such other indenture or indentures, or (B)
the Corporation shall have sustained the burden of proving, on
application to the Commission and after opportunity for hearing
thereon, that the trusteeship under this Subordinated Indenture with
respect to Subordinated Securities of such Series and such other
Series, or under this Subordinated Indenture and such other indenture,
is not so likely to involve a material conflict of interest as to make
it necessary in the public interest or for the protection of investors
to disqualify the Trustee from acting as such under this Subordinated
Indenture with respect to Subordinated Securities of such Series and
such other Series, or under this Subordinated Indenture and one of such
indentures,
(2) the Trustee or any of its directors or executive officers
is an underwriter for the Corporation or any other obligor on the
Subordinated Securities,
(3) the Trustee directly or indirectly controls or is directly
or indirectly controlled by or is under direct or indirect common
control with an underwriter for the Corporation or any other obligor on
the Subordinated Securities,
(4) the Trustee or any of its directors or executive officers
is a director, officer, partner, employee, appointee or representative
of the Corporation or any other obligor on the Subordinated Securities,
or of an underwriter (other than the Trustee itself) for the
Corporation or any other obligor on the Subordinated Securities who is
currently engaged in the business of underwriting, except that (A) one
individual may be a director and/or an executive officer of the Trustee
and a director and/or an executive officer of the Corporation or any
other obligor on the Subordinated Securities, but may not be at the
same time an executive officer of both the Trustee and the Corporation
or any other obligor on the Subordinated Securities; (B) if and so long
as the number of directors of the Trustee in office is more than nine,
one additional individual may be a director and/or an executive officer
of the Trustee and a director of the Corporation or any other obligor
on the Subordinated Securities; and (C) the Trustee may be designated
by the Corporation or any other obligor on the Subordinated Securities
or by an underwriter for the Corporation or any other obligor on the
Subordinated Securities to act in the capacity of transfer agent,
registrar, custodian, paying agent, fiscal agent, escrow agent or
depositary, or in any other similar capacity,
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or, subject to the provisions of paragraph (1) of this
subsection (d), to act as trustee whether under an indenture or
otherwise,
(5) ten percent or more of the voting securities of the
Trustee is beneficially owned either by the Corporation or any other
obligor on the Subordinated Securities or by any director, partner or
executive officer thereof, or 20% or more of such voting securities is
beneficially owned, collectively, by any two or more of such Persons;
or ten percent or more of the voting securities of the Trustee is
beneficially owned either by an underwriter for the Corporation or any
other obligor on the Subordinated Securities or by any director,
partner or executive officer thereof or is beneficially owned,
collectively, by any two or more such Persons,
(6) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default, as
hereinafter defined, (A) five percent or more of the voting securities,
or ten percent or more of any other class of security, of the
Corporation or any other obligor on the Subordinated Securities, not
including the Subordinated Securities issued under this Subordinated
Indenture and securities issued under any other indenture under which
the Trustee is also trustee, or (B) ten percent or more of any class of
security of an underwriter for the Corporation or any other obligor on
the Subordinated Securities,
(7) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default, as
hereinafter defined, five percent or more of the voting securities of
any Person who, to the knowledge of the Trustee, owns ten percent or
more of the voting securities of, or controls directly or indirectly or
is under direct or indirect common control with the Corporation or any
other obligor on the Subordinated Securities,
(8) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default, as
hereinafter defined, ten percent or more of any class of security of
any Person who, to the knowledge of the Trustee, owns 50% or more of
the voting securities of the Corporation or any other obligor on the
Subordinated Securities or
(9) the Trustee owns on the date of the occurrence of such
Event of Default (exclusive of any period of grace or requirement of
notice) or any anniversary thereof while such Event of Default remains
outstanding, in the capacity of executor, administrator, testamentary
or INTER VIVOS trustee, guardian, committee or conservator, or in any
other similar capacity an aggregate of 25% or more of the voting
securities or of any class of security, of any Person, the beneficial
ownership of a specified percentage of which would have constituted a
conflicting interest under paragraph (6), (7) or (8) of this subsection
(d). As to any such securities of which the Trustee acquired
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ownership through becoming executor, administrator or testamentary
trustee of an estate which included them, the provisions of the
preceding sentence shall not apply, for a period of two years from the
date of such acquisition, to the extent that such securities included
in such estate do not exceed 25% of such voting securities or 25% of
any such class of security. Promptly after the date of the occurrence
of any such Event of Default and annually in each succeeding year that
the Subordinated Securities or any Series thereof remain in default,
the Trustee shall make a check of its holdings of such securities in
any of the above-mentioned capacities as of such date. If the
Corporation or any other obligor on the Subordinated Securities fails
to make payment in full of principal of or interest on any of the
Subordinated Securities when and as the same become due and payable and
such failure continues for 30 days thereafter, the Trustee shall make a
prompt check of its holdings of such securities in any of the
above-mentioned capacities as of the date of the expiration of such
30-day period, and after such date, notwithstanding the foregoing
provisions of this paragraph (9), all such securities so held by the
Trustee, with sole or joint control over such securities vested in it,
shall, but only so long as such failure shall continue, be considered
as though beneficially owned by the Trustee for the purposes of
paragraphs (6), (7) and (8) of this subsection (d), or
(10) except under the circumstances described in paragraphs
(1), (3), (4), (5) or (6) of Section 7.13(b), the Trustee shall be or
become a creditor of the Corporation or any other obligor on the
Subordinated Securities.
The specifications of percentages in paragraphs (5) to (9), inclusive,
of this subsection (d) shall not be construed as indicating that the ownership
of such percentages of the securities of a Person is or is not necessary or
sufficient to constitute direct or indirect control for the purposes of
paragraph (3) or (7) of this subsection (d).
For the purposes of paragraphs (6), (7), (8) and (9) of this subsection
(d) only, (A) the terms "security" and "securities" shall include only such
securities as are generally known as corporate securities, but shall not include
any note or other evidence of indebtedness issued to evidence an obligation to
repay moneys lent to a Person by one or more banks, trust companies or banking
firms, or any certificate of interest or participation in any such note or
evidence of indebtedness; (B) an obligation shall be deemed to be in default
when a default in payment of principal shall have continued for 30 days or more
and shall not have been cured; and (C) the Trustee shall not be deemed to be the
owner or Holder of (i) any security which it holds as collateral security (as
trustee or otherwise) for an obligation which is not in default as defined in
clause (B) above, or (ii) any security which it holds as collateral security
under this Subordinated Indenture, irrespective of any default hereunder, or
(iii) any security which it holds as agent for collection, or as custodian,
escrow agent or depositary, or in any similar representative capacity.
(e) For the purposes of this Section 7.8:
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(1) The term "underwriter" when used with reference to the
Corporation or any other obligor on the Subordinated Securities shall
mean every Person who, within one year prior to the time as of which
the determination is made, has purchased from the Corporation or any
other obligor on the Subordinated Securities with a view to, or has
offered or sold for the Corporation or any other obligor on the
Subordinated Securities in connection with, the distribution of any
security of the Corporation or any other obligor on the Subordinated
Securities outstanding at such time, or has participated or has had a
direct or indirect participation in any such undertaking, or has
participated or has had a participation in the direct or indirect
underwriting of any such undertaking, but such term shall not include a
Person whose interest was limited to a commission from an underwriter
or dealer not in excess of the usual and customary distributors' or
sellers' commission.
(2) The term "director" shall mean any director of a
corporation or any individual performing similar functions with respect
to any organization whether incorporated or unincorporated.
(3) The term "trust" shall include only a trust where the
interest or interests of the beneficiary or beneficiaries are evidenced
by a security.
(4) The term "voting security" shall mean any security
presently entitling the owner or Holder thereof to vote in the
direction or management of the affairs of a Person, or any security
issued under or pursuant to any trust, agreement or arrangement whereby
a trustee or trustees or agent or agents for the owner or Holder of
such security are presently entitled to vote in the direction or
management of the affairs of a Person.
(5) The term "executive officer" shall mean the president,
every vice-president, every trust officer, the cashier, the secretary
and the treasurer of a corporation, and any individual customarily
performing similar functions with respect to any organization whether
incorporated or unincorporated, but shall not include the chairman of
the board of directors.
(6) Except for purposes of paragraphs (6), (7), (8) and (9) of
subsection (d) of this Section 7.8, the term "security" or "securities"
shall mean any note, stock, treasury stock, bond, debenture, evidence
of indebtedness, certificate of interest or participation in any
profit-sharing agreement, collateraltrust certificate, pre-organization
certificate or subscription, transferable share, investment contract,
voting-trust certificate, certificate of deposit for a security,
fractional undivided interest in oil, gas or other mineral rights, or,
in general, any interest or instrument commonly known as a "security"
or any certificate of interest or participation in, temporary or
interim certificate for, receipt for, guarantee of, or warrant or right
to subscribe to or purchase, any of the foregoing.
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(7) For the purpose of subsection (d)(1) of this Section 7.8,
the term "series of securities" or "series" means a series, class or
group of securities issuable under an indenture pursuant to whose terms
Holders of one such series may vote to direct the indenture trustee, or
otherwise take action pursuant to a vote of such holders, separately
from holders of another such series; PROVIDED, THAT "series of
securities" or "series" shall not include any series of securities
issuable under an indenture if all such series rank equally and are
wholly unsecured.
The percentages of voting securities and other securities specified in
this Section shall be calculated in accordance with the following provisions:
(A) A specified percentage of the voting securities of the
Trustee, the Corporation or any other Person referred to in this
Section 7.8 (each of whom is referred to as a "Person" in this
paragraph) means such amount of the outstanding voting securities of
such Person as entitles the Holder or Holders thereof to cast such
specified percentage of the aggregate votes which the Holders of all
the outstanding voting securities of such Person are entitled to cast
in the direction or management of the affairs of such Person.
(B) A specified percentage of a class of securities of a
Person means such percentage of the aggregate amount of securities of
the class outstanding.
(C) The term "amount", when used in regard to securities,
means the principal amount if relating to evidences of indebtedness,
the number of shares if relating to capital shares, and the number of
units if relating to any other kind of security.
(D) The term "outstanding" means issued and not held by or for
the account of the issuer. The following securities shall not be deemed
outstanding within the meaning of this definition:
(i) Subordinated Securities of an issuer held in a
sinking fund relating to securities of the issuer of the same
class;
(ii) Subordinated Securities of an issuer held in a
sinking fund relating to another class of securities of the
issuer, if the obligation evidenced by such other class of
securities is not in default as to principal or interest or
otherwise;
(iii) Subordinated Securities pledged by the issuer
thereof as security for an obligation of the issuer not in
default as to principal or interest or otherwise; and
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(iv) Subordinated Securities held in escrow if placed
in escrow by the issuer thereof;
provided, however, that any voting securities of an issuer shall be
deemed outstanding if any Person other than the issuer is entitled to
exercise the voting rights thereof.
(E) A security shall be deemed to be of the same class as
another security if both securities confer upon the Holder or Holders
thereof substantially the same rights and privileges, provided,
however, that, in the case of secured evidences of indebtedness, all of
which are issued under a single indenture, differences in the interest
rates or maturity dates of various series thereof shall not be deemed
sufficient to constitute such series different classes, and provided
further that, in the case of unsecured evidences of indebtedness,
differences in the interest rate or maturity dates thereof shall not be
deemed sufficient to constitute them securities of different classes,
whether or not they are issued under a single indenture.
(f) Except in the case of a default in the payment of the principal of
or interest on any Subordinated Securities, or in the payment of any sinking or
purchase fund installment, the Trustee shall not be required to resign as
provided by this Section 7.8 if the Trustee shall have sustained the burden of
proving, on application to the Commission and after opportunity for hearing
thereon, that (i) the default under this Subordinated Indenture may be cured or
waived during a reasonable period and under the procedures described in such
application, and (ii) a stay of the Trustee's duty to resign will not be
inconsistent with the interests of Holders of such Series of Subordinated
Securities. The filing of such an application shall automatically stay the
performance of the duty to resign until the Commission orders otherwise. Any
resignation of the Trustee shall become effective only upon the appointment of a
successor trustee and such successor's acceptance of such appointment.
SECTION 7.9. REQUIREMENTS FOR ELIGIBILITY OF TRUSTEE. There shall
always be at least one Trustee hereunder. The Trustee hereunder shall at all
times be a corporation organized and doing business as a commercial bank under
the laws of the United States of America or any state thereof or of the District
of Columbia or a corporation or other Person permitted to act as a trustee by
the Commission and, in each case, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least
$100,000,000, and 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. No obligor on the Subordinated Securities or Person
directly or indirectly controlling, controlled by or under common control with
such obligor shall serve as Trustee. In case at any time the Trustee shall cease
to be eligible in accordance with the provisions of this
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Section 7.9, the Trustee shall resign immediately in the manner and with the
effect specified in this Article Seven.
SECTION 7.10. RESIGNATION AND REMOVAL OF TRUSTEE; APPOINTMENT OF
SUCCESSOR.
(a) The Trustee, or any trustee or trustees hereafter appointed, may at
any time resign with respect to one or more or all Series of Subordinated
Securities by giving written notice of such resignation to the Corporation and
by giving to the Holders of Subordinated Securities notice thereof in the manner
and to the extent provided in subsection (c) of Section 5.4 with respect to
reports pursuant to subsection (a) of Section 5.4. Upon receiving such notice of
resignation and, if the Corporation shall deem it appropriate, evidence
satisfactory to it of such mailing to the Holders, the Corporation shall
promptly appoint a successor trustee with respect to all Series of Subordinated
Securities or, if appropriate, the applicable Series by written instrument
executed by an authorized officer of the Corporation, one copy of which
instrument shall be delivered to the resigning Trustee and one copy to the
successor trustee. If no successor trustee shall have been so appointed 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 Holder who has
been a bona fide Holder of a Subordinated Security or Subordinated Securities
for at least six months may, subject to the provisions of Section 6.11, on such
Holder's behalf and on behalf of 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:
(1) the Trustee shall fail to comply with the provisions of
subsection (a) of Section 7.8 after written request therefor by the
Corporation or by any Subordinated Securityholder who has been a bona
fide Holder of a Subordinated Security or Subordinated Securities of
the applicable Series for at least six months, or
(2) the Trustee shall cease to be eligible in accordance with
the provisions of Section 7.9 and shall fail to resign after written
request therefor by the Corporation or by any such Subordinated
Securityholder, or
(3) the Trustee shall become incapable of acting, or shall be
adjudged a bankrupt or insolvent, or a receiver of the Trustee or of
its property shall be appointed, or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation, or
(4) the Corporation shall determine that the Trustee has
failed to perform its obligations under this Subordinated Indenture in
any material respect,
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then, in any such case, the Corporation may remove the Trustee and appoint a
successor trustee by written instrument executed by an authorized officer of the
Corporation, 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 6.11, any Subordinated Securityholder who has been a bona fide Holder of
a Subordinated Security or Subordinated Securities of the affected Series for at
least six months may, on such Person's behalf and on behalf of 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.
(c) The Holders of a majority in principal amount of the Subordinated
Securities Outstanding (determined as provided in Section 8.4) may at any time
remove the Trustee and appoint a successor trustee by written instrument or
instruments signed by such Holders or their attorneys-in-fact duly authorized,
or by the affidavits of the permanent chairman and secretary of a meeting of the
Subordinated Securityholders evidencing the vote upon a resolution or
resolutions submitted thereto with respect to such removal and appointment (as
provided in Article Nine), and by delivery thereof to the Trustee so removed, to
the successor trustee and to the Corporation.
(d) Any resignation or removal of the Trustee and any appointment of a
successor trustee pursuant to any of the provisions of this Section 7.10 shall
become effective upon acceptance of appointment by the successor trustee as
provided in Section 7.11.
SECTION 7.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR TRUSTEE. Any
successor trustee appointed as provided in Section 7.10 shall execute,
acknowledge and deliver to the Corporation and to its predecessor trustee an
instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the predecessor trustee shall become effective and such successor
trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, duties and obligations with respect to such Series of
its predecessor hereunder, with like effect as if originally named as trustee
herein; but, nevertheless, on the written request of the Corporation or of the
successor trustee, the trustee ceasing to act shall, upon payment of any amounts
then due it pursuant to the provisions of Section 7.6, execute and deliver an
instrument transferring to such successor trustee all the rights and powers with
respect to the trustee so ceasing to act. Upon written request of any such
successor trustee, the Corporation 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 lien upon all property or funds held or collected by such
trustee to secure any amounts then due it pursuant to the provisions of Section
7.6.
No successor trustee shall accept appointment as provided in this
Section 7.11 unless at the time of such acceptance such successor trustee shall
be qualified under the provisions of Section 7.8 and eligible under the
provisions of Section 7.9.
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Upon acceptance of appointment by a successor trustee as provided in
this Section 7.11, the successor trustee shall at the expense of the Corporation
transmit notice of the succession of such trustee hereunder to the Holders of
Subordinated Securities in the manner and to the extent provided in subsection
(c) of Section 5.4 with respect to reports pursuant to subsection (a) of said
Section 5.4.
SECTION 7.12. SUCCESSOR TO TRUSTEE BY MERGER, CONSOLIDATION OR
SUCCESSION TO BUSINESS. Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided such corporation shall be qualified under the provisions of
Section 7.8 and eligible under the provisions of Section 7.9, 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
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 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 certificates shall have the full force which it is
anywhere in the Subordinated Securities or in this Subordinated Indenture
provided that the certificate of the Trustee shall have; provided, however, that
the right to adopt the certificate of authentication of any predecessor Trustee
or to authenticate Subordinated Securities in the name of any predecessor
Trustee shall apply only to its successor or successors by merger, conversion or
consolidation.
SECTION 7.13. PREFERENTIAL COLLECTION OF CLAIMS AGAINST CORPORATION.
(a) Subject to the provisions of subsection (b) of this Section 7.13,
if the Trustee shall be or shall become a creditor, directly or indirectly,
secured or unsecured, of the Corporation or any other obligor on the
Subordinated Securities within three months prior to a default, as defined in
subsection (c) of this Section 7.13, or subsequent to such a default, then,
unless and until such default shall be cured, the Trustee shall set apart and
hold in a special account for the benefit of the Trustee individually, the
Holders of the Subordinated Securities for which it is acting as Trustee, and
the holders of other indenture securities (as defined in subsection (c) of this
Section 7.13):
(1) an amount equal to any and all reductions in the amount
due and owing upon any claim as such creditor in respect of principal
or interest, effected after the beginning of such three months' period,
and valid as against the Corporation or such other obligor on the
Subordinated Securities and its
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other creditors, except any such reduction resulting from the receipt
or disposition of any property described in paragraph (2) of this
subsection, or from the exercise of any right of set-off which the
Trustee could have exercised if a petition in bankruptcy had been filed
by or against the Corporation or such other obligor on the Subordinated
Securities upon the date of such default; and
(2) all property received by the Trustee in respect of any
claims as such creditor, either as security therefor, or in
satisfaction or composition thereof, or otherwise, after the beginning
of such three months' period, or an amount equal to the proceeds of any
such property if disposed of, subject, however, to the rights, if any,
of the Corporation or such other obligor on the Subordinated Securities
and their respective other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee:
(A) to retain for its own account (i) payments made on account
of any such claim by any Person (other than the Corporation or such
other obligor on the Subordinated Securities) who is liable thereon,
and (ii) the proceeds of the bona fide sale of any such claim by the
Trustee to a third Person, and (iii) distributions made in cash,
securities or other property in respect of claims filed against the
Corporation or such other obligor on the Subordinated Securities in
bankruptcy or receivership or in proceedings for reorganization
pursuant to Title 11 of the United States Code or applicable State
laws;
(B) to realize, for its own account, upon any property held by
it as security for any such claim, if such property was so held prior
to the beginning of such three months' period;
(C) to realize, for its own account, but only to the extent of
the claim hereinafter mentioned, upon any property held by it as
security for any such claim, if such claim was created after the
beginning of such three months' period and such property was received
as security therefor simultaneously with the creation thereof, and if
the Trustee shall sustain the burden of proving that at the time such
property was so received, the Trustee had no reasonable cause to
believe that a default, as defined in subsection (c) of this Section
7.13, would occur within three months; or
(D) to receive payment on any claim referred to in paragraph
(B) or (C), against the release of any property held as security for
such claim as provided in such paragraph (B) or (C), as the case may
be, to the extent of the fair value of such property.
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For the purposes of paragraphs (B), (C) and (D), property substituted
after the beginning of such three months' period for property held as security
at the time of such substitution shall, to the extent of the fair value of the
property released, have the same status as the property released, and to the
extent that any claim referred to in any of such paragraphs is created in
renewal of or in substitution for or for the purpose of repaying or refunding
any preexisting claim of the Trustee as such creditor, such claim shall have the
same status as such preexisting claim.
If the Trustee shall be required to account, the funds and property
held in such special account and the proceeds thereof shall be apportioned among
the Trustee, the Holders of Subordinated Securities for which it is acting as
Trustee, and the holders of other indenture securities in such manner that the
Trustee, such Subordinated Securityholders and the holders of other indenture
securities realize, as a result of payments from such special account and
payments of dividends on claims filed against the Corporation or such other
obligor on the Subordinated Securities in bankruptcy or receivership or in
proceedings for reorganization pursuant to Title 11 of the United States Code or
applicable State law, the same percentage of their respective claims, figured
before crediting to the claim of the Trustee anything on account of the receipt
by it from the Corporation or such other obligor on the Subordinated Securities
of the funds and property in such special account and before crediting to the
respective claims of the Trustee, such Subordinated Securityholders, and the
holders of other indenture securities dividends on claims filed against the
Corporation or such other obligor on the Subordinated Securities in bankruptcy
or receivership or in proceedings for reorganization pursuant to Title 11 of the
United States Code or applicable State law, but after crediting thereon receipts
on account of the indebtedness represented by their respective claims from all
sources other than from such dividends and from the funds and property so held
in such special account. As used in this paragraph, with respect to any claim,
the term "dividends" shall include any distribution with respect to such claim
in bankruptcy or receivership or in proceedings for reorganization pursuant to
Title 11 of the United States Code or applicable State law, whether such
distribution is made in cash, securities or other property, but shall not
include any such distribution with respect to the secured portion, if any, of
such claim. The court in which such bankruptcy, receivership or proceeding for
reorganization is pending shall have jurisdiction (i) to apportion among the
Trustee, such Subordinated Securityholders, and the holders of other indenture
securities, in accordance with the provisions of this paragraph, the funds and
property held in such special account and the proceeds thereof, or (ii) in lieu
of such apportionment in whole or in part, to give to the provisions of this
paragraph due consideration in determining the fairness of the distributions to
be made to the Trustee, such Subordinated Securityholders and the holders of
other indenture securities with respect to their respective claims, in which
event it shall not be necessary to liquidate or to appraise the value of any
securities or other property held in such special account or as security for any
such claim, or to make a specific allocation of such distributions as between
the secured and unsecured portions of such claim, or otherwise to apply the
provisions of this paragraph as a mathematical formula.
Any Trustee who has resigned or been removed after the beginning of
such three months' period shall be subject to the provisions of this subsection
(a) as though such
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resignation or removal had not occurred. If any Trustee has resigned or been
removed prior to the beginning of such three months' period, it shall be subject
to the provisions of this subsection (a) if and only if the following conditions
exist:
(i) the receipt of property or reduction of claim which would
have given rise to the obligation to account, if such Trustee had
continued, as trustee, occurred after the beginning of such three
months' period; and
(ii) such receipt of property or reduction of claim occurred
within three months after such resignation or removal.
In every case commenced under the Bankruptcy Act of 1898, or any
amendment thereto enacted prior to November 6, 1978, all references to periods
of three months shall be deemed to be references to periods of four months.
(b) There shall be excluded from the operation of subsection (a) of
this Section 7.13 a creditor relationship arising from:
(1) the ownership or acquisition of securities issued under
any indenture, or any security or securities having a maturity of one
year or more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court
of competent jurisdiction, or by this Subordinated Indenture, for the
purpose of preserving any property which shall at any time be subject
to the lien of this Subordinated Indenture or of discharging tax liens
or other prior liens or encumbrances thereon, if notice of such advance
and of the circumstances surrounding the making thereof is given to the
Subordinated Securityholders at the time and in the manner provided in
Section 5.4(c) with respect to reports pursuant to subsections (a) and
(b) thereof, respectively;
(3) disbursements made in the ordinary course of business in
the capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depositary, or other similar
capacity;
(4) an indebtedness created as a result of services rendered
or premises rented, or an indebtedness created as a result of goods or
securities sold in a cash transaction as defined in subsection (c) of
this Section 7.13;
(5) the ownership of stock or of other securities of a
corporation organized under the provisions of Section 25(a) of the
Federal Reserve Act, as amended, which is directly or indirectly a
creditor of the Corporation or any other obligor on the Subordinated
Securities; and
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(6) the acquisition, ownership, acceptance or negotiation of
any drafts, bills of exchange, acceptances or obligations which fall
within the classification of self-liquidating paper as defined in
subsection (c) of this Section 7.13.
(c) As used in this Section 7.13 the following terms shall be accorded
the following definitions:
(1) the term "default" shall mean any failure to make payment
in full of the principal of or interest on any of the Subordinated
Securities or on the other indenture securities when and as such
principal or interest becomes due and payable.
(2) the term "other indenture securities" shall mean
securities upon which the Corporation or any other obligor on the
Subordinated Securities is an "obligor" (as defined in the Trust
Indenture Act of 1939) outstanding under any other indenture (A) under
which the Trustee is also trustee, (B) which contains provisions
substantially similar to the provisions of subsection (a) of this
Section 7.13, and (C) under which a default exists at the time of the
apportionment of the funds and property held in said special account.
(3) the term "cash transaction" shall mean any transaction in
which full payment for goods or securities sold is made within seven
days after delivery of the goods or securities in currency or in checks
or other orders drawn upon banks or bankers and payable upon demand.
(4) the term "self-liquidating paper" shall mean any draft,
xxxx of exchange, acceptance or obligation which is made, drawn,
negotiated or incurred by the Corporation or any other obligor on the
Subordinated Securities for the purpose of financing the purchase,
processing, manufacture, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the security
is received by the Trustee simultaneously with the creation of the
creditor relationship with the Corporation or any other obligor on the
Subordinated Securities arising from the making, drawing, negotiating
or incurring of the draft, xxxx of exchange, acceptance or obligation.
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ARTICLE 8
CONCERNING THE SECURITYHOLDERS
SECTION 8.1. EVIDENCE OF ACTION BY SUBORDINATED SECURITYHOLDERS.
Whenever in this Subordinated Indenture it is provided that the Holders of a
specified percentage in principal amount of the Subordinated Securities of any
or all Series may take any action (including the making of any demand or
request, the giving of any notice, consent or waiver or the taking of any other
action), the fact that at the time of taking any such action the Holders of such
specified percentage have joined therein may be evidenced (a) by any instrument
or any number of instruments of similar tenor executed by such Subordinated
Securityholders in Person or by agent or proxy appointed in writing, or (b) by
the record of such Holders of Subordinated Securities voting in favor thereof at
any meeting of such Subordinated Securityholders duly called and held in
accordance with the provisions of Article Nine, or (c) by a combination of such
instrument or instruments and any such record of such a meeting of such
Subordinated Securityholders.
SECTION 8.2. PROOF OF EXECUTION OF INSTRUMENTS AND OF HOLDING OF
SUBORDINATED SECURITIES. Subject to the provisions of Sections 7.1, 7.2 and 9.5,
proof of the execution of any instrument by a Subordinated Securityholder or
such Holder's agent or proxy and proof of the holding by any Person of any of
the Subordinated Securities shall be sufficient if made in the following manner:
(a) The fact and date of the execution by any such Person of
any instrument may be proved in any reasonable manner acceptable to the
Trustee.
(b) The ownership of Subordinated Securities of any Series
(including Global Subordinated Securities) shall be proved by the
Register of such Subordinated Securities of such Series, or by
certificates of the Subordinated Security registrar or registrars
thereof.
(c) The amount of bearer Subordinated Securities held by any
Person, the numbers of such Subordinated Securities and the date of
such Person's holding the same may be proved by the production of such
Subordinated Securities or by a certificate in form satisfactory to the
Trustee, executed by any trust company, bank, banker or member of a
national securities exchange, as depositary.
The Trustee shall not be bound to recognize any Person as a
Subordinated Securityholder unless and until such Person's title to the
Subordinated Securities held by it is proved in the manner in this Article Eight
provided.
The record of any Subordinated Securityholders' meeting shall be proved
in the manner provided in Section 9.6.
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The Trustee may accept such other proof or require such additional
proof of any matter referred to in this Section 8.2 as it shall deem reasonable.
SECTION 8.3. WHO MAY BE DEEMED OWNERS OF SUBORDINATED SECURITIES. Prior
to due presentment for transfer of any Subordinated Security, the Corporation,
the Trustee and any agent of the Corporation or the Trustee may deem and treat
the Person in whose name such Subordinated Security shall be registered upon the
Register of Subordinated Securities of the Series of which such Subordinated
Security is a part 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 interest, subject to Section
2.3, on such Subordinated Security and for all other purposes; and neither the
Corporation nor the Trustee nor any agent of the Corporation or the Trustee
shall be affected by any notice to the contrary. All such payments so made to
any such Holder for the time being, or upon such Holder's order, shall be valid,
and, to the extent of the sum or sums so paid, effectual to satisfy and
discharge the liability of moneys payable upon any such Subordinated Security.
Ownership of bearer Subordinated Securities shall be proved as provided in
Section 8.2(c).
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 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 Corporation shall have any obligation
with respect to the grant of or solicitation by the Depository of such proxies.
SECTION 8.4. SUBORDINATED SECURITIES OWNED BY THE CORPORATION OR
CONTROLLED OR CONTROLLING PERSONS DISREGARDED FOR CERTAIN PURPOSES. In
determining whether the Holders of the requisite principal amount of
Subordinated Securities have concurred in any demand, direction, request,
notice, vote, consent, waiver or other action under this Subordinated Indenture,
Subordinated Securities which are owned by the Corporation or any other obligor
on the Subordinated Securities or by any Person directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Corporation or any other obligor on the Subordinated Securities shall be
disregarded and deemed not to be Outstanding, provided that for the purposes of
determining whether the Trustee shall be protected in relying on any such
demand, direction, request, notice, vote, consent, waiver or other action, only
Subordinated Securities which a Responsible Officer of the Trustee assigned to
its principal office knows are so owned shall be so disregarded. Subordinated
Securities so owned which have been pledged in good faith may be regarded as
Outstanding for the purposes of this Section 8.4, if the pledgee shall establish
to the satisfaction of the Trustee the pledgee's right to vote such Subordinated
Securities and that the pledgee is not a Person directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Corporation or any such other obligor.
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Upon request of the Trustee, the Corporation shall furnish to the
Trustee promptly an Officer's Certificate listing and identifying all
Subordinated Securities, if any, known by the Corporation to be owned or held by
or for the account of the Corporation or any other obligor on the Subordinated
Securities or by any Person directly or indirectly controlling or controlled by
or under direct or indirect common control with the Corporation or any other
obligor on the Subordinated Securities; and, subject to the provisions of
Section 7.1, 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 8.5. INSTRUMENTS EXECUTED BY SUBORDINATED SECURITYHOLDERS BIND
FUTURE HOLDERS. At any time prior to (but not after) the evidencing to the
Trustee, as provided in Section 8.1, of the taking of any action by the Holders
of the percentage in principal amount of the Subordinated Securities specified
in this Subordinated Indenture in connection with such action, any Holder of a
Subordinated Security which is shown by the evidence to be included in the
Subordinated Securities the Holders of which have consented to such action may,
by filing written notice with the Trustee at its principal office and upon proof
of holding as provided in Section 8.2, revoke such action so far as concerns
such Subordinated Security. Except as aforesaid any such action taken by the
Holder of any Subordinated Security and any direction, demand, request, notice,
waiver, consent, vote or other action of the Holder of any Subordinated Security
which by any provisions of this Subordinated Indenture is required or permitted
to be given shall be conclusive and binding upon such Holder and upon all future
Holders and owners of such Subordinated Security, and of any Subordinated
Security issued in lieu thereof, irrespective of whether any notation in regard
thereto is made upon such Subordinated Security. Any action taken by the Holders
of the percentage in principal amount of the Subordinated Securities of any or
all Series specified in this Subordinated Indenture in connection with such
action shall be conclusively binding upon the Corporation, the Trustee and the
Holders of all of the Subordinated Securities of such Series subject, however,
to the provisions of Section 7.1.
ARTICLE 9
SECURITYHOLDERS' MEETINGS
SECTION 9.1. PURPOSES FOR WHICH MEETINGS MAY BE CALLED. A meeting of
Holders of Subordinated Securities of any or all Series may be called at any
time and from time to time pursuant to the provisions of this Article for any of
the following purposes:
(1) to give any notice to the Corporation or to the Trustee,
or to give any directions to the Trustee, or to consent to the waiving
of any default hereunder and its consequences, or to take any other
action authorized to be taken by Holders of Subordinated Securities of
any or all Series, as the case may be, pursuant to any of the
provisions of Article Six;
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(2) to remove the Trustee and appoint a successor trustee
pursuant to the provisions of Article Seven;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 10.2; or
(4) to take any other action authorized to be taken by or on
behalf of the Holders of any specified principal amount of the
Subordinated Securities of any or all Series, as the case may be, under
any other provision of this Subordinated Indenture or under applicable
law.
SECTION 9.2. MANNER OF CALLING MEETINGS. The Trustee may at any time
call a meeting of Subordinated Securityholders to take any action specified in
Section 9.1, to be held at such time and at such place in the City of __________
or San Francisco, California, as the Trustee shall determine. Notice of every
meeting of Subordinated Securityholders, setting forth the time and place of
such meeting and in general terms the action proposed to be taken at such
meeting, shall be mailed not less than 20 nor more than 60 days prior to the
date fixed for the meeting.
SECTION 9.3. CALL OF MEETING BY THE CORPORATION OR SUBORDINATED
SECURITYHOLDERS. In case at any time the Corporation pursuant to a resolution of
its Board of Directors, or the Holders of not less than ten percent in principal
amount of the Subordinated Securities of any or all Series, as the case may be,
then Outstanding, shall have requested the Trustee to call a meeting of Holders
of Subordinated Securities of any or all Series, as the case may be, to take any
action authorized in Section 9.1 by written request setting forth in reasonable
detail the action proposed to be taken at the meeting, and the Trustee shall not
have mailed notice of such meeting within 20 days after receipt of such request,
then the Corporation or such Holders of Subordinated Securities in the amount
above specified may determine the time and place in either the City and County
of San Francisco, California or The City of __________, for such meeting and may
call such meeting to take any action authorized in Section 9.1, by mailing (and
publishing, if required) notice thereof as provided in Section 9.2.
SECTION 9.4. WHO MAY ATTEND AND VOTE AT MEETINGS. To be entitled to
vote at any meeting of Subordinated Securityholders a Person shall (a) be a
Holder of one or more Subordinated Securities with respect to which the meeting
is being held; or (b) be a Person appointed by an instrument in writing as proxy
by such Holder of one or more Subordinated Securities. The only Persons who
shall be entitled to be present or to speak at any meeting of Subordinated
Securityholders shall be the Persons entitled to vote at such meeting and their
counsel and any representatives of the Trustee and its counsel and any
representatives of the Corporation and its counsel.
SECTION 9.5. REGULATIONS MAY BE MADE BY TRUSTEE; CONDUCT OF THE
MEETING; VOTING RIGHTS - ADJOURNMENT. Notwithstanding any other provisions of
this Subordinated Indenture, the Trustee may make such reasonable regulations as
it may deem advisable for any meeting of Subordinated Securityholders, in regard
to proof of the holding of
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Subordinated Securities and of the appointment of proxies, and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall think fit. Except as
otherwise permitted or required by any such regulations, the holding of
Subordinated Securities and the appointment of any proxy shall be proved in the
manner specified in Section 8.2; provided, however, that such regulations may
provide that written instruments appointing proxies regular on their face, may
be presumed valid and genuine without the proof herein above or in said Section
8.2 specified.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Corporation or by Subordinated Securityholders as provided in Section 9.3, in
which case the Corporation or the Subordinated Securityholders calling the
meeting, as the case may be, shall in like manner appoint a temporary chairman.
A permanent chairman and a permanent secretary of the meeting shall be elected
by majority vote of the meeting.
Subject to the provisions of Section 8.4, at any meeting each
Subordinated Securityholder or proxy shall be entitled to one vote for each
$1,000 principal amount (in the case of Original Issue Discount Subordinated
Securities, such principal amount shall be equal to such portion of the
principal amount as may be specified in the terms of such Series) of
Subordinated Securities held or represented by such Holder; provided, however,
that no vote shall be cast or counted at any meeting in respect of any
Subordinated Security challenged as not Outstanding and ruled by the chairman of
the meeting to be not Outstanding. The chairman of the meeting shall have no
right to vote other than by virtue of Subordinated Securities held by such
Person or instruments in writing as aforesaid duly designating such Person as
the Person to vote on behalf of other Subordinated Securityholders. Any meeting
of Subordinated Securityholders duly called pursuant to the provisions of
Section 9.2 or 9.3 may be adjourned from time to time, and the meeting may be
held so adjourned without further notice.
At any meeting of Subordinated Securityholders, the presence of Persons
holding or representing Subordinated Securities in principal amount sufficient
to take action on the business for the transaction of which such meeting was
called shall constitute a quorum, but, if less than a quorum is present, the
Persons holding or representing a majority in principal amount of the
Subordinated Securities represented at the meeting may adjourn such meeting with
the same effect for all intents and purposes, as though a quorum had been
present.
SECTION 9.6. MANNER OF VOTING AT MEETINGS AND RECORD TO BE KEPT. The
vote upon any resolution submitted to any meeting of Subordinated
Securityholders shall be by written ballots on which shall be subscribed the
signatures of the Holders of Subordinated Securities or of their representatives
by proxy and the principal amount or amounts of the Subordinated Securities held
or represented by them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting for or against
any resolution and who shall make and file with the secretary of the meeting
their verified written reports in duplicate of all votes cast at the meeting. A
record in duplicate of
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the proceedings of each meeting of Subordinated Securityholders shall be
prepared by the secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more Persons having knowledge of the
facts setting forth a copy of the notice of the meeting and showing that said
notice was mailed as provided in Section 9.2. The record shall show the
principal amount or amounts of the Subordinated Securities voting in favor of or
against any resolution. The record shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one copy
thereof shall be delivered to the Corporation and the other to the Trustee to be
preserved by the Trustee.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
SECTION 9.7. EXERCISE OF RIGHTS OF TRUSTEE AND SUBORDINATED
SECURITYHOLDERS NOT TO BE HINDERED OR DELAYED. Nothing in this Article Nine
contained shall be deemed or construed to authorize or permit, by reason of any
call of a meeting of Subordinated Securityholders or any rights expressly or
impliedly conferred hereunder to make such call, any hindrances or delay in the
exercise of any right or rights conferred upon or reserved to the Trustee or to
the Subordinated Securityholders under any of the provisions of this
Subordinated Indenture or of the Subordinated Securities.
ARTICLE 10
SUPPLEMENTAL SUBORDINATED INDENTURES
SECTION 10.1. PURPOSES FOR WHICH SUPPLEMENTAL SUBORDINATED INDENTURES
MAY BE ENTERED INTO WITHOUT CONSENT OF SUBORDINATED SECURITYHOLDERS. Without the
consent of the Holders of any Subordinated Securities, the Corporation and the
Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto (which shall comply with the provisions of the
Trust Indenture Act of 1939 as then in effect) for one or more of the following
purposes:
(a) if deemed appropriate by the Corporation or required by
law, to evidence the succession of another corporation to the
Corporation or successive successions and the assumption by the
successor corporation of the covenants, agreements and obligations of
the Corporation pursuant to Article Four hereof,
(b) to add to the covenants of the Corporation such further
covenants, restrictions or conditions as its Board of Directors and the
Trustee shall consider to be for the protection of the Holders of all
or any Series of Subordinated Securities (and if such covenants,
restrictions or conditions are to be for the benefit of less than all
Series of Subordinated Securities, stating that such covenants,
restrictions or conditions are expressly being included solely for the
benefit of such Series), and to make the occurrence, or the occurrence
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and continuance, of a default in any such additional covenants,
restrictions or conditions an Event of Default permitting the
enforcement of all or any of the several remedies provided in this
Subordinated Indenture as herein set forth; provided, however, that in
respect to any such additional covenant, restriction or condition such
Supplemental Subordinated Indenture may provide for a particular period
of grace after default (which period may be shorter or longer than that
allowed in the case of other defaults) or may provide for an immediate
enforcement upon such default or may limit the remedies available to
the Trustee upon such default,
(c) to add or change any of the provisions of this
Subordinated Indenture to such extent as shall be necessary to
facilitate the issuance of Subordinated Securities in (i) global form
or (ii) bearer form, registerable or not registerable as to principal
or principal and interest, and with or without coupons,
(d) to change or eliminate any of the provisions of this
Subordinated Indenture; PROVIDED, HOWEVER, that any such change or
elimination shall become effective only when there is no Subordinated
Security of any Series Outstanding created prior to the execution of
such Supplemental Subordinated Indenture which is entitled to the
benefit of such provision,
(e) to establish the form or terms of Subordinated Securities
of any Series as permitted by Sections 2.1 and 2.2,
(f) to appoint, at the request of the Trustee, a successor
Trustee for a particular Series of Subordinated Securities to act as
such pursuant to the provisions of this Subordinated Indenture and to
add to or change the provisions of this Subordinated Indenture to such
extent as shall be necessary to facilitate the performance of the
duties of such trustee, and
(g) to cure any ambiguity or to correct or supplement any
provisions contained herein or in any Supplemental Subordinated
Indenture which may be defective or inconsistent with any other
provision contained herein or in any Supplemental Subordinated
Indenture, or to make such other provisions in regard to matters or
questions arising under this Subordinated Indenture or any Supplemental
Subordinated Indenture which shall not adversely affect the interests
of the Holders of the Subordinated Securities.
SECTION 10.2. MODIFICATION OF SUBORDINATED INDENTURE WITH CONSENT OF
HOLDERS OF SUBORDINATED SECURITIES. With the consent (evidenced as provided in
Section 8.1) of the Holders of not less than a majority in principal amount of
the Subordinated Securities of all Series at the time Outstanding (determined as
provided in Section 8.4) affected by such Supplemental Subordinated Indenture
(voting as one class), the Corporation and the Trustee may from time to time and
at any time enter into an indenture or indentures supplemental
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hereto (which shall comply with the provisions of the Trust Indenture Act of
1939 as then in effect) for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this Subordinated
Indenture or of any Supplemental Subordinated Indenture or of modifying in any
manner the rights of the Holders of the Subordinated Securities of each such
Series; provided, however, that no such Supplemental Subordinated Indenture
shall, without the consent of the Holders of each Outstanding Subordinated
Security affected thereby:
(a) Change the fixed maturity or Redemption Date of any
Subordinated Security or reduce the rate of interest thereon or the
method of determining such rate of interest or extend the time of
payment of interest or reduce the principal amount (including the
amount of principal of an Original Issue Discount Subordinated Security
that would be due upon declaration of acceleration of the maturity
thereof pursuant to Section 6.1 hereof) thereof or reduce any premium
payable upon the redemption thereof, or change the coin or currency in
which any Subordinated Security or the interest thereon is payable or
impair the right to institute suit for the enforcement of any such
payment on or after the maturity thereof (or, in the case of
redemption, on or after the Redemption Date), or
(b) Reduce the percentage in principal amount of the
Outstanding Subordinated Securities the consent of the Holders of which
is required for any such Supplemental Subordinated Indenture, or the
consent of the Holders of which 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) Change the time of payment or reduce the amount of any
minimum sinking account or fund payment, or
(d) Modify any of the provisions of this Section 10.2, 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 Subordinated Security
affected thereby.
A Supplemental Subordinated 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 with respect to such covenant or other provision,
shall be deemed not to affect the rights under this Subordinated Indenture of
the Holders of Subordinated Securities of any other Series.
It shall not be necessary for the consent of the Subordinated
Securityholders under this Section 10.2 to approve the particular form of any
proposed Supplemental Subordinated Indenture, but it shall be sufficient if such
consent shall approve the substance thereof.
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Promptly after the execution by the Corporation and the Trustee of any
Supplemental Subordinated Indenture pursuant to the provisions of this Section
10.2, the Corporation shall mail a notice to the Holders of Registered
Subordinated Securities of each Series so affected, setting forth in general
terms the substance of such Supplemental Subordinated Indenture. Any failure of
the Corporation to mail such notice, or any defect therein, shall not, however,
in any way impair or affect the validity of any such Supplemental Subordinated
Indenture.
SECTION 10.3. EFFECT OF SUPPLEMENTAL SUBORDINATED INDENTURES. Upon the
execution of any Supplemental Subordinated Indenture pursuant to the provisions
of this Article Ten, 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 Corporation and the Holders of
Subordinated Securities 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 Subordinated Indenture shall
be and be deemed to be part of the terms and conditions of this Subordinated
Indenture for any and all purposes.
The Trustee shall be entitled to receive, and subject to the provisions
of Section 7.1 shall be entitled to rely upon, an Opinion of Counsel as
conclusive evidence that any such Supplemental Subordinated Indenture complies
with the provisions of this Article Ten and that the Subordinated Securities
affected by the Supplemental Subordinated Indenture, when such Subordinated
Securities are authenticated and delivered by the Trustee and executed and
issued by the Corporation in the manner and subject to any conditions specified
in such Opinion of Counsel, will be valid and binding obligations of the
Corporation, except as any rights thereunder may be limited by bankruptcy,
insolvency and other similar laws affecting the enforcement of creditors' rights
generally and by general equity principles.
SECTION 10.4. SUBORDINATED SECURITIES MAY BEAR NOTATION OF CHANGES BY
SUPPLEMENTAL SUBORDINATED INDENTURES. Subordinated Securities authenticated and
delivered after the execution of any Supplemental Subordinated Indenture
pursuant to the provisions of this Article Ten, or after any action taken at a
Subordinated Securityholders' meeting pursuant to Article Nine, may bear a
notation in form approved by the Trustee as to any matter provided for in such
Supplemental Subordinated Indenture or as to any action taken at any such
meeting. If the Corporation or the Trustee shall so determine, new Subordinated
Securities so modified as to conform, in the opinion of the Trustee and the
Corporation, to any modification of this Subordinated Indenture contained in any
such Supplemental Subordinated Indenture may be prepared by the Corporation,
authenticated by the Trustee and delivered in exchange for the Subordinated
Securities then Outstanding.
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ARTICLE 11
DISCHARGE; DEFEASANCE
SECTION 11.1. DISCHARGE OF SUBORDINATED INDENTURE. If the Corporation
shall pay and discharge or cause to be paid or discharged the entire
indebtedness on all Outstanding Subordinated Securities by paying or causing to
be paid the principal of (including redemption premium, if any) and interest on
the Outstanding Subordinated Securities, as and when the same become due and
payable or by delivering to the Trustee, for cancellation by it, all Outstanding
Subordinated Securities, and if the Corporation shall also pay or cause to be
paid all other sums payable hereunder by it, thereupon, upon written request of
the Corporation and upon receipt by the Trustee of such certificates, if any, as
the Trustee shall reasonably require, to the effect that all conditions
precedent to the satisfaction and discharge of the Corporation's obligations
under this Subordinated Indenture have been complied with, this Subordinated
Indenture shall be discharged and terminated and the Trustee shall forthwith
execute proper instruments acknowledging satisfaction of and discharging and
terminating this Subordinated Indenture with respect to the Corporation's
obligations hereunder and any such other interests.
The Corporation may at any time surrender to the Trustee for
cancellation by it any Subordinated Securities previously authenticated and
delivered which the Corporation may have acquired in any manner whatsoever, and
such Subordinated Securities, upon such surrender and cancellation, shall be
deemed to be paid and retired.
SECTION 11.2. DISCHARGE OF LIABILITY ON SUBORDINATED SECURITIES. Upon
the deposit with the Trustee, in trust, at or before maturity, of money or
securities of the kind and in the necessary amount (as provided in Section 11.4
of this Subordinated Indenture) to pay or redeem Outstanding Subordinated
Securities (whether upon or prior to their maturity or the Redemption Date of
such Subordinated Securities, provided that, if such Subordinated Securities are
to be redeemed prior to the maturity thereof, notice of such redemption shall
have been given as in Article Three hereof provided or provision satisfactory to
the Trustee shall have been made for the giving of such notice), the obligation
of the Corporation duly and punctually to pay or cause to be paid the principal
of and any interest and premium in respect of such Subordinated Securities and
all liability of the Corporation in respect of such payment shall cease,
terminate and be completely discharged and the Holders thereof shall thereafter
be entitled only to payment out of the money or securities deposited with the
Trustee as aforesaid for their payment; provided, however, that this discharge
of the Corporation's obligation so to pay and of the liability of the
Corporation in respect of such payment shall not occur unless the Corporation
shall have delivered to the Trustee an Opinion of Counsel to the effect that
Holders of the Subordinated Securities of such Series will not recognize income,
gain or loss for Federal income tax purposes as a result of such discharge.
SECTION 11.3. DISCHARGE OF CERTAIN COVENANTS AND OTHER OBLIGATIONS.
Upon the deposit with the Trustee, in trust, prior to maturity of money or
securities of the kind and in the necessary amount (as provided in Section 11.4
of this Subordinated Indenture) to pay or
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redeem Outstanding Subordinated Securities of one or more Series (whether upon
or prior to their maturity or the Redemption Date of such Subordinated
Securities, provided that, if such Subordinated Securities are to be redeemed
prior to the maturity thereof, notice of such redemption shall have been given
as in Article Three hereof provided or provision satisfactory to the Trustee
shall have been made for the giving of such notice), all of the obligations,
covenants and agreements of the Corporation with respect to such Subordinated
Securities under Sections 4.2, 4.3, 4.4 and 4.5 hereof shall cease, terminate
and be completely discharged.
SECTION 11.4. DISCHARGE OF CERTAIN OBLIGATIONS UPON DEPOSIT OF MONEY OR
SUBORDINATED SECURITIES WITH TRUSTEE. The conditions for deposit of money or
securities contained in Sections 11.2 and 11.3 shall have been satisfied
whenever with respect to any Subordinated Securities denominated in United
States Dollars, the Corporation shall have deposited or caused to be deposited
irrevocably in trust with the Trustee dedicated solely to the benefit of the
Holders of such Subordinated Securities:
(a) Lawful money of the United States of America in an amount
equal to the principal amount of such Subordinated Securities and all
unpaid interest thereon to maturity, except that, in the case of
Subordinated Securities which are to be redeemed prior to maturity, the
amount so to be deposited or held shall be the principal amount of such
Subordinated Securities and interest thereon to the Redemption Date,
together with the redemption premium, if any; or
(b) Direct obligations of the United States of America or
obligations the principal of and interest on which are guaranteed by
the United States of America (which obligations are not subject to
redemption prior to maturity at the option of the issuer), in such
amounts and maturing at such times that the proceeds of said
obligations to be received upon their respective maturities and
interest payment dates will provide funds sufficient to pay the
principal, premium, if any, and interest to maturity, or to the
Redemption Date, as the case may be, with respect to all of the
Subordinated Securities to be paid or redeemed, as such principal,
premium and interest become due, provided that the Trustee shall have
been irrevocably instructed to apply the proceeds of said obligations
to the payment of said principal, premium, if any, and interest with
respect to said Subordinated Securities.
The conditions for deposit of money or securities contained in Sections 11.2 and
11.3 shall have been satisfied whenever with respect to any Subordinated
Securities denominated in one or more currencies or composite currency other
than United States Dollars, the Corporation shall have deposited or caused to be
deposited irrevocably in trust with the Trustee dedicated solely to the benefit
of the Holders of such Subordinated Securities:
(i) Lawful money in such currency, currencies or composite
currency in which such Subordinated Securities are payable and in an
amount
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equal to the principal amount of such Subordinated Securities and all
unpaid interest thereon to maturity, except that, in the case of
Subordinated Securities which are to be redeemed prior to maturity, the
amount so to be deposited or held shall be the principal amount of such
Subordinated Securities and interest thereon to the Redemption Date,
together with the redemption premium, if any; or
(ii) Either (1) direct obligations of the government that
issued or caused to be issued the currency in which such Subordinated
Securities are payable, for which obligations the full faith and credit
of the government is pledged (which obligations are not subject to
redemption prior to maturity at the option of the issuer) or (2)
obligations of a Person controlled or supervised by and acting as an
agency or instrumentality of such government the timely payment of
which is unconditionally guaranteed as a full faith and credit
obligation by such government (which obligations are not subject to
redemption prior to maturity at the option of the issuer), in either
case, in such amounts and maturing at such times that the proceeds of
said obligations to be received upon their respective maturities and
interest payment dates will provide funds sufficient to pay the
principal, premium, if any, and interest to maturity, or to the
Redemption Date, as the case may be, with respect to all of the
Subordinated Securities to be paid or redeemed, as such principal,
premium and interest become due, provided that the Trustee shall have
been irrevocably instructed to apply the proceeds of said obligations
to the payment of said principal, premium, if any, and interest with
respect to said Subordinated Securities.
SECTION 11.5. UNCLAIMED MONEYS. 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 not so applied but
remaining unclaimed under applicable law shall be transferred by the Trustee to
the appropriate Persons in accordance with applicable laws, and the Holder of
such Subordinated Security shall thereafter look only to 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.
ARTICLE 12
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS
AND DIRECTORS
SECTION 12.1. INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS OF
CORPORATION EXEMPT FROM INDIVIDUAL LIABILITY. No recourse under or upon any
obligation, covenant or agreement of this Subordinated Indenture, or of any
Subordinated Security, or for any claim based thereon or otherwise in respect
thereof, shall be had against any incorporator, stockholder, officer or
director, as such, past, present or future, of the Corporation, either
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directly or through the Corporation, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise; it being expressly understood that this Subordinated Indenture and
the obligations issued hereunder are solely corporate obligations, and that no
personal liability whatever shall attach to, or is or shall be incurred by, the
incorporators, stockholders, officers or directors, as such, of the Corporation
because of the creation of the indebtedness hereby authorized, or under or by
reason of the obligations, covenants or agreements contained in this
Subordinated Indenture or in any of the Subordinated Securities or implied
therefrom; and that any and all such personal liability of every name and
nature, either at common law or in equity or by constitution or statute, of, and
any and all such rights and claims against, every such incorporator,
stockholder, officer or director, as such, because of the creation of the
indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Subordinated Indenture or in any of
the Subordinated Securities or implied therefrom are hereby expressly waived and
released as a condition of, and as a consideration for, the execution of this
Subordinated Indenture and the issue of such Subordinated Securities.
ARTICLE 13
MISCELLANEOUS PROVISIONS
SECTION 13.1. SUCCESSORS AND ASSIGNS OF THE CORPORATION BOUND BY
SUBORDINATED INDENTURE. All the covenants, stipulations, promises and agreements
in this Subordinated Indenture contained by or in behalf of the Corporation
shall bind its successors and assigns, whether so expressed or not.
SECTION 13.2. NOTICES; EFFECTIVENESS. 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 to or on the
Corporation, or by the Corporation or by the Holders of Subordinated Securities
to the Trustee or upon the Depository by the Corporation or the Trustee may be
electronically communicated or hand delivered or sent by overnight courier,
addressed to the relevant party as provided in this Section 13.2.
All communications intended for the Corporation shall be sent to:
Providian Financial Corporation
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Treasurer
Fax Number: (415)
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All communications intended for the Trustee shall be sent to:
The Bank of New York
000 Xxxxxxx Xxxxxx, Xxxxx 00X
Xxx Xxxx, XX 00000
Attention: Corporate Trust Department
Fax Number: (000) 000-0000
or at any other address of which any of the foregoing shall have notified the
others in any manner prescribed in this Section 13.2.
For all purposes of this Subordinated Indenture, a notice or
communication will be deemed effective:
(a) if delivered by hand or sent by overnight courier, on the
day it is delivered unless (i) that day is not a Business Day in the
city specified (a "Local Business Day") in the address for notice
provided by the recipient or (ii) if delivered after the close of
business on a Local Business Day, then on the next succeeding Local
Business Day,
(b) if sent by facsimile transmission, on the date
transmitted, provided that oral or written confirmation of receipt is
obtained by the sender unless the date of transmission and confirmation
is not a Local Business Day, in which case, on the next succeeding
Local Business Day.
Any notice, direction, request, demand, consent or waiver by the Corporation,
any Subordinated Securityholder to or upon the Trustee shall be deemed to have
been sufficiently given, made or filed, for all purposes, if given, made or
filed in writing at the Principal Office of the Trustee in accordance with the
provisions of this Section 13.2.
Any notice, request, consent or waiver by the Corporation or the Trustee upon
the Depository shall have been sufficiently given, made or filed, for all
purposes, if given or made in accordance with the provisions of this Section
13.2 at the address shown for such Depository in the Register or at such other
address as the Depository shall have provided for purposes of notice.
SECTION 13.3. COMPLIANCE CERTIFICATES AND OPINIONS. Upon any request or
application by the Corporation to the Trustee to take any action under any of
the provisions of this Subordinated Indenture, the Corporation shall furnish to
the Trustee an Officer's Certificate stating that all conditions precedent, if
any, 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
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such document 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 (other than a certificate
provided pursuant to Section 5.3(d)) shall include (1) a statement that the
Person making such certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based; (3) a statement that, in the opinion of such
Person, he or she has made such examination or investigation as is necessary to
enable such Person to express an informed opinion as to whether or not such
covenant or condition has been complied with; and (4) a statement as to whether
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 Corporation
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
such 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, upon the certificate, statement or opinion of or
representations by an officer or officers of the Corporation stating that the
information with respect to such factual matters is in the possession of the
Corporation, unless such counsel knows that the certificate, statement or
opinion or representations with respect to the matters upon which such Person's
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 Corporation
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, unless such officer or counsel, as the case may be, knows that the
certificate or opinion or representations with respect to the accounting matters
upon which his or her 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 firm of independent
public accountants filed with the Trustee shall contain a statement that such
firm is independent.
SECTION 13.4. DAYS ON WHICH PAYMENT TO BE MADE, NOTICE GIVEN OR OTHER
ACTION TAKEN. If any date on which a payment is to be made, notice given or
other action taken hereunder is a Saturday, Sunday or legal holiday in the state
in which the payment, notice or other action is to be made, given or taken, then
such payment, notice or other action shall be made, given or taken on the next
succeeding Business Day in such state, and in the case of any payment, no
interest shall accrue for the delay.
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SECTION 13.5. PROVISIONS REQUIRED BY TRUST INDENTURE ACT OF 1939 TO
CONTROL. If and to the extent that any provision of this Subordinated Indenture
limits, qualifies or conflicts with another provision included in this
Subordinated Indenture which is required to be included in this Subordinated
Indenture by any of Sections 310 to 317, inclusive, of the Trust Indenture Act
of 1939, such required provision shall control.
SECTION 13.6. GOVERNING LAW. THIS SUBORDINATED INDENTURE AND EACH
SECURITY SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF
NEW YORK, AND FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF
SAID STATE.
SECTION 13.7. PROVISIONS OF THIS SUBORDINATED INDENTURE AND
SUBORDINATED SECURITIES FOR THE SOLE BENEFIT OF THE PARTIES AND THE SUBORDINATED
SECURITYHOLDERS. Nothing in this Subordinated Indenture or in the Subordinated
Securities, expressed or implied, shall give or be construed to give any Person,
other than the parties hereto and the Holders of the Subordinated Securities,
any legal or equitable right, remedy or claim under or in respect of this
Subordinated Indenture, or under any covenant, condition and provision herein
contained; all its covenants, conditions and provisions being for the sole
benefit of the parties hereto and of the Holders of the Subordinated Securities.
SECTION 13.8. SUBORDINATED INDENTURE MAY BE EXECUTED IN 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.
____________________ hereby accepts the trusts in this Subordinated
Indenture declared and provided, upon the terms and conditions herein above set
forth.
IN WITNESS WHEREOF, PROVIDIAN FINANCIAL CORPORATION has caused this
Subordinated Indenture to be signed by its Chairman of the Board or any
Vice-Chairmen of the Board or one of its Vice-Presidents and
____________________ has caused this Subordinated Indenture to be signed and
acknowledged by one of its _______________ and
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to be signed and acknowledged by one of its Assistant Secretaries, all as of the
day and year first written above.
PROVIDIAN FINANCIAL CORPORATION
By
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THE BANK OF NEW YORK, as Trustee
By
-------------------------------------
By
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Assistant Secretary
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