1
EXHIBIT 4(A)
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THE COLONIAL BANCGROUP, INC.
AND
SUNTRUST BANK, ATLANTA
TRUSTEE
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SUBORDINATED INDENTURE
DATED AS OF MARCH 31, 1997
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SUBORDINATED DEBT SECURITIES
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2
TIE-SHEET
Reconciliation and Tie between the Indenture dated as of March 31, 1997, and
the Trust Indenture Act of 1939. This Tie- Sheet does not constitute part of
the Indenture.
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REFLECTED IN GENERAL PROVISIONS OF INDENTURE
TRUST INDENTURE
ACT SECTION SECTION
--------------- -------
Section 310 (a)(1) 7.09
(a)(2) 7.09
(a)(3) 1.08
(a)(4) Not Applicable
(a)(5) 7.09
(b) 7.08
7.10
Section 311 (a) 7.05, 1.07
(b) 7.05, 1.07
Section 312 (a) 5.01
5.02(a)
(b) 5.02(b)
(c) 5.02(b)
Section 313 (a) 5.03(a)
(b) 5.03(b)
(c) 5.03(a)
5.03(c)
(d) 5.03(c)
Section 314 (a) 5.04
(b) Not Applicable
(c)(1) 1.02
(c)(2) 1.02
(c)(3) Not Applicable
(d) Not Applicable
(e) 1.02
Section 315 (a) 7.01(a)
3
TIE-SHEET
PAGE 2
TRUST INDENTURE
ACT SECTION SECTION
--------------- -------
7.01(b)
(b) 7.02
(c) 7.01(b)
(d) 701(a), 7.01(c)
(d)(1) 7.01(c)(1)
(d)(2) 7.01(c)(2)
(d)(3) 7.01(c)(3)
(e) 6.14
Section 316 (a) 1.01
(a)(1)(A) 6.02
6.12
(a)(1)(B) 6.13
(a)(2) Not Applicable
(b) 6.08
(c) 1.04
Section 317 (a)(1) 6.03
(a)(2) 6.04
(b) 4.03
7.06
Section 318 (a) 1.07
4
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Page
----
SECTION 1.01 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Articles", "Sections" and certain
other items . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Act" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Affiliate" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Authenticating Agent" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Authorized Newspaper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Bankruptcy Act" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Board of Directors" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Board Resolution" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Business Day" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Commission" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Company" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Company Request", "Company Order"
and "Company Consent" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Corporate Trust Office" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Corporation" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Date of Original Issuance" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Defaulted Interest" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Event of Default" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Indenture" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Interest Payment Date" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Maturity" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Notice of Redemption" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Officers' Certificate" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Opinion of Counsel" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Original Issue Discount Security" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Outstanding" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Paying Agent" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Person" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Place of Payment" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Predecessor Security" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Primary Federal Regulator" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Principal Office of the Company" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Redemption Date" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Redemption Price" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
i
5
"Regular Record Date" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Responsible Officer" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Security" or "Securities" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Securityholder(s)" or "Holder(s)" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Security Register" and "Security
Registrar" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Senior Indebtedness" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Special Record Date" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
"Stated Maturity" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
"Subsidiary" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
"Trustee" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
"Trust Indenture Act" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
"Underwriters" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
"U.S. Depository" or "Depository" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
"Vice President" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
"Voting Stock" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 1.02 Compliance Certificates and Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 1.03 Form of Documents Delivered to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 1.04 Acts of Securityholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 1.05 Notices, etc., to Trustee and Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 1.06 Notices to Securityholders; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 1.07 Conflict with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 1.08 Effect of Headings and Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 1.09 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 1.10 Separability Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 1.11 Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 1.12 Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 1.13 Governing Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE II
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SECURITY FORMS
SECTION 2.01 Forms Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 2.02 Form of Trustee's Certificate
of Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 2.03 Securities in Global Form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE III
-----------
THE SECURITIES
SECTION 3.01 Amount Unlimited; Issuable in Series . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 3.02 Denominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
ii
6
SECTION 3.03 Execution, Authentication and Delivery and Dating . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 3.04 Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 3.05 Registration, Registration of Transfer
and Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 3.06 Mutilated, Destroyed, Lost and Stolen
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 3.07 Payment of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 3.08 Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 3.09 Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 3.10 Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE IV
----------
COVENANTS
SECTION 4.01 Payment of Principal, Premium, if any, and Interest . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 4.02 Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 4.03 Money for Security Payments to be
Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 4.04 Statement as to Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 4.05 Corporate Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 4.06 Payment of Taxes and Other Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 4.07 Maintenance of Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 4.08 Waiver of Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
ARTICLE V
---------
SECURITYHOLDERS' LISTS AND REPORTS
BY TRUSTEE AND COMPANY
SECTION 5.01 Company to Furnish Trustee Names and
Addresses of Securityholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 5.02 Preservation of Information;
Communications with Securityholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 5.03 Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 5.04 Reports by Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
ARTICLE VI
----------
REMEDIES
SECTION 6.01 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 6.02 Acceleration of Maturity; Rescission
and Annulment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
iii
7
SECTION 6.03 Collection of Indebtedness and Suits
for Enforcement by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 6.04 Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 6.05 Trustee May Enforce Claims Without
Possession of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 6.06 Application for Money Collected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 6.07 Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 6.08 Unconditional Right of Securityholders
to Receive Principal, Premium, and
Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 6.09 Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 6.10 Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 6.11 Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 6.12 Control by Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 6.13 Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 6.14 Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 6.15 Waiver of Stay or Extension Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
ARTICLE VII
-----------
THE TRUSTEE
SECTION 7.01 Certain Duties and Responsibilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 7.02 Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 7.03 Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 7.04 Not Responsible for Recitals or Issuance
of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 7.05 May Hold Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 7.06 Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 7.07 Compensation and Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 7.08 Disqualification; Conflicting Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 7.09 Corporate Trustee Required; Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 7.10 Resignation and Removal; Appointment
of Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 7.11 Acceptance of Appointment by Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 7.12 Merger, Conversion, Consolidation or
Succession to Business of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
ARTICLE VIII
------------
SUPPLEMENTAL INDENTURES
SECTION 8.01 Supplemental Indentures Without
Consent of Securityholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
iv
8
SECTION 8.02 Supplemental Indentures With Consent
of Securityholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 8.03 Execution of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 8.04 Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 8.05 Conformity with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 8.06 Reference in Securities to Supplemental
Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 8.07 Subordination Unimpaired . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
ARTICLE IX
----------
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 9.01 Company May Consolidate, etc., Only
on Certain Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 9.02 Successor Corporation Substituted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 9.03 Officers' Certificate and Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
ARTICLE X
---------
SATISFACTION AND DISCHARGE
SECTION 10.01 Satisfaction and Discharge of
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 10.02 Application of Trust Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
ARTICLE XI
----------
SINKING FUNDS
SECTION 11.01 Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 11.02 Satisfaction of Sinking Fund Payments
with Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 11.03 Redemption of Securities for Sinking
Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
ARTICLE XII
-----------
REDEMPTION OF SECURITIES
SECTION 12.01 Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 12.02 Election to Redeem; Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 12.03 Selection by Trustee of Securities to
be Redeemed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
v
9
SECTION 12.04 Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 12.05 Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 12.06 Securities Payable on Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 12.07 Securities Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
ARTICLE XIII
------------
SUBORDINATION
SECTION 13.01 Securities Subordinated to Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 13.02 Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 13.03 Obligation of Company Unconditional . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 13.04 Payments on Securities Permitted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 13.05 Effectuation of Subordination by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 13.06 Knowledge of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 13.07 Trustee's Relation to Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 13.08 No Impairment of Subordination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 13.09 Article Applicable to Paying Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 13.10 No Suspension of Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
ARTICLE XIV
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AUTHENTICATING AGENT
SECTION 14.01 Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
ARTICLE XV
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MEETINGS OF SECURITYHOLDERS
SECTION 15.01 Purposes for Which Meetings May Be Called . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 15.02 Place of Meetings of Securityholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 15.03 Call and Notice of Securityholders'
Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 15.04 Persons Entitled to Vote at
Securityholders' Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 15.05 Determination of Voting Rights;
Conduct and Adjournment of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 15.06 Counting Votes and Recording Action
at Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 15.07 Quorum; Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
TESTIMONIUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
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SIGNATURES AND SEALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
ACKNOWLEDGEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 & 69
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THIS SUBORDINATED INDENTURE IS DATED as of March 31, 1997, between The
Colonial BancGroup, Inc., a Delaware corporation (hereinafter called the
"Company"), having its principal executive offices at Xxx Xxxxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxx, and SunTrust Bank, Atlanta, duly organized and existing
under the laws of the State of Georgia, as Trustee (hereinafter called the
"Trustee"), having its principal Corporate Trust Office at 00 Xxxxxxxx Xxxxxx,
Xxxx 000 - Annex, Xxxxxxx, Xxxxxxx 00000, and is entered into with reference to
the following facts and objectives.
RECITALS OF THE COMPANY
The Company has duly authorized the issuance, execution and delivery,
from time to time, of its unsecured evidences of indebtedness (hereinafter
referred to as the "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 Securities are to be authenticated, issued and delivered, and
the Company has duly authorized the execution of this Indenture.
All things necessary to make the Securities, when executed and duly
issued by the Company and authenticated and delivered hereunder, the valid
obligations of the Company and to make this Indenture a valid agreement of the
Company, in accordance with their and its terms, have been done.
NOW, THEREFORE, IT IS AGREED:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is covenanted and agreed, for the equal
and proportionate benefit of all Holders of the Securities, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. DEFINITIONS
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) all references in this instrument to designated "Articles",
"Sections" and other subdivisions are to the designated Articles, Sections and
other subdivisions of this instrument as originally executed. The words
"herein", "hereof" and "hereunder" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or other
subdivision, except as otherwise indicated;
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(2) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular;
(3) words of the masculine, feminine or neuter gender shall be
considered to include the other genders;
(4) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meaning
assigned to them therein; and
(5) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles.
"Act" when used with respect to any Securityholder has the meaning
specified in Section 1.04.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" shall mean any Person authorized by the Trustee
to act on behalf of the Trustee to authenticate Securities of one or more
series.
"Authorized Newspaper" means a newspaper of general circulation in the
relevant area, printed in the English language, customarily published on each
Business Day, whether or not published on Legal Holidays, and of general
circulation in each place in connection with which the term is used or in the
financial community of each such place. Where successive publications are
required to be made in Authorized Newspapers, the successive publications may
be made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
"Bankruptcy Act" means Title 11 of the United States Code and any
other similar applicable Federal law.
"Board of Directors" means either the Board of Directors of the
Company or any duly authorized committee of that Board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
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"Business Day" means each day which is neither a Saturday, Sunday nor
other day on which banking institutions in the city of Montgomery, Alabama or
the Corporate Trust Office of the Trustee is authorized or obligated by law or
executive order to close.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, or
if at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties on such date.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor person all have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor person.
"Company Request", "Company Order" and "Company Consent" mean,
respectively, a written request, order or consent signed in the name of the
Company by its Chairman of the Board, President, or a Vice President, and by
its Treasurer, an Assistant Treasurer, Controller, an Assistant Controller,
Secretary, or an Assistant Secretary, and delivered to the Trustee.
"Corporate Trust Office" means the principal office of the Trustee at
00 Xxxxxxxx Xxxxxx, Xxxx 000 - Annex, Xxxxxxx, Xxxxxxx 00000 or, if such office
shall not be the principal office, such other office at which at any particular
time its corporate trust business shall be administered, except that with
respect to presentation of Securities for payment or registration of transfers
and exchanges and the location of the registrar, such term means the office or
agency of the Trustee at which at any particular time its corporate agency
business shall be conducted, which at the date of original execution of this
Indenture is 00 Xxxxxxxx Xxxxxx, Xxxx 400 - Annex, Xxxxxxx, Xxxxxxx 00000.
"Corporation" means a corporation, association, company, joint-stock
company or business trust.
"Date of Original Issuance" means with respect to any Security (or
portion thereof) the earliest date on which such Security (or portion thereof)
is issued pursuant to this Indenture.
"Defaulted Interest" has the meaning specified in Section 3.07.
"Event of Default" has the meaning specified in Section 6.01.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof.
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"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Securities.
"Maturity" when used with respect to any Security means the date on
which the principal of such Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, or call for redemption or otherwise.
"Notice of Redemption" means the notice contemplated by Section 12.04
by the Company to a Holder of an election to redeem all or part of a Security.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the President or a Vice President, and by the Treasurer, an
Assistant Treasurer, the Controller, an Assistant Controller, the Secretary or
an Assistant Secretary of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel (selected with
due care), who may (except as otherwise expressly provided in this Indenture)
be counsel for the Company and who shall be acceptable to the Trustee.
"Original Issue Discount Security" means a Security issued pursuant to
this Indenture which provides for declaration of an amount less than the
principal thereof to be due and payable on acceleration pursuant to Section
6.02.
"Outstanding" when used with respect to Securities means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption money in the necessary amount has been theretofore
deposited with the Trustee or any Paying Agent (other than the
Company) in trust or set aside and segregated in trust by the Company
(if the Company shall act as its own Paying Agent) for the Holders of
such Securities, provided that, if such Securities are to be redeemed,
notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been
made;
(iii) Securities which have been paid pursuant to Section
3.06 or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by
a bona-fide purchaser in whose hands such Securities are valid
obligations of the Company;
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provided, however, that in determining whether the Holders of the requisite
principal amount of Securities Outstanding have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, (i) the
principal amount of an Original Issue Discount Security that shall be deemed to
be Outstanding shall be the amount of the principal thereof that would be due
and payable as of the date of such determination upon acceleration of the
Maturity thereof pursuant to Section 6.02; (ii) the principal amount of a
Security denominated in a foreign currency or currencies shall be the U.S.
dollar equivalent, determined on the date of original issuance of such
Security, of the principal amount (or, in the case of an Original Issue
Discount Security, the U.S. dollar equivalent on the date of original issuance
of such Security of the amount determined as provided in (i) above) of such
Security; and (iii) Securities owned by the Company or any other obligor upon
the Securities or any Affiliate of the Company or such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only Securities
which a Responsible Officer of the Trustee knows to be so owned shall be so
disregarded. Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee is not the Company or any other obligor
upon the Securities or any Affiliate of the Company or such other obligor.
Upon request of the Trustee, the Company shall furnish to the Trustee promptly
an Officers' Certificate listing and identifying all Securities, if any, known
by the Company to be owned by or held for the account of the Company or any
other obligor upon the Securities, or any Affiliate of the Company or of such
obligor and the Trustee shall be entitled to accept such Officers' Certificate
as conclusive evidence of the facts therein set forth and of the fact that all
Securities not listed therein and not otherwise excluded from the provisions
hereof are Outstanding for the purpose of any such determination.
"Paying Agent" means any person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Company.
"Person" means any individual, joint tenancy, tenancy in common,
corporation, partnership, joint venture, association, joint-stock company,
trust, unincorporated organization or government or any agency or political
subdivision thereof or any other entity.
"Place of Payment," with respect to any Security, means the place or
places where the principal of (and premium, if any) and interest on Securities
of that series are payable as specified in or pursuant to Section 3.01.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.06 in exchange for or in lieu of
all or a portion of a mutilated, destroyed, lost or stolen Security shall be
deemed to evidence the same debt as such mutilated, destroyed, lost or stolen
Security or portion thereof.
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"Primary Federal Regulator" means the Company's primary federal
banking regulator (which at the date of this Indenture is the Board of
Governors of the Federal Reserve System), or any successor body or institution
performing substantially the same regulatory function with respect to the
Company and to the adequacy of its capital as said Board of Governors performs
on the date hereof.
"Principal Office of the Company" means the principal office of the
Company maintained at the address set forth in the first paragraph of this
Indenture or any other address designated by the Company in writing to the
Trustee.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to the
Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date means the date specified for such purpose as contemplated by Section 3.01.
"Responsible Officer" when used with respect to the Trustee means the
chairman or vice-chairman of the board of directors, the chairman or
vice-chairman of the executive committee of the board of directors, the
president, any vice- president (whether or not designated by a word or words
added before or after the title "vice-president"), the secretary, any assistant
secretary, the treasurer, any trust officer, the controller and any assistant
controller or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers who in each
instance work in the corporate trust department of the Trustee at the Corporate
Trust Office, and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"Security" or "Securities" have the meaning specified in the recitals
of this Indenture.
"Securityholder(s)" or "Holder(s)" when used with respect to any
Security means the Person(s) in whose name such Security is registered in the
Security Register.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.05.
"Senior Indebtedness" means any indebtedness (including principal,
premium and interest) for money borrowed, or any indebtedness incurred by the
Company in connection with an acquisition by the Company or an Affiliate of the
stock or substantially all of the assets of another Person or a merger or
consolidation to which the Company or an Affiliate is a party, outstanding on
the date of execution of this Indenture as originally executed, or
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thereafter created, incurred or assumed, for the payment of which the Company
is at the time of determination responsible or liable as obligor, guarantor or
otherwise, and all deferrals, renewals, extensions and refundings of any such
indebtedness or obligations; provided, however, that Senior Indebtedness shall
not include (a) indebtedness as to which, in the instrument creating or
evidencing the same or pursuant to which the same is outstanding, it is
provided that such indebtedness is subordinate in right of payment to any other
indebtedness of the Company, (b) indebtedness which by its terms refers
explicitly to the Securities issued hereunder and states that such indebtedness
shall not be senior thereto and shall be either equally subordinate and equally
junior with the Securities issued hereunder, (c) indebtedness of the Company in
respect of the Securities, and (d) the Company's 7 1/2% Convertible
Subordinated Securities due 2011, issued in 1986, which shall rank in pari
passu with the Securities.
"Special Record Date" for the payment of any Defaulted Interest means
the date fixed by the Trustee pursuant to Section 3.07.
"Stated Maturity" when used with respect to any Security or any
installment of interest thereon means the date specified in such Security as
the fixed date on which the principal of such Security or such installment of
interest is due and payable.
"Subsidiary" means a corporation more than 50% of the Outstanding
Voting Stock of which is owned, directly or indirectly, by the Company or by
one or more other Subsidiaries, or by the Company and one or more other
Subsidiaries.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as in
force at the date as of which this instrument was executed, as such act may be
amended from time to time.
"Underwriters" means such underwriters as the Company may engage from
time to time to sell to the public one or more series of Securities.
"U.S. Depository" or "Depository" means, with respect to any Security
issuable or issued in the form of one or more global Securities, the Person
designated as U.S. Depository by the Company pursuant to Section 3.01, which
must be a clearing agency registered under the Securities Exchange Act of 1934,
as amended, and, if so provided pursuant to Section 3.01 with respect to any
Security, any successor to such Person. If at any time there should be more
than one such Person, "U.S. Depository" or "Depository" shall mean, with
respect to any Securities, the qualifying entity which has been appointed with
respect to such Securities.
"Vice President" when used with respect to the Company or the Trustee
means any
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vice president, whether or not designated by a number or a word or words added
before or after the title "vice president."
"Voting Stock" means stock which ordinarily has voting power for the
election of directors, whether at all times or only so long as no senior class
of stock has such power by reason of any contingency.
SECTION 1.02 COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate
or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein relating
thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition has
been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.03. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
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Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which such counsel's certificate or opinion is
to be provided, insofar as it related to factual matters, is based upon a
certificate or opinion of, or representations by, an officer or officers of the
Company stating that the information with respect to such factual matters is in
the possession of the Company, and unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to such matters upon which counsel is relying are
erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.04. ACTS OF SECURITYHOLDERS.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Securityholders may be given or taken at a meeting of Securityholders in
accordance with Article XV or may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Securityholders in
person or by agent duly appointed in writing; and, except as herein otherwise
provided, such action shall become effective, in the case of meetings of
Securityholders, in accordance with section 15.06, or otherwise when such
instrument or instruments are delivered to the Trustee, and, where it is hereby
expressly required, to the Company. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the Securityholders signing such instrument or instruments.
Proof of execution of any such instrument or of a writing appointing any such
agent shall be sufficient for any purpose of this Indenture and (subject to
Section 7.01) conclusive in favor of the Trustee and the Company, if made in
the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer
authorized by law to take acknowledgement of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the execution
thereof. Where such execution is by an officer of a corporation or a member of
a partnership, on behalf of such corporation or partnership, such certificate
or affidavit shall also constitute sufficient proof of his authority. The fact
and date of the execution of any such instrument or writing, or the authority
of the Person executing the same, may also be proved in any other manner which
the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the Security
Register.
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(d) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Security shall bind such
Holder and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor done by the Trustee, any Security
Registrar, any Paying Agent or the Company in reliance thereon, whether or not
notation of such action is made upon such Security.
SECTION 1.05. NOTICES, ETC., TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Securityholders or other documents provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with
(1) the Trustee by any Securityholder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or filed in
writing to or with the Trustee at its Corporate Trust Office, or
(2) the Company by the Trustee or by any Securityholder shall be
sufficient for every purpose hereunder (unless otherwise herein provided) if in
writing and mailed, first class mail, postage prepaid, to the Company addressed
to it at the address of the Principal Office of the Company.
SECTION 1.06. NOTICES TO SECURITYHOLDERS; WAIVER.
Where this Indenture provides for notice to Securityholders of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed by first class mail, postage
prepaid, to each Holder of such Securities affected by such event, at his
address as it appears on the Security Register, not later than the latest date,
and not earlier than the earliest date, prescribed for the giving of such
notice. In any case, where notice to Securityholders is given by mail, neither
the failure to mail such notice nor any defect in any notice so mailed, to any
particular Securityholder shall affect the sufficiency of such notice with
respect to other Securityholders.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Securityholders shall be filed with the Trustee,
but such filing shall not be a condition precedent to the validity of any
action taken in reliance upon such waiver.
In case, by reason of the suspension of or irregularities in regular
mail service or by reason of any other cause, it shall be impracticable to mail
notices as required by this Indenture, then any reasonable manner of giving
notice as shall be made with the approval of the Trustee shall constitute a
sufficient giving or publication of such notice.
SECTION 1.07. CONFLICT WITH TRUST INDENTURE ACT.
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If any provision hereof limits, qualifies or conflicts with another
provision which is required to be included in this Indenture, or any amendment
thereto, by any of the provisions of the Trust Indenture Act, such required
provision shall control.
SECTION 1.08. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 1.09 SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company and by
the Trustee shall bind its successors and assigns, whether so expressed or not.
SECTION 1.10 SEPARABILITY CLAUSE.
If any clause or provision of this Indenture shall be illegal, invalid
or unenforceable under present or future laws effective during the term hereof,
then it is the intention of the parties hereto that the remainder of this
Indenture shall not be affected thereby, unless inequitable, and it is also the
intention of such parties that in lieu of each clause or provision that shall
be illegal, invalid or unenforceable there shall be added as a part of this
Indenture a clause or provision as similar in terms as such illegal, invalid or
unenforceable clause or provision as may be possible and be legal, valid and
enforceable.
SECTION 1.11. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder, the holders of Senior Indebtedness, if any, to the extent provided
in Article XIII, and the Securityholders, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 1.12. LEGAL HOLIDAYS.
In any case where the date of any Interest Payment Date, Redemption
Date, or the Stated Maturity of any Security, or the last date on which a
Holder has the right to convert his Security (or the right to convert his
Security at a particular conversion price or rate) shall not be a Business Day,
then (notwithstanding any other provision of the Securities or this Indenture)
payment of the principal of (and premium, if any) or interest on, or conversion
of, any Security need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on the
Interest Payment Date, Redemption Date, or Stated Maturity, or on such last
date for conversion, as applicable, and no interest shall accrue for the period
from and after such date.
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SECTION 1.13. GOVERNING LAW.
This Indenture and the Securities shall be construed in accordance
with and governed by Alabama law and federal law, as applicable.
Notwithstanding anything else herein contained, the situs of the monies,
securities and other property to be held in accordance with the terms of this
Indenture (collectively, the "Trust Estate") shall be deemed to be the
Corporate Trust Office of the Trustee as to that portion of the Trust Estate
held and administered by the Trustee and the principal office of the Paying
Agent as to the portion of the Trust Estate held and administered by the Paying
Agent, and the laws of the respective states in which said Corporate Trust
Office and principal office are located shall be deemed to govern,
respectively, the execution, delivery, administration and enforceability of
this Indenture by and against the Trustee and the Paying Agent.
ARTICLE II
SECURITY FORMS
SECTION 2.01. FORMS GENERALLY.
Each Security and temporary global Security issued pursuant to this
Indenture shall be in the form established by or pursuant to a Board Resolution
or in one or more indentures supplemental hereto, shall have appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture or any indenture supplemental hereto and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may, consistently herewith, be determined by the
officers executing such Security, as evidenced by their execution of such
Security.
Definitive Securities shall be printed, lithographed or engraved or
produced by any combination of these methods on a steel engraved border or
steel engraved borders or may be produced in any other manner, all as
determined by the officers of the Company executing such Securities, as
evidenced by their execution of such Securities.
SECTION 2.02 FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION
Subject to Section 14.01, the Trustee's certificate of authentication
shall be in substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
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SUNTRUST BANK, ATLANTA
as Trustee
By:
-------------------------------------
Authorized Signatory
SECTION 2.03. SECURITIES IN GLOBAL FORM.
The Securities may be issued, in whole or in part, in global form. If
Securities are issuable in global form, any such Security may provide that it
shall represent the aggregate amount of Outstanding Securities from time to
time endorsed thereon and may also provide that the aggregate amount of
Outstanding Securities represented thereby may from time to time be increased
or reduced to reflect exchanges. Any endorsement of any Security in global
form to reflect the amount, or any increase or decrease in the amount, or
changes in the rights of Holders, of Outstanding Securities represented thereby
shall be made in such manner and by such Person or Persons as shall be
specified therein or in the Company Order to be delivered pursuant to Section
3.03 or 3.04 with respect thereto. Subject to the provisions of Section 3.03
and, if applicable, Section 3.04, the Trustee shall deliver and redeliver any
Security in permanent global form in the manner and upon instructions given by
the Person or Persons specified therein or in the applicable Company Order. If
a Company Order pursuant to Section 3.03 or 3.04 has been, or simultaneously
is, delivered, any instructions by the Company with respect to a Security in
global form shall be in writing but need not comply with Section 1.02 and need
not be accompanied by an Opinion of Counsel.
Notwithstanding the provisions of Section 3.07, unless otherwise
specified as contemplated by Section 3.01, payment of principal of and any
premium and interest on any Security in permanent global form shall be made to
the Person or Persons specified therein.
Notwithstanding the provisions of Section 3.09 and except as provided
in the preceding paragraph, the Company, the Trustee and any agent of the
Company and the Trustee shall treat as the Holder of such principal amount of
Outstanding Securities represented by a permanent global Security, the Holder
of such permanent global Security.
ARTICLE III
THE SECURITIES
SECTION 3.01. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be authenticated and
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delivered under this Indenture is unlimited. The Securities shall be
subordinated in right of payment to Senior Indebtedness as provided in Article
XIII.
The Securities may be issued in one or more series. There shall be
established in or pursuant to one or more Board Resolutions, and set forth in
an Officers' Certificate, or established in one or more indentures supplemental
hereto,
(1) the title of the Securities and the series in which
such Securities shall be included;
(2) any limit upon the aggregate principal amount of the
Securities of such series or the Securities of such series which may
be authenticated and delivered under this Indenture (except for
Securities authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities of the series
pursuant to Section 2.03, 3.04, 3.05, 3.06, 8.06 or 12.07 or the terms
of such Securities);
(3) whether any Securities of the series are to be
issuable initially or otherwise in global form and, if so, (i) whether
beneficial owners of interest in any such global Security may exchange
such interest for Securities of such series and of like tenor of any
authorized form and denomination and the circumstances under which any
such exchanges may occur if other than in the manner specified in
Section 3.05, (ii) the name of the Depository with respect to any
global Security and (iii) the manner in which interest payable on a
global Security will be paid;
(4) the date or dates, or the method, if any, by which
such date or dates shall be determined, on which the principal of such
Securities is payable;
(5) the rate or rates at which the Securities of a series
shall bear interest, if any, or the method or methods, if any, by
which such rate or rates are to be determined, the date or dates, if
any, from which such interest shall accrue or the method or methods,
if any, by which such date or dates are to be determined, the Interest
Payment Dates, if any, on which such interest shall be payable and the
Regular Record Date, if any, for the interest payable on any Interest
Payment Date, and the basis upon which interest shall be calculated if
other than that of a 360-day year of twelve 30-day months;
(6) the place or places, if any, in addition to or other
than the City of Atlanta, State of Georgia, where the principal of
(and premium, if any) and interest, on such Securities shall be
payable;
(7) whether the Securities of the series or any of them
are to be redeemable at the option of the Company and, if so, the
period or periods within which, the price or prices at which and the
other terms and conditions upon which
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such Securities may be redeemed, in whole or in part, at the option of
the Company;
(8) whether the Company is obligated to redeem or
purchase Securities of the series or any of them pursuant to any
sinking fund and, if so, the period or periods within which, the price
or prices at which and the other terms and conditions upon which such
Securities shall be redeemed or purchased, in whole or in part,
pursuant to such obligation, and any provisions for the remarketing of
the Securities of the series so redeemed or purchased;
(9) the denominations in which Securities of the series,
if any, shall be issuable if other than denominations of $1,000 and
any integral multiple thereof;
(10) if other than the principal amount thereof, the
portion of the principal amount of the Securities of the series or any
of them which shall be payable upon declaration of acceleration of the
Maturity thereof pursuant to Section 6.02 or the method by which such
portion is to be determined;
(11) if other than such coin or currency of the United
States of America as at the time of payment is legal tender for
payment of public or private debts, the coin or currency, composite
currencies or currency unit or units in which payment of the principal
of (and premium, if any) or interest, if any, on or in respect of the
Securities of the series or any of them shall be payable;
(12) whether the amount of payments of principal of (and
premium, if any) or interest, if any, on the Securities of the series
may be determined with reference to an index, formula or other method
(which index, formula or method may be based, without limitation, on
one or more currencies, currency units, composite currencies,
commodities, equity indices or other indices), and, if so, the terms
and conditions upon which and the manner in which such amounts shall
be determined and paid or payable;
(13) whether the principal of (and premium, if any) or
interest, if any, on the Securities of the series are to be payable,
at the election of the Company or any Holder thereof or otherwise, in
a currency or currencies, currency unit or units or composite currency
or currencies other than that in which such Securities or any of them
are denominated or stated to be payable, the period or periods within
which, and the other terms and conditions upon which, such election,
if any, may be made, and the time and manner of determining the
exchange rate between the currency or currencies in which such
Securities or any of them are denominated or stated to be payable and
the currency or currencies, currency unit or units or composite
currency or currencies in which such Securities or any of them are to
be so payable;
(14) any deletions from, modifications of or additions to
the Events of Default or covenants of the Company with respect to the
Securities of the series or
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any of them, whether or not such Events of Defaults or covenants are
consistent with the Events of Default or covenants set forth herein;
(15) if the Securities of the series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions,
then the form and terms of such certificates, documents or conditions;
(16) if there is more than one Trustee, the identity of
the Trustee and, if not the Trustee, the identity of each Security
Registrar, Paying Agent and/or Authenticating Agent with respect to
the Securities of the series;
(17) whether any of the Securities of a series shall be
issued as Original Issue Discount Securities;
(18) if other than the law of the State of Alabama, the
law which will govern the terms of the Securities; and
(19) any other terms of the Securities of the series or
any of them (which terms shall not be inconsistent with the provisions
of this Indenture).
All Securities of any one series shall be substantially identical
except as to denomination and the rate or rates of interest, if any, and Stated
Maturity, the date from which interest, if any, shall accrue and except as may
otherwise be provided by the Company in or pursuant to one or more Board
Resolutions and set forth in such Officers' Certificate or in any indenture or
indentures supplemental hereto pertaining to such series of Securities. All
Securities of any one series need not be issued at the same time, and unless
otherwise so provided by the Company, a series may be reopened for issuances of
additional Securities of such series or to establish additional terms of such
series of Securities.
If any of the terms of the Securities of any series were established
by action taken by or pursuant to a Board Resolution, the Board Resolution
shall be delivered to the Trustee at or prior to the delivery of the Officers'
Certificates setting forth the terms of such series.
SECTION 3.02 DENOMINATIONS.
Unless otherwise established with respect to any Securities pursuant
to Section 3.01, the Securities of each series, if any, denominated in Dollars
shall be issuable in registered form without coupons in denominations of $1,000
and any integral multiple thereof.
SECTION 3.03 EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
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The Securities shall be executed on behalf of the Company by its
Chairman of the Board, one of its Vice Chairmen, its President or one of its
Vice Presidents under its corporate seal reproduced thereon and attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by
the Company to the Trustee for authentication, together with the Board
Resolution or Resolutions and Officers' Certificate or supplemental indenture
or indentures with respect to such Securities referred to in Section 3.01 and a
Company Order for the authentication and delivery of such Securities, and the
Trustee in accordance with the Company Order and subject to the provisions
hereof shall authenticate and deliver such Securities. In authenticating such
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be entitled to receive, and
shall be fully protected in relying upon,
(i) an Opinion of Counsel stating, to the effect
(a) that the form or forms and terms of such Securities,
have been established in conformity with the provisions of this
Indenture;
(b) that all conditions precedent to the authentication
and delivery of such Securities, have been complied with and that such
Securities, when completed by appropriate insertion and executed and
delivered by the Company to the Trustee for authentication pursuant to
this Indenture, and authenticated and delivered by the Trustee and
issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute legally valid
and binding obligations of the Company, enforceable against the
Company in accordance with their terms, subject to bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or other
similar laws affecting the enforcement of creditors' rights generally,
and subject to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law) and will
entitle the Holders thereof to the benefits of the Indenture; such
Opinion of Counsel need express no opinion as to the availability of
equitable remedies;
(c) that all laws and requirements in respect of the
execution and delivery by the Company of such Securities have been
complied with; and
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(d) as to such other matters as the Trustee may
reasonably request; and
(ii) an Officers' Certificate stating that, to the best
knowledge of the Persons executing such Certificate, no Event of Default with
respect to any of the Securities has occurred and is continuing.
If all of the Securities of any series are not to be issued at one
time, it shall not be necessary to deliver an Opinion of Counsel and an
Officers' Certificate at the time of issuance of each Security, but such
opinion and certificate, with appropriate modifications, shall be delivered at
or before the time of issuance of the first Security of such series.
The Trustee shall not be required to authenticate or to cause an
Authenticating Agent to authenticate any Securities if the issuance of such
Securities pursuant to this Indenture will affect the Trustee's own rights,
duties, privileges, protections, liabilities or immunities under the Securities
and this Indenture or otherwise in a manner which is not reasonably acceptable
to the Trustee or if the Trustee, being advised by counsel, determines that
such action may not lawfully be taken.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose, unless there appears on such Security a
certificate of authentication substantially in the form provided for in Section
2.02 and 14.01 executed by or on behalf of the Trustee or any Authenticating
Agent by the manual signature of one of its authorized representatives, and
such certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder.
SECTION 3.04. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver in the manner provided in Section 3.03, temporary Securities of such
series which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denominations, substantially of the tenor of the
definitive Securities in lieu of which they are issued in registered form and
with such appropriate insertions, omissions, substitutions and other variations
as the officers executing such Securities may determine, as evidenced by their
execution of such Securities. In the case of Securities of any series, such
temporary Securities may be in global form.
Except in the case of temporary Securities in global form, which shall
be exchanged in accordance with the provisions thereof, if temporary Securities
are issued, the Company will cause definitive Securities of such series to be
prepared without unreasonable delay. After the preparation of definitive
Securities of any series, the temporary Securities of such
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series shall be exchangeable for definitive Securities upon surrender of the
temporary Securities of such series at the Principal Office of the Company
without charge to the Holder. Upon surrender for cancellation of any one or
more temporary Securities of any series, the Company shall execute and the
Trustee or an Authenticating Agent shall authenticate and deliver in exchange
therefor a like principal amount of definitive Securities of authorized
denominations of the same series containing identical terms and provisions.
Unless otherwise specified as contemplated by Section 3.01 with respect to a
temporary global Security, until so exchanged the temporary Securities of any
series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series.
SECTION 3.05. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register (herein sometimes referred to as the "Security
Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Securities of each
series and the registration of transfers of Securities of each series. The
"Security Registrar" for the purpose of registering Securities and transfers of
Securities shall be the Trustee or any other Person from time to time
designated as such by the Company.
Upon surrender for registration of transfer of any Security at an
office or agency of the Company designated pursuant to Section 4.02 for such
purpose, the Company shall execute, and the Trustee shall authenticate and
deliver, in the names of the designated transferee or transferees, one or more
new Securities of the same series of any authorized denominations, of a like
aggregate principal amount.
At the option of the Holder, Securities of any series may be exchanged
for other Securities of the same series containing identical terms and
provisions, of any authorized denomination, of a like aggregate principal
amount, upon surrender to such office or agency of the Securities to be
exchanged at such office or agency.
Whenever any Securities are so surrendered for exchange as
contemplated by the immediately preceding two paragraphs, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 3.01, any global Security of any series shall be
exchangeable for Securities of such series only if (i) the Securities
Depository is at any time unwilling or unable or ineligible to continue as
Securities Depository and a successor depository is not appointed by the
Company within 60 days of the date the Company is so notified in writing, (ii)
the Company executes and delivers to the Trustee a Company Order to the effect
that such global Security shall be so exchangeable, or (iii) an Event of
Default has occurred and is continuing with respect to the Securities. If the
beneficial owners of interests in a global Security are entitled to exchange
such interest for Securities of such series of like tenor and
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principal amount of any authorized form and denomination, as specified as
contemplated by Section 3.01, then without unnecessary delay but in any event
not later than the earliest date on which such interests may be exchanged, the
Company shall deliver to the Trustee definitive Securities of that series in
aggregate principal amount equal to the principal amount of such global
Security, executed by the Company. On or after the earliest date on which such
interests may be so exchanged, such global Security shall be surrendered from
time to time by the Depository (which instructions shall be in writing but need
not comply with Section 1.02 or be accompanied by an opinion of Counsel), as
shall be specified in the Company Order with respect thereto to the Trustee, as
the Company's agent for such purpose, to be exchanged, in whole or part, for
definitive Securities of the same series without charge. The Trustee shall
authenticate and make available for delivery, in exchange for each portion of
such surrendered global Security, a like aggregate principal amount of
definitive Securities of the same series of authorized denominations and of
like tenor as the portion of such global Security to be exchanged; provided,
however, that no such exchanges may occur during a period beginning at the
opening of business 15 days before any selection of Securities of such series
to be redeemed and ending on the relevant Redemption Date. Promptly following
any such exchange in part, such global Security shall be returned by the
Trustee to such Depository, or such other Depository in accordance with the
instructions of the Company referred to above. If a Security is issued in
exchange for any portion of a global Security after the close of business at
the office or agency where such exchange occurs on (i) any Regular Record Date
and before the opening of business at such office or agency on the relevant
Interest Payment Date, or (ii) any Special Record Date and before the opening
of business of such office or agency on the related proposed date for payment
of interest or Defaulted Interest, as the case may be, interest will not be
payable on such Interest Payment Date or proposed date for payment, as the case
may be, in respect of such Security, but will be payable on such Interest
Payment Date or proposed date for payment, as the case may be, only to the
Person to whom interest in respect of such portion of such global Security is
payable in accordance with the provisions of the Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or exchange shall (if so required by the Company or the Security Registrar) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney-in-fact duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities but the Company or the Security Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant
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to Sections 3.04, 3.06 or 12.07 not involving any transfer. The Company shall
in any event pay any other costs associated with the delivery, by first class
mail, of a new Security to its Holder.
Except as otherwise specified as contemplated by Section 3.01, the
Company shall not be required (i) to issue, register the transfer of or
exchange any Securities of any series during a period beginning at the opening
of business 15 days before the day of the selection for redemption of
Securities of such series under Section 12.03 and ending at the close of
business on the relevant Redemption Date, or (ii) to register the transfer of
or exchange any Security so selected for redemption in whole or in part, except
in the case of any Security to be redeemed in part, the portion thereof not to
be redeemed.
SECTION 3.06. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security is surrendered to the Trustee, or if the
Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Security, and there is delivered to the
Company and the Security Registrar such security or indemnity as may be
required by either or both of them to save each of them harmless, then, in the
absence of notice to the Company or the Security Registrar that such Security
has been acquired by a bona fide purchaser or other transferee, the Company
shall (i) 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 Security, a new Security of the same series of like tenor and principal
amount, bearing a number not contemporaneously outstanding, or (ii) case any
such mutilated, destroyed, lost or stolen Security has become or is to become
due and payable within sixty days following the date on which the issuance of
new Securities is requested, the Company in its discretion may, instead of
issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Security Registrar) connected
therewith. The Company shall, however, pay any costs associated with the
delivery by first class mail of any new Securities to the Holder thereof.
Every new Security of any series, issued pursuant to this Section in
lieu of any mutilated, destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company, whether or not the
mutilated, destroyed, lost or stolen Security shall be at any time enforceable
by anyone, and shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Securities of that series duly
issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
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SECTION 3.07. PAYMENT OF INTEREST.
Unless otherwise specified as contemplated by Section 3.01, interest
on any Security which is payable, and is punctually paid, on any Interest
Payment Date shall be paid to the Person in whose name that Security (or one or
more predecessor Securities) is registered on the Regular Record Date for such
interest.
Any interest on any Security which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Holder on the
relevant Regular Record Date by virtue of having been such Holder; and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in Clause (1) or Clause (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities affected (or their
respective Predecessors Securities) are registered at the close of business on
a Special Record Date for the payment of such Defaulted Interest, which shall
be fixed in the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each
Security and the date of the proposed payment, and at the same time the Company
shall deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this Clause
provided. Thereupon the Trustee shall fix a Special Record Date for the
payment of such Defaulted Interest which shall be not more than 15 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 Company of such Special Record Date and,
in the name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first class mail, postage prepaid, to each
Securityholder at his address as it appears in the Security Register, not less
than 10 days prior to such Special Record Date. Notice of the proposed payment
of such Defaulted Interest and the Special Record Date therefor having been
mailed as aforesaid, such Defaulted Interest shall be paid to the Persons in
whose names the Securities (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date and shall no
longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any such
securities exchange in which the Securities may be listed, and upon such notice
as may be required by such exchange, if after notice given by the Company to
the Trustee of the proposed payment pursuant to this Clause, such manner of
payment shall be deemed practicable by the Trustee.
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At the option of the Company, interest on Securities of any series
that bear interest may be paid by mailing a check by first class mail to the
address of the person entitled thereto as such address shall appear in the
Security Register.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Debenture shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 3.08. PERSONS DEEMED OWNERS.
Prior to due presentment for registration of transfer of any Security,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name any Security is registered as the owner of such
Security for the purpose of receiving payment of principal of (and premium, if
any) and (subject to Sections 3.05 and 3.07) interest on, such Security, and
for all other purposes whatsoever, whether or not such Security be overdue and
neither the Company, the Trustee, nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
SECTION 3.09. CANCELLATION.
All Securities surrendered for payment, redemption, registration of
transfer, exchange or for credit against any sinking fund payment pursuant to
Section 11.02 shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee and shall be promptly canceled by it. The Company may
at any time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in
any manner whatsoever, and all Securities so delivered shall be promptly
canceled by the Trustee. No Securities shall be authenticated in lieu of or in
exchange for any Securities canceled as provided in this Section, except as
expressly permitted by this Indenture or as otherwise specified as contemplated
by Section 3.01. All canceled Securities held by the Trustee shall be
destroyed and, upon the request of the Company, a certificate of destruction
provided to the Company unless otherwise directed by a Company Order.
SECTION 3.10 COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 3.01 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE IV
COVENANTS
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SECTION 4.01. PAYMENT OF PRINCIPAL, PREMIUM, IF ANY, AND INTEREST.
The Company will duly and punctually pay the principal of (and
premium, if any) and interest on the Securities in accordance with the terms of
the Securities of that series, and this Indenture.
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in each Place of Payment for any series of
Securities, an office or agency where the Securities may be presented or
surrendered for payment, where the Securities of that series may be surrendered
for registration of transfer or exchange, and where notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture
may be served. The Company will give prompt written notice to the Trustee of
the location, and any change in the location, of such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in each Place of Payment of any series, for such purposes. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency. Unless specified otherwise as contemplated by Section 3.01, the
Company hereby designates as the Place of Payment for each series of Securities
the Corporate Trust Office. Pursuant to Section 3.01(4) hereof, the Company
may subsequently appoint a place or places in the Borough of Manhattan, the
City of New York where such Securities may be payable.
SECTION 4.03. MONEY FOR SECURITY PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent as to any
series of Securities, it will, on or before each due date of the principal of
(and premium, if any) or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal (and premium, if any) or interest so
becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided, and will promptly notify the Trustee in writing
of its action or failure so to act, and the Trustee shall be entitled to rely
thereon.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, on or prior to each due date of the principal
(and premium, if any) or interest on any Securities of that series, deposit
with (or make available to) the proper
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Paying Agent a sum sufficient to pay the principal (and premium, if any) or
interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium or interest, and (unless such
Paying Agent is the Trustee) the Company will promptly notify the Trustee in
writing of its action or failure so to act, and the Trustee shall be entitled
to rely thereon.
The Company will cause each Paying Agent for any series of Securities,
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will
(1) hold all sums held by it for the payment of principal (and
premium, if any) or interest on Securities of that series, in trust for the
benefit of the Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of that series) in the making of any payment
of principal (and premium, if any) or interest; and
(3) at any time during the continuance of any such default, upon
the written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same terms as those upon which such sums were held by the
Company or such Paying Agent; such Paying Agent shall be released from all
further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and premium, if
any) or interest on any Security of any series and remaining unclaimed for two
years after such principal (and premium, if any) or interest has become due and
payable shall be paid to the Company on Company Request, or (if then held by
the Company) shall be discharged from such trust; and the Holder of such
Security shall thereafter, as an unsecured general creditor, look only to the
Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money shall thereupon cease and all liability
of the Company as trustee thereof shall thereupon cease; provided, however,
that the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in an
Authorized Newspaper in each Place of Payment for such series or to be mailed
by first class mail a notice to each Holder of such Security for such series at
his last known address as reflected in the Security Register and, if the sum
deposited with the Trustee with respect to any such Holder exceeds $1,000, such
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notice shall state that such money remains unclaimed and that after a date
specified therein, which shall be not less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid
to the Company.
SECTION 4.04. STATEMENT AS TO COMPLIANCE.
(a) The Company will deliver to the Trustee within 120 days after
the end of each fiscal year of the Company, which as of the date hereof ends on
December 31 of each year, a written statement signed by the Chairman of the
Board, the President or a Vice President and by the Treasurer, an Assistant
Treasurer or the chief financial officer of the Company, stating, as to each
signer thereof, that
(1) he has read this Indenture and is familiar with its terms,
(2) a review of the activities of the Company during such year and
of performance under this Indenture has been made under his supervision, and
(3) to the best of his knowledge, based on such review, the
Company has fulfilled all of its obligations under this Indenture throughout
such year, or, if there has been a default in the fulfillment of any such
obligation, specifying each such default known to the signer and the nature and
status thereof.
(b) The Company will deliver to the Trustee, within 10 days after
the occurrence thereof, written notice of any event which after lapse of time
or giving of notice or both, would become an Event of Default.
SECTION 4.05. CORPORATE EXISTENCE.
Subject to Article IX, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence, rights (charter and statutory) and franchises; provided, however,
that the Company shall not be required to preserve any right or franchise if
the Company shall reasonably determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and that the
loss thereof is not disadvantageous in any material respect to the
Securityholders.
SECTION 4.06. PAYMENT OF TAXES AND OTHER CLAIMS.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or
upon income, profits or property of the Company or any Subsidiary, and (2) all
lawful claims for labor, materials and supplies which, if unpaid, might by law
become a lien upon the property of the Company or any Subsidiary; provided,
however, that the Company shall not be required to pay or discharge
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or cause to be paid or discharged any such tax, assessment, charge or claim
whose amount, applicability or validity is being contested in good faith by
appropriate proceedings.
SECTION 4.07. MAINTENANCE OF PROPERTIES.
The Company will cause all its properties used or useful in the
conduct of its business to be maintained and kept in good condition, repair and
working order and supplied with all necessary equipment and will cause to be
made all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as in the judgment of the Company may be necessary so
that the business carried on in connection therewith may be properly and
advantageously conducted at all times; provided, however, that nothing in this
Section shall prevent the Company from discontinuing the operation and
maintenance of any of its properties if such discontinuance is, in the judgment
of the Company, desirable in the conduct of its business and not
disadvantageous in any material respect to the Securityholder.
SECTION 4.08. WAIVER OF COVENANTS.
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Sections 4.05 - 4.08 with respect to the
Securities of any series, if before or after the time for such compliance the
Holders of at least a majority in aggregate principal amount of the Securities
of such series at the time Outstanding shall by Act of such Holders either
waive such compliance in such instance or generally waive compliance with such
covenant or condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such covenant or condition shall remain in full
force and effect.
ARTICLE V
SECURITYHOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 5.01. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
SECURITYHOLDERS.
In accordance with Section 312(a) of the Trust Indenture Act, the
Company will furnish or cause to be furnished to the Trustee (a) semi-annually,
not more than 10 days after each Regular Record Date for each series of
Securities, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders of Securities of such series as of such
Regular Record Date, and (b) at such other times as the Trustee may request in
writing, within 30 days after receipt by the Company of any such request, a
list of similar form and content as of a date not more than 30 days prior to
the time such list is furnished; provided, however, that if and for so long as
the Trustee is the Security
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Registrar, no such list shall be required to be furnished.
SECTION 5.02. PRESERVATION OF INFORMATION; COMMUNICATIONS TO
SECURITYHOLDERS.
(a) The Trustee shall comply with the obligations imposed upon it
pursuant to Section 312 of the Trust Indenture Act.
(b) Every Holder of the Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason of
the disclosure of any such information as to the names and addresses of the
Holders of Securities in accordance with Section 312 of the Trust Indenture
Act, regardless of the source from which such information was derived, and that
the Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under Section 312(b) of the Trust Indenture Act.
SECTION 5.03. REPORTS BY TRUSTEE.
(a) Within 60 days after May 15 of each year commencing with the
year following the first issuance of Securities pursuant to Section 3.01
hereof, if required by Section 313(a) of the Trust Indenture Act, the Trustee
shall transmit pursuant to Section 313(c) of the Trust Indenture Act a brief
report dated as of such May 15 with respect to any of the events specified in
said Section 313(a) which may have occurred since the later of the immediately
preceding May 15 and the date of this Indenture.
(b) The Trustee shall transmit the reports, if any, required by
Section 313(b) of the Trust Indenture Act at the times specified therein.
(c) Reports pursuant to this Section shall be transmitted in the
manner and to the Persons required by Sections 313(c) and (d) of the Trust
Indenture Act.
SECTION 5.04. REPORTS BY COMPANY.
The Company, pursuant to Section 314(a) of the Trust Indenture Act,
shall:
(1) file with the Trustee, within 15 days after the
Company 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 Company 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 Company is not required to file information,
documents or reports pursuant to either of such Sections, then it will 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
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1934 in respect of any security listed and registered on a national securities
exchange as may be prescribed from time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with respect to
compliance by the Company with the conditions and covenants of this Indenture
as may be required from time to time by such rules and regulations;
(3) transmit by first class mail to all Securityholders
as their names and addresses appear in the Security Register, within 30 days
after the filing thereof with the Trustee, and to the extent provided in
Section 313(c) of the Trust Indenture Act, such summaries of any information,
documents and reports required to be filed by the Company pursuant to
paragraphs (1) and (2) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission; and
(4) transmit within 30 days after May 15 of each year to
the Trustee, a brief certificate from the principal executive officer,
principal financial officer or principal accounting officer of the Company as
to his or her knowledge of such obligor's compliance with all conditions and
covenants under the Indenture as determined without regard to any period of
grace or requirement of notice provided under the Indenture.
ARTICLE VI
REMEDIES
SECTION 6.01. EVENTS OF DEFAULT.
Unless additional events of default with respect to Securities of any
series are added pursuant to Section 3.01 or pursuant to a supplemental
indenture under Article VIII, "Event of Default," wherever used herein with
respect to Securities of any series, means any one of the following events
(whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) the entry by a court having jurisdiction in the premises of
(A) a decree or order for relief in respect of the Company in an involuntary
case under any applicable bankruptcy, insolvency, reorganization or other
similar law now or hereafter in effect, or (B) a decree or order adjudging the
Company bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in respect
of the Company under any applicable Federal or State law, or appointing a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or other
similar official) of the
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Company or for any substantial part of the property of the Company, or ordering
the winding-up or liquidation of the affairs of the Company and the continuance
of any such decree or order shall remain unstayed and in effect for a period of
90 consecutive days; or
(2) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law now or hereafter in effect, or of any other
case or proceeding to be adjudicated bankrupt or insolvent, or consent of the
Company to the entry of a decree or an order for relief in an involuntary case
under any such law, or to the commencement of any bankruptcy or insolvency case
or proceeding against the Company, or the filing by the Company of a petition
or answer or consent seeking reorganization or relief under any applicable
Federal or State law, or the consent by it to the filing of such petition or to
the appointment of or taking possession by a receiver, liquidator, assignee,
trustee, custodian, sequestrator (or other similar official) of the Company or
of any substantial part of the property of the Company or the making by the
Company or a Material Subsidiary of any general assignment for the benefit of
creditors, or the failure by the Company generally to pay its debts as they
become due, or the taking of any corporate action by the Company in furtherance
of any of the foregoing; or
(3) any other Event of Default provided with respect to Securities
of such series specified as contemplated by Section 3.01.
If an Event of Default with respect to 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 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 Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 6.02. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default with respect to Securities of any series at the
time Outstanding occurs and is continuing, then and in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Securities of that series Outstanding may declare the principal of, and any
accrued interest on, all the Securities of that series to be immediately due
and payable, by a notice in writing to the Company (and to the Trustee if given
by the Securityholders of that series), and upon any such declaration such
principal shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series at the time Outstanding has been made and before a
judgment or decree for payment of the money due has been obtained by the
Trustee as hereinafter in this Article provided, the Holders of a majority in
principal amount of Securities of that series Outstanding, by written notice to
the Company and the Trustee, may rescind and annul such declaration and
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its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue installments of interest on all
Securities of such series,
(B) the principal of (and premium, if any, on) any
Securities of such series, which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate borne by such
Securities,
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate borne by such Securities,
and
(D) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
(2) all events of Default, other than the non-payment of the
principal of Securities which have become due solely by such acceleration, have
been cured or waived as provided in Section 6.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 6.03. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
The Company covenants that if:
(1) default is made in the payment of any installment of
interest on or payable in respect of any Security when such interest becomes
due and payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of
(or premium, if any on) any Security at the Maturity or upon redemption
thereof;
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest, and to the extent
that payment of such interest shall be legally enforceable, interest on any
overdue principal (and premium, if any), at the rate provided for in such
Securities; and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of any express trust, may, and at
the request of Holders of
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25% in aggregate principal amount of Securities of such series Outstanding
shall, promptly institute a judicial proceeding for the collection of the sums
so due and unpaid, and may prosecute such proceeding to judgment or final
decree, and may enforce the same against the Company or any other obligor upon
the Securities and collect the monies adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or any other obligor
upon the Securities, wherever situated.
If an Event of Default occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of the
Holders of 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 Indenture or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy.
SECTION 6.04. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount, or
such lessor amount as may be provided for in the Securities of such
series, of principal (and premium, if any) and interest 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
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel) and of the Securityholders allowed in such
judicial proceeding, and
(ii) to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator or sequestrator (or
other similar official) in any such judicial proceeding is hereby authorized by
each Holder of Securities 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 Holder of Securities to pay to the Trustee any amount due to it for the
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.07.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of
Securities any plan of
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reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder of Securities in any such proceeding.
SECTION 6.05. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture or any of the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the 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 Securities in respect of which
such judgment has been recovered.
SECTION 6.06. APPLICATION FOR MONEY COLLECTED.
Subject to the provisions of Article XIII, any money collected by the
Trustee pursuant to this Article VI shall be applied in the following order, at
the date or dates fixed by the Trustee and in case of the distribution of such
money on account of principal (and premium, if any) and interest, upon
presentation of the Securities, and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 7.07;
SECOND: To the payment of all the amounts then due and unpaid
upon the Securities for principal (and premium, if any) and interest,
in respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities, for
principal (and premium, if any) and interest, respectively; and
THIRD: The balance, if any, to the Company or other Person
or Persons entitled thereto.
SECTION 6.07. LIMITATION ON SUITS.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(1) such Holder has previously given written notice to the Trustee
of a continuing Event of Default with respect to the Securities of such series;
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(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made a written request to the
Trustee to institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee indemnity
reasonably satisfactory to the Trustee against the costs, expenses and
liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of such series;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture, or Security to affect, disturb or prejudice the rights of any
other such Holders or Holders of Securities of any other series, or to obtain
or to seek to obtain priority or preference over any other Holders or to
enforce any right under this Indenture, except in the manner herein provided
and for the equal and ratable benefit of all such Holders.
SECTION 6.08. UNCONDITIONAL RIGHT OF SECURITYHOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right which is absolute and unconditional to
receive payment of the principal of (and premium, if any) and (subject to
Sections 3.05 and 3.07) interest on or in respect of such Security on the
respective Stated Maturities expressed in such Security (or, in the case of
redemption, on the Redemption Date) and to institute suit for the enforcement
of any such payment and to institute suit for its enforcement, and such rights
shall not be impaired without the consent of such Holder.
SECTION 6.09. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder of a Security has instituted any
proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case the Company, the Trustee and each such Holder shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of the
Trustee and each such Holder shall continue as though no such proceeding had
been instituted.
SECTION 6.10. RIGHTS AND REMEDIES CUMULATIVE.
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Except as provided in Section 3.06, no right or remedy herein
conferred upon or reserved to the Trustee under this Article VI or to each
Holder of a Security is intended to be exclusive of any other right or remedy,
and every right and remedy shall, to the extent permitted by law, be cumulative
and in addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.
SECTION 6.11. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Security
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
any acquiescence therein. Every right and remedy given by this Article or by
law to the Trustee or to the Holder of a Security may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee or by such
Holder, as the case may be.
SECTION 6.12. CONTROL BY HOLDERS.
The Holders of a majority in aggregate principal amount of the
Outstanding Securities of any series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on the Trustee, with respect
to the Securities of such series, provided that
(1) such direction shall not be in conflict with any rule
of law or with this Indenture,
(2) the Trustee may take any other action deemed proper
by the Trustee which is not inconsistent with such direction,
(3) such direction is not unduly prejudicial to the
rights of other Holders of Securities of such series, and
(4) such direction shall not, in the reasonable opinion
of the Trustee, expose the Trustee to personal liability.
SECTION 6.13. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in aggregate principal amount
of the Outstanding Securities of any series may on behalf of the Holders of all
the Securities of such series waive any past default hereunder and its
consequences, except a default.
(1) in the payment of the principal of (or premium, if
any) or interest on
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any Security of such series, or
(2) in respect of a covenant or provision hereof which
under Article VIII cannot be modified or amended without the consent
of the Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other defaults or impair any right consequent thereon.
SECTION 6.14. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any Security
by his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this 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 shall not apply to any suit instituted by the
Trustee, or to any suit instituted by any Securityholder, or group of
Securityholders, holding in the aggregate more than 10% in principal amount of
the Outstanding Securities of any series, or any suit instituted by any
Securityholder for the enforcement of the payment of the principal of (or
premium, if any) or interest on or in respect of any Security on or after the
respective Maturities or Stated Maturities expressed in such Security (or, in
the case of redemption, on or after the Redemption Date) or interest on any
overdue principal of any Security.
SECTION 6.15. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it
may lawfully do so) hereby expressly waives all benefit or advantage of any
such law, and covenants that it will not hinder, delay or impede the execution
of any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
ARTICLE VII
THE TRUSTEE
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SECTION 7.01. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Event of Default
(1) the Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this Indenture, and
no implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this 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 no duty other
than to examine the same to determine whether or not they conform to
the requirements of this Indenture.
(b) In case an Event of Default has occurred and is continuing,
the Trustee shall exercise such of the rights and powers vested in it by this
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
own affairs.
(c) No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that
(1) this Subsection shall not be construed to limit the
effect of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer unless it shall
be proved that the Trustee was negligent in ascertaining the pertinent
facts;
(3) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance
with the request or the direction of the Holders of more than 50% in
aggregate principal amount of the Outstanding Securities relating to
the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Indenture; and
(4) no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights of powers, if it shall have
reasonable grounds for believing that repayment of such funds or
indemnity reasonably satisfactory to it against such risk or liability
is not reasonably assured to
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it.
(d) Whether or not therein expressly so provided, every provision
of this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
SECTION 7.02. NOTICE OF DEFAULTS.
Within 90 days after the occurrence of any default hereunder of which
a Responsible Officer of the Trustee has knowledge with respect to the
Securities of any series, the Trustee shall transmit in the manner and to the
extent provided in Section 313(c) of the Trust Indenture Act, notice of such
default hereunder unless such default shall have been cured or waived;
provided, however, that, except in the case of a default in the payment of the
principal of (or premium, if any) or interest on, or with respect to, any
Security of such series or in the payment of any sinking fund installment with
respect to the Securities of any series, the Trustee shall be protected in
withholding such notice, if any, 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 determine that the withholding of such
notice is in the interests of the Holders of Securities of such series. For
the purpose of this Section, the term "default" means (i) any event which is,
or after notice or lapse of time or both would become, an Event of Default with
respect to the Securities of such series, and (ii) a default in the payment of
principal of or interest on the Securities of such series.
SECTION 7.03. CERTAIN RIGHTS OF TRUSTEE.
The provisions of Section 315 of the Trust Indenture Act shall apply
to the Trustee. Subject to the provisions of Sections 315(a) through 315(d) of
the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or
parties and need not investigate any fact or matter stated therein;
(b) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or Company
Order and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers'
Certificate;
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(d) the Trustee may consult with counsel (selected with
due care) and the written advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in
good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the
request or direction of any of the Securityholders pursuant to this
Indenture, unless such Securityholders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses
and liabilities which might be incurred by it in compliance with such
request or direction;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture or other paper or document
but the Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if
the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney during
regular business hours upon reasonable notice, and subject to
appropriate procedures to protect confidential information; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder;
(h) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion, rights or powers conferred upon
it by this Indenture; and
(i) the Trustee shall not be required to expend or risk
its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or in the exercise of any
of its rights or powers if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it.
SECTION 7.04. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities, except the
Trustee's certificate of authentication, shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities, except that the Trustee represents that it is
duly authorized to execute and deliver this Indenture, authenticate the
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Securities and perform its obligations hereunder and that the statements made
by it in a Statement of Eligibility and Qualifications on Form T-1 supplied to
the Company are true and accurate, subject to the qualifications set forth
therein. The Trustee shall not be accountable for the use or application by
the Company of the Securities or the proceeds thereof.
SECTION 7.05. MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying Agent, Security
Registrar or any agent of the Company, in its individual or any other capacity,
may become the owner or pledgee of Securities and, subject to Sections 310(b)
and 311 of the Trust Indenture Act, may otherwise deal with the Company with
the same rights it would have if it were not Trustee, any Authenticating Agent,
Paying Agent, Security Registrar or such other agent of the Company.
SECTION 7.06. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law, but the Trustee shall
hold the same in trust for the persons entitled thereto. The Trustee shall be
under no liability for interest on any money received by it hereunder, except
as otherwise agreed with the Company.
SECTION 7.07. COMPENSATION AND REIMBURSEMENT.
The Company agrees:
(1) to pay to the Trustee from time to time compensation
for all services rendered by it hereunder (which compensation shall
not be limited by any provision of law in regard to the compensation
of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all expenses, disbursements
and advances incurred or made by the Trustee in accordance with any
provision of this Indenture (including the compensation and the
expenses and disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its
negligence or willful misconduct; and
(3) to indemnify the Trustee (and in the event of
resignation or removal of the Trustee any predecessor Trustee who has
resigned or has been removed) for, and to hold it harmless against,
any loss, liability or expense incurred without negligence or willful
misconduct on its part, arising out of or in connection with the
acceptance or administration of this trust, including the costs and
expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or
duties hereunder.
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As security for the performance of the obligations of the Company
under this Section, the Trustee shall have a lien prior to the Securities of
any series 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 premium, if any)
or interest on particular Securities. When the Trustee incurs expenses or
renders services after an Event of Default occurs, the expenses and
compensation for the services of the Trustee are intended to constitute
expenses of administration under any bankruptcy law or any similar Federal or
state law for the relief of debtors.
SECTION 7.08. DISQUALIFICATION; CONFLICTING INTERESTS.
(a) If the Trustee has or shall acquire any conflicting interest
as defined in the Trust Indenture Act, with respect to the Securities of any
series, the Trustee shall take such action as is required pursuant to the Trust
Indenture Act.
SECTION 7.09. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be an
association or a corporation permitted by Section 310(a)(1) and (5) of the
Trust Indenture Act to act as trustee under the Trust Indenture Act and that
has a combined capital and surplus of at least $50,000,000. If at any time the
Trustee shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 7.10. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of
a successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 7.11.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If an instrument of acceptance by a successor Trustee shall not have
been delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to such
series.
(c) The Trustee may be removed at any time with respect to the
Securities of one or more series by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series, delivered to the
Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the obligations
imposed upon it
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under Section 310(b) of the Trust Indenture Act after written request
therefor by the Company or by any Securityholder who has been a bona
fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section
7.09 and shall fail to resign after written request therefor by the
Company or by any such 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,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee, or (ii) subject to Section 6.14, any Securityholder who has been a
bona fide Holder of a Security of any series for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee with respect to all
Securities of such series and the appointment of a successor Trustee or
Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause,
with respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or
more or all of such series and that at any time there shall be only one Trustee
with respect to the Securities of any particular series). If, within one year
after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Securities of one or more
series, shall be appointed by Act of the Holders of more than 50% in aggregate
principal amount of the Outstanding Securities of such series delivered to the
Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment, become the successor Trustee
with respect to all Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with
respect to the Securities of one or more series, shall have been so appointed
by the Company or the Securityholders and accepted appointment in the manner
hereinafter provided, any Securityholder who has been a bona fide Holder of a
Security for a least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to all Securities of such
series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee with respect
to all Securities of such series by mailing written notice of such event by
first class mail, postage prepaid, to the
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Holders of Securities of such series as their names and addresses appear in the
Security Register. Each notice shall include the name of the successor Trustee
and the address of its principal Corporate Trust Office.
SECTION 7.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor Trustee
with respect to all Securities, every successor Trustee appointed hereunder
shall execute, acknowledge and deliver to the Company and to the retiring
Trustee an instrument accepting such appointment, and thereupon the resignation
or removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee; but, on
request of the Company or the successor Trustee, such retiring Trustee shall,
upon payment of amounts then due it pursuant to Section 7.07, execute and
deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee, and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder. Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and trusts.
(b) In case of the appointment hereunder of a successor Trustee
with respect to the securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such
appointment and which (1) shall contain such provisions as shall be necessary
or desirable to transfer and confirm to, and to vest in, each successor Trustee
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not retiring with
respect to all Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that or those
series as to which the retiring Trustee is not retiring shall continue to be
vested in the retiring Trustee, and shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust, that each such Trustee
shall be trustee of a trust or trusts hereunder separate and apart from any
trust or trusts hereunder administered by any other such Trustee and that no
Trustee shall be responsible for any notice given to, or received by, or any
act or failure to act on the part of any other Trustee hereunder, and upon the
execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein, such retiring Trustee shall with respect to the Securities of that or
those series to which the appointment of such successor Trustee relates have no
further responsibility for the exercise of rights and powers or for the
performance of the duties and obligations vested in the Trustee under this
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Indenture other than as hereinafter expressly set forth, and each such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Securities of that or those series to which the appointment
of such successor Trustee relates; but, on request of the Company or any
successor Trustee, such retiring Trustee shall duly assign, transfer and
deliver to such successor Trustee, to the extent contemplated by such
supplemental Indenture, the property and money held by such retiring Trustee
hereunder with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 7.12. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS OF
TRUSTEE.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion, consolidation or succession to the corporate trust
business of the Trustee to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
ARTICLE VIII
SUPPLEMENTAL INDENTURES
SECTION 8.01. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF SECURITYHOLDERS.
Without the consent of the Holders of Securities, the Company when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
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(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the
benefit of the Holders of all or any series of Securities (and if such
covenants are to be for the benefit of less than all series of
Securities, stating that such covenants are expressly being included
solely for the benefit of such series) or to surrender any right or
power herein conferred upon the Company; or
(3) to establish the form or terms of Securities of any
series as permitted by Sections 2.01 and 3.01; or
(4) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Securities of one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 7.11; or
(5) to cure any ambiguity, to correct or supplement any
provisions herein which may be defective or inconsistent with any
other provision herein, or to make any other provisions with respect
to matters or questions arising under this Indenture which shall not
adversely affect the interests of the Holders of the Securities of any
series in any material respect; or
(6) to add to, delete from or revise the conditions,
limitations and restrictions on the authorized amount, terms or
purposes of issue, authentication and delivery of Securities, as
herein set forth; or
(7) to add any additional Events of Default; or
(8) to modify, eliminate or add to the provisions of the
Indenture to such extent as shall be necessary to conform the
obligations of the Company and the Trustee under this Indenture to the
obligations imposed on such Person hereunder pursuant to the Trust
Indenture Act or under any similar federal statute hereafter enacted,
and any rules or regulations of the Commission thereunder; or
(9) to provide for the terms and conditions upon which
Securities which qualify as capital under rules, regulations, orders,
interpretive rulings and guidelines of the Primary Federal Regulator
as from time to time in effect may be issued and the terms and
characteristic of any such Securities; provided, however, that no such
supplemental indenture shall effect any change in any Securities which
may at the time be outstanding under this Indenture.
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(10) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or facilitate
the issuance of Securities in bearer form, registrable or not
registrable as to principal, and with or without interest coupons; or
(11) to modify, delete or add to any of the provisions of
this Indenture other than as contemplated by clauses (1) through (10)
of this Section, provided that any such modification, deletion or
addition shall become effective only with respect to series of
Securities established pursuant to Section 3.01 after the effective
date of such modification, deletion or addition.
SECTION 8.02. SUPPLEMENTAL INDENTURES WITH CONSENT OF SECURITYHOLDERS.
With the consent of the Holders of not less than 66 2/3% in aggregate
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee
may enter into an indenture or indentures supplemental hereto for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of the Securities under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby:
(1) change the Stated Maturity of the principal of, or
any installment of interest on, any Security, or reduce the principal
amount thereof or the rate of interest thereon, or any premium payable
upon the redemption thereof (except as contemplated by Section 9.01
and permitted by Section 8.01(1)), or reduce the amount of the
principal of an Original Issue Discount Security that would be due and
payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 6.02 or the amount thereof provable in bankruptcy
pursuant to Section 6.04, or change the Place of Payment, coin or
currency in which any Security or any premium or the interest thereon
is payable, or impair the right to institute suit for the enforcement
of any such payment on or after the Stated Maturity thereof (or, in
the case of redemption, on or after the Redemption Date); or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture or the consent of whose
Holders is required for any waiver of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences provided for in this Indenture; or
(3) modify any of the provisions of this Section, Section
4.08, Section 6.12 or Section 6.13, except to increase any such
percentage or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent
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of the Holder of each Security affected thereby; or
(4) modify the provisions of the Indenture with respect
to the subordination of Securities in a manner adverse to the Holders.
It shall not be necessary for any Act of Securityholders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 8.03. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing or accepting the additional trusts created by any
supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 7.01) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Trustee may, but
shall not be obligated to, enter into any such supplemental indenture which
materially affects the Trustee's own rights, duties, privileges, protections,
liabilities or immunities under this Indenture or otherwise.
SECTION 8.04. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every
Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
SECTION 8.05. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 8.06. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company
shall so determine, any new Securities of any series so modified as to conform,
in the opinion of the Trustee and the Board of Directors, to any such
supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series.
SECTION 8.07 SUBORDINATION UNIMPAIRED.
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No supplemental indenture entered into under this Article shall
modify, directly or indirectly, the provisions of Article XIII or the
definition of Senior Indebtedness in Section 1.01 in any manner that might
alter or impair the subordination of the Securities with respect to Senior
Indebtedness then outstanding, unless each holder of such Senior Indebtedness
has consented thereto in writing; provided, however, that notwithstanding any
provision to the contrary contained herein, the Trustee shall be fully
protected in relying upon an Opinion of Counsel that any supplemental indenture
complies with the provisions of this Section.
ARTICLE IX
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 9.01. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not consolidate with or merge into any other Person
or convey or transfer its properties and assets substantially as an entirety to
any Person, and the Company shall not permit any Person to consolidate with or
merge into the Company or convey, transfer or lease its properties and assets
substantially as an entirety to the Company, unless
(1) in case the Company shall consolidate with or merge
into another Person or convey, transfer or lease its properties and
assets substantially as an entirety to any Person, the Person formed
by such consolidation or into which the Company is merged or the
Person which acquires by conveyance or transfer the properties and
assets of the Company substantially as an entirety shall be a
corporation, partnership, or trust, shall be organized and validly
existing under the laws of the United States of America, any state
thereof or the District of Columbia and shall expressly assume by an
indenture supplemental hereto, executed and delivered to the Trustee,
in form satisfactory to the Trustee, the due and punctual payment of
the principal of (and premium, if any) and interest on all the
Securities and the performance of every covenant, duty, obligation and
warranty of this Indenture on the part of the Company to be performed
or observed; and
(2) immediately after giving effect to such transaction,
no Event of Default, and no event which after notice or lapse of time,
or both, would become an Event of Default, shall have happened and be
continuing.
SECTION 9.02. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation of the Company with, or merger of the Company
into any other Person, or any conveyance, transfer or lease of the properties
and assets of the Company substantially as an entirety in accordance with
Section 9.01, the successor Person
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formed by such consolidation or into which the Company is merged or to which
such conveyance, transfer or lease is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this
Indenture with the same effect as if such successor Person had been named as
the Company herein, and thereafter, the predecessor Person shall be relieved of
all obligations and covenants under this Indenture and the Securities. Such
successor Person thereupon may cause to be signed, and may issue either in its
own name or in the name of the Company, any or all of the Securities issuable
hereunder which theretofore shall not have been signed by the Company and
delivered to the Trustee; and, upon the order of such successor Person, instead
of the Company, and subject to all the terms, conditions and limitations in
this Indenture prescribed, the Trustee shall authenticate and shall deliver any
Securities which previously shall have been signed and delivered by the
officers of the Company to the Trustee for authentication, and any Securities
which such successor Person thereafter shall cause to be signed and delivered
to the Trustee for that purpose. All the Securities so issued shall in all
respects have the same legal rank and benefit under this Indenture as the
Securities theretofore or thereafter issued in accordance with the terms of
this Indenture as though all of such Securities had been issued at the date of
the execution hereof.
In case of any such consolidation, merger, sale, lease or conveyance,
such changes in phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may be appropriate.
SECTION 9.03 OFFICERS' CERTIFICATE AND OPINION OF COUNSEL.
The Trustee, subject to the provisions of Section 7.03, may receive an
Officers' Certificate and an Opinion of Counsel as conclusive evidence that any
such consolidation, merger, sale, lease or conveyance, and any such assumption
and any such supplemental indenture, if any, complies with the provisions of
this Article and that all conditions precedent herein provided relating to such
transactions have been complied with.
ARTICLE X
SATISFACTION AND DISCHARGE
SECTION 10.01. SATISFACTION AND DISCHARGE OF INDENTURE.
Upon a Company Order, this Indenture shall cease to be of further
effect (except as to any surviving rights of registration of transfer or
exchange of Securities herein expressly provided for), and the Trustee, on
demand of and at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when:
(1) either:
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(A) all Securities of such series theretofore
authenticated and delivered (other than (i) Securities of such series
which have been destroyed, lost or stolen and which have been replaced
or paid as provided in Section 3.06; or (ii) Securities of such series
for whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter repaid to
the Company or discharged from such trust, as provided in Section
4.03) have been delivered to the Trustee for cancellation; or
(B) all such Securities of such series
(i) have become due and payable, or
(ii) will become due and payable at their
Maturity within 1 year; or
(iii) if redeemable at the option of the Company,
are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the
expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has deposited with
the Trustee, as trust funds in trust for the purpose, an amount (said amount to
be deemed to be and to be immediately due and payable to the Holders of
Securities of such series sufficient) to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) and interest, to the date of
such deposit (in the case of Securities which have become due and payable), or
to the Maturity, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of
this Indenture have been complied with.
In the event there are Securities of two or more series hereunder, the
Trustee shall be required to execute an instrument acknowledging satisfaction
and discharge of this Indenture only if requested to do so with respect to
Securities of all series as to which it is Trustee and if the other conditions
thereto are met with respect to such Securities. In the event there are two or
more Trustees hereunder, then the effectiveness of any such instrument shall be
conditioned upon receipt of such instruments from all Trustees hereunder.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 7.07 and, if money
shall have been deposited
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with the Trustee pursuant to subclause (B) of Clause (i) of this Section, the
obligations of the Trustee under Section 10.02 and the last paragraph of
Section 4.03 shall survive.
SECTION 10.02. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 4.03, all
money deposited with the Trustee pursuant to Section 10.01 shall be held in
trust and applied by it in accordance with the provisions of the Securities and
this Indenture to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent), as the Trustee may
determine, to the Persons entitled thereto of the principal (and premium, if
any), and any interest for whose payment such money has been deposited with the
Trustee, but such money need not be segregated from other funds except to the
extent required by law.
ARTICLE XI
SINKING FUNDS
SECTION 11.01. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series, except as otherwise permitted or
required by any form of Security of such series issued pursuant to this
Indenture.
The minimum amount of any sinking fund payment provided for by the
terms of securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of such series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any
series, the cash amount of any sinking fund payment may be subject to reduction
as provided in Section 11.02. Each sinking fund payment shall be applied to
the redemption of Securities of any series as provided for by the terms of
Securities of such series.
SECTION 11.02. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption), and (2) may apply as a credit
Securities of such series which have been redeemed either at the election of
the Company pursuant to the terms of such Securities or through the application
of permitted optional sinking fund payments pursuant to the terms of such
Securities, provided that such Securities have not been previously so credited.
Each such Security shall be received and credited for such purpose by the
Trustee at the Redemption Price specified in such Securities for redemption
through operation of the sinking fund and the amount of such sinking fund
payment shall be
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reduced accordingly. If as a result of the delivery or credit of Securities of
any series in lieu of cash payments pursuant to this Section 11.02, the
principal amount of Securities of such series to be redeemed in order to
exhaust the aforesaid cash payment shall be less than $100,000, the Trustee
need not call Securities of such series for redemption, except upon Company
Request, and such cash payment shall be held by the Trustee or a Paying Agent
and applied to the next succeeding sinking fund payment; provided, however,
that the Trustee or such Paying Agent shall, at the request of the Company,
from time to time pay over and deliver to the Company any cash payment so being
held by the Trustee or such Paying Agent upon delivery by the Company to the
Trustee of Securities of that series purchased by the Company having an unpaid
principal amount equal to the cash payment requested to be released to the
Company.
SECTION 11.03. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 11.02 and the optional amount, if any, to be added in cash
to the next ensuing mandatory sinking fund payment, and will also deliver to
the Trustee any Securities to be so credited and not theretofore delivered. If
such Officers' Certificate shall specify an optional amount to be added in cash
to the next ensuing mandatory sinking fund payment, the Company shall thereupon
be obligated to pay the amount therein specified. Not less than 30 days before
each such sinking fund payment date the Trustee shall select the Securities to
be redeemed upon such sinking fund payment date in the manner specified in
Section 12.03 and cause notice of the redemption thereof to be given in the
name of and at the expense of the Company in the manner provided in Section
12.04. Such notice having been duly given, the redemption of such Securities
shall be made upon the terms and in the manner stated in Sections 12.06 and
12.07.
ARTICLE XII
REDEMPTION OF SECURITIES
SECTION 12.01. APPLICABILITY OF ARTICLE.
Redemption of Securities of any series at the election of the Company
or otherwise as permitted or required by the terms of such Securities, shall be
made in accordance with the terms of such Securities and (except as otherwise
provided herein or pursuant hereto) this Article.
SECTION 12.02. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
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The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution. In case of any redemption at the election of
the Company of the Securities of any series with the same issue date, interest
rate and Stated Maturity, the Company shall, at least 60 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and of
the principal amount of the Securities of such series to be redeemed.
SECTION 12.03. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series with the same issue
date, interest rate, Stated Maturity and other terms are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of portions of the principal amount of Securities of such series;
provided, however, that no such partial redemption shall reduce the portion of
the principal amount of a Security of such series not redeemed to less than the
minimum denomination for a Security of such series established herein or
pursuant hereto.
The Trustee shall promptly notify the Company and the Security
Registrar, if not the Trustee, in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial redemption,
the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which have been or are to be
redeemed.
SECTION 12.04. NOTICE OF REDEMPTION.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, unless a shorter period is specified pursuant to Section 3.01, to each
Holder of Securities to be redeemed, at his address appearing in the Security
Register. Failure to give notice by mailing in the manner herein provided to
the Holder of any Securities designated for redemption as a whole or in part,
or any defect in the notice to any such Holder, shall not affect the validity
of the proceedings for the redemption of any other Securities or portion
thereof.
Any notice that is mailed to the Holder of any Securities in the
manner herein provided shall be conclusively presumed to have been duly given,
whether or not such Holder receives the notice.
All notices of redemption shall state:
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(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any
series are to be redeemed, the identification (and, in the
case of partial redemption, the principal amounts) of the
particular Securities to be redeemed,
(4) in case any Security is to be redeemed in part only,
the notice which relates to such Security shall state that on
and after the Redemption Date, upon surrender of such
Security, the Holder of such Security will receive, without
charge, a new Security or Securities of authorized
denominations for the principal amount thereof remaining
unredeemed;
(5) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed
only, against tender of such Security and, if applicable, that
interest thereon shall cease to accrue on and after said date;
(6) the place or places where such Securities, maturing
after the Redemption Date, are to be surrendered for payment
of the Redemption Price; and
(7) that the redemption is for the sinking fund, if such
is the case.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 12.05. DEPOSIT OF REDEMPTION PRICE.
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 4.03) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
or portions thereof which are to be redeemed on that date.
SECTION 12.06. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as provided in Section 12.04,
the Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such date
(unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Securities shall
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cease to bear interest. Upon surrender of any such Securities for redemption
in accordance with said notice, such Security shall be paid by the Company at
the Redemption Price, together with accrued interest to the Redemption Date;
provided, however, that installments of interest on Securities whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the Holders
of such Securities, or one or more Predecessor Securities, registered as such
at the close of business on the relevant Record Dates according to their terms
and the provisions of Section 3.07.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate borne by the
Security.
SECTION 12.07. SECURITIES REDEEMED IN PART.
Any Security which is to be redeemed only in part shall be surrendered
at an office or agency of the Company designated for that purpose pursuant to
Section 4.02 (with, if the Company or the Trustee so requires, due endorsement
by, or a written instrument or transfer in form satisfactory to the Company and
the Trustee duly executed by, the Holder thereof or his attorney duly
authorized in writing), and the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Security without service charge,
a new Security or Securities of the same series, of any authorized denomination
as requested by such Holder, in aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal of the Security
surrendered. If a Security in global form is so surrendered, the Company shall
execute, and the Trustee shall authenticate and deliver to the Depositary or
other depository for such Security in global form as shall be specified in the
Company Order with respect thereto to the Trustee, without service charge, a
new Security in global form in a denomination equal to and in exchange for the
unredeemed portion of the principal of the Security in global form so
surrendered.
ARTICLE XIII
SUBORDINATION
SECTION 13.01. SECURITIES SUBORDINATED TO SENIOR INDEBTEDNESS.
The Company covenants and agrees, and each Holder of Securities, by
his acceptance thereof, likewise covenants and agrees, that the indebtedness
evidenced by the Securities and the payment of the principal of (and premium,
if any) and interest payable in respect thereof is hereby expressly
subordinated, to the extent and in the manner hereinafter set forth, in right
of payment to the prior payment in full of Senior Indebtedness.
Anything in this Indenture or in the Securities of any series to the
contrary notwithstanding, the indebtedness evidenced by the Securities shall be
subordinate and
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junior in right of payment, to the extent and in the manner hereinafter set
forth, to all Senior Indebtedness:
(a) In the event of any insolvency or bankruptcy
proceedings, and any receivership, liquidation, reorganization,
arrangement or other similar proceedings in connection therewith,
relative to the Company, and in the event of any proceedings for
voluntary liquidation, dissolution or other winding-up of the Company,
whether or not involving insolvency or bankruptcy, then the holders of
Senior Indebtedness shall be entitled to receive payment in full of
all principal of, and premium and interest on all Senior Indebtedness,
or provision shall be made for such payment, before the Holders of the
Securities are entitled to receive any payment on account of
principal, premium, if any, interest upon the Securities, and to that
end the holders of Senior Indebtedness shall be entitled to receive
for application in payment thereof any payment or distribution of any
kind or character, whether in cash or property or securities, which
may be payable or deliverable in any such proceedings in respect of
the Securities after giving effect to any concurrent payment or
distribution in respect of such Senior Indebtedness;
(b) In the event that the Securities of any series are
declared or otherwise become due and payable before their expressed
maturity because of the occurrence of an Event of Default hereunder
(under circumstances when the provisions of the foregoing clause (a)
or the following clause (c) shall not be applicable), the holders of
Senior Indebtedness due and payable at the time such Securities so
become due and payable because of such occurrence of an Event of
Default hereunder shall, so long as such declaration has not been
rescinded and annulled pursuant to Section 6.02, be entitled to
receive payment in full of all principal of, and premium and interest
on all such Senior Indebtedness, or provision shall be made for such
payment, before the Holders of the Securities of such series are
entitled to receive any payment on account of principal of, premium,
if any, or interest on the Securities of such series; provided, that
nothing herein shall prevent the Holders of Securities from seeking
any remedy allowed at law or at equity so long as any judgement or
decree obtained thereby makes provision for enforcing this clause; and
(c) In the event that any default in the payment of
principal (and premium, if any) of or interest on indebtedness
for borrowed money constituting Senior Indebtedness beyond any
applicable grace period with respect thereto shall occur and be
continuing, if either (i) notice of such default, in writing, shall
have been given to the Company and to the Trustee by the holders of at
least 10% in principal amount of such class, kind or category of
indebtedness for borrowed money (or the representative or
representatives of such holders) provided that judicial proceedings
shall be commenced in respect of such default, within 180 days in the
case of a default in payment of principal or interest and within 90
days in the case of any default after the giving of such notice, and
provided further that only one such notice shall be given pursuant to
this Section 13.01(c) in any twelve-month period, or (ii)
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judicial proceedings shall be pending in respect of such default, the
Holders of the Securities and the Trustee for their benefit shall not
be entitled to receive any payment on account of principal, premium,
if any, or interest thereon unless payment in full on all principal
of, and premium and interest on, such Senior Indebtedness then due and
payable shall have been made or provided for. The Trustee, forthwith
upon receipt of any notice received by it pursuant to this Section
13.01 (c), shall, as soon as practicable, send notice thereof to each
Holder of Securities at the time outstanding as the names and
addresses of such Holders appear on the Security Register.
In case despite the forgoing provisions, any payment or distribution
shall, in any such event, be paid or delivered to any Holder of the Securities
or to the Trustee for their benefit before all Senior Indebtedness shall have
been paid in full, such payment or distribution shall be held in trust for and
so paid and delivered to the holders of Senior Indebtedness (or their duly
authorized representatives) until all Senior Indebtedness shall have been paid
in full.
The Company shall give written notice to the Trustee within five days
after the occurrence of any insolvency, bankruptcy, receivership, liquidation,
reorganization, arrangement or similar proceeding of the Company within the
meaning of this Section 13.01. Upon any payment or distribution of assets of
the Company referred to in this Article XIII, the Trustee, subject to the
provisions of Section 315(a) through 315(d) of the Trust Indenture Act, and the
Holders of the Securities shall be entitled to rely upon a certificate of the
trustee in bankruptcy, receiver, assignee for the benefit of creditors or other
liquidating agent making such payment or distribution, delivered to the Trustee
or to the Holders of Securities, as the case may be, for the purpose of
ascertaining the persons entitled to participate in such distribution, the
holders of Senior Indebtedness and other indebtedness of the Company, the
amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article XIII.
In the event that the Trustee determines, in good faith, that further
evidence is required with respect to the right of any person as a holder of
Senior Indebtedness to participate in any payment or distribution pursuant to
this Section 13.01, the Trustee may request such person to furnish evidence to
the reasonable satisfaction of the Trustee as to the amount of Senior
Indebtedness held by such person, as to the extent to which such person is
entitled to participate in such payment or distribution, and as to other facts
pertinent to the rights of such person under this Section 13.01, and if such
evidence is not furnished, the Trust may defer any payment to such person
pending judicial determination as to the right of such person to receive such
payment.
SECTION 13.02 SUBROGATION.
Upon the payment in full of all Senior Indebtedness to which the indebtedness
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evidenced by the Securities is in the circumstances subordinated as provided in
Section 13.01, the Holders of the Securities shall be subrogated to the rights
of the holders of such Senior Indebtedness to receive payments or distributions
of cash, property or securities of the Company applicable to such Senior
Indebtedness until all amounts owing on the Securities be paid in full, and, as
between the Company, its creditors other than the holders of such Senior
Indebtedness and the Holders of the Securities, no payment or distribution made
to the holders of Senior Indebtedness by virtue of this Article which otherwise
would have been made to the Holders of the Securities shall be deemed to be a
payment by the Company on account of such Senior Indebtedness, it being
understood that the provisions of this Article XIII are and are intended solely
for the purpose of defining the relative rights of the Holders of the
Securities, on the one hand, and the holders of the Senior Indebtedness, on the
other hand.
SECTION 13.03 OBLIGATION OF COMPANY UNCONDITIONAL.
Nothing contained in this Article XIII or elsewhere in this Indenture
or in the Securities is intended to or shall impair, as between the Company and
its creditors other than the holders of the Senior Indebtedness and the Holders
of the Securities, the obligation of the Company, which is absolute and
unconditional, to pay to the Holders of the Securities the principal of (and
premium, if any), and interest on, the Securities as and when the same shall
become due and payable in accordance with their terms, or is intended to or
shall affect the relative rights of the Holders of the Securities and creditors
of the Company other than the holders of Senior Indebtedness, nor shall
anything herein or therein prevent the Trustee or the Holder of any Security
from exercising all remedies otherwise permitted by applicable law upon default
under this Indenture, subject to the rights, if any, under this Article XIII of
the holders of Senior Indebtedness in respect of cash, property or securities
of the Company received upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Company referred to
in this Article XIII, the Trustee and the Holders of the Securities shall be
entitled to rely upon any order or decree made by any court of competent
jurisdiction in which any such dissolution, winding up, liquidation or
reorganization proceeding affecting the affairs of the Company is pending or
upon a certificate of the trustee in bankruptcy, receiver, assignee for the
benefit of creditors, liquidating trustee or agent or other person making any
payment or distribution, delivered to the Trustee or to the Holders of the
Securities, for the purpose of ascertaining the person entitled to participate
in such payment or distribution, the holders of the Senior Indebtedness and
other indebtedness of the Company the amount thereof or payable thereon, the
amount paid or distributed thereon and all other facts pertinent thereto or to
this Article XIII.
SECTION 13.04 PAYMENTS ON SECURITIES PERMITTED.
Nothing contained in this Article XIII or elsewhere in this Indenture,
or in any of the Securities, shall affect the obligation of the Company to
make, or prevent the Company
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from making, payment of the principal of (or premium, if any), and interest on
the Securities in accordance with the provisions hereof and thereof, except as
otherwise provided in this Article XIII.
SECTION 13.05 EFFECTUATION OF SUBORDINATION BY TRUSTEE.
Each holder of Securities, by his acceptance thereof, authorizes and
directs the Trustee in his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article XIII and
appoints the Trustee his attorney-in-fact for any and all such purposes.
SECTION 13.06. KNOWLEDGE OF TRUSTEE.
Notwithstanding the provisions of this Article XIII or any other
provisions of this Indenture, the Trustee shall not be charged with knowledge
of the existence of any Senior Indebtedness, or any default in the payment of
the principal of or the premium, if any, or interest on any Senior
Indebtedness, except any Senior Indebtedness issued pursuant to an instrument
to which the Trustee hereunder is a party or pursuant to an indenture under
which the Trustee hereunder is Trustee, or of any facts which would prohibit
the making of any payment of monies to or by the Trustee, or the taking of any
other action by the Trustee, unless and until a Responsible Officer of the
Trustee shall have received written notice thereof at its Corporate Trust
Office, before 12:00 noon (Eastern Standard Time, or such other time prevailing
in the City of the Trustee's Corporate Trust Office) on the fifth Business Day
prior to the date on which such payment is due, from the Company, any Holder of
the Securities, any paying agent of the Company or the holder or representative
of any class of Senior Indebtedness who shall have been certified by the
Company or otherwise established to the reasonable satisfaction of the Trustee
to be such a holder and prior to receipt of any such written notice the Trustee
shall be entitled to assume that no such facts exist and if prior to the fifth
Business Day preceding the date upon which by the terms hereof any such moneys
may become due and payable for any purpose the Trustee shall not have received
with respect to such moneys the notice provided for in this Section, then,
anything to the contrary contained herein notwithstanding, the Trustee may
receive such moneys and/or apply the same to the purpose for which they were
received and shall not be affected by any notice to the contrary which may be
received by it on or after such date with respect to such funds; provided,
however, that no such application shall affect the obligations under this
Article of the Persons receiving such money from the Trustee.
SECTION 13.07 TRUSTEE'S RELATION TO SENIOR INDEBTEDNESS.
Except as otherwise provided in the Trust Indenture Act, the Trustee
shall be entitled to all the rights set forth in this Article with respect to
any Senior Indebtedness at the time held by it, to the same extent as any other
holder of Senior Indebtedness, and nothing in this Indenture shall deprive the
Trustee of any of its rights as such holder. Notwithstanding anything in this
Indenture or in the Securities of any series, nothing in this
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Article XIII shall apply to claims of or payment to the Trustee under or
pursuant to Section 7.07.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article XIII, and no implied covenants or
obligations with respect to the holders of Senior Indebtedness shall be read
into this Indenture against the Trustee. The Trustee shall not be deemed to
owe any fiduciary duty to the holders of Senior Indebtedness and the Trustee
shall not be liable to any holder of Senior Indebtedness if it shall pay over
or deliver to Holders of Securities, the Company or any other Person monies or
assets to which any holder of Senior Indebtedness shall be entitled by virtue
of this Article XIII or otherwise.
SECTION 13.08. NO IMPAIRMENT OF SUBORDINATION.
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof which any such holder may have
or otherwise be charged with.
SECTION 13.09. ARTICLE APPLICABLE TO PAYING AGENTS.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting under this Indenture, the
term, "Trustee" as used in this Article XIII shall in such case (unless the
context otherwise requires) be construed as extending to and including such
Paying Agent within its meaning as fully for all intents and purposes as if
such Paying Agent were named in this Article XIII in addition to or in place of
the Trustee; provided, however, that Section 13.07 shall not apply to the
Company or any Affiliate of the Company if it or such Affiliate acts as Paying
Agent.
SECTION 13.10. NO SUSPENSION OF REMEDIES.
Nothing contained in this Article XIII shall limit the right of the
Trustee or the Holders of the Securities to take any action to accelerate the
maturity of the Securities pursuant to this Indenture or to pursue any rights
or remedies hereunder or under applicable law, subject to the rights, if any,
under this Article XIII of the holders, from time to time, of Senior
Indebtedness to receive the cash, property or securities receivable upon the
exercise of such rights or remedies.
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ARTICLE XIV
AUTHENTICATING AGENT
SECTION 14.01. AUTHENTICATING AGENT.
The Trustee may appoint an Authenticating Agent or Agents with respect
to one or more series of Securities which shall be authorized to act on behalf
of the Trustee to authenticate Securities of that series issued upon original
issue or exchange, registration of transfer, partial conversion or partial
redemption or pursuant to Section 3.06, and Securities so authenticated shall
be entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee hereunder. Wherever
reference is made in this Indenture to the authentication and delivery of
Securities by the Trustee or the Trustee's certificate of authentication, such
reference shall be deemed to include authentication and delivery on behalf of
the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and,
except as specified as contemplated by Section 3.01, shall at all times be a
corporation that would be permitted by Section 310(a)(1) and (5) of the Trust
Indenture Act to be able to act as a trustee under an indenture qualified under
the Trust Indenture Act, is authorized under applicable law and by its charter
to act as such and that has a combined capital and surplus of not less than
$50,000,000, computed in accordance with Section 310(a)(2) of the Trust
Indenture Act. If at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, such Authenticating
Agent shall resign immediately in the manner and with the effect specified in
this Section. If the Authenticating Agent has or shall acquire any conflicting
interest, as defined in Section 310(b) of the Trust Indenture Act, with respect
to the Securities of any series, the Authenticating Agent shall take such
action as is required pursuant to said Section 310(b).
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section 14.01, without the execution or filing of any paper or any
further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or
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in the case at any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee may appoint a
successor Authenticating Agent which shall be acceptable to the Company and
shall mail written notice of such appointment by first-class mail, postage
prepaid, to all Holders of Securities, if any, of the series with respect to
which such Authenticating Agent will serve, as their names and addresses appear
in the Security Register. Any successor Authenticating Agent upon acceptance
of its appointment hereunder shall become vested with all the rights, powers
and duties of its predecessor hereunder, with like effect as if originally
named as an Authenticating Agent. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 7.07.
The provisions of Sections 3.08, 7.03, 7.04 and 7.05 shall be
applicable to each Authenticating Agent.
If an appointment is made pursuant to this Section, the Securities may
have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternate certificate of authentication in the following
form:
This is one of the Securities described in the within-mentioned
Indenture.
----------------------------
as Trustee
By
--------------------------
As Authenticating Agent
By
--------------------------
Authorized Officer
If all of the Securities of any series may not be originally issued at
one time, and if the Trustee does not have an officer capable of authenticating
Securities upon original issuance located in a Place of Payment where the
Company wishes to have Securities of such series authenticated upon original
issuance, the Trustee, if so requested in writing (which writing need not
comply with Section 1.02) by the Company, shall appoint in accordance with this
Section an Authenticating Agent having an office in a Place of Payment
designated by the Company with respect to such series of Securities.
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ARTICLE XV
MEETINGS OF SECURITYHOLDERS
SECTION 15.01. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of Securities of any series may be called at any
time and from time to time pursuant to this Article for any of the following
purposes:
(1) to give any notice to the Company or to the Trustee,
or to give any direction to the Trustee, or to waive or consent to the
waiving of any Event of Default hereunder and its consequences, or to
take any other action authorized to be taken by Holders pursuant to
any of the provisions of Article VI;
(2) to remove the Trustee or appoint a successor trustee,
pursuant to the provisions of Article VII;
(3) to consent to the execution of any indenture or
indentures supplemental hereto pursuant to the provisions of Sections
8.01 and 8.02; or
(4) to take any other action authorized to be taken by or
on behalf of the Holders of any specified aggregate principal amount
of the Securities under any other provision of this Indenture or under
applicable law.
SECTION 15.02. PLACE OF MEETINGS OF SECURITYHOLDERS.
Meetings of Holders of Securities of any series may be held at such
place as the Trustee or, in case of its failure to act, the Company or the
Holders of Securities of any series calling the meeting, shall from time to
time determine.
SECTION 15.03. CALL AND NOTICE OF SECURITYHOLDERS' MEETINGS.
(a) The Trustee may at any time call a meeting of Holders of
Securities of any series to be held at such time and at such place in the
location designated in accordance with Section 15.02 as the Trustee shall
determine. Notice of every meeting of the Holders of Securities of any series,
setting forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be mailed by the Trustee by
first class mail, postage prepaid to each Securityholder at his address as
shown on the Security Register not less than 20 nor more than 60 days prior to
the date fixed for the meeting.
(b) In case at any time the Company, or the Holders of at least
10% in aggregate principal amount of the Securities then Outstanding of any
series, shall have requested the Trustee to call a meeting of the Holders of
Securities of such series by written request
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setting forth in reasonable detail the action proposed to be taken at the
meeting, and the Trustee shall not have made the first giving of notice of such
meeting within 45 days after receipt of such request, then the Company or the
Holders of Securities of such series in the amount above specified may
determine the time and the place in the location designated in accordance with
Section 15.02 for such meeting and may call such meeting to take any action
authorized in Section 15.01 by giving notice thereof as provided in subsection
(a) of this Section.
SECTION 15.04. PERSONS ENTITLED TO VOTE AT SECURITYHOLDERS' MEETINGS.
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (i) a Holder of one or more Outstanding Securities of
such series, or (ii) a Person appointed by an instrument in writing in form and
substance satisfactory to the Trustee as proxy for a Holder or Holders of
Outstanding Securities of such series, by such Holder or Holders. The only
Persons who shall be entitled to be present or to speak at any meeting of
Holders of Securities of any series, shall be the Persons entitled to vote at
such meeting, their counsel, any representatives of the Trustee, its counsel,
any representative of the Company, its counsel and any Person selected by a
majority of the Outstanding Securities.
SECTION 15.05. DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF
MEETINGS.
(a) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities of any series, in regard to proof of the
holding of Outstanding Securities of such series and of the appointment of
proxies and in regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence of the
right to vote, and such other matters concerning the conduct of the meeting as
it shall deem appropriate. Except as otherwise permitted or required by any
such regulations, the holding of Outstanding Securities shall be proved in the
manner specified in Section 1.04 and the appointment of any proxy shall be
proved in the manner specified in Section 1.04. Such regulations may provide
that written instruments appointing proxies, regular on their face, may be
presumed valid and genuine without the proof specified in Section 1.04 or other
proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Securityholders as provided in subsection (b) of Section
15.03, in which case the Company or the 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
vote of the Holders of a majority of the Securities represented at the meeting
and entitled to vote.
(c) At any meeting each Securityholder or proxy shall be entitled
to one vote for
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each $1,000 principal amount of Outstanding Securities of such series held or
represented by him; provided, however, that no vote shall be cast or counted at
any meeting in respect of any 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, except as Securityholder or proxy.
(d) At any meeting of Securityholders, the presence of Persons
holding or representing Outstanding Securities in an aggregate principal amount
sufficient under the appropriate provision of the Indenture to take action upon
the business for the transaction of which such meeting was called shall
constitute a quorum. Any meeting of Holders of Securities of any series duly
called pursuant to Section 15.03 may be adjourned from time to time by vote of
the Holders (or proxies for the Holders) of a majority of the Outstanding
Securities of such series represented at the meeting; and the meeting may be
held as so adjourned without further notice.
SECTION 15.06. COUNTING VOTES AND RECORDING ACTION AT MEETINGS.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Outstanding Securities of such
series or of their representatives by proxy and the serial number or numbers of
the Outstanding Securities of such series 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, at least in
duplicate, of the proceedings of each meeting of Holders of Securities of any
series 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 published or mailed as provided in Section 15.03.
Each copy shall be signed and verified by the affidavits of the permanent
chairman and secretary of the meeting and one such copy shall be delivered to
the Company and another to the Trustee to be preserved by the Trustee, the
latter to have attached thereto the ballots voted at the meeting. Any record
so signed and verified shall be conclusive evidence of the matters therein
stated.
SECTION 15.07. QUORUM; ACTION.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting of
Holders of Securities of such series. In the absence of a quorum within 30
minutes after the time appointed for any such meeting, the meeting shall, if
convened at the request of Holders of Securities of such series, be dissolved.
In any other case the meeting may be adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the adjournment
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of such meeting. In the absence of a quorum at any such adjourned meeting,
such adjourned meeting may be further adjourned for a period of not less than
10 days as determined by the chairman of the meeting prior to the adjournment
of such adjourned meeting. Notice of the reconvening of any such adjourned
meeting shall be given as provided in Section 15.03(a), except that such notice
need be given only once not less than five days prior to the date on which the
meeting is scheduled to be reconvened. Notice of the reconvening of such an
adjourned meeting shall state expressly the percentage, as provided above, of
the principal amount of the Outstanding Securities of such series which shall
constitute a quorum.
Except as limited by the proviso to Section 8.02, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum
is present as aforesaid may be adopted only by the affirmative vote of the
Holders of a majority in principal amount of the Outstanding Securities of that
series, provided, however, that, except as limited by the proviso to Section
8.02, any resolution with respect to any request, demand, authorization,
direction, notice, consent, waiver or other action which this Indenture
expressly provides may be made, given or taken by the Holders of a specified
percentage, which is other than a majority, in principal amount of the
Outstanding Securities of a series may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of such specified percentage in principal
amount of the Outstanding Securities of such series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series appertaining thereto,
whether or not present or represented at the meeting.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and in the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
THE COLONIAL BANCGROUP, INC.
By:
-------------------------
Its:
-------------------
ATTEST:
------------------------------
Its Secretary
(SEAL)
SUNTRUST BANK, ATLANTA,
as Trustee
By:
-------------------------
Its:
-------------------
ATTEST:
------------------------------
Its
---------------------------
(SEAL)
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STATE OF ALABAMA )
) ss
COUNTY OF XXXXXXXXXX )
On the ____ day of ___________, 1997, before me personally came Xxxxxx X.
Xxxxxx, to me known, who, being by me duly sworn, did depose and say that he is
Chairman, President and Chief Executive Officer of The Colonial BancGroup,
Inc., a Delaware corporation, one of the persons described in and who executed
the foregoing instrument; that he knows the seal of said corporation; that the
seal affixed to said instrument is such corporation's seal; that it was so
affixed by authority of the Board of Directors of said corporation; and that he
signed the name of The Colonial BancGroup, Inc. thereto by like authority.
--------------------------------
Notary Public
[NOTARIAL SEAL] My Commission Expires:
--------------------------------
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STATE OF ____________ )
) ss
COUNTY OF ___________ )
On the ____ day of ___________, 1997, before me personally came
________________, to me known, who, being by me duly sworn, did depose and say
that he is a __________________ of SunTrust Bank, Atlanta, a Georgia banking
corporation; one of the persons described in and who executed the foregoing
instrument; that he knows the seal of said corporation; that the seal affixed
to said instrument is such association's seal; that it was so affixed by
authority of the Board of Directors of said corporation; and that he signed the
name of SunTrust Bank, Atlanta, thereto by like authority.
--------------------------------
Notary Public
[NOTARIAL SEAL] My Commission Expires:
--------------------------------
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