DRAFT 11/12/98
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GWL&A FINANCIAL INC.
TO
THE BANK OF NEW YORK, Trustee
INDENTURE
Dated as of , 1998
% Junior Subordinated Debentures due 2028
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Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Indenture
Act Section Section
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Section 310(a)(1) ................................609
(a)(2) .....................................609
(a)(3) .....................................Not Applicable
(a)(4) .....................................Not Applicable
(b) ........................................608, 610
Section 311(a) ...................................613
(b) ........................................613
Section 312(a) ...................................701
(b) ........................................702(b)
(c) ........................................702(c)
Section 313(a) ...................................703(a)
(a)(4) .....................................101, 1004
(b) ........................................703(a)
(c) ........................................703(a)
(d) ........................................703(b)
Section 314(a) ...................................704
(b) ........................................Not Applicable
(c)(1) .....................................102
(c)(2) .....................................102
(c)(3) .....................................Not Applicable
(d) ........................................Not Applicable
(e) ........................................102
Section 315(a) ...................................601
(b) ........................................602
(c) ........................................601
(d) ........................................601
(e) ........................................514
Section 316(a) ...................................101
(a)(1)(A) ..................................502
(a)(1)(B) ..................................513
(a)(2) .....................................Not Applicable
(b) ........................................508
(c) ........................................104(c)
Section 317(a)(1) ................................503
(a)(2) .....................................504
(b) ........................................1003
Section 318(a) ...................................107
TABLE OF CONTENTS
Pages
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ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION .......1
SECTION 101. Definitions ......................................1
Act ...........................................................2
Board of Directors ............................................2
Board Resolution ..............................................2
Business Day ..................................................2
Capital Lease Obligation ......................................2
Capital Securities ............................................3
Capital Stock .................................................3
Change in Investment Company Act Law ..........................3
Closing Date ..................................................3
Commission ....................................................3
Common Securities .............................................3
Company .......................................................3
Company Request ...............................................3
Company Order .................................................3
Corporate Trust Office ........................................3
Covenant Defeasance ...........................................3
Creditor ......................................................3
Declaration ...................................................3
Defaulted Interest ............................................4
Depositary ....................................................4
Event of Default ..............................................4
Exchange Act ..................................................4
Extension Period ..............................................4
GAAP ..........................................................4
Guarantee .....................................................4
Global Security ...............................................4
Holder ........................................................4
Indenture .....................................................4
Interest Payment Date .........................................4
Investment Company Event ......................................4
Legal Defeasance ..............................................5
Maturity ......................................................5
Officers' Certificate .........................................5
OID ...........................................................5
Opinion of Counsel ............................................5
Outstanding ...................................................5
Paying Agent ..................................................6
Person ........................................................6
Predecessor Security ..........................................6
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Property Trustee ..............................................6
Redemption Date ...............................................6
Redemption Price ..............................................6
Regular Record Date ...........................................6
Regular Trustee ...............................................6
Responsible Officer ...........................................6
Securities ....................................................6
Securities Act ................................................6
Security Register .............................................6
Security Registrar ............................................6
Senior Indebtedness ...........................................6
Special Event .................................................7
Special Record Date ...........................................7
Stated Maturity ...............................................7
Subsidiary ....................................................7
Tax Event .....................................................7
Trust .........................................................8
Trustee .......................................................8
Trust Indenture Act ...........................................8
U.S. Government Obligations ...................................8
Vice President ................................................8
Voting Stock ..................................................8
SECTION 102. Compliance Certificates and Opinions .............8
SECTION 103. Form of Documents Delivered to Trustee ...........9
SECTION 104. Acts of Holders; Record Dates ....................9
SECTION 105. Notices, Etc. to Trustee and the Company ........10
SECTION 106. Notice to Holders; Waiver .......................11
SECTION 107. Conflict With Trust Indenture Act ...............11
SECTION 108. Effect of Headings and Table of Contents ........11
SECTION 109. Separability Clause .............................11
SECTION 110. Benefits of Indenture ...........................12
SECTION 111. GOVERNING LAW ...................................12
SECTION 112. Legal Holidays ..................................12
SECTION 113. Execution in Counterparts. ......................12
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SECTION 114. Successors. .....................................12
ARTICLE TWO
SECURITY FORMS ...............................................13
SECTION 201. Forms Generally .................................13
SECTION 202. Form of Face of Security ........................13
SECTION 203. Form of Reverse of Security .....................17
SECTION 204. Form of Trustee's Certificate of
Authentication ..................................19
ARTICLE THREE
THE SECURITIES ...............................................20
SECTION 301. Title and Terms .................................20
SECTION 302. Denominations ...................................22
SECTION 303. Execution, Authentication, Delivery
and Dating ......................................22
SECTION 304. Temporary Securities ............................22
SECTION 305. Registration; Registration of Transfer
and Exchange ....................................23
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities ......................................24
SECTION 307. Payment of Interest; Interest Rights
Preserved .......................................25
SECTION 308. Persons Deemed Owners ...........................26
SECTION 309. Cancellation ....................................26
SECTION 310. Computation of Interest .........................27
SECTION 311. Agreed Tax Treatment ............................27
SECTION 312. Right of Set-off ................................27
SECTION 313. CUSIP Numbers ...................................27
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SECTION 314. Global Securities ...............................27
ARTICLE FOUR
SATISFACTION AND DISCHARGE; DEFEASANCE .......................30
SECTION 401. Satisfaction and Discharge of Indenture .........30
SECTION 402. Legal Defeasance ................................31
SECTION 403. Covenant Defeasance .............................31
SECTION 404. Conditions to Legal Defeasance or Covenant
Defeasance ......................................32
SECTION 405. Application of Trust Money ......................33
SECTION 406. Indemnity for U.S. Government Obligations .......33
ARTICLE FIVE
REMEDIES .....................................................33
SECTION 501. Events of Default ...............................33
SECTION 502. Acceleration of Maturity; Rescission and
Annulment .......................................34
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee ..........................35
SECTION 504. Trustee May File Proofs of Claim ................35
SECTION 505. Trustee May Enforce Claims Without
Possession of Securities ........................36
SECTION 506. Application of Money Collected ..................36
SECTION 507. Limitation on Suits .............................37
SECTION 508. Unconditional Right of Holders to Receive
Principal and Interest;
Capital Security Holders' Rights ................37
SECTION 509. Restoration of Rights and Remedies ..............38
SECTION 510. Rights and Remedies Cumulative ..................38
SECTION 511. Delay or Omission Not Waiver ....................38
SECTION 512. Control by Holders ..............................38
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SECTION 513. Waiver of Past Defaults .........................39
SECTION 514. Undertaking for Costs ...........................39
SECTION 515. Waiver of Stay or Extension Laws ................40
ARTICLE SIX
TRUSTEE ......................................................40
SECTION 601. Certain Duties and Responsibilities .............40
SECTION 602. Notice of Defaults ..............................40
SECTION 603. Certain Rights of Trustee .......................41
SECTION 604. Not Responsible for Recitals or Issuance
of Securities ...................................42
SECTION 605. Trustee and Other Agents May Hold Securities ....42
SECTION 606. Money Held in Trust .............................42
SECTION 607. Compensation; Reimbursement; Indemnity ..........42
SECTION 608. Disqualification; Conflicting Interests .........43
SECTION 609. Corporate Trustee Required; Eligibility .........43
SECTION 610. Resignation and Removal; Appointment
of Successor ....................................43
SECTION 611. Acceptance of Appointment by Successor ..........44
SECTION 612. Merger, Conversion, Consolidation or
Succession to Business ..........................45
SECTION 613. Preferential Collection of Claims
Against Company .................................45
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY ............45
SECTION 701. Company to Furnish Trustee Names and
Addresses of Holders ............................45
SECTION 702. Preservation of Information;
Communications to Holders .......................46
SECTION 703. Reports by Trustee ..............................46
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SECTION 704. Reports by Company ..............................46
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE .........47
SECTION 801. Company May Consolidate, Etc., Only
on Certain Terms ...............................47
SECTION 802. Successor Person Substituted ....................47
ARTICLE NINE
SUPPLEMENTAL INDENTURES ......................................48
SECTION 901. Supplemental Indentures Without Consent
of Holders ......................................48
SECTION 902. Supplemental Indentures With Consent
of Holders ......................................49
SECTION 903. Execution of Supplemental Indentures ............50
SECTION 904. Effect of Supplemental Indentures ...............50
SECTION 905. Conformity With Trust Indenture Act .............50
SECTION 906. Reference in Securities to Supplemental
Indentures ......................................50
ARTICLE TEN
COVENANTS; REPRESENTATIONS AND WARRANTIES ....................50
SECTION 1001. Payment of Principal Interest ..................50
SECTION 1002. Maintenance of Office or Agency ................51
SECTION 1003. Money for Security Payments to be Held
in Trust .......................................51
SECTION 1004. Statements by Officers as to Default ...........52
SECTION 1005. Existence ......................................52
SECTION 1006. Maintenance of Properties ......................52
SECTION 1007. Payment of Taxes and Other Claims ..............53
SECTION 1008. Waiver of Certain Covenants ....................53
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SECTION 1009. Payment of the Trust's Costs and Expenses ......53
SECTION 1010. Limitation on Restricted Payments ..............54
ARTICLE ELEVEN
SUBORDINATION OF SECURITIES ..................................55
SECTION 1101. Securities Subordinate to Senior
Indebtedness ...................................55
SECTION 1102. Default on Senior Indebtedness .................55
SECTION 1103. Prior Payment of Senior Indebtedness
Upon Acceleration of Securities ................56
SECTION 1104. Liquidation; Dissolution; Bankruptcy ...........56
SECTION 1105. Subrogation ....................................58
SECTION 1106. Trustee to Effect Subordination ................59
SECTION 1107. Notice by the Company ..........................59
SECTION 1108. Rights of the Trustee; Holders of
Senior Indebtedness ............................59
SECTION 1109. Subordination May Not Be Impaired ..............60
ARTICLE TWELVE
REDEMPTION OF SECURITIES .....................................61
SECTION 1201. Optional Redemption; Conditions to
Optional Redemption ............................61
SECTION 1202. Applicability of Article .......................61
SECTION 1203. Election to Redeem; Notice to Trustee ..........61
SECTION 1204. Selection by Trustee of Securities to
be Redeemed ....................................61
SECTION 1205. Notice of Redemption ...........................62
SECTION 1206. Deposit of Redemption Price ....................63
SECTION 1207. Securities Payable on Redemption Date ..........63
SECTION 1208. Securities Redeemed in Part ....................63
vii
This INDENTURE is dated as of _________, 1998, between
GWL&A Financial Inc., a corporation duly organized and existing
under the laws of the State of Delaware (herein
called the "Company"), having its principal office at 0000 Xxxx
Xxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxx 00000, and The Bank of New
York, a New York State banking corporation, as Trustee (herein
called the "Trustee").
RECITALS
WHEREAS, for its lawful corporate purposes, the
Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance of its % Junior
Subordinated Debentures due 2028 (the "Securities"); and
WHEREAS, Great-West Life & Annuity Insurance Capital I
(the "Trust") has offered to the public $________ aggregate
liquidation amount of its ____% Capital Securities (the "Capital
Securities") representing undivided beneficial ownership
interests in the assets of the Trust and proposes to invest the
proceeds from such offering and the proceeds from the issuance of
its Common Securities in $________ aggregate principal amount of
the Securities; and
WHEREAS, to provide the terms and conditions upon
which the Securities are to be authenticated, issued and
delivered, the Company has duly authorized the execution of this
Indenture; and
WHEREAS, all things necessary to make this Indenture a
valid agreement of the Company, in accordance with its terms,
have been done;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the
purchase of the Securities by the Holder thereof, it is mutually
agreed, for the equal and proportionate benefit of all Holders of
the Securities, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions
For all purposes of this Indenture, except as
expressly provided or unless the context otherwise requires:
2
(1) the terms defined in this Article have the
meanings assigned to them in this Article and include the
plural as well as the singular;
(2) all other terms used herein which are defined in
the Trust Indenture Act, either directly or by reference
therein, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with
generally accepted accounting principles;
(4) 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;
(5) a reference to any Person shall include its
successor and assigns;
(6) a reference to any agreement or instrument shall
mean such agreement or instrument as supplemented,
modified, amended or amended and restated and in effect
from time to time;
(7) a reference to any statute, law, rule or
regulation, shall include any amendments thereto applicable
to the relevant Person, and any successor statute, law,
rule or regulation; and
(8) a reference to any particular rating category
shall be deemed to include any corresponding successor
category, or any corresponding rating category issued by a
successor or subsequent rating agency.
"Act ", when used with respect to any Holder, has the
meaning specified in Section 104.
"Board of Directors " means either the board of
directors of the Company or any duly authorized committee of that
board as the context requires.
"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.
"Business Day " means any day other than a Saturday or
Sunday or a day on which banking institutions in The City of New
York are authorized or required by law or executive order to
remain closed or a day on which the Corporate Trust Office of the
Trustee, or the corporate trust office of the Property Trustee
under the Declaration, is closed for business.
"Capital Lease Obligation " of any Person means any
obligation of such Person under any capital lease for real or
personal property which, in accordance with GAAP, is required to
be recorded as a capitalized lease obligation; and, for the
purpose of this Indenture, the amount
3
of such obligation at any date shall be the capitalized amount
thereof at such date, determined in accordance with GAAP.
"Capital Securities " has the meaning specified in the
Recitals to this instrument.
"Capital Stock " in any Person means any and all
shares, interests, rights to purchase, warrants, options,
participations or other equivalents or interests in (however
designated) capital stock in which Person, including, with
respect to a corporation, common stock, preferred stock and other
corporate stock and, with respect to a partnership, partnership
interests, whether general or limited, and any rights (other than
debt securities convertible into corporate stock, partnership
interests or other capital stock), warrants or options
exchangeable for or convertible into such corporate stock,
partnership interests or other capital stock.
"Change in Investment Company Act Law " has the
meaning set forth in the definition of Investment Company Event.
"Closing Date " means ________, 1998.
"Commission " means the Securities and Exchange
Commission, as from time to time constituted, created under the
Exchange Act, or, if at any time after the execution 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 at such time.
"Common Securities " means the common securities
issued by the Trust.
"Company " means the Person named as the "Company" in
the first paragraph of this instrument until a successor Person
shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter "Company" shall mean such
successor Person.
"Company Request " or "Company Order " means a written
request or order signed in the name of the Company by its
Chairman of the Board, its Vice Chairman of the Board, a
President or a Vice President, and by its Controller, an
Assistant Controller, its Secretary or an Assistant Secretary,
and delivered to the Trustee.
"Corporate Trust Office " means the principal office
of the Trustee in the City of New York, at which at any
particular time its corporate trust business shall be
administered and which at the date of this Indenture is located
at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Corporate Trust Administration.
"Covenant Defeasance " has the meaning specified in
Section 403.
"Creditor " shall have the meaning set forth in
Section 1009.
"Declaration " means the Amended and Restated
Declaration of Trust among the Company, as Sponsor, the Regular
Trustees, The Bank of New York, as initial Property Trustee, and
The Bank of New York (Delaware), as initial Delaware Trustee,
dated as of ______, 1998.
4
"Defaulted Interest " has the meaning specified in
Section 307.
"Depositary " means, with respect to Securities
issuable in whole or in part in the form of one or more Global
Securities, a clearing agency registered under the Exchange Act
that is designated to act as Depositary for such Securities.
"Event of Default " has the meaning specified in
Section 501.
"Exchange Act " means the Securities Exchange Act of
1934, as amended from time to time, and any successor
legislation.
"Extension Period " has the meaning specified in
Section 301.
"GAAP " means generally accepted accounting principles
as in effect from time to time in the United States.
"Guarantee " means the Guarantee Agreement, dated as
of _______, 1998, executed by the Company and The Bank of New
York, as initial Guarantee Trustee, for the benefit of the
Holders (as defined therein).
"Global Security " means a Security that evidences all
or part of the Securities and is authenticated and delivered to,
and registered in the name of, the Depositary for such Securities
or a nominee thereof.
"Holder " means a Person in whose name a Security is
registered in the Security Register.
"Indenture " means this instrument as originally
executed or as it may from time to time be supplemented or
amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof, including, for
all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are
deemed to be a part of and govern this instrument and any such
supplemental indenture, respectively.
"Interest Payment Date ", when used with respect to
any installment of interest on a Security, means the date
specified in such Security as the fixed date on which an
installment of interest with respect to the Securities is due and
payable.
"Investment Company Event " means the receipt by the
Trust of an opinion of counsel, rendered by a law firm
experienced in such matters to the effect that, as a result of
the occurrence of a change in law or regulation or a change in
interpretation or application of law or regulation by any
legislative body, court, governmental agency or regulatory
authority (a "Change in Investment Company Act Law"), the Trust
is or will be considered an "investment company" that is required
to be registered under the Investment Company Act of 1940, as
amended, which Change in Investment Company Act Law becomes
effective on or after the date of original issuance of the
Securities.
5
"Legal Defeasance " has the meaning specified in
Section 402.
"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 (which may be extended as therein or herein
provided) or by declaration of acceleration, call for redemption
or otherwise.
"Officers' Certificate " means a certificate signed by
the Chairman of the Board, a Vice Chairman of the Board, the
President or a Vice President, and by the Controller, an
Assistant Controller, the Secretary or an Assistant Secretary, of
the Company, and delivered to the Trustee. One of the officers
signing an Officers' Certificate given pursuant to Section 1004
shall be the principal executive, financial or accounting officer
of the Company. Any Officers' Certificate delivered with respect
to compliance with a condition or covenant provided for in this
Indenture shall include:
(a) a statement that each officer signing the
Officers' Certificate has read the covenant or condition
and the definitions relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in
rendering the Officers' Certificate;
(c) a statement that each such officer has made such
examination or investigation as, in such officer's opinion,
is necessary to enable such officer to express an informed
opinion as to whether or not such covenant or condition has
been complied with; and
(d) a statement as to whether, in the opinion of each
such officer, such condition or covenant has been complied
with.
"OID " means original issue discount.
"Opinion of Counsel " means a written opinion of
counsel, who may be counsel for the Company (and who may be an
employee of the Company), and who shall be reasonably acceptable
to the Trustee. An Opinion of Counsel may rely on certificates as
to matters of fact.
"Outstanding ", when used with respect to the
Securities, means, as of the date of determination, all
Securities authenticated and delivered under this Indenture,
except: (i) Securities canceled by the Trustee or delivered to
the Trustee for cancellation; (ii) Securities for whose payment
or redemption money in the necessary amount has been 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; and (iii) Securities which have been paid
pursuant to Section 306, or in exchange or for in lieu of which
other Securities have been authenticated and delivered pursuant
to this Indenture; provided, however, that in determining whether
the holders of the requisite amount of Outstanding Securities are
present at a meeting of holders of Securities for quorum purposes
or
6
have consented to or voted in favor of any request, demand,
authorization, direction, notice, consent, waiver, amendment or
modification hereunder, Securities held for the account of the
Company, any of its subsidiaries or any of its affiliates shall
be disregarded and deemed not to be Outstanding, except that in
determining whether the Trustee shall be protected in making such
a determination or relying upon any such quorum, consent or vote,
only Securities which the Trustee actually knows to be so owned
shall be so disregarded.
"Paying Agent " means any Person authorized by the
Company to pay the principal of or interest on any Securities on
behalf of the Company.
"Person " means any individual, corporation, limited
liability company, partnership, joint venture, association,
joint-stock company, trust, unincorporated organization or
government or any agency or political subdivisions thereof.
"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 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or
stolen Security.
"Property Trustee " has the meaning set forth in the
Declaration.
"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 this Indenture.
"Regular Record Date " for the interest payable on any
Interest Payment Date means the [15th] day of the month (whether
or not a Business Day) prior to the relevant Interest Payment
Date.
"Regular Trustee " has the meaning set forth in the
Declaration.
"Responsible Officer ", when used with respect to the
Trustee, means any officer of the Trustee with direct
responsibility for the administration of this Indenture 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.
"Securities " has the meaning specified in the
Recitals to this instrument.
"Securities Act " means the Securities Act of 1933, as
amended.
"Security Register " and "Security Registrar " have
the respective meanings specified in Section 305.
7
"Senior Indebtedness " means, with respect to the
Company, whether recourse is to all or a portion of the assets of
the Company and whether or not contingent, (i) every obligation
of the Company for money borrowed; (ii) every obligation of the
Company evidenced by bonds, debentures, notes or other similar
instruments of the Company, including obligations incurred in
connection with the acquisition of property, assets or
businesses; (iii) every reimbursement obligation of the Company
with respect to letters of credit, bankers' acceptances or
similar facilities issued for the account of the Company; (iv)
every obligation of the Company issued or assumed as the deferred
purchase price of property or services (but excluding trade
accounts payable or accrued liabilities arising in the ordinary
course of business); (v) every Capital Lease Obligation of the
Company; (vi) every obligation of the Company for claims (as
defined in Section 101(4) of the United States Bankruptcy Code of
1978, as amended) in respect of derivative products such as
interest and foreign exchange rate contracts, commodity contracts
and similar arrangements and (vii) every obligation of the type
referred to in clauses (i) through (vi) above of another Person
and all dividends of another Person the payment of which, in
either case, the Company has guaranteed or is responsible or
liable for, directly or indirectly, as obligor or otherwise;
provided, however, that "Senior Indebtedness" shall not be deemed
to include (i) any indebtedness of the Company that is by its
terms subordinated to or ranked pari passu with the Securities;
(ii) any indebtedness of the Company which when incurred and
without respect to any election under Section 1111(b) of the
United States Bankruptcy Code of 1978, as amended, was without
recourse to the Company; (iii) any indebtedness of the Company to
any of its subsidiaries; (iv) any indebtedness to any employee of
the Company; (v) trade accounts payable in the ordinary course of
business; or (vi) any indebtedness in respect of debt securities
issued to any trust, or a trustee of such trust, partnership or
other entity affiliated with the Company that is a financing
entity of the Company in connection with the issuance of such
financing entity of securities that are similar to the Capital
Securities.
"Special Event " means an Investment Company Event or
a Tax Event.
"Special Record Date " for the payment of any
Defaulted Interest means a date fixed by the Trustee pursuant to
Section 307.
"Stated Maturity ", when used with respect to any
Security or any installment of interest thereon, means the date
specified in such Security as the date on which the principal,
together with any accrued and unpaid interest, of such Security
or such installment of interest is due and payable.
"Subsidiary " means, with respect to any Person, any
corporation, association or other business entity of which more
than 50% of the voting power of the Voting Stock thereof is at
the time owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of such Person or
a combination thereof.
"Tax Event " means the receipt by the Trust of an
opinion of counsel experienced in such matters to the effect
that, as a result of (a) any amendment to or change (including
any announced prospective change) in the laws or any regulations
thereunder of the United States or any political subdivision or
taxing authority thereof or therein, or (b) any judicial decision
or any official administrative pronouncement (including any
private letter ruling, technical advice
8
memorandum or Chief Counsel advice, as defined by the Code) or
regulatory procedure (an "Administrative Action"), regardless of
whether such judicial decision or Administrative Action is issued
to or in connection with a proceeding involving the Company or
the Trust and whether or not subject to review or appeal, which
amendment, change, decision or Administrative Action is enacted,
released by the Internal Revenue Service, promulgated or
announced, in each case, on or after the date of this Indenture,
there is more than an insubstantial risk that (i) the Trust is,
or will be within 90 days of the date of such opinion, subject to
United States federal income tax with respect to income received
or accrued on the Securities, (ii) interest payable by the
Company or OID accruing on the Securities is not, or within 90
days of the date of such opinion, will not be, deductible by the
Company, in whole or in part, for United States federal income
tax purposes or (iii) the Trust is, or will be within 90 days of
the date of such opinion, subject to more than a de minimis
amount of other taxes, duties or other governmental charges.
"Trust " has the meaning specified in the Recitals to
this instrument.
"Trustee " means the Person named as the "Trustee" in
the first paragraph of this Indenture 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; provided, however, that in the event the Trust
Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
"U.S. Government Obligations " has the meaning
specified in Section 404.
"Vice President ", when used with respect to the
Company or the Trustee, means any 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 Capital Stock of the class or
classes of which the holders have (i) in respect of a
corporation, the general voting power under ordinary
circumstances to elect at least a majority of the board of
directors, managers or trustees of such corporation (irrespective
of whether or not at the time Capital Stock of any other class or
classes shall have or might have voting power by reason of the
happening of any contingency) or (ii) in respect of a
partnership, the general voting power under ordinary
circumstances to elect the board of directors or other governing
board of such partnership or of the Person which is a general
partner of such partnership.
SECTION 102. 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 such certificates and
opinions as may be required under the Trust Indenture Act. Each
such certificate or opinion shall be given in the form of an
Officers' Certificate, if to be given by an officer of the
Company,
9
or an Opinion of Counsel, if to be given by counsel, and shall
comply with the requirements of the Trust Indenture Act and any
other requirement set forth in this Indenture.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person,
it is not necessary that all such matters be certified by, or
covered by the opinion of, only one such Person, or that they be
so certified or covered by only one document, but one such Person
may certify or give an opinion with respect to some matters and
one or more other such Persons as to other matters, and any such
Person may certify or give an opinion as to such matters in one
or several documents.
Any certificate or opinion of an officer of the
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 his certificate or opinion
is based are erroneous. Any such certificate or opinion of
counsel may be based, insofar as it relates to factual matters,
upon a certificate or opinion of, or representations by, an
officer or officers of the Company stating that the information
with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute
two or more applications, requests, consents, certificates,
statements, opinions or other instruments under this Indenture,
they may, but need not, be consolidated and form one instrument.
SECTION 104. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this
Indenture to be given or taken by Holders may be embodied in and
evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent duly
appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument
or instruments are delivered to the Trustee at the address
specified in Section 105 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 Holders 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 601) conclusive in favor of the Trustee and the Company,
if made in the manner provided in this Section.
Without limiting the generality of the foregoing, a
Holder, including a Depositary that is a Holder of a Global
Security, may make, give or take by proxy or proxies, duly
appointed in writing, any request, demand, authorization,
direction, notice, consent, waiver or other action provided or
permitted in this Indenture to be made, given or taken by
Holders, and a Depositary
10
that is a Holder of a Global Security may provide its proxy or
proxies to the beneficial owners of interest in any such Global
Security.
(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 a certificate of a notary
public or other officer authorized by law to take acknowledgments
of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his
individual capacity, 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 Company may, in the circumstances permitted by
the Trust Indenture Act, fix any day as the record date for the
purpose of determining the Holders entitled to give or take any
request, demand, authorization, direction, notice, consent,
waiver or other action, or to vote on any action, authorized or
permitted to be given or taken by Holders. If not set by the
Company prior to the first solicitation of a Holder made by any
Person in respect of any such action, or, in the case of any such
vote, prior to such vote, the record date for any such action or
vote shall be the 30th day (or, if later, the date of the most
recent list of Holders required to be provided pursuant to
Section 701) prior to such first solicitation or vote, as the
case may be.
With regard to any record date, only the Holders on
such date (or their duly designated proxies) shall be entitled to
give or take, or vote on, the relevant action, except as provided
in paragraph (a) of this Section 104.
(d) The ownership of Securities shall be proved by the
Security Register.
(e) Any request, demand, authorization, direction,
notice, consent, waiver or other Act of the Holder of any
Security shall bind every future Holder of the same Security and
the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the
Trustee or the Company in reliance thereon, whether or not
notation of such action is made upon such Security.
SECTION 105. Notices, Etc. to Trustee and the Company.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or
permitted by this Indenture to be made upon, given or furnished
to, or filed with:
(1) the Trustee by any Holder 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, Attention: Corporate Trust
Administration; or
(2) the Company by the Trustee or by any Holder shall
be sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if in writing and delivered,
telecopied or mailed by registered or certified mail, to
the Company addressed
11
to it at the address of its principal office specified in
the first paragraph of this instrument or at any other
address previously furnished in writing to the Trustee by
the Company, Attention: Secretary.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of
any event, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed by
registered or certified mail, to each Holder affected by such
event, at his address as it appears in the Security Register, not
later than the latest date (if any), and not earlier than the
earliest date (if any), prescribed for the giving of such notice.
In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder shall affect the sufficiency of
such notice with respect to other Holders. Where this Indenture
provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be
filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon
such waiver.
In case by reason of the suspension of regular mail
service or by reason of any other cause it shall be impracticable
to give such notice by mail, then such notification as shall be
made with the approval of the Trustee shall constitute a
sufficient notification for every purpose hereunder.
SECTION 107. Conflict With Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts
with a provision of the Trust Indenture Act that is required
under such Act to be a part of and govern this Indenture, the
provision of the Trust Indenture Act shall control. If any
provision of this Indenture modifies or excludes any provision of
the Trust Indenture Act that may be so modified or excluded, the
latter provision shall be deemed to apply to this Indenture as so
modified or so excluded, as the case may be.
SECTION 108. 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 109. Separability Clause.
In case any provision in this Indenture or in the
Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby.
12
SECTION 110. 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, the holders of Capital Securities (to the
extent provided herein) and the Holders, any benefit or any legal
or equitable right, remedy or claim under this Indenture.
SECTION 111. GOVERNING LAW.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THEREOF. THIS
INDENTURE IS SUBJECT TO THE PROVISIONS OF THE TRUST INDENTURE ACT
THAT ARE REQUIRED TO BE PART OF THIS INDENTURE AND SHALL, TO THE
EXTENT APPLICABLE, BE GOVERNED BY SUCH PROVISIONS.
SECTION 112. Legal Holidays.
In any case where any Interest Payment Date,
Redemption Date or Stated Maturity of any Security shall not be a
Business Day, then (notwithstanding any other provision of this
Indenture or of the Securities) payment of interest or principal
of the Securities need not be made on such date, but may be made
on the next succeeding Business Day (except that, if such
Business Day falls in the next calendar year, then such Interest
Payment Date, Redemption Date or Stated Maturity, as the case may
be, shall be the immediately preceding Business Day) in each case
with the same force and effect as if made on the Interest Payment
Date or Redemption Date, or at the Stated Maturity, provided that
no interest shall accrue with respect to such payment for the
period from and after such Interest Payment Date, Redemption Date
or Stated Maturity, as the case may be.
SECTION 113. Execution in Counterparts.
This Indenture may be executed in any number of
counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same
instrument.
SECTION 114. Successors.
All the covenants, stipulations, promises and
agreements of the Company in this Indenture shall be binding upon
its successors and assigns.
13
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities and the Trustee's certificate of
authentication shall be in substantially the forms set forth in
this Article, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted
by this Indenture, and may have such letters, numbers or other
marks of identification and such legends or endorsements placed
thereon as may be required to comply with the rules of any
securities exchange or as may, consistent herewith, be determined
by the officers executing such Securities, as evidenced by their
execution of the Securities.
The definitive Securities shall be printed,
lithographed or engraved or produced by any combination of these
or other methods, all as determined by the officers executing
such Securities, as evidenced by their execution of such
Securities.
SECTION 202. Form of Face of Security.
______% GWL&A FINANCIAL INC.
Junior Subordinated Debenture due 2028
$
No. 1
CUSIP No. [insert]
GWL&A Financial Inc., a corporation duly organized and
existing under the laws of the State of Delaware (herein called
the "Company", which term includes any successor corporation
under the Indenture hereinafter referred to), for value received,
hereby promises to pay to The Bank of New York, as Property
Trustee for Great-West Life & Annuity Insurance Capital I, or
registered assigns, the principal sum of ______________ DOLLARS
($ ) on ________, 2028, and to pay interest on said principal
sum from __________, 1998 or from the most recent interest
payment date to which interest has been paid or duly provided
for, quarterly (subject to deferral as set forth herein) in
arrears on March 31, June 30, September 30 and December 31 of
each year (each such date, an "Interest Payment Date"),
commencing March 31, 1999, at the rate of _____% per annum until
the principal hereof shall have become due and payable, and on
any overdue principal and (without duplication and to the extent
that payment of such interest is enforceable under applicable
law) on any overdue installment of interest at the same rate per
annum. The amount of interest payable for any full interest
period shall be computed by dividing the applicable rate per
annum by four. The amount of interest payable for any period less
than a full interest period shall be computed on the basis of a
360-day year of twelve 30-day months and the actual days elapsed
in a partial month in such period. In the event that any date on
which interest is payable on this Security is not a Business Day,
then a payment of the interest payable on such date will be made
on the next succeeding day which is a Business
14
Day (and without any interest or other payment in respect of any
such delay), except that if such next succeeding Business Day
falls in the next calendar year, then such payment shall be made
on the immediately preceding Business Day, in each case with the
some force and effect as if made on the date the payment was
originally payable. A "Business Day" shall mean any day other
than a Saturday or a Sunday, or a day on which banking
institutions in The City of New York are authorized or required
by law or executive order to remain closed or a day on which the
Corporate Trust Office of the Trustee, or the corporate trust
office of the Property Trustee under the Declaration, is closed
for business. The interest installment so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as
provided in the Indenture, be paid to the Person in whose name
the Securities (or one or more Predecessor Securities, as defined
in the Indenture) are registered at the close of business on the
Regular Record Date for such interest installment, which shall be
the [15]th day of the month (whether or not a Business Day) prior
to which such Interest Payment Date occurs. Any such interest
installment not so punctually paid or duly provided for shall
forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in whose name
the Securities (or one or more Predecessor Securities) are
registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders not less than
10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements
of any securities exchange on which the Securities may be listed,
and upon such notice as may be required by such exchange, all as
more fully provided in said Indenture.
So long as no Event of Default has occurred and is
continuing, the Company shall have the right to defer payment of
interest at any time or from time to time for a period not
exceeding 20 consecutive quarters (each, an "Extension Period"),
provided that no Extension Period may extend past the Stated
Maturity of this Security or end on a day other than an Interest
Payment Date. Upon termination of any such Extension Period and
the payment of all amounts then due on any Interest Payment Date,
the Company may elect to begin a new Extension Period subject to
the requirements set forth herein. Accordingly, there may be
multiple Extension Periods of varying lengths during the term of
this Security. At the end of each Extension Period, if any, the
Company shall pay all interest then accrued and unpaid, together
with interest thereon, compounded quarterly at the rate specified
on this Security to the extent permitted by applicable
law. During any such Extension Period, the Company may not, and
may not permit any Subsidiary of the Company to, (i) declare or
pay any dividends or distributions on, or redeem, purchase,
acquire, or make a liquidation payment with respect to, any of
the Company's capital stock or (ii) make any payment of principal
or interest on or repay, repurchase or redeem any debt securities
of the Company that rank pari passu with or junior in interest to
the Securities or (iii) make any guarantee payments with respect
to any guarantee by the Company of the debt securities of any
Subsidiary of the Company if such guarantee ranks pari passu or
junior in interest to the Securities (other than (a) dividends or
distributions in the form of stock, warrants, options or other
rights where the dividend stock or the stock issuable upon
exercise of such warrants, options or other rights is the same
stock as that on which the dividend is being paid or ranks pari
passu with or junior to such stock, (b) payments under the
Guarantee, (c) any declaration of a dividend in connection with
the implementation of a shareholders' rights plan, or the
issuance of rights, stock or other property under any such plan
in the future, or the redemption or repurchase of any such rights
pursuant thereto, (d) as a result of reclassification of the
15
Company's capital stock into one or more other classes or series
of the Company's capital stock or the exchange or conversion of
one class or series of the Company's capital stock (or any
capital stock of a subsidiary of the Company) for another class
or series of the Company's capital stock, or of any class or
series of the Company's indebtedness for any class or series of
the Company's capital stock, (e) the purchase of fractional
interests in the shares of the Company's capital stock pursuant
to the conversion or exchange provisions of such capital stock or
the security being converted or exchanged and (f) repurchases,
redemptions or other acquisitions of common stock related to the
issuance of common stock or rights under any of the Company's
employment contracts, benefit plans or other similar arrangement
with or for the benefit of one or more employees, officers,
directors or consultants, in connection with a dividend
reinvestment or stockholder stock purchase plan or in connection
with the issuance of capital stock of the Company (or securities
convertible into or exercisable for such capital stock) as
consideration in an acquisition transaction entered into prior to
the applicable Extension Period). Prior to the termination of any
such Extension Period, the Company may further extend the
Extension Period, provided that no Extension Period may exceed 20
consecutive quarters or extend beyond the Stated Maturity of this
Security or end on any day other than an Interest Payment Date.
Upon the termination of any such Extension Period and the payment
of all amounts then due on any Interest Payment Date, the Company
may elect to begin a new Extension Period subject to the above
requirements. No interest shall be due and payable during an
Extension Period, except at the end thereof. The Company shall
give the Property Trustee, the Regular Trustees and the Trustee
notice of its election of such Extension Period at least one
Business Day prior to the earlier of (i) the Interest Payment
Date or (ii) the date the Regular Trustees are required to give
notice to any applicable self-regulatory organization or to
holders of such Capital Securities of the record date or the date
the related distributions are payable, but in any event not less
than one Business Day prior to such record date.
Payment of the principal of and interest on this
Security will be made at the office or agency of the Paying Agent
maintained for that purpose in the United States, in such coin or
currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts;
provided, however, that at the option of the Company, payment of
interest may be made (i) by check mailed to the address of the
Person entitled thereto as such address shall appear in the
Security Register or (ii) by wire transfer in immediately
available funds at such place and to such account as may be
designated by the Person entitled thereto as specified in the
Security Register.
The indebtedness evidenced by this Security is, to the
extent provided in the Indenture, subordinate and subject in
right of payment to the prior payment in full of all Senior
Indebtedness, and this Security is issued subject to the
provisions of the Indenture with respect thereto. Each Holder of
this Security, by accepting the same, (a) agrees to and shall be
bound by such provisions, (b) authorizes and directs the Trustee
on his behalf to take such action as may be necessary or
appropriate to acknowledge or effect the subordination so
provided and (c) appoints the Trustee his attorney-in-fact for
any and all such purposes. Each Holder hereof, by his acceptance
hereof, waives all notice of the acceptance of the subordination
provisions contained herein and in the Indenture by each holder
of Senior Indebtedness, whether now outstanding or hereafter
incurred, and waives reliance by each such Holder upon said
provisions.
16
Reference is hereby made to the further provisions of
the Indenture summarized on the reverse hereof, which further
provisions shall for all purposes have the same effect as if set
forth at this place.
Unless the certificate of authentication hereon has
been executed by the Trustee referred to on the reverse hereof by
manual signature, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, GWL&A Financial Inc. has caused
this instrument to be duly executed and delivered.
GWL&A FINANCIAL INC.
By:______________________
Name:
Title:
By:______________________
Name:
Title:
17
SECTION 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of
Securities of GWL&A Financial Inc. (the "Company"), designated as
its ______% Junior Subordinated Debentures due 2028 (herein
called the "Securities"), limited in aggregate principal amount
to $_________ issued under an Indenture, dated as of _________,
1998 (herein called the "Indenture"), between the Company and The
Bank of New York, a New York State banking corporation, as
Trustee (herein called the "Trustee," which term includes any
successor trustee under the Indenture), to which the Indenture
and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Trustee, the Company and
the Holders, and of the terms upon which the Securities are, and
are to be, authenticated and delivered.
All terms used in this Security which are defined in
the Indenture shall have the meanings assigned to them in the
Indenture.
At any time on or after ________, 2003, the Securities
are redeemable at the option of the Company, subject to the last
paragraph of Section 1201 of the Indenture, in whole or in part
at any time at 100% of the principal amount thereof plus accrued
and unpaid interest, if any, to the Redemption Date.
If a Special Event shall occur and be continuing, the
Company shall have the right, within 90 days of the occurrence of
such Special Event, subject to the last paragraph of Section 1201
of the Indenture, to redeem, upon not less than 30 days nor more
than 60 days notice, the Securities in whole, but not in part, at
a Redemption Price equal to 100% of the principal amount of
Securities then Outstanding plus accrued and unpaid interest
thereon to, but excluding, the date of prepayment.
If the Securities are only partially redeemed by the
Company, the Securities will be redeemed pro rata. If a partial
redemption of the Capital Securities resulting from a partial
redemption of the Securities would result in the delisting of the
Capital Securities from any securities exchange or quoting
service on which the Capital Securities are then listed or
quoted, the Company may only redeem the Securities in whole. In
the event of redemption of this Security in part only, a new
Security or Securities for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation
hereof.
If an Event of Default with respect to the Securities
shall occur and be continuing, the principal of the Securities
may be declared due and payable in the manner, with the effect
and subject to the conditions provided in the Indenture.
The Indenture contains provisions for satisfaction and
discharge or legal defeasance of the entire indebtedness of this
Security and for the defeasance of certain covenants under the
Indenture at any time upon compliance by the Company with certain
conditions set forth in the Indenture.
18
The Indenture contains provisions permitting the
Company and the Trustee, with the consent of Holders of not less
than a majority in principal amount of the Outstanding Securities
affected, to execute supplemental indentures which modify the
Indenture in a manner affecting the rights of the Holders of the
Securities; provided that no such supplemental indenture may,
without the consent of the Holder of each Outstanding Security
affected thereby, (i) except to the extent permitted and subject
to the conditions set forth in the Indenture with respect to the
extension of the Stated Maturity of the Security, change the
maturity of, the principal of, or any installment of interest on,
the Security or reduce the principal amount thereof, or the rate
of payment of interest thereon, or change the place of payment
where, or the coin or currency in which, this Security or
interest thereon is payable, or impair the right to institute
suit for the enforcement of such payment on or after the Stated
Maturity thereof (or, in the case of redemption, on or after the
Redemption Date), or modify the provisions of the Indenture with
respect to the subordination of the Securities in a manner
adverse to the Holders, (ii) reduce the percentage in principal
amount of the Outstanding Securities, 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 the Indenture or certain
defaults hereunder and their consequences) provided for in the
Indenture, or (iii) modify any of the provisions of Section 513,
Section 902 or Section 1008 of the Indenture, except to increase
any such percentage or to provide that certain other provisions
of the Indenture cannot be modified or waived without the consent
of the Holder of each Outstanding Security affected thereby,
provided that, so long as any of the Capital Securities remains
outstanding, no such amendment shall be made that adversely
affects the holders of the Capital Securities in any material
respect, and no termination of the Indenture may occur, and no
waiver of an Event of Default or compliance with any covenant
under the Indenture may be effective, without the prior consent
of the holders of at least a majority of the aggregate
liquidation amount of the outstanding Capital Securities unless
and until the principal of the Securities and all accrued and
unpaid interest thereon have been paid in full.
No reference herein to the Indenture and no provision
of this Security or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional,
to pay the principal of and interest on this Security at the
times, place and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is
registrable in the Security Register, upon surrender of this
Security for registration of transfer at the office or agency of
the Company in New York, New York, duly endorsed by, or
accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly
executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Securities, of authorized
denominations and for the same aggregate principal amount, will
be issued to the designated transferee or transferees. No service
charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in
connection therewith.
Prior to due presentment of this Security for
registration of transfer, the Company, the Trustee and any agent
of the Company or the Trustee may treat the Person in whose name
this
19
Security is registered as the owner hereof for all purposes,
whether or not this Security be overdue, and none of the Company,
the Trustee or any such agent shall be affected by notice to the
contrary.
The Securities are issuable only in registered form
without coupons in denominations of $25 and any integral multiple
thereof. As provided in the Indenture and subject to certain
limitations therein set forth, Securities are exchangeable for a
like aggregate principal amount of Securities of a different
authorized denomination, as requested by the Holder surrendering
the same.
The Company and, by its acceptance or acquisition of
this Security or a beneficial interest therein, the Holder of,
and any Person that acquires a beneficial interest in, this
Security intend and agree to treat this Security as indebtedness
of the Company for United States federal, state and local tax
purposes.
THE SECURITIES AND THE INDENTURE SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.
SECTION 204. Form of Trustee's Certificate of Authentication.
This is one of the Securities referred to in the
within-mentioned Indenture.
Dated: ________ THE BANK OF NEW YORK, as Trustee
By:_____________________________
Authorized Signatory
20
ARTICLE THREE
THE SECURITIES
SECTION 301. Title and Terms.
The aggregate principal amount of Securities which may
be authenticated and delivered under this Indenture is limited to
$__________, except for Securities authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu
of, other Securities pursuant to Sections 304, 305, 306, 906 or
1208.
The Securities shall be known and designated as the
"_______% Junior Subordinated Debentures due 2028" of the
Company. Their Stated Maturity shall be __________, 2028.
The Securities shall bear interest at the rate of
_____% per annum, from _________, 1998 or from the most recent
Interest Payment Date to which interest has been paid or duly
provided for, as the case may be, payable quarterly (subject to
deferral as set forth herein), in arrears, on March 31, June 30,
September 30 and December 31 of each year, commencing March 31,
1999, until the principal thereof is paid or made available for
payment. Interest will compound quarterly and will accrue at the
rate of ______% per annum on any interest installment in arrears
for more than one quarterly period or during an extension of an
interest payment period as set forth below in this Section 301.
In the event that any date on which interest is payable on the
Securities is not a Business Day, then a payment of the interest
payable on such date will be made on the next succeeding day
which is a Business Day (and without any interest or other
payment in respect of such delay), except that if such Business
Day falls in the next succeeding calendar year, then such payment
shall be made on the immediately preceding Business Day, in each
case with the same force and effect as if made on the date such
payment was originally payable.
So long as no Event of Default has occurred and is
continuing, the Company shall have the right to defer the payment
of interest at any time or from time to time for a period not
exceeding 20 consecutive quarters (each, an "Extension Period"),
provided that no Extension Period may extend past the Stated
Maturity of this Security or end on a day other than an Interest
Payment Date. Upon termination of any such Extension Period and
the payment of all amounts then due on any Interest Payment Date,
the Company may elect to begin a new Extension Period subject to
the requirements set forth herein. Accordingly, there may be
multiple Extension Periods of varying lengths during the term of
this Security. At the end of each Extension Period, if any, the
Company shall pay all interest then accrued and unpaid, together
with interest thereon, compounded quarterly at the rate specified
on this Security to the extent permitted by applicable law.
During any such Extension Period, the Company may not, and may
not permit any Subsidiary of the Company to, (i) declare or pay
any dividends or distributions on, or redeem, purchase, acquire,
or make a liquidation payment with respect to, any of the
Company's capital stock or (ii) make any payment of principal or
interest on or repay, repurchase or redeem any debt securities of
the Company that rank pari passu with or junior in interest to
the Securities or (iii) make any guarantee payments with respect
to any guarantee by the Company of the debt
21
securities of any Subsidiary of the Company if such guarantee
ranks pari passu or junior in interest to the Securities (other
than (a) dividends or distributions in the form of stock,
warrants, options or other rights where the dividend stock or the
stock issuable upon exercise of such warrants, options or other
rights is the same stock as that on which the dividend is being
paid or ranks pari passu with or junior to such stock, (b)
payments under the Guarantee, (c) any declaration of a dividend
in connection with the implementation of a shareholders' rights
plan, or the issuance of rights, stock or other property under
any such plan in the future, or the redemption or repurchase of
any such rights pursuant thereto, (d) as a result of
reclassification of the Company's capital stock into one or more
other classes or series of the Company's capital stock or the
exchange or conversion of one class or series of the Company's
capital stock (or any capital stock of a subsidiary of the
Company) for another class or series of the Company's capital
stock, or of any class or series of the Company's indebtedness
for any class or series of the Company's capital stock, (e) the
purchase of fractional interests in the shares of the Company's
capital stock pursuant to the conversion or exchange provisions
of such capital stock or the security being converted or
exchanged and (f) repurchases, redemptions or other acquisitions
of common stock related to the issuance of common stock or rights
under any of the Company's employment contracts, benefit plans or
other similar arrangement with or for the benefit of one or more
employees, officers, directors or consultants, in connection with
a dividend reinvestment or stockholder stock purchase plan or in
connection with the issuance of capital stock of the Company (or
securities convertible into or exercisable for such capital
stock) as consideration in an acquisition transaction entered
into prior to the applicable Extension Period). Prior to the
termination of any such Extension Period. Prior to the
termination of any such Extension Period, the Company may further
extend the interest payment period, provided that no Extension
Period may exceed 20 consecutive quarters or extend beyond the
Stated Maturity of the Securities or end on any day other than an
Interest Payment Date. Upon the termination of any such Extension
Period and the payment of all amounts then due on any Interest
Payment Date, the Company may elect to begin a new Extension
Period subject to the above requirements. No interest shall be
due and payable during an Extension Period, except at the end
thereof. The Company shall give the Property Trustee, the Regular
Trustees and the Trustee notice of its election of such Extension
Period at least one Business Day prior to the earlier of (i) the
Interest Payment Date or (ii) the date the Regular Trustees are
required to give notice to any applicable self-regulatory
organization or to holders of such Capital Securities of the
record date or the date the related distributions are payable,
but in any event not less than one Business Day prior to such
record date.
The Property Trustee shall promptly give notice of the
Company's election to begin a new Extension Period to the holders
of the Capital Securities.
The principal of and interest on the Securities shall
be payable at the office or agency of the Paying Agent in the
United States maintained for such purpose and at any other office
or agency maintained by the Company for such purpose in such coin
or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts;
provided, however, that at the option of the Company payment of
interest may be made (i) by check mailed to the address of the
Person entitled thereto as such address shall appear in the
Security Register or (ii) by wire transfer in immediately
available funds at such
22
place and to such account as may be designated in writing to the
Paying Agent prior to the relevant Record Date by the Person
entitled thereto as specified in the Security Register.
The Securities shall be subordinated in right of
payment to Senior Indebtedness as provided in Article Eleven.
The Securities shall be redeemable as provided in
Article Twelve.
SECTION 302. Denominations.
The Securities shall be issuable only in registered
form, without coupons, and only in denominations of $25 and any
integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the
Company by its Chairman of the Board, its Vice Chairman of the
Board, a President or one of its Vice Presidents. 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 executed by the Company to the Trustee for
authentication, together with a Company Order for the
authentication and delivery of such Securities; and the Trustee
in accordance with such Company Order shall authenticate and
deliver such Securities as in this Indenture provided and not
otherwise.
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 herein executed by the
Trustee by manual signature, 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 304. Temporary Securities.
Pending the preparation of definitive Securities, the
Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in
any authorized denomination, substantially of the tenor of the
definitive Securities in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other
variations as the
23
officers executing such Securities may determine, as evidenced by
their execution of such Securities.
If temporary Securities are issued, the Company will
cause definitive Securities to be prepared without unreasonable
delay. After the preparation of definitive Securities, the
temporary Securities shall be exchangeable for definitive
Securities upon surrender of the temporary Securities at any
office or agency of the Company designated pursuant to Section
1002, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities the Company
shall execute and the Trustee shall authenticate and deliver in
exchange therefor a like principal amount of definitive
Securities of authorized denominations. Until so exchanged the
temporary Securities shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities.
SECTION 305. Registration; Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate
Trust Office of the Trustee a register (the register maintained
in such office and in any other office or agency designated
pursuant to Section 1002 being herein sometimes collectively
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 and of transfers of
Securities. The Trustee is hereby appointed "Security Registrar"
for the purpose of registering Securities and transfers of
Securities as herein provided.
Upon surrender for registration of transfer of any
Security at an office or agency of the Company designated
pursuant to Section 1002 for such purpose, the Company shall
execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new
Securities of any authorized denominations and of a like
aggregate principal amount.
At the option of the Holder, Securities may be
exchanged for other Securities of any authorized denominations
and of a like aggregate principal amount, upon surrender of the
Securities to be exchanged at such office or agency. Whenever any
Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to
receive.
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 for exchange shall 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 duly authorized
in writing.
24
No service charge shall be made for any registration
of transfer or exchange of Securities, but the Company may
require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than
exchanges pursuant to Sections 304, 906 or 1208 not involving any
transfer.
If the Securities are to be redeemed in whole or in
part, the Company shall not be required (i) to issue, register
the transfer of or exchange any Securities during a period
beginning at the opening of business 15 days before the day of
the mailing of a notice of redemption of any such Securities
selected for redemption under Section 1204 and ending at the
close of business on the day of such mailing, or (ii) to register
the transfer of or exchange any Security so selected for
redemption in whole or in part, except the unredeemed portion of
any Security being redeemed in part.
The transfer and exchange of beneficial interests in
any Global Security, which does not involve the issuance of a
definitive Security or the transfer of interests to another
Global Security, shall be effected through the Depositary (but
not the Trustee) in accordance with this Indenture (including the
restrictions on transfer set forth herein) and the procedures of
the Depositary therefor. The Trustee (in its capacity as such)
will not have any responsibility for the transfer and exchange of
beneficial interests in such Global Security that does not
involve the issuance of a definitive Security or the transfer of
interests to another Global Security.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the
Trustee together with such security or indemnity as may be
required by the Company or the Trustee to save each of them
harmless, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new Security of
like tenor and principal amount and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Company and the
Trustee (i) evidence to their satisfaction of the destruction,
loss or theft of any Security and (ii) such security or indemnity
as may be required by them to hold each of them and any agent of
either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a
bona fide purchaser, the Company shall execute and the Trustee
shall authenticate and deliver, in lieu of any such destroyed,
lost or stolen Security, a new Security of like tenor and
principal amount and bearing a number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen
Security has become or is about to become due and payable, 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 Trustee) connected therewith.
25
Every new Security issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute
an original additional contractual obligation of the Company,
whether or not the 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 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.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Person in whose name that Security (or
one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest except
that, interest payable on the Stated Maturity of the principal of
a Security shall be paid to the Person to whom principal is paid.
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 (2) below:
(1) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the
Securities (or their respective Predecessor Securities) are
registered at the close of business on a Special Record
Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The 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
days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the
receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of
such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record
Date therefor to be mailed by registered or certified mail,
to each Holder 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 so mailed, such Defaulted Interest shall be
paid to the Persons in whose names the Securities (or their
26
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 securities exchange on which the
Securities may be listed, and if so listed, 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.
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 Security
shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security.
Defaulted Interest will bear additional interest on
the amount thereof (to the extent permitted by law) at the rate
per annum of _____%, compounded quarterly.
SECTION 308. Persons Deemed Owners.
The Company, the Trustee and any agent of the Company
or the Trustee shall treat the Person in whose name such Security
is registered as the owner of such Security for the purpose of
receiving payment of principal of and (subject to Section 307)
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.
No holder of any beneficial interest in any Global
Security held on its behalf by a Depositary shall have any rights
under this Indenture with respect to such Global Security, and
such Depositary may be treated by the Company the Trustee and any
agent of the Company or the Trustee as the owner of such Global
Security for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Company, the Trustee
or any agent of the Company or the Trustee from giving effect to
any written certification, proxy or other authorization furnished
by a Depositary or impair, as between a Depositary and such
holders of beneficial interests, the operation of customary
practices governing the exercise of the rights of the Depositary
(or its nominee) as holder of any Security.
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption,
registration of transfer or exchange shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee and
shall be promptly canceled by it. 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.
27
All canceled Securities held by the Trustee shall be disposed of
by the Trustee in accordance with its customary procedures and
the Trustee shall deliver to the Company a certification of such
disposition, unless the Trustee is otherwise directed by a
Company Order; provided, that in no event shall the Trustee be
directed to destroy any canceled Security.
SECTION 310. Computation of Interest.
The amount of interest payable for any full interest
period shall be computed by dividing the applicable rate per
annum by four. The amount of interest payable for any period less
than a full interest period shall be computed on the basis of a
360-day year of twelve 30-day months and the actual days elapsed
in a partial month in such period.
SECTION 311. Agreed Tax Treatment.
Each Security issued hereunder shall provide that the
Company and, by its acceptance or acquisition of a Security or a
beneficial interest therein, the Holder of, and any Person that
acquires a beneficial interest in, such Security intend and agree
to treat such Security as indebtedness of the Company for United
States federal, state and local tax purposes and, with respect to
Securities issued to the Trust, to treat Capital Securities and
Common Securities of such Trust (including but not limited to all
payments and proceeds with respect to such Capital Securities and
Common Securities) as an undivided beneficial ownership interest
in the Securities (and payments and proceeds therefrom,
respectively) for United States federal, state and local tax
purposes. The provisions of this Indenture shall be interpreted
to further this intention and agreement of the parties.
SECTION 312. Right of Set-off.
Notwithstanding anything to the contrary in this
Indenture, the Company shall have the right to set-off any
payment it is otherwise required to make hereunder to the extent
the Company has theretofore made, or is concurrently on the date
of such payment making, a payment under the Guarantee.
SECTION 313. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP"
numbers (if then generally in use), and, if so, the Trustee shall
use "CUSIP" numbers in notices of redemption as a convenience to
Holders; provided that any such notice may state that no
representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice
of redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such
redemption shall not be affected by any defect in or omission of
such numbers.
SECTION 314. Global Securities.
If the Securities are distributed to the holders of
Capital Securities, Securities distributed in respect of Capital
Securities that are held in global form by a Depositary will
28
initially be issued as a Global Security, unless such transfer
cannot be effected through book-entry settlement. If the Company
shall establish that the Securities are to be issued in the form
of one or more Global Securities, then the Company shall execute
and the Trustee shall, in accordance with Section 303 and a
Company Order, authenticate and deliver one or more Global
Securities that (i) shall represent and shall be denominated in
an amount equal to the aggregate principal amount of all of the
Securities to be issued in the form of Global Securities and not
yet canceled, (ii) shall be registered in the name of the
Depositary for such Global Security or Securities or the nominee
of such Depositary, and (iii) shall be delivered by the Trustee
to such Depositary or pursuant to such Depositary's instructions.
Global Securities shall bear a legend substantially to the
following effect:
"This Security is a Global Security within the meaning
of the Indenture hereinafter referred to and is registered
in the name of a Depositary or a nominee of a Depositary.
Notwithstanding the provisions of Section 305 of the
Indenture, unless and until it is exchanged in whole or in
part for Securities in definitive registered form, a Global
Security representing all or a part of the Securities may
not be transferred in the manner provided in Section 305
except as a whole by the Depositary to a nominee of such
Depositary or by a nominee of such Depositary to such
Depositary or another nominee of such Depositary or by such
Depositary or any such nominee to a successor Depositary or
a nominee of such successor Depositary. Every Security
delivered upon registration or transfer of, or in exchange
for, or in lieu of, this Global Security shall be a Global
Security subject to the foregoing, except in the limited
circumstances described above. Unless this certificate is
presented by an authorized representative of The Depositary
Trust Company, a New York corporation ("DTC"), to the
Company or its agent for registration of transfer, exchange
or payment, and any certificate issued is registered in the
name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC (and any payment is to
be made to Cede & Co. or to such other entity as is
requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest
herein."
Definitive Securities issued in exchange for all or a
part of a Global Security pursuant to this Section 314 shall be
registered in such names and in such authorized denominations as
the Depositary, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee.
Upon execution and authentication, the Trustee shall deliver such
definitive Securities to the Persons in whose names such
definitive Securities are so registered.
At such time as all interests in Global Securities
have been redeemed, repurchased or canceled, such Global
Securities shall be, upon receipt thereof, canceled by the
Trustee in accordance with standing procedures and instructions
existing between the Depositary and the Trustee. At any time
prior to such cancellation, if any interest in Global Securities
is exchanged for definitive Securities, redeemed, canceled or
transferred to a transferee who receives definitive Securities
therefor or any definitive Security is exchanged or transferred
for part of Global
29
Securities, the principal amount of such Global Securities shall,
in accordance with the standing procedures and instructions
existing between the Depositary and the Trustee, be reduced or
increased, as the case may be, and an endorsement shall be made
on such Global Securities by the Trustee to reflect such
reduction or increase.
The Company and the Trustee may for all purposes,
including the making of payments due on the Securities, deal with
the Depositary as the authorized representative of the Holders
for the purposes of exercising the rights of Holders hereunder.
The rights of the owner of any beneficial interest in a Global
Security shall be limited to those established by law and
agreements between such owners and depository participants;
provided, that no such agreement shall give any rights to any
Person against the Company or the Trustee without the written
consent of the parties so affected. Multiple requests and
directions from and votes of the Depositary as Holder of
Securities in global form with respect to any particular matter
shall not be deemed inconsistent to the extent they do not
represent an amount of Securities in excess of those held in the
name of the Depositary or its nominee.
If at any time the Depositary for any Securities
represented by one or more Global Securities notifies the Company
that it is unwilling or unable to continue as Depositary for such
Securities or if at any time the Depositary for such Securities
shall no longer registered or in good standing under the Exchange
Act, the Company shall appoint a successor Depositary with
respect to such Securities. If a successor Depositary for such
Securities is not appointed by the Company within 90 days after
the Company receives such notice or becomes aware of such
condition, the Company's election that such Securities be
represented by one or more Global Securities shall no longer be
effective and the Company shall execute, and the Trustee, upon
receipt of a Company Order for the authentication and delivery of
definitive Securities, will authenticate and deliver Securities
in definitive registered form, in any authorized denominations,
in an aggregate principal amount equal to the principal amount of
the Global Security or Securities representing such Securities,
in exchange for such Global Security or Securities.
The Company may at any time and in its sole discretion
determine that the Securities issued in the form of one or more
Global Securities shall no longer be represented by a Global
Security or Securities. In such event the Company shall execute,
and the Trustee, upon receipt of a Company Order for the
authentication and delivery of definitive Securities, shall
authenticate and deliver, Securities in definitive registered
form, in any authorized denominations, in an aggregate principal
amount equal to the principal amount of the Global Security or
Securities representing such Securities, in exchange for such
Global Security or Securities.
If specified by the Company with respect to Securities
represented by a Global Security, the Depositary for such Global
Security may surrender such Global Security in exchange in whole
or in part for Securities in definitive registered form on such
terms as are acceptable to the Company and such Depositary.
Thereupon, the Company shall execute, and the Trustee shall
authenticate and deliver, without service charge, (i) to the
Person specified by such Depositary, the new Security or
Securities, of any authorized denominations as requested by such
Person, in an aggregate principal amount equal to and in exchange
for such Person's beneficial interest in the Global Security; and
(ii) to such Depositary a new Global Security in a
30
denomination equal to the difference, if any, between the
principal amount of the surrendered Global Security and the
aggregate principal amount of Securities authenticated and
delivered pursuant to clause (i) above. Upon the exchange of a
Global Security for Securities in definitive registered form in
authorized denominations, such Global Security shall be canceled
by the Trustee or an agent of the Company or the Trustee.
Securities in definitive registered form issued in exchange for a
Global Security pursuant to this Section 314 shall be registered
in such names and in such authorized denominations as the
Depositary for such Global Security, pursuant to instructions
from its direct or indirect participants or otherwise, shall
instruct the Trustee or an agent of the Company or the Trustee.
The Trustee or such agent shall deliver at its office such
Securities to or as directed by the Persons in whose names such
Securities are so registered.
ARTICLE FOUR
SATISFACTION AND DISCHARGE; DEFEASANCE
SECTION 401. Satisfaction and Discharge of Indenture.
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 written demand of and at the expense of the Company,
shall execute instruments supplied by the Company acknowledging
satisfaction and discharge of this Indenture, when (1) either (A)
all Securities theretofore authenticated and delivered (other
than (i) Securities which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 306 and
(ii) Securities 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 1003) have been delivered to the
Trustee for cancellation; or (B) all such Securities not
theretofore delivered to the Trustee for cancellation (i) have
become due and payable, or (ii) will become due and payable at
their Maturity within one 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 or caused to be deposited with
the Trustee as funds in trust for the purpose an amount of money
and/or securities specified in Section 404(a)(ii) and (iii)
hereof sufficient to pay and discharge the entire indebtedness in
such Securities not theretofore delivered to the Trustee for
cancellation, for principal and interest to the date of such
deposit (in the case of Securities which have become due and
payable) or to the Stated Maturity or Redemption Date, 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. Notwithstanding the
satisfaction and discharge of this Indenture, the obligations of
the Company to the Trustee under Section 607 and, if money and/or
the above-referenced securities shall have been deposited with
the Trustee pursuant to subclause (B) of clause (1) of this
Section, the obligations of the Trustee under Section 402 and the
last paragraph of Section 1003 shall survive, and until such time
as
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any Securities described in subclause (B) of clause (1) of this
Section 401 become due and payable or are redeemable, the Company
shall remain obligated to the Holders of such Securities for all
payments due thereunder, including the delivery of additional
funds to the Trustee if the funds previously deposited with the
Trustee pursuant to subclause (B) of clause (1) of this Section
401 are insufficient to satisfy in full the amount of such
payments.
SECTION 402. Legal Defeasance.
In addition to discharge of this Indenture pursuant to
Section 401, in the case of any Securities with respect to which
the exact amount described in subparagraph (a) of Section 404 can
be determined at the time of making the deposit referred to in
such subparagraph (a), the Company shall be deemed to have paid
and discharged the entire indebtedness on all the Securities as
provided in this Section on and after the date the conditions set
forth in Section 404 are satisfied, and the provisions of this
Indenture with respect to the Securities shall no longer be in
effect (except as to (i) rights of registration of transfer and
exchange of Securities, (ii) substitution of mutilated, defaced,
destroyed, lost or stolen Securities, (iii) rights of Holders to
receive, solely from the trust fund described in subparagraph (a)
of Section 404, payments of principal thereof and interest, if
any, thereon upon the original stated due dates therefor (but not
upon acceleration), (iv) the rights, obligations, duties and
immunities of the Trustee hereunder, (v) this Section 402 and
(vi) the rights of the Holders of Securities as beneficiaries
hereof with respect to the property so deposited with the Trustee
payable to all or any of them) (hereinafter called "Legal
Defeasance"), and the Trustee, at the cost and expense of the
Company, shall execute proper instruments acknowledging the same.
SECTION 403. Covenant Defeasance.
In the case of any Securities with respect to which
the exact amount described in subparagraph (a) of Section 404 can
be determined at the time of making the deposit referred to in
such subparagraph (a), (I) the Company shall be released from its
obligations under any covenants specified in or pursuant to this
Indenture (except as to (i) rights of registration of transfer
and exchange of Securities, (ii) substitution of mutilated,
defaced, destroyed, lost or stolen Securities, (iii) rights of
Holders to receive, from the Company pursuant to Section 1001,
payments of principal thereof and interest, if any, thereon upon
the original stated due dates therefor (but not upon
acceleration), (iv) the rights, obligations, duties and
immunities of the Trustee hereunder and (v) the rights of the
Holders as beneficiaries hereof with respect to the property so
deposited with the Trustee payable to all or any of them), and
(II) the occurrence of any event specified in Section 501(3)
(with respect to any of the covenants specified in or pursuant to
this Indenture) shall be deemed not to be or result in an Event
of Default, in each case with respect to the Outstanding
Securities as provided in this Section on and after the date the
conditions set forth in Section 404 are satisfied) (hereinafter
called "Covenant Defeasance"), and the Trustee, at the cost and
expense of the Company, shall execute proper instruments
acknowledging the same. For this purpose, such Covenant
Defeasance means that the Company may omit to comply with and
shall have no liability in respect of any term, condition or
limitation set forth in any such covenant, whether directly or
indirectly by reason of any reference elsewhere herein to any
such covenant or by reason of any reference in any such covenant
to any
32
other provision herein or in any other document, but the
remainder of this Indenture and the Securities shall be
unaffected thereby.
SECTION 404. Conditions to Legal Defeasance or Covenant
Defeasance.
The following shall be the conditions to application
of either Section 402 or 403 to the Outstanding Securities:
(a) with reference to Section 402 or 403, the Company
has irrevocably deposited or caused to be irrevocably
deposited with the Trustee as funds in trust, specifically
pledged as security for, and dedicated solely to, the
benefit of the Holders (i) cash, (ii) direct obligations of
the United States of America, backed by its full faith and
credit ("U.S. Government Obligations"), maturing as to
principal and interest, if any, at such times and in such
amounts as will ensure the availability of cash, (iii)
obligations of a Person controlled or supervised by and
acting as an agency or instrumentality of the United States
of America the timely payment of which is unconditionally
guaranteed as a full faith and credit obligation by the
United States of America, or (iv) a combination thereof, in
each case sufficient, in the opinion of a
nationally-recognized firm of independent public
accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge the
principal of and interest, if any, on all Securities on
each date that such principal or interest, if any, is due
and payable;
(b) in the case of Legal Defeasance under Section 402,
the Company has delivered to the Trustee an Opinion of
Counsel based on the fact that (x) the Company has received
from, or there has been published by, the Internal Revenue
Service a ruling or (y), since the date hereof, there has
been a change in the applicable United States federal
income tax law, in either case to the effect that, and such
opinion shall confirm that, the Holders will not recognize
income, gain or loss for U.S. federal income tax purposes
as a result of such deposit and Legal Defeasance and will
be subject to U.S. federal income tax on the same amount
and in the same manner and at the same times as would have
been the case if such deposit and Legal Defeasance had not
occurred;
(c) in the case of Covenant Defeasance under Section
403, the Company has delivered to the Trustee an Opinion of
Counsel to the effect that, and such opinion shall confirm
that, the Holders will not recognize income, gain or loss
for U.S. federal income tax purposes as a result of such
deposit and Covenant Defeasance and will be subject to U.S.
federal income tax on the same amount and in the same
manner and at the same times as would have been the case if
such deposit and Covenant Defeasance had not occurred;
(d) such Legal Defeasance or Covenant Defeasance will
not result in a breach or violation of, or constitute a
default under, any agreement or instrument to which the
Company is a party or by which it is bound; and
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(e) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent contemplated by this
provision have been complied with.
SECTION 405. Application of Trust Money.
Subject to the provisions of the last paragraph of
Section 1003, all money and U.S. Government Obligations and
obligations of certain Persons deposited with the Trustee
pursuant to Sections 401 and 404 shall be held in trust and such
money and all money from such U.S. Government Obligations and
obligations of certain Persons shall be 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 interest for whose payment such money, U.S.
Government Obligations and obligations of certain Persons have
been deposited with the Trustee.
SECTION 406. Indemnity for U.S. Government Obligations.
The Company shall pay and indemnify the Trustee
against any tax, fee or other charge imposed on or assessed
against either the U.S. Government Obligations or the obligations
of certain Persons deposited pursuant to Section 404 or the
principal or interest received in respect of such obligations,
other than any such tax, fee or other charge that by law is for
the account of the Holders.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default" wherever used herein, means any one
of the following events that has occurred and is continuing
(whatever the reason for such Event of Default and whether it
shall be occasioned by the provisions of Article Eleven or be
voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any
order, rule or regulation of any administrative or governmental
body):
(1) failure to pay any interest on the Securities when
due and payable, and continuance of such default for a
period of 30 days (subject to the deferral of any due date
in the case of an Extension Period); or
(2) failure to pay any principal on the Securities
when due , whether at Stated Maturity, upon redemption, by
declaration of acceleration or otherwise, provided,
however, that an extension of the Stated Maturity of the
Securities in accordance with the terms of this Indenture
shall not constitute an Event of Default; or
34
(3) failure to observe or perform any other covenant
herein that continues for 90 days after written notice to
the Company from the Trustee or to the Company and the
Trustee from the Holders of at least 25% in aggregate
outstanding principal amount of Outstanding Securities; or
(4) 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 or proceeding under any
applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or
order adjudging the Company a 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 custodian, receiver,
liquidator, assignee, trustee, sequestrator or other
similar official of the Company or of substantially all of
the property of the Company, or ordering the winding up or
liquidation of its affairs, and the continuance of any such
decree or order for relief or any such other decree or
order unstayed and in effect for a period of 90 consecutive
days; or
(5) (A) the commencement by the Company of a voluntary
case or proceeding under any applicable federal or state
bankruptcy, insolvency, reorganization or other similar law
or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, (B) the consent by the Company to
the entry of a decree or order for relief in respect of
itself in an involuntary case or proceeding under any
applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or to the commencement
of any bankruptcy or insolvency case or proceeding against
the Company, (C) the filing by the Company of a petition or
answer or consent seeking reorganization or relief under
any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law, (D) the consent by the
Company to the filing of such petition or to the
appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or
other similar official of the Company or of all or
substantially all of the property of the Company, (E) the
making by the Company of an assignment for the benefit of
creditors, or (F) the admission by the Company in writing
of its inability to pay its debts generally as they become
due and its willingness to be adjudicated as bankrupt, or
the taking of corporate action by the Company in
furtherance of any such action.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default occurs and is continuing, then
and in every such case the Trustee or the Holders of not less
than 25% in aggregate principal amount of the Outstanding
Securities shall have the right to declare the principal of and
the interest on all the Securities and any other amounts payable
hereunder to be due and payable immediately, provided, however,
that if upon an Event of Default the Trustee or the Holders of at
least 25% in aggregate principal amount of the outstanding
Securities fail to declare the payment of all amounts on the
Securities to be immediately due and payable, the holders of at
least 25% in aggregate liquidation amount of Capital Securities
then outstanding shall have such right, by a notice in writing to
the Company (and to the Trustee if given by Holders or the
holders of Capital Securities) and upon any such declaration such
principal and all
35
accrued interest shall become immediately due and payable.
Payment of principal and interest on such Securities shall remain
subordinated to the extent provided in Article 13 notwithstanding
that such amount shall become immediately due and payable as
herein provided.
At any time after such a declaration of acceleration
has been made and before a judgment or decree for payment of the
money due has been obtained by the Trustee as hereinafter
provided in this Article, the Holders of a majority in aggregate
principal amount of the Outstanding Securities, by written notice
to the Company and the Trustee, may rescind and annul such
declaration and its consequences if (1) the Company has paid or
deposited with the Trustee a sum sufficient to pay (A) all
overdue interest on all Securities, (B) the principal of any
Securities which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate
borne by the Securities, (C) to the extent that payment of such
interest is lawful, interest upon overdue interest at the rate
borne by the 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, and any other amounts due the Trustee under Section 607;
and (2) all Events of Default, other than the non-payment of the
principal of Securities which have become due solely by such
declaration of acceleration, have been cured or waived as
provided in Section 513. Should the Holders of such Securities
fail to annul such declaration and waive such default, the
holders of a majority in aggregate liquidation amount of the
Capital Securities shall have such right. No such rescission
shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee.
The Company covenants that if:
(1) default is made in the payment of any interest on
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
any Security at the Maturity 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 interest,
and, to the extent that payment thereof shall be legally
enforceable, interest on any overdue principal and on any overdue
interest, at the rate borne by the 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, and other amounts due the
Trustee under Section 607.
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 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.
36
SECTION 504. Trustee May File Proofs of Claim.
In case of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition
or other similar judicial proceeding relative to the Company (or
any other obligor upon the Securities), its property or its
creditors, the Trustee shall be entitled and empowered, by
intervention in such proceeding or otherwise, to take any and all
actions authorized under the Trust Indenture Act in order to have
claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to
collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same in
accordance with Section 506; and any custodian, receiver,
assignee, trustee, liquidator, sequestrator or other similar
official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the
event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel, and any other amounts due the Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf
of any Holder any plan of reorganization, arrangement, adjustment
or composition affecting the Securities or the rights of any
Holder thereof or to authorize the Trustee to vote in respect of
the claim of any Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities.
All rights of action and claims under this Indenture
or 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 any express trust, and any recovery of
judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee
under Section 607, its agents and counsel, be for the ratable
benefit of the Holders in respect of which such judgment has been
recovered.
SECTION 506. Application of Money Collected.
Subject to Article Eleven, any money collected by the
Trustee pursuant to this Article shall be applied in the
following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal
or 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 607; and
SECOND: To the payment of the amounts then due and unpaid
for principal of and interest on the Securities in respect
of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any
kind, according to the amounts due and payable on such
Securities for principal and interest, respectively.
THIRD: The balance, if any, to the Person or Persons
entitled thereto.
37
SECTION 507. Limitation on Suits.
No Holder of any Security 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;
(2) the Holders of not less than 25% in principal
amount of the Outstanding Securities shall have made
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
reasonable indemnity 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;
it being understood and intended that no one or more Holders
shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb
or prejudice the rights of any other Holders, or to obtain or to
seek to obtain priority or preference over any other Holders or
to enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all the
Holders.
Nothing contained in this Section 507 or any other
provision of this Indenture shall affect the rights of a holder
of Capital Securities set forth in Section 508 of this Indenture
and Section 7.5(c) of the Declaration.
SECTION 508. Unconditional Right of Holders to Receive Principal
and Interest;Capital Security Holders' Rights.
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 (subject to Section 307) interest on such Security on the
Stated Maturity 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 such rights shall not be
impaired without the consent of such Holder.
If an Event of Default has occurred and is continuing
and such event is attributable to the failure of the Company to
pay interest or principal on the Securities on the date such
interest or principal is otherwise payable, a holder of Capital
Securities may directly
38
institute a proceeding against the Company for enforcement of
payment to such holder directly of the principal of and interest
on the Securities having a principal amount equal to the
aggregate liquidation amount of the Capital Securities held by
such holder on or after the respective due date specified in the
Securities.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee, any holder of Capital Securities or
any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined
adversely to the Trustee, to such holder of Capital Securities or
to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee, the
holders of Capital Securities and the Holders shall be restored
severally and respectively to their former positions hereunder
and thereafter all rights and remedies of the Trustee, the
holders of Capital Securities and the Holders shall continue as
though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the
replacement or payment of mutilated, destroyed, lost or stolen
Securities in the last paragraph of Section 306, no right or
remedy herein conferred upon or reserved to the Trustee, to the
holders of Capital Securities or to the Holders is intended to be
exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee, of any holder of
Capital Securities 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 an acquiescence therein. Every right and
remedy given by this Article or by law to the Trustee, to the
holders of Capital Securities or to the Holders may be exercised
from time to time, and as often as may be deemed expedient, by
the Trustee, by the holders of Capital Securities or by the
Holders, as the case may be.
SECTION 512. Control by Holders.
The Holders of a majority in principal amount of the
Outstanding Securities shall have the right to direct the time,
method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power
conferred on the Trustee, provided that:
(1) such direction shall not be in conflict with any
rule of law or with this Indenture (including without
limitation the second paragraph of Section 508 hereof); and
39
(2) the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such
direction.
SECTION 513. Waiver of Past Defaults.
Subject to Sections 902 and 1008 hereof, the Holders
of not less than a majority in principal amount of the
Outstanding Securities may, on behalf of the Holders of all the
Securities, waive any past default hereunder and its
consequences, except a default
(1) in the payment of the principal of or interest on
any Security (unless such default has been cured and a sum
sufficient to pay all matured installments of interest and
principal due otherwise than by acceleration has been
deposited with the Trustee); or
(2) in respect of a covenant or provision hereof which
under Article Nine cannot be modified or amended without
the consent of the Holder of each Outstanding Security
affected;
provided, however, that such waiver or modification to such
waiver shall not be effective until the holders of a majority in
liquidation amount of Capital Securities shall have consented to
such waiver or modification to such waiver; and provided further,
that if the consent of the Holder of each of the Outstanding
Securities is required, such waiver shall not be effective until
each holder of the Capital Securities shall have consented to
such waiver. Should the Holders of such Securities fail to waive
such default, the holders of a majority in liquidation amount of
the Capital Securities shall have such right.
Upon any such waiver, such default shall cease to
exist, effective as of the date specified in such waiver (and
effective retroactively to the date of default, if so specified)
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 default or impair
any right consequent thereon.
For the purpose of this Section, the term "default"
means any event which is, or after notice or lapse of time or
both would become, an Event of Default.
SECTION 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, a court may
require any party litigant in such suit to file an undertaking to
pay the costs of such suit, and may assess costs against any such
party litigant, in the manner and to the extent provided in the
Trust Indenture Act; provided, that neither this Section nor the
Trust Indenture Act shall be deemed to authorize any court to
require such an undertaking or to make such an assessment in any
suit instituted by the Company or the Trustee or in any suit for
the enforcement of the right to receive the principal of and
interest on any Security.
40
SECTION 515. 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 SIX
TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall
be as provided by the Trust Indenture Act. Notwithstanding the
foregoing, 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 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. 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 602. Notice of Defaults.
The Trustee shall give the Holders and the Property
Trustee notice of any default hereunder as and to the extent
provided by the Trust Indenture Act; provided, however, that
except in the case of a default in the payment of the principal
of and interest on any Security, the Trustee shall be protected
in withholding such notice if and so long as the board of
directors, the executive committee or a trust committee of
directors and/or Responsible Officers of the Trustee in good
faith determine that the withholding of such notice is in the
interests of the Holders; and provided, further, that in the case
of any default of the character specified in Section 501(3), no
such notice to Holders shall be given until at least 30 days
after the occurrence thereof. For the purpose of this Section,
(i) the term "default" means any event which is, or after notice
or lapse of time or both would become, an Event of Default and
(ii) the Trustee shall not be deemed to have knowledge of a
default unless a Responsible Officer of the Trustee has actual
knowledge of such default or has received written notice of such
default in the manner contemplated by Section 105.
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SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may conclusively rely and shall be
fully protected in acting or refraining from acting upon
any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to
be genuine and to have been signed or presented by the
proper party or parties;
(b) any request 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, conclusively rely upon an Officers'
Certificate;
(d) the Trustee may consult with counsel of its choice
and the advice of such counsel or any Opinion of Counsel
shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Indenture at the request or direction of any of the Holders
pursuant to this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities 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, note, other evidence of indebtedness 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
and shall incur no liability or additional liability of any
kind by reason of such inquiry or investigation;
(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;
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(h) the rights, privileges, protections, immunities
and benefits given to the Trustee, including, without
limitation, its right to be indemnified, are extended to,
and shall be enforceable by, the Trustee in each of its
capacities hereunder.
SECTION 604. Not Responsible for Recitals or Issuance of
Securities.
The recitals contained herein and in the Securities,
except the Trustee's certificates 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, and the Trustee shall not be
accountable for the use or application by the Company of
Securities or the proceeds thereof.
SECTION 605. Trustee and Other Agents May Hold Securities.
The Trustee, any Paying Agent, any Security Registrar
or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and,
subject to Sections 608 and 613, may otherwise deal with the
Company with the same rights it would have if it were not
Trustee, Paying Agent, Security Registrar or such other agent.
SECTION 606. 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. The Trustee shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed in
writing with the Company.
SECTION 607. Compensation; Reimbursement; Indemnity.
The Company, in its capacity as the borrower, agrees:
(1) to pay to the Trustee from time to time such
reasonable compensation as the Company and the Trustee
shall from time to time agree in writing 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 reasonable
expenses, disbursements and advances incurred or made by
the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be
attributable to its negligence, bad faith or willful
misconduct; and
(3) to indemnify each of the Trustee and any
predecessor Trustee for, and to hold it harmless against,
any and all loss, damage, claim, liability or expense
incurred without negligence, bad faith or willful
misconduct on its part, arising out of or in connection
with the acceptance or administration of this trust or the
trusts hereunder, including the
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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.
The obligations of the Company under this Section to
compensate the Trustee, to pay or reimburse the Trustee for
expenses, disbursements and advances and to indemnify and hold
harmless the Trustee shall constitute additional indebtedness
hereunder and shall survive the satisfaction and discharge of
this Indenture. As security for the performance of such
obligations of the Company, the Trustee shall have a claim prior
to the Securities upon all property and money held or collected
by the Trustee as such, except funds held in trust for the
payment of principal of or interest on particular Securities.
Subject to any other rights available to the Trustee
under applicable bankruptcy law, when the Trustee incurs expenses
after the occurrence of any Event of Default specified in Section
501 (4) or (5) hereof, the expenses are intended to constitute
expenses of administration under bankruptcy law.
The provisions of this Section 607 shall survive the
termination of this Indenture.
SECTION 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting
interest within the meaning of the Trust Indenture Act, the
Trustee shall either eliminate such interest or resign, to the
extent and in the manner provided by, and subject to the
provisions of, the Trust Indenture Act and this Indenture.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which
shall be a Person that is eligible pursuant to the Trust
Indenture Act to act as such and has a combined capital and
surplus of at least $50,000,000 and has its Corporate Trust
Office in New York, New York. If such Person publishes reports of
condition at least annually, pursuant to law or to the
requirements of a supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of
such Person shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published. 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 610. 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 611.
(b) The Trustee may resign at any time by giving
written notice thereof to the Company. If an instrument of
acceptance by a successor Trustee shall not have been delivered
to
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the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor
Trustee.
(c) The Trustee may be removed at any time by Act of
the Holders of a majority in principal amount of the Outstanding
Securities, delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608
after written request therefor by the Company or by any
Holder 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 609 and shall fail to resign after written request
therefor by the Company or by any such Holder, 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 pursuant to a Board
Resolution may remove the Trustee, or (ii) subject to
Section 514, any Holder who has been a bona fide Holder of
a Security for at least six months may, on behalf of
himself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the
office of Trustee for any cause, the Company, pursuant to a
Board Resolution, shall promptly appoint a successor
Trustee. If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy,
a successor Trustee shall be appointed by Act of the
Holders of a majority in principal amount of the
Outstanding Securities 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 and supersede the successor Trustee
appointed by the Company. If no successor Trustee shall
have been so appointed by the Company or the Holders and
accepted appointment in the manner hereinafter provided,
any Holder who has been a bona fide Holder of a Security
for at 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.
(f) The Company shall give notice of each resignation
and each removal of the Trustee and each appointment of a
successor Trustee to all Holders in the manner provided in
Section 106. Each notice shall include the name of the
successor Trustee and the address of its Corporate Trust
Office.
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SECTION 611. Acceptance of Appointment by Successor.
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;
provided that, on request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its
charges, 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.
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 612. Merger, Conversion, Consolidation or Succession
to Business.
Any Person into which the Trustee may be merged or
converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which
the Trustee shall be a party, or any Person succeeding to all or
substantially all the corporate trust business of the Trustee,
shall be the successor of the Trustee hereunder, provided such
Person 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
or consolidation 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.
SECTION 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor
of the Company (or any other obligor upon the Securities), the
Trustee shall be subject to the provisions of the Trust Indenture
Act regarding the collection of claims against the Company (or
any such other obligor).
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
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SECTION 701. Company to Furnish Trustee Names and Addresses
of Holders.
The Company will furnish or cause to be furnished to
the Trustee (a) semiannually, not later than _________ __ and
____ __ in each year, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders to
the extent the Company has knowledge thereof as of a date not
more than 15 days prior to the delivery thereof, and (b) at such
other times as the Trustee may request in writing, within 30 days
after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior
to the time such list is furnished, excluding from any such list
names and addresses received by the Trustee in its capacity as
Security Registrar, provided that the Company shall not be
obligated to provide such list at any time such list does not
differ from the most recent list furnished or caused to be
furnished to the Trustee by the Company.
SECTION 702. Preservation of Information; Communications
to Holders.
(a) The Trustee shall preserve, in as current a form
as is reasonably practicable, the names and addresses of Holders
contained in the most recent list furnished to the Trustee as
provided in Section 701, and the names and addresses of Holders
received by the Trustee in its capacity as Security Registrar.
The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other
Holders with respect to their rights under this Indenture or
under the Securities, and the corresponding rights and duties of
the Trustee, shall be provided by the Trust Indenture Act.
(c) Every Holder of Securities, by receiving and
holding the same, agrees with the Company and the Trustee that
neither the Company nor the Trustee nor any agent of either of
them shall be held accountable by reason of any disclosure of
information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
SECTION 703. Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports
concerning the Trustee and its actions under this Indenture as
may be required pursuant to the Trust Indenture Act at the times
and in the manner provided pursuant thereto.
(b) A copy of each such report shall, at the time of
such transmission to Holders, be filed by the Trustee with any
stock exchange upon which the Securities are listed, with the
Commission and with the Company. The Company will notify the
Trustee when the Securities are listed on any stock exchange and
any delisting thereof.
SECTION 704. Reports by Company.
The Company shall file with the Trustee and the
Commission, and transmit to Holders, such information, documents
and other reports, and such summaries thereof, as may be required
pursuant to the Trust Indenture Act at the times and in the
manner provided pursuant to
47
such Act; provided that any such information, documents or
reports required to be filed with the Commission pursuant to
Sections 13(a) or 15(d) of the Exchange Act shall be filed with
the Trustee within 15 days after the same is so required to be
filed with the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain
Terms.
The Company shall not consolidate with or merge into
any other Person or convey, transfer or lease its properties and
assets substantially as an entirety to any Person, unless:
(1) the Person formed by such consolidation or into
which the Company is merged or the Person that acquires by
conveyance or transfer, or which leases, the properties and
assets of the Company substantially as an entirety shall be
a corporation, partnership or trust, shall be organized and
existing under the laws of the United States of America or
any State or the District of Columbia, and shall expressly
assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the
Trustee, the due and punctual payment of the principal of
and interest on all the Securities and the performance of
every covenant of this Indenture on the part of the Company
to be performed or observed;
(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; and
(3) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel each
stating that such consolidation, merger, conveyance,
transfer or lease and any such supplemental indenture
complies with this Article and that all conditions
precedent herein provided for relating to such transaction
have been complied with; and the Trustee, subject to
Section 601, may rely upon such Officers' Certificate and
Opinion of Counsel as conclusive evidence that such
transaction complies with this Section 801.
SECTION 802. Successor Person Substituted.
Upon any consolidation or merger by the Company with
or into any other Person, or any conveyance, transfer or lease by
the Company of its properties and assets substantially as an
entirety to any Person in accordance with Section 801, the
successor Person 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 in the event of any such
conveyance, transfer or lease the
48
Company shall be discharged from all obligations and covenants
under this Indenture and the Securities and may be dissolved and
liquidated.
Such successor Person 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 pursuant to such
provisions and any Securities which such successor Person
thereafter shall cause to be signed and delivered to the Trustee
on its behalf for the purpose pursuant to such provisions. 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, conveyance or lease, such changes in
phraseology and form may be made in the Securities thereafter to
be issued as may be appropriate.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company 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:
(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, or to surrender any right or power
herein conferred upon the Company; or
(3) to cure any ambiguity, to correct or supplement
any provision herein which may be 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 be inconsistent with the
provisions of this Indenture, provided that such action
pursuant to this clause (3) shall not materially adversely
affect the interests of the Holders or, so long as any of
the Capital Securities shall remain outstanding, the
holders of the Capital Securities; or
(4) to comply with the requirements of the Commission
in order to effect or maintain the qualification of this
Indenture under the Trust Indenture Act.
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SECTION 902. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a
majority in aggregate principal amount of the Outstanding
Securities, by Act of said Holders delivered to the Company and
the Trustee, the Company 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 under this Indenture; provided,
however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Security affected
thereby,
(1) except to the extent permitted and subject to the
conditions set forth in Section 301 with respect to the
extension of the Stated Maturity of the Securities, 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 change the place of payment where, or the coin or
currency in which, any Security or interest thereon is
payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption, on or
after the Redemption Date), or modify the provisions of
this Indenture with respect to the subordination of the
Securities in a manner adverse to the Holders,
(2) reduce the percentage in principal amount of the
Outstanding Securities, 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 513 or Section 1008, except to increase any such
percentage or to provide that certain other provisions of
this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected
thereby;
provided, further, that, so long as any Capital Securities remain
outstanding, no such modification may be made that adversely
affects the holders of the Capital Securities in any material
respect, and no termination of this Indenture shall occur, and no
waiver of any Event of Default or compliance with any covenant
under this Indenture shall be effective, without the prior
consent of the holders of at least a majority of the aggregate
liquidation amount of the outstanding Capital Securities and no
amendment that adversely affects the rights of the Capital
Securities holders under Section 508 shall be made without the
prior consent of all of the Capital Securities holders, in each
case unless and until the principal of the Securities and all
accrued and unpaid interest thereon have been paid in full.
It shall not be necessary for any Act of Holders under
this Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such Act
shall approve the substance thereof.
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SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trust
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 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such
supplemental indenture is authorized and permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter
into such supplemental indenture which affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
SECTION 904. 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 905. Conformity With Trust Indenture Act.
Every supplemental indenture executed pursuant to this
Article shall conform to the requirements of the Trust Indenture
Act.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities 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,
new Securities so modified as to conform, in the opinion of the
Trustee and the Company, 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.
ARTICLE TEN
COVENANTS; REPRESENTATIONS AND WARRANTIES
SECTION 1001. Payment of Principal Interest.
The Company will duly and punctually pay the principal
of and interest on the Securities in accordance with the terms of
the Securities and this Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in The City of New York an
office or agency where Securities may be presented or surrendered
for registration of transfer or exchange and where
51
notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served. The Company will
give prompt written notice to the Trustee of the location, and
any change in 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,
and the Company hereby appoints the Trustee as its agent to
receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one
or more other offices or agencies (in the United States) where
the Securities 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 The City of New
York 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.
SECTION 1003. Money for Security Payments to be Held in Trust.
If the Company shall at any time act as its own Paying
Agent, it will, on or before each due date of the principal of or
interest on any of the Securities, segregate and hold in trust
for the benefit of the Persons entitled thereto a sum sufficient
to pay the principal and 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 of its action or
failure so to act.
Whenever the Company shall have one or more Paying
Agents, it will, on or prior to each due date of the principal of
or interest on any Securities, deposit with a Paying Agent a sum
sufficient to pay such amount, such sum to be held as provided by
the Trust Indenture Act, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its
action or failure so to act; provided, however, that any such
deposit on a due date shall be initiated prior to 10:00 a.m. (New
York time) in same-day funds.
The Company will cause each Paying Agent other than
the Trustee to execute and deliver to the Trustee an instrument
in which such Paying Agent shall agree with the Trustee, subject
to the provisions of this Section, that such Paying Agent will
(i) hold all sums held by it for the payment of the principal or
interest on the Securities 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; (ii) comply
with the provisions of the Trust Indenture Act applicable to it
as a Paying Agent and (iii) during the continuance of any default
by the Company (or any other obligor upon the Securities) in the
making of any payment in respect of the Securities, upon the
written request of the Trustee, forthwith pay to the Trustee all
sums held in trust by such Paying Agent as such.
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 trusts as those upon which such sums were held by
52
the Company or such Paying Agent; and, upon such payment by any
Paying Agent to the Trustee, such Paying Agent shall be released
from all further liability with respect to such money.
Any moneys deposited with the Trustee or any Paying
Agent, or then held by the Company in trust, for the payment of
the principal of or interest on any Security and remaining
unclaimed for two years after such principal or interest has
become due and payable shall be repaid 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, and all
liability of the Company as trustee thereof, shall thereupon
cease.
SECTION 1004. Statements by Officers as to Default.
The Company will deliver to the Trustee, within 120
days after the end of each fiscal year of the Company ending
after the date hereof, an Officers' Certificate covering the
preceding calendar year, stating whether or not to the best
knowledge of the signers thereof the Company is in default in the
performance and observance of any of the material terms,
provisions and conditions of this Indenture (without regard to
any period of grace or requirement of notice provided hereunder)
and, if the Company shall be in default, specifying all such
defaults and the nature and status thereof of which they may have
knowledge.
SECTION 1005. Existence.
Subject to Article Eight, the Company will do or cause
to be done all things necessary to preserve and keep in full
force and effect its existence and rights (charter and
statutory); provided, however, that the Company shall not be
required to preserve any such right
if the Board of Directors shall 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 Holders and, while any Capital
Securities are outstanding, the holders of the Capital
Securities.
SECTION 1006. Waiver of Certain Covenants.
The Company may omit in any particular instance to
comply with any term, provision or condition set forth in
Sections 1005 to 1007, inclusive, Section 1010 and any covenant
provided pursuant to Section 901(2) for the benefit of the
Holders if before the time for such compliance the Holders of at
least a majority in principal amount of the Outstanding
Securities and at least a majority in aggregate liquidation
preference of Capital Securities shall either waive such
compliance in such instance or generally waive compliance with
such term, provision or condition, but no waiver shall extend to
or affect such term, provision 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 term, provision or condition shall
remain in full force and effect.
SECTION 1007. Payment of the Trust's Costs and Expenses.
53
Because the Trust is being formed solely to facilitate
an investment in the Securities, the Company, in its capacity as
the borrower, hereby assumes and covenants to pay all debts and
obligations (other than with respect to the Capital Securities
and the Common Securities) and all costs and expenses of the
Trust (including, but not limited to, all costs and expenses
relating to the organization of the Trust, the fees and expenses
of the trustees of the Trust and all costs and expenses relating
to the operation of the Trust) and to assume and pay any and all
taxes, duties, assessments or governmental charges of whatever
nature (other than withholding taxes) imposed on the Trust by the
United States, or any other taxing authority, so that the net
amounts received and retained by the Trust and the Property
Trustee after paying such expenses will be equal to the amounts
the Trust and the Property Trustee would have received had no
such costs or expenses been incurred by or imposed on the Trust.
The foregoing obligations of the Company are for the benefit of,
and shall be enforceable by, any Person to whom any such debts,
obligations, costs, expenses and taxes are owed (each, a
"Creditor") whether or not such Creditor has received notice
thereof. Any such Creditor may enforce such obligations of the
Company directly against the Company, and the Company irrevocably
waives any right or remedy to require that any such Creditor take
any action against the Trust or any other Person before
proceeding against the Company. The Company shall execute such
additional agreements as may be necessary or desirable to give
full effect to the foregoing.
SECTION 1008. Limitation on Restricted Payments.
The Company will not, and will not permit any
Subsidiary of the Company to, (i) declare or pay any dividends or
distributions on, or redeem, purchase, acquire, or make a
liquidation payment with respect to, any of the Company's capital
stock, (ii) make any payment of principal or interest, on or
repay or repurchase or redeem any debt securities of the Company
that rank pari passu with or junior in interest to the Securities
or (iii) make any guarantee payments with respect to any
guarantee by the Company of the debt securities of any Subsidiary
of the Company if such guarantee ranks pari passu with or junior
in interest to the Securities (other than (a) dividends or
distributions in the form of stock, warrants, options or other
rights where the dividend stock or the stock issuable upon
exercise of such warrants, options or other rights is the same
stock as that on which the dividend is being paid or ranks pari
passu with or junior to such stock, (b) payments under the
Guarantee, (c) any declaration of a dividend in connection with
the implementation of a shareholders' rights plan, or the
issuance of rights, stock or other property under any such plan
in the future, or the redemption or repurchase of any such rights
pursuant thereto, (d) as a result of reclassification of the
Company's capital stock into one or more other classes or series
of the Company's capital stock or the exchange or conversion of
one class or series of the Company's capital stock (or any
capital stock of a subsidiary of the Company) for another class
or series of the Company's capital stock, or of any class or
series of the Company's indebtedness for any class or series of
the Company's capital stock, (e) the purchase of fractional
interests in the shares of the Company's capital stock pursuant
to the conversion or exchange provisions of such capital stock or
the security being converted or exchanged and (f) repurchases,
redemptions or other acquisitions of common stock related to the
issuance of common stock or rights under any of the Company's
employment contracts, benefit plans or other similar arrangement
with or for the benefit of one or more employees, officers,
directors or consultants, in connection with a dividend
reinvestment or stockholder stock purchase plan or in connection
with the issuance of capital stock of the Company (or securities
54
convertible into or exercisable for such capital stock) as
consideration in an acquisition transaction entered into prior to
the applicable Extension Period) if at such time (x) there shall
have occurred any event of which the Company has actual knowledge
that (I) with the giving of notice or the lapse of time, or both,
would constitute an Event of Default and (II) in respect of which
the Company shall not have taken reasonable steps to cure, (y)
the Company shall be in default with respect to its payment of
any obligations under the Guarantee or (z) the Company shall have
given notice of its election to begin an Extension Period as
provided in this Indenture and shall not have rescinded such
notice, or such Extension Period, or any extension thereof, shall
be continuing.
ARTICLE ELEVEN
SUBORDINATION OF SECURITIES
SECTION Securities Subordinate to Senior Indebtedness.
The Company covenants and agrees, and each Holder of a
Security, by his or her acceptance thereof, likewise covenants
and agrees, that, to the extent and in the manner hereinafter set
forth in this Article, the payment of the principal of and
interest on each and all of the Securities are hereby expressly
made subordinate and subject in right of payment to the prior
payment in full in cash of all Senior Indebtedness, whether
outstanding at the date of this Indenture or thereafter incurred.
This Article Eleven shall constitute a continuing
offer to all Persons who become holders of, or continue to hold,
Senior Indebtedness, and such provisions are made for the benefit
of the holders of Senior Indebtedness and such holders are made
beneficiaries hereunder and any one or more of them may enforce
such provisions. Holders of Senior Indebtedness need not prove
reliance on the subordination provisions hereof.
SECTION 1102. Default on Senior Indebtedness.
In the event and during the continuation of any
default in the payment of principal or interest or any other
payment due on any Senior Indebtedness, or in the event that any
event of default with respect to any Senior Indebtedness shall
have occurred and be continuing and shall have resulted in such
Senior Indebtedness becoming or being declared due and payable
prior to the date on which it would otherwise have become due and
payable (unless and until such event of default shall have been
cured or waived or shall have ceased to exist and such
acceleration shall have been rescinded or annulled) or in the
event any judicial proceeding shall be pending with respect to
any such default in payment or such event of default, then no
payment shall be made by the Company with respect to the
principal (including redemption payments) of or interest on, the
Securities.
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In the event that, notwithstanding the foregoing, any
payment on the Securities shall be received by the Trustee or any
Holder when such payment is prohibited by the preceding paragraph
of this Section 1102, such payment shall be held in trust for the
benefit of, and shall be paid over or delivered to, the holders
of Senior Indebtedness or their respective representatives, or to
the trustee or trustees under any indenture pursuant to which any
of such Senior Indebtedness may have been issued, as their
respective interests may appear, but only to the extent that the
holders of the Senior Indebtedness (or their representative or
representatives or a trustee) notify the Trustee within 90 days
of such payment of the amounts then due and owing on the Senior
Indebtedness and only the amounts specified in such notice to the
Trustee shall be paid to the holders of Senior Indebtedness.
SECTION 1103. Prior Payment of Senior Indebtedness Upon
Acceleration of Securities.
In the event of any acceleration of the Stated
Maturity of any Securities, then and in such event the holders of
the Senior Indebtedness outstanding at the time of such
acceleration will first be entitled to receive payment in full of
all amounts due on or in respect of such Senior Indebtedness
(including any amounts due upon acceleration), or provision shall
be made for such payment in cash or cash equivalents or otherwise
in a manner satisfactory to the holders of Senior Indebtedness,
before the Holders are entitled to receive or retain any payment
or distribution of any kind or character, whether in cash,
properties or securities, by the Company on account of the
principal of or interest on the Securities or on account of the
purchase or other acquisition of Securities by the Company or any
Subsidiary; provided, however, that holders of Senior
Indebtedness shall not be entitled to receive payment of any such
amounts to the extent that such holders would be required by the
subordination provisions of such Senior Indebtedness to pay such
amounts over to the obligees on trade accounts payable or other
liabilities arising in the ordinary course of the Company's
business.
In the event that, notwithstanding the foregoing, any
payment shall be received by the Trustee or any Holder when such
payment is prohibited by the preceding paragraph of this Section
1103, such payment shall be held in trust for the benefit of, and
shall be paid over or delivered to, the holders of Senior
Indebtedness or their respective representatives, or to the
trustee or trustees under any indenture pursuant to which any of
such Senior Indebtedness may have been issued, as their
respective interests may appear, but only to the extent that the
holders of the Senior Indebtedness (or their representative or
representatives or a trustee) notify the Trustee within 90 days
of such payment of the amounts then due and owing on the Senior
Indebtedness and only the amounts specified in such notice to the
Trustee shall be paid to the holders of Senior Indebtedness.
SECTION 1104. Liquidation; Dissolution; Bankruptcy.
Upon any payment by the Company, or distribution of assets of
the Company of any kind or character, whether in cash, property
or securities, to creditors upon any dissolution or winding-up or
liquidation or reorganization of the Company, whether voluntary
or involuntary or in bankruptcy, insolvency, receivership or
other proceedings, all principal of and interest due or to become
due upon all Senior Indebtedness (including interest after the
commencement of any bankruptcy, insolvency, receivership or other
proceedings at the rate specified in the applicable
56
Senior Indebtedness, whether or not such interest is an allowable
claim in any such proceeding) shall first be paid in full, or
payment thereof provided for in money in accordance with its
terms, before any payment is made on account of the principal or
interest on the Securities; and upon any such dissolution or
winding-up or liquidation or reorganization any payment by the
Company, or distribution of substantially all of the assets of
the Company of any kind or character, whether in cash, property
or securities, to which the Holders or the Trustee would be
entitled, except for the provisions of this Article Eleven, shall
be paid by the Company or by any receiver, trustee in bankruptcy,
liquidating trustee, agent or other Person making such payment or
distribution, or by the Holders or by the Trustee under this
Indenture if received by them or it, directly to the holders of
Senior Indebtedness (pro rata to such holders on the basis of the
respective amounts of Senior Indebtedness held by such holders,
as calculated by the Company) or their representative or
representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing any Senior
Indebtedness may have been issued, as their respective interests
may appear, to the extent necessary to pay all Senior
Indebtedness in full (including interest after the commencement
of any bankruptcy, insolvency, receivership or other proceedings
at the rate specified in the applicable Senior Indebtedness,
whether or not such interest is an allowable claim in any such
proceeding) or to provide for such payment in money in accordance
with its terms, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Indebtedness, before
any payment or distribution is made to the Holders or to the
Trustee; provided, however, that such holders of Senior
Indebtedness shall not be entitled to receive payment of any such
amounts to the extent that such holders would be required by the
subordination provisions of such Senior Indebtedness to pay such
amounts over to the obligees on trade accounts payable or other
liabilities arising in the ordinary course of the Company's
business.
In the event that, notwithstanding the foregoing, any
payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, prohibited by
the foregoing, shall be received by the Trustee or the Holders
before all Senior Indebtedness is paid in full (including
interest after commencement of any bankruptcy, insolvency,
receivership or other proceedings at the rate specified in the
applicable Senior Indebtedness, whether or not such interest is
an allowable claim in any such proceeding), or provision is made
for such payment in money in accordance with its terms, such
payment or distribution shall be held in trust for the benefit of
and shall be paid over or delivered to the holders of Senior
Indebtedness or their representative or representatives, or to
the trustee or trustees under any indenture pursuant to which any
instruments evidencing any Senior Indebtedness may have been
issued, as their respective interests may appear, as calculated
by the Company, for application to the payment of all Senior
Indebtedness remaining unpaid to the extent necessary to pay all
Senior Indebtedness in full in money in accordance with its
terms, after giving effect to any concurrent payment or
distribution to or for the holders of such Senior Indebtedness.
Any holder of Senior Indebtedness may file any proof
of claim or similar instrument on behalf of the Trustee and the
Holders if such instrument has not been filed by the date which
is 30 days prior to the date specified for filing thereof.
57
For purposes of this Article Eleven, the words "cash,
property or securities" shall not be deemed to include shares of
stock of the Company as reorganized or readjusted, or securities
of the Company or any other corporation provided for by a plan of
reorganization or readjustment, the payment of which is
subordinated at least to the extent provided in this Article
Eleven with respect to the Securities to the payment of all
Senior Indebtedness that may at the time be outstanding,
provided, however, that (i) the Senior Indebtedness is assumed by
the new corporation, if any, resulting from any such
reorganization or readjustment, and (ii) the rights of the
holders of the Senior Indebtedness are not, without the consent
of such holders, altered by such reorganization or readjustment.
The consolidation of the Company with, or merger of the Company
into, another corporation or the liquidation or dissolution of
the Company following the conveyance or transfer of its property
as an entirety, or substantially as an entirety, to another
corporation upon the terms and conditions provided for in Article
Eight hereof shall not be deemed a dissolution, winding-up,
liquidation or reorganization for the purposes of this Section
1104 if such other corporation shall, as a part of such
consolidation, merger, conveyance or transfer, comply with the
conditions stated in Article Eight hereof. Nothing in Section
1103 or in this Section 1104 shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 607.
SECTION 1105. Subrogation.
Subject to the payment of all Senior Indebtedness to
the extent provided in Sections 1103 and 1104 of this Indenture,
the rights of the Holders shall be subrogated to the rights of
the holders of Senior Indebtedness to receive payments or
distributions of cash, property or securities of the Company
applicable to the Senior Indebtedness until the principal of and
interest on the Securities shall be paid in full; and, for the
purposes of such subrogation, no payments or distributions to the
holders of the Senior Indebtedness of any cash, property or
securities to which the Holders or the Trustee would be entitled
except for the provisions of this Article Eleven and no payment
over pursuant to the provisions of this Article 11, to or for the
benefit of the holders of Senior Indebtedness by Holders or the
Trustee, shall, as between the Company, its creditors other than
holders of Senior Indebtedness, and the Holders of the
Securities, be deemed to be a payment by the Company to or on
account of the Senior Indebtedness. It is understood that the
provisions of this Article Eleven are and are intended solely for
the purposes of defining the relative rights of the Holders, on
the one hand, and the holders of the Senior Indebtedness on the
other hand.
Nothing contained in this Article Eleven or elsewhere
in this Indenture or in the Securities is intended to or shall
impair, as between the Company, its creditors other than the
holders of Senior Indebtedness, and the Holders, the obligation
of the Company, which is absolute and unconditional, to pay to
the Holders, the principal of and interest on the 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 and creditors of the Company other than the
holders of the Senior Indebtedness, nor shall anything herein or
therein prevent the Trustee or any Holder from exercising all
remedies otherwise permitted by applicable law upon default under
this Indenture, subject to the rights, if any, under this Article
Eleven of the holders of Senior Indebtedness in respect of cash,
property or securities of the Company received upon the exercise
of any such remedy.
58
Upon any payment or distribution of assets of the
Company referred to in this Article Eleven, the Trustee, subject
to the provisions of Section 601, and the Holders, shall be
entitled to rely upon any order or decree made by any court of
competent jurisdiction in which such dissolution, winding-up,
liquidation or reorganization proceedings are pending, or a
certificate of the receiver, trustee in bankruptcy, liquidation
trustee, agent or other Person making such payment or
distribution, delivered to the Trustee or to the Holders, for the
purposes of ascertaining the Persons entitled to participate in
such distribution, the holders of the 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 Eleven.
SECTION 1106. Trustee to Effect Subordination.
Each Holder of a Security by acceptance thereof
authorizes and directs the Trustee on such Holder's behalf to
take such action as may be necessary or appropriate to effect the
subordination provided in this Article Eleven and appoints the
Trustee such Holder's attorney-in-fact for any and all such
purposes.
SECTION 1107. Notice by the Company.
The Company shall give prompt written notice to a
Responsible Officer of the Trustee of any fact known to the
Company that would prohibit the making of any payment of monies
to or by the Trustee in respect of the Securities pursuant to the
provisions of this Article Eleven. Notwithstanding the provisions
of this Article Eleven or any other provision of this Indenture,
the Trustee shall not be charged with knowledge of the existence
of any facts that would prohibit the making of any payment of
monies to or by the Trustee in respect of the Securities pursuant
to the provisions of this Article Eleven, unless and until a
Responsible Officer of the Trustee shall have received written
notice thereof at the Corporate Trust Office of the Trustee from
the Company or a holder or holders of Senior Indebtedness or from
any trustee therefor; and before the receipt of any such written
notice, the Trustee, subject to the provisions of Section 601,
shall be entitled in all respects to assume that no such facts
exist; provided, however, that if the Trustee shall not have
received the notice provided for in this Section 1107 at least
two Business Days prior to the date upon which by the terms
hereof any money may become payable for any purpose (including,
without limitation, the payment of the principal of or interest
on any Security), then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority
to receive such money and to apply the same to the purposes for
which they were received, and shall not be affected by any notice
to the contrary that may be received by it within two Business
Days prior to such date.
The Trustee, subject to the provisions of Section 601,
shall be entitled to rely on the delivery to it of a written
notice by a Person representing himself to be a holder of Senior
Indebtedness (or a trustee on behalf of such holder) to establish
that such notice has been given by a holder of Senior
Indebtedness or a trustee on behalf of any such holder or
holders. 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 Article Eleven, the
Trustee may request such Person to furnish
59
evidence to the reasonable satisfaction of the Trustee as to the
amount of Senior Indebtedness held by such Person, the extent to
which such Person is entitled to participate in such payment or
distribution and any other facts pertinent to the rights of such
Person under this Article Eleven, and if such evidence is not
furnished the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to
receive such payment.
SECTION 1108. Rights of the Trustee; Holders of Senior
Indebtedness.
The Trustee in its individual capacity shall be
entitled to all the rights set forth in this Article Eleven in
respect of any Senior Indebtedness at any 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.
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 Eleven, 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, subject to the provisions of Section 601, 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 money or assets to which any holder
of Senior Indebtedness shall be entitled by virtue of this
Article Eleven or otherwise.
Nothing in this Article Eleven shall apply to claims
of or payments to the Trustee under or pursuant to Section 607.
SECTION 1109. Subordination May Not Be Impaired.
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
that any such holder may have or otherwise be charged with.
Without in any way limiting the generality of the
foregoing paragraph, the holders of Senior Indebtedness may, at
any time and from time to time, without the consent of or notice
to the Trustee or the Holders, without incurring responsibility
to the Holders and without impairing or releasing the
subordination provided in this Article or the obligations
hereunder of the Holders to the holders of Senior Indebtedness,
do any one or more of the following: (i) change the manner, place
or terms of payment or extend the time of payment of, or renew or
alter, Senior Indebtedness or otherwise amend or supplement in
any manner Senior Indebtedness or any instrument evidencing the
same or any agreement under which Senior Indebtedness is
outstanding; (ii) sell, exchange, release or otherwise deal with
any property pledged, mortgaged or otherwise securing Senior
Indebtedness; (iii) release any Person liable in any manner for
the
60
collection of Senior Indebtedness; and (iv) exercise or refrain
from exercising any rights against the Company and any other
Person.
ARTICLE TWELVE
REDEMPTION OF SECURITIES
SECTION 1201. Optional Redemption; Conditions to Optional
Redemption.
The Securities are redeemable prior to the Stated
Maturity at the option of the Company, on or after ________,
2003, subject to the last paragraph of this Section 1201, in
whole or in part at any time at 100% of the principal amount
thereof plus accrued and unpaid interest, if any, to the
Redemption Date.
If a Special Event shall occur and be continuing, the
Company shall have the right, within 90 days of the occurrence of
such Special Event, subject to the last paragraph of this Section
1201, to redeem, upon not less than 30 days nor more than 60 days
notice, the Securities in whole, but not in part, at a Redemption
Price equal to 100% of the principal amount of Securities then
Outstanding plus accrued and unpaid interest thereon, if any, up
to but excluding the Redemption Date. Unless the Company defaults
in payment of the Redemption Price, on or after the Redemption
Date interest will cease to accrue on the Securities or portions
thereof called for redemption.
For so long as the Trust is the Holder of all
Securities Outstanding, the proceeds of any redemption described
in this Section 1201 shall be used by the Trust to redeem Capital
Securities and Common Securities in accordance with their terms.
The Company shall not redeem the Securities in part unless all
accrued and unpaid interest has been paid in full on all
Securities outstanding for all quarterly interest periods
terminating on or prior to the Redemption Date.
SECTION 1202. Applicability of Article.
Redemption of Securities at the election of the Company, as
permitted by Section 1201, shall be made in accordance with such
provision and this Article.
SECTION 1203. Election to Redeem; Notice to Trustee.
The election of the Company to redeem Securities
pursuant to Section 1201 shall be evidenced by or pursuant to a
Board Resolution. In case of any redemption at the election of
the Company, the Company shall, at least 30 days and no more than
60 days prior to the Redemption Date fixed by the Company, notify
the Trustee of such Redemption Date and of the principal amount
of Securities to be redeemed and provide a copy of the notice of
redemption given to Holders to be redeemed pursuant to Section
1205.
SECTION 1204. Selection by Trustee of Securities to be Redeemed.
61
If less than all the Securities are to be redeemed,
the particular Securities to be redeemed shall be selected by
lot, at the Trustee's discretion (or such other method of
selection as the Trustee may customarily employ) not more than 60
days prior to the Redemption Date by the Trustee, from the
Outstanding Securities not previously called for redemption.
The Trustee shall promptly notify the Company in
writing of the Securities selected for redemption as aforesaid
and, in case of any Securities selected for partial redemption as
aforesaid, the principal amount thereof to be redeemed.
The provisions of the two preceding paragraphs shall
not apply with respect to any redemption affecting only a single
Security, whether such Security is to be redeemed in whole or in
part. In the case of any such redemption in part, the unredeemed
portion of the principal amount of the Security shall be in an
authorized denomination (which shall not be less than the minimum
authorized denomination) for such Security.
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 has been or is to be redeemed.
SECTION 1205. Notice of Redemption.
Notice of redemption shall be given by certified or
registered mail, mailed not less than 30 days nor more than 60
days prior to the Redemption Date, to each Holder of Securities
to be redeemed, at his address appearing in the Security
Register.
All notices of redemption shall identify the
Securities to be redeemed (including CUSIP number) and shall
state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) that on the Redemption Date the Redemption Price
will become due and payable upon each such Security to be
redeemed and that interest thereon will cease to accrue on
and after said date, and
(4) the place or places where such Securities are to
be surrendered for payment of the Redemption Price.
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. Notice, if mailed in the manner provided
above, shall be conclusively presumed to have been duly given,
whether or not the Holder receives such notice. In any case, a
failure to give such notice by mail or any defect in the notice
to the Holder of any
62
Security designated for redemption in whole or in part shall not
affect the validity of the proceedings for the redemption of any
other Security.
SECTION 1206. 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 1003) 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 which are to be redeemed on that date; provided,
however, that any such deposit on a Redemption Date shall be
initiated prior to 12:00 p.m. (New York time) in same-day funds.
SECTION 1207. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid,
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 cease to bear interest. Upon presentation and
surrender of any such Security 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
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 307.
If any Security called for redemption shall not be so
paid upon surrender thereof for redemption, the principal shall,
until paid, bear interest from the Redemption Date at the rate
borne by the Security.
SECTION 1208. Securities Redeemed in Part.
Any Security which is to be redeemed only in part
shall be surrendered at a place of payment therefor (with, if the
Company or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder therefor 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 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 so
surrendered.
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IN WITNESS WHEREOF, the parties hereto have caused
this Indenture to be duly executed and delivered, all as of the
day and year first above written.
GWL&A FINANCIAL INC.
By:__________________________
Name:
Title:
By:__________________________
Name:
Title:
THE BANK OF NEW YORK, as Trustee
By:__________________________
Name:
Title:
