EXHIBIT 4.11
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XXXXX FINANCIAL CORPORATION
AND
WILMINGTON TRUST COMPANY,
AS INDENTURE TRUSTEE
INDENTURE
_____% CONVERTIBLE JUNIOR SUBORDINATED DEBENTURES DUE 2030
Dated as of September ___, 2000
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TABLE OF CONTENTS
Page
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ARTICLE I - DEFINITIONS...................................................... 2
Section 1.1 Definitions of Terms............................................. 2
ARTICLE II - ISSUE, DESCRIPTION, TERMS, CONDITIONS
REGISTRATION AND EXCHANGE OF THE DEBENTURES...................... 11
Section 2.1 Designation and Principal Amount................................. 11
Section 2.2 Maturity......................................................... 11
Section 2.3 Form and Payment................................................. 11
Section 2.4 [Intentionally Left Blank]....................................... 12
Section 2.5 Interest......................................................... 12
Section 2.6 Execution and Authentications.................................... 13
Section 2.7 Registration of Transfer and Exchange............................ 13
Section 2.8 Temporary Debentures............................................. 15
Section 2.9 Mutilated, Destroyed, Lost or Stolen Debentures.................. 15
Section 2.10 Cancellation..................................................... 16
Section 2.11 Benefit of Indenture............................................. 16
Section 2.12 Authenticating Agent............................................. 16
ARTICLE III - REDEMPTION OF DEBENTURES......................................... 17
Section 3.1 Redemption....................................................... 17
Section 3.2 Special Event Redemption......................................... 17
Section 3.3 Optional Redemption by Company................................... 18
Section 3.4 Notice of Redemption............................................. 19
Section 3.5 Payment Upon Redemption.......................................... 20
Section 3.6 No Sinking Fund.................................................. 20
ARTICLE IV - CONVERSION OF DEBENTURES......................................... 21
Section 4.1 Conversion Rights................................................ 21
Section 4.2 Conversion Procedures............................................ 21
Section 4.3 Conversion Ratio Adjustments..................................... 23
Section 4.4 Reclassification, Consolidation, Merger or Sale of Assets........ 27
Section 4.5 Notice of Adjustments of Conversion Ratio........................ 28
Section 4.6 Prior Notice of Certain Events................................... 28
Section 4.7 Certain Defined Terms............................................ 29
Section 4.8 Dividend or Interest Reinvestment Plans.......................... 30
Section 4.9 Certain Additional Rights........................................ 30
Section 4.10 Trustee Not Responsible for Determining Conversion Ratio
or Adjustments................................................... 31
i
ARTICLE V - EXTENSION OF INTEREST PAYMENT PERIOD.............................. 31
Section 5.1 Extension of Interest Payment Period.............................. 31
Section 5.2 Notice of Extension............................................... 32
Section 5.3 Limitation on Transactions........................................ 32
ARTICLE VI - PARTICULAR COVENANTS OF THE COMPANY............................... 33
Section 6.1 Payment of Principal and Interest................................. 33
Section 6.2 Maintenance of Agency............................................. 33
Section 6.3 Paying Agents..................................................... 34
Section 6.4 Appointment to Fill Vacancy in Office of Trustee.................. 35
Section 6.5 Compliance with Consolidation Provisions.......................... 35
Section 6.6 Limitation on Transactions........................................ 35
Section 6.7 Covenants as to the Trust......................................... 35
Section 6.8 Covenants as to Purchases......................................... 36
Section 6.9 Waiver of Usury, Stay or Extension Laws........................... 36
ARTICLE VII - DEBENTUREHOLDERS' LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE.................................... 37
Section 7.1 Company to Furnish Trustee Names and Addresses
of Debentureholders............................................... 37
Section 7.2 Preservation of Information Communications with Debentureholders.. 37
Section 7.3 Reports by the Company............................................ 37
Section 7.4 Reports by the Trustee............................................ 38
ARTICLE VIII - REMEDIES OF THE TRUSTEE AND DEBENTUREHOLDERS
ON EVENT OF DEFAULT............................................... 38
Section 8.1 Events of Default................................................. 38
Section 8.2 Collection of Indebtedness and Suits for Enforcement by Trustee... 40
Section 8.3 Application of Moneys Collected................................... 41
Section 8.4 Limitation on Suits............................................... 42
Section 8.5 Rights and Remedies Cumulative; Delay or Omission not Waiver...... 43
Section 8.6 Control by Debentureholders....................................... 43
Section 8.7 Undertaking to Pay Costs.......................................... 44
Section 8.8 Direct Action; Right of Set-Off................................... 44
ARTICLE IX - FORM OF DEBENTURE AND ORIGINAL ISSUE.............................. 44
Section 9.1 Form of Debenture................................................. 44
Section 9.2 Original Issue of Debentures...................................... 45
ARTICLE X - CONCERNING THE TRUSTEE............................................ 45
Section 10.1 Certain Duties and Responsibilities of the Trustee................ 45
Section 10.2 Notice of Defaults................................................ 46
Section 10.3 Certain Rights of Trustee......................................... 47
ii
Section 10.4 Trustee Not Responsible for Recitals, etc......................... 48
Section 10.5 May Hold Debentures............................................... 48
Section 10.6 Moneys Held in Trust.............................................. 48
Section 10.7 Compensation and Reimbursement.................................... 49
Section 10.8 Reliance on Officers' Certificate................................. 49
Section 10.9 Disqualification: Conflicting Interests.......................... 49
Section 10.10 Corporate Trustee Required; Eligibility........................... 50
Section 10.11 Resignation and Removal; Appointment of Successor................. 50
Section 10.12 Acceptance of Appointment by Successor............................ 51
Section 10.13 Merger, Conversion, Consolidation or Succession to Business....... 52
Section 10.14 Preferential Collection of Claims Against the Company............. 52
ARTICLE XI - CONCERNING THE DEBENTUREHOLDERS................................... 52
Section 11.1 Evidence of Action by Holders..................................... 52
Section 11.2 Proof of Execution by Debentureholders............................ 53
Section 11.3 Who May be Deemed Owners.......................................... 53
Section 11.4 Certain Debentures Owned by Company Disregarded................... 54
Section 11.5 Actions Binding on Future Debentureholders........................ 54
ARTICLE XII - SUPPLEMENTAL INDENTURES........................................... 55
Section 12.1 Supplemental Indentures Without the Consent of Debentureholders... 55
Section 12.2 Supplemental Indentures with Consent of Debentureholders.......... 56
Section 12.3 Effect of Supplemental Indentures................................. 56
Section 12.4 Debentures Affected by Supplemental Indentures.................... 57
Section 12.5 Execution of Supplemental Indentures.............................. 57
ARTICLE XIII - SUCCESSOR CORPORATION............................................. 57
Section 13.1 Company May Consolidate, etc...................................... 57
Section 13.2 Successor Corporation Substituted................................. 58
Section 13.3 Evidence of Consolidation, etc. to Trustee........................ 59
ARTICLE XIV - SATISFACTION AND DISCHARGE........................................ 59
Section 14.1 Satisfaction and Discharge of Indenture........................... 59
Section 14.2 Discharge of Obligations.......................................... 59
Section 14.3 Deposited Moneys to be Held in Trust.............................. 60
Section 14.4 Payment of Monies Held by Paying Agents........................... 60
Section 14.5 Repayment to Company.............................................. 60
ARTICLE XV - IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS............................................ 61
Section 15.1 No Recourse....................................................... 61
iii
ARTICLE XVI - MISCELLANEOUS PROVISIONS......................................... 61
Section 16.1 Effect on Successors and Assigns................................. 61
Section 16.2 Actions by Successor............................................. 61
Section 16.3 Surrender of Company Powers...................................... 62
Section 16.4 Notices.......................................................... 62
Section 16.5 Governing Law.................................................... 62
Section 16.6 Treatment of Debentures as Debt.................................. 62
Section 16.7 Compliance Certificates and Opinions............................. 62
Section 16.8 Payments on Business Days........................................ 63
Section 16.9 Conflict with Trust Indenture Act................................ 63
Section 16.10 Counterparts..................................................... 63
Section 16.11 Separability..................................................... 63
Section 16.12 Assignment....................................................... 63
Section 16.13 Acknowledgment of Rights......................................... 64
ARTICLE XVII - SUBORDINATION OF DEBENTURES...................................... 64
Section 17.1 Agreement to Subordinate......................................... 64
Section 17.2 Default on Senior Debt, Subordinated Debt or Additional
Senior Obligations............................................... 64
Section 17.3 Liquidation; Dissolution; Bankruptcy............................. 65
Section 17.4 Subrogation...................................................... 66
Section 17.5 Trustee to Effectuate Subordination.............................. 67
Section 17.6 Notice by the Company............................................ 67
Section 17.7 Rights of the Trustee; Holders of Senior Indebtedness............ 68
Section 17.8 Subordination may not be Impaired................................ 68
iv
CROSS-REFERENCE TABLE
SECTION OF
TRUST INDENTURE ACT SECTION OF
OF 1939, AS AMENDED INDENTURE
--------------------- ---------
310(a)...................................................................... 10.10
310(b)...................................................................... 10.9
...................................................................... 10.11
310(c)...................................................................... Not Applicable
311(a)...................................................................... 10.14
311(b)...................................................................... 10.14
311(c)...................................................................... Not Applicable
312(a)...................................................................... 7.1
...................................................................... 7.2(a)
312(b)...................................................................... 7.2(c)
312(c)...................................................................... 7.2(c)
313(a)...................................................................... 7.4(a)
313(b)...................................................................... 7.4(b)
313(c)...................................................................... 7.4(a)
...................................................................... 7.4(b)
313(d)...................................................................... 7.4(c)
314(a)...................................................................... 7.3(a)
314(b)...................................................................... Not Applicable
314(c)...................................................................... 16.7
314(d)...................................................................... Not Applicable
314(e)...................................................................... 16.7
314(f)...................................................................... Not Applicable
315(a)...................................................................... 10.1(a)
...................................................................... 10.3
315(b)...................................................................... 10.2
315(c)...................................................................... 10.1(a)
315(d)...................................................................... 10.1(b)
315(e)...................................................................... 8.7
316(a)...................................................................... 1.1
...................................................................... 8.6
316(b)...................................................................... 8.4(b)
316(c)...................................................................... 11.1(b)
317(a)...................................................................... 8.2
317(b)...................................................................... 6.3
318(a)...................................................................... 16.9
Note: This reconciliation and tie sheet shall not, for any purpose, be
deemed to be a part of the Indenture.
v
INDENTURE
INDENTURE, dated as of September ___, 2000, between XXXXX FINANCIAL
CORPORATION, an Indiana corporation (the "Company") and WILMINGTON TRUST
COMPANY, a Delaware banking corporation duly organized and existing under the
laws of the State of Delaware as trustee (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
securities to be known as its _____% Convertible Junior Subordinated Debentures
due 2030 (hereinafter referred to as the "Debentures"), the form and substance
of such Debentures and the terms, provisions and conditions thereof to be set
forth as provided in this Indenture;
WHEREAS, IFC Capital Trust III, a Delaware statutory business trust (the
"Trust"), has offered to the public up to $23,000,000 aggregate liquidation
amount of its Preferred Securities (as defined herein) and proposes to invest
the proceeds from such offering, together with the proceeds of the issuance and
sale by the Trust to the Company of up to $711,350 aggregate liquidation amount
of its Common Securities (as defined herein), in up to $23,711,350 aggregate
principal amount of the Debentures;
WHEREAS, the Company has requested that the Trustee execute and deliver
this Indenture;
WHEREAS, all requirements necessary to make this Indenture a valid
instrument in accordance with its terms, and to make the Debentures, when
executed by the Company and authenticated and delivered by the Trustee, the
valid obligations of the Company, have been performed, and the execution and
delivery of this Indenture have been duly authorized in all respects;
WHEREAS, to provide the terms and conditions upon which the Debentures 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, in consideration of the premises and the purchase of the
Debentures by the holders thereof, it is mutually covenanted and agreed as
follows for the equal and ratable benefit of the holders of the Debentures:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions of Terms.
The terms defined in this Section 1.1 (except as in this Indenture
otherwise expressly provided or unless the context otherwise requires) for all
purposes of this Indenture and of any indenture supplemental hereto shall have
the respective meanings specified in this Section 1.1 and shall include the
plural as well as the singular. All other terms used in this Indenture that are
defined in the Trust Indenture Act, or that are by reference in the Trust
Indenture Act defined in the Securities Act (except as herein otherwise
expressly provided or unless the context otherwise requires), shall have the
meanings assigned to such terms in the Trust Indenture Act and in the Securities
Act as in force at the date of the execution of this instrument. All accounting
terms used herein and not expressly defined shall have the meanings assigned to
such terms in accordance with Generally Accepted Accounting Principles.
"Accelerated Maturity Date" means if the Company elects to accelerate the
Maturity Date in accordance with Section 2.2(c), the date selected by the
Company which is prior to the Scheduled Maturity Date, but is after September
30, 2005.
"Additional Interest" shall have the meaning set forth in Section 2.5(c).
"Additional Senior Obligations" means all indebtedness of the Company
whether incurred on or prior to the date of this Indenture or thereafter
incurred, for claims in respect of derivative products such as interest and
foreign exchange rate contracts, commodity contracts and similar arrangements;
provided, however, that Additional Senior Obligations does not include claims in
respect of Senior Debt or Subordinated Debt or obligations which, by their
terms, are expressly stated to be not superior in right of payment to the
Debentures or to rank pari passu in right of payment with the Debentures. For
purposes of this definition, "claim" shall have the meaning assigned thereto in
Section 101(4) of the United States Bankruptcy Code of 1978, as amended.
"Administrative Trustees" shall have the meaning set forth in the Trust
Agreement.
"Affiliate" means, with respect to a specified Person, (a) any Person
directly or indirectly owning, controlling or holding with power to vote 10% or
more of the outstanding voting securities or other ownership interests of the
specified Person; (b) any Person 10% or more of whose outstanding voting
securities or other ownership interests are directly or indirectly owned,
controlled or held with power to vote by the specified Person; (c) any Person
directly or indirectly controlling, controlled by, or under common control with
the specified Person; (d) a partnership in which the specified Person is a
general partner; (e) any officer or director of the specified Person; and (f) if
the specified Person is an individual, any entity of which the specified Person
is an officer, director or general partner.
2
"Authenticating Agent" means an authenticating agent with respect to the
Debentures appointed by the Trustee pursuant to Section 2.12.
"Bankruptcy Law" means Title 11, U.S. Code, or any similar federal or state
law for the relief of debtors.
"Board of Directors" means the Board of Directors of the Company or any
duly authorized committee of such Board or any other duly designated officers of
the Company.
"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.
"Business Day" means, with respect to the Debentures, any day other than a
Saturday or a Sunday or a day on which federal or state banking institutions in
the Borough of Manhattan, The City of New York, are authorized or required by
law, executive order or regulation to close, or a day on which the Corporate
Trust Office of the Trustee or the Property Trustee is closed for business.
"Capital Treatment Event" means the receipt by the Company and the Trust of
an Opinion of Counsel, rendered by a law firm having a recognized national bank
regulatory practice, to the effect that, as a result of 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
thereof or therein, or as a result of any official or administrative
pronouncement or action or judicial decision interpreting or applying such laws
or regulations, which amendment or change is effective or which pronouncement or
decision is announced on or after the date of issuance of the Preferred
Securities under the Trust Agreement, there is more than an insubstantial risk
of impairment of the Company's ability to treat the Preferred Securities (or any
substantial portion thereof) as Tier 1 capital (or the then equivalent thereof),
for purposes of the capital adequacy guidelines of the Federal Reserve, as then
in effect and applicable to the Company; provided, however, that the Trust or
the Company shall have requested and received such an Opinion of Counsel with
regard to such matters within a reasonable period of time after the Trust or the
Company shall have become aware of the possible occurrence of any such event;
provided, however, that the inability of the Company to treat all or any portion
of the Liquidation Amount of the Preferred Securities as Tier 1 Capital shall
not constitute the basis for a Capital Treatment Event if such inability results
from the Company having cumulative preferred stock, minority interests in
consolidated subsidiaries, or any other class of security or interest which the
Federal Reserve now or may hereafter accord Tier 1 Capital treatment in excess
of the amount which may qualify for treatment as Tier 1 Capital under applicable
capital adequacy guidelines of the Federal Reserve; provided, further, however,
that the distribution of Junior Subordinated Debentures in connection with the
dissolution of the Trust shall not in and of itself constitute a Capital
Treatment Event.
"Certificate" means a certificate signed by the principal executive
officer, the principal financial officer, the principal accounting officer, the
treasurer or any vice president of the Company. The Certificate need not comply
with the provisions of Section 16.7.
"Change in 1940 Act Law" shall have the meaning set forth in the definition
of "Investment Company Event."
"Commission" means the Securities and Exchange Commission.
3
"Common Securities" means undivided beneficial interests in the assets of
the Trust which rank pari passu with the Preferred Securities; provided,
however, that upon the occurrence of an Event of Default, the rights of holders
of Common Securities to payment in respect of distributions and payments upon
liquidation, redemption and otherwise are subordinated to the rights of holders
of Preferred Securities.
"Common Stock" means the common stock, no par value, of the Company.
"Company" means Xxxxx Financial Corporation, a corporation duly organized
and existing under the laws of the State of Indiana, and, subject to the
provisions of Article XIII, shall also include its successors and assigns.
"Compounded Interest" shall have the meaning set forth in Section 5.1.
"Conversion Agent" means the Person appointed to act on behalf of the
holders of the Preferred Securities in effecting the conversion of Preferred
Securities to Debentures and Debentures to Common Stock as and in the manner set
forth in the Trust Agreement and this Indenture.
"Conversion Price" means $____.
"Conversion Ratio" has the meaning set forth in Section 4.1.
"Conversion Request" means (a) the irrevocable request to be given by a
Debentureholder to the Conversion Agent directing the Conversion Agent to
convert the Debentures into shares of Common Stock, and (b) the irrevocable
request to be given by a holder of Preferred Securities to the Conversion Agent
directing the Conversion Agent to exchange such stock on behalf of such holder.
"Corporate Trust Office" means the office of the Trustee at which, at any
particular time, its corporate trust business shall be principally administered,
which office at the date hereof is located at Xxxxxx Square North, 0000 Xxxxx
Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000, Attention: Corporate Trust
Administration.
"Coupon Rate" shall have the meaning set forth in Section 2.5.
"Custodian" means any receiver, trustee, assignee, liquidator, or similar
official under any Bankruptcy Law.
"Debentures" shall have the meaning set forth in the Recitals hereto.
"Debentureholder," "holder of Debentures," "registered holder," or other
similar term, means the Person or Persons in whose name or names a particular
Debenture shall be registered on the books of the Company or the Trustee kept
for that purpose in accordance with the terms of this Indenture.
4
"Debenture Register" shall have the meaning set forth in Section 2.7(b).
"Debenture Registrar" shall have the meaning set forth in Section 2.7(b).
"Debt" means with respect to any Person, whether recourse is to all or a
portion of the assets of such Person and whether or not contingent, (i) every
obligation of such Person for money borrowed; (ii) every obligation of such
Person evidenced by bonds, debentures, notes or other similar instruments,
including obligations incurred in connection with the acquisition of property,
assets or businesses; (iii) every reimbursement obligation of such Person with
respect to letters of credit, bankers' acceptances or similar facilities issued
for the account of such Person; (iv) every obligation of such Person 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 such Person; and (vi) and every
obligation of the type referred to in clauses (i) through (v) of another Person
and all dividends of another Person the payment of which, in either case, such
Person has guaranteed or is responsible or liable, directly or indirectly, as
obligor or otherwise.
"Default" means any event, act or condition that with notice or lapse of
time, or both, would constitute an Event of Default.
"Deferred Interest" shall have the meaning set forth in Section 5.1.
"Direct Action" shall have the meaning set forth in Section 8.8.
"Dissolution Event" means that as a result of the occurrence and
continuation of a Special Event, the Trust is to be dissolved in accordance with
the Trust Agreement and the Debentures held by the Property Trustee are to be
distributed to the holders of the Trust Securities issued by the Trust pro rata
in accordance with the Trust Agreement.
"Event of Default" means, with respect to the Debentures, any event
specified in Section 8.1, which has continued for the period of time, if any,
and after the giving of the notice, if any, therein designated.
"Exchange Act," means the Securities Exchange Act of 1934, as amended, as
in effect at the date of execution of this Indenture.
"Extended Interest Payment Period" shall have the meaning set forth in
Section 5.1.
"Federal Reserve" means the Board of Governors of the Federal Reserve
System.
"Generally Accepted Accounting Principles" means such accounting principles
as are generally accepted at the time of any computation required hereunder.
5
"Governmental Obligations" means securities that are (i) direct obligations
of the United States of America for the payment of which its full faith and
credit is pledged; or (ii) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States of America, the
payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America that, in either case, are not
callable or redeemable at the option of the issuer thereof, and shall also
include a depositary receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act) as custodian with respect to any such Governmental
Obligation or a specific payment of principal of or interest on any such
Governmental Obligation held by such custodian for the account of the holder of
such depositary receipt; provided, however, that (except as required by law)
such custodian is not authorized to make any deduction from the amount payable
to the holder of such depositary receipt from any amount received by the
custodian in respect of the Governmental Obligation or the specific payment of
principal of or interest on the Governmental Obligation evidenced by such
depositary receipt.
"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.
"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 in accordance with the terms hereof.
"Interest Payment Date," when used with respect to any installment of
interest on the Debentures, means the date specified in the Debenture or in an
indenture supplemental hereto with respect to the Debentures as the fixed date
on which an installment of interest with respect to the Debentures is due and
payable.
"Investment Company Act," means the Investment Company Act of 1940, as
amended, as in effect at the date of execution of this Indenture.
"Investment Company Event" means the receipt by the Trust and the Company
of an Opinion of Counsel, rendered by a law firm having a recognized national
tax and securities law practice, 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 1940 Act Law"), the Trust is or
shall be considered an "investment company" that is required to be registered
under the Investment Company Act, which Change in 1940 Act Law becomes effective
on or after the date of original issuance of the Preferred Securities under the
Trust Agreement; provided, however, that the Trust or the Company shall have
requested and received such an Opinion of Counsel with regard to such matters
within a reasonable period of time after the Trust or the Company shall have
become aware of the possible occurrence of any such event.
6
"Maturity Date" means the date on which the Debentures mature and on which
the principal shall be due and payable together with all accrued and unpaid
interest thereon including Compounded Interest and Additional Interest, if any.
"Ministerial Action" shall have the meaning set forth in Section 3.2.
"Officers' Certificate" means a certificate signed by the President or an
Executive Vice President and by the Chief Financial Officer or the Treasurer or
an Assistant Treasurer or the Secretary or an Assistant Secretary of the Company
that is delivered to the Trustee in accordance with the terms hereof. Each such
certificate shall include the statements provided for in Section 16.7, if and to
the extent required by the provisions thereof.
"Opinion of Counsel" means an opinion in writing of independent, outside
legal counsel for the Company that is delivered to the Trustee in accordance
with the terms hereof. Each such opinion shall include the statements provided
for in Section 16.7, if and to the extent required by the provisions thereof.
"Outstanding," when used in reference to the Debentures, means, subject to
the provisions of Section 11.4, as of any particular time, all Debentures
theretofore authenticated and delivered by the Trustee under this Indenture,
except (a) Debentures theretofore canceled by the Trustee or any paying agent,
or delivered to the Trustee or any paying agent for cancellation or that have
previously been canceled; (b) Debentures or portions thereof for the payment or
redemption of which moneys or Governmental Obligations in the necessary amount
shall have been deposited in trust with the Trustee or with any paying agent
(other than the Company) or shall have been set aside and segregated in trust by
the Company (if the Company shall act as its own paying agent); provided,
however, that if such Debentures or portions of such Debentures are to be
redeemed prior to the maturity thereof, notice of such redemption shall have
been given as in Article III provided, or provision satisfactory to the Trustee
shall have been made for giving such notice; and (c) Debentures in lieu of or in
substitution for which other Debentures shall have been authenticated and
delivered pursuant to the terms of Section 2.7; provided, however, that in
determining whether the holders of the requisite percentage of Debentures have
given any request, notice, consent or waiver hereunder, Debentures held by the
Company or any Affiliate of the Company shall not be included; provided,
further, that the Trustee shall be protected in relying upon any request,
notice, consent or waiver unless a Responsible Officer of the Trustee shall have
actual knowledge that the holder of such Debenture is the Company or an
Affiliate thereof.
"Person" means any individual, corporation, partnership, joint-venture,
joint-stock company, limited liability company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Predecessor Debenture" means every previous Debenture evidencing all or a
portion of the same debt as that evidenced by such particular Debenture; and,
for the purposes of this definition,
7
any Debenture authenticated and delivered under Section 2.9 in lieu of a lost,
destroyed or stolen Debenture shall be deemed to evidence the same debt as the
lost, destroyed or stolen Debenture.
"Preferred Securities" means the _____% Cumulative Convertible Trust
Preferred Securities representing undivided beneficial interests in the assets
of the Trust which rank pari passu with Common Securities issued by the Trust;
provided, however, that upon the occurrence of an Event of Default, the rights
of holders of Common Securities to payment in respect of distributions and
payments upon liquidation, redemption and otherwise are subordinated to the
rights of holders of Preferred Securities.
"Preferred Securities Guarantee" means any guarantee that the Company may
enter into with the Trustee or other Persons that operates directly or
indirectly for the benefit of holders of Preferred Securities.
"Property Trustee" has the meaning set forth in the Trust Agreement.
"Redemption Price" shall have the meaning set forth in Section 3.2.
"Responsible Officer" when used with respect to the Trustee means any
officer within the Corporate Trust Office of the Trustee with direct
responsibility for the administration of this Indenture, including any vice
president, any assistant vice president, any assistant secretary or any other
officer or assistant officer of the Trustee who customarily performs functions
similar to those performed by the Persons who at the time shall be such
officers, respectively, or to whom any corporate trust matter is referred
because of his or her knowledge of and familiarity with the particular subject.
"Scheduled Maturity Date" means September 30, 2030.
"Securities Act," means the Securities Act of 1933, as amended, as in
effect at the date of execution of this instrument.
"Senior Debt" means the principal of (and premium, if any) and interest, if
any (including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to the Company whether or not such
claim for post-petition interest is allowed in such proceeding), on Debt,
whether incurred on or prior to the date of this Indenture or thereafter
incurred, unless, in the instrument creating or evidencing the same or pursuant
to which the same is outstanding, it is provided that such obligations are not
superior in right of payment to the Debentures or to other Debt which is pari
passu with, or subordinated to, the Debentures, provided, however, that Senior
Debt shall not be deemed to include (i) any Debt 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;
(ii) any Debt of the Company owed to any of its subsidiaries; (iii) Debt owed to
any employee of the Company; (iv) Debt which by its terms is subordinated to
trade accounts payable or accrued liabilities arising in the ordinary course of
8
business to the extent that payments made to the holders of such Debt by the
holders of the Debentures as a result of the subordination provisions of this
Indenture would be greater than they otherwise would have been as a result of
any obligation of such holders to pay amounts over to the obligees on such trade
accounts payable or accrued liabilities arising in the ordinary course of
business as a result of subordination provisions to which such Debt is subject;
and (v) Debt which constitutes Subordinated Debt, (including, without
limitation, the Company's 9.25% Subordinated Debentures due 2027, issued to IFC
Capital Trust I and the Company's ___% Junior Subordinated Debentures due 2030,
issued to IFC Captial Trust II).
"Senior Indebtedness" shall have the meaning set forth in Section 17.1.
"Special Event" means a Tax Event, an Investment Company Event or a Capital
Treatment Event.
"Subordinated Debt" means the principal of (and premium, if any) and
interest, if any (including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization relating to the Company whether or
not such claim for post-petition interest is allowed in such proceeding), on
Debt, whether incurred on or prior to the date of this Indenture or thereafter
incurred, which is by its terms expressly provided to be junior and subordinate
to Senior Debt of the Company and on any Debt of the Company under debt
securities (and guarantees in respect of these debt securities) initially issued
to any trust, or a trustee of a trust, partnership or other entity affiliated
with the Company that is, directly or indirectly, a financing vehicle of the
Company in connection with the issuance by that entity of preferred securities
or other securities which are intended to qualify for Tier 1 capital treatment
such as Subordinated Debentures, unless those debt securities are by their terms
convertible into our Common Stock of the Company; provided however, that
Subordinated Debt will not be deemed to include (i) any Debt 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, (ii) any Debt of the Company owed to any of its subsidiaries, (iii)
any Debt owed to any employee of the Company, (iv) any Debt which by its terms
is subordinated to trade accounts payable or accrued liabilities arising in the
ordinary course of business to the extent that payments made to the holders of
such Debt by the holders of the Subordinated Debentures as a result of the
subordination provisions of the Indenture would be greater than they otherwise
would have been as a result of any obligation of such holders to pay amounts
over to the obligees on such trade accounts payable or accrued liabilities
arising in the ordinary course of business as a result of subordination
provisions to which such Debt is subject, and (v) Debt which constitutes Senior
Debt.
"Subsidiary" means, with respect to any Person, (i) any corporation at
least a majority of whose outstanding Voting Stock shall at the time be owned,
directly or indirectly, by such Person or by one or more of its Subsidiaries or
by such Person and one or more of its Subsidiaries; (ii) any general
partnership, limited liability company, joint venture, trust or similar entity,
at least a majority
9
of whose outstanding partnership or similar interests shall at the time be owned
by such Person, or by one or more of its Subsidiaries, or by such Person and one
or more of its Subsidiaries; and (iii) any limited partnership of which such
Person or any of its Subsidiaries is a general partner.
"Tax Event" means the receipt by the Company and the Trust of an Opinion of
Counsel, rendered by a law firm having a recognized national tax and securities
practice, to the effect that, as a result of 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 as a result of any official administrative
pronouncement or judicial decision interpreting or applying such laws or
regulations, which amendment or change is effective or which pronouncement or
decision is announced on or after the date of issuance of the Preferred
Securities under the Trust Agreement, there is more than an insubstantial risk
that (i) the Trust is, or shall be within 90 days after the date of such Opinion
of Counsel, subject to United States federal income tax with respect to income
received or accrued on the Debentures; (ii) interest payable by the Company on
the Debentures is not, or within 90 days after the date of such Opinion of
Counsel, shall not be, deductible by the Company, in whole or in part, for
United States federal income tax purposes; or (iii) the Trust is, or shall be
within 90 days after the date of such Opinion of Counsel, subject to more than a
de minimis amount of other taxes, duties, assessments or other governmental
charges; provided, however, that the Trust or the Company shall have requested
and received such an Opinion of Counsel with regard to such matters within a
reasonable period of time after the Trust or the Company shall have become aware
of the possible occurrence of any of the events described in clauses (i) through
(iii) above.
"Trust" means IFC Capital Trust III, a Delaware statutory business trust.
"Trust Agreement" means the Amended and Restated Trust Agreement, dated as
of September ___, 2000, of the Trust.
"Trustee" means Wilmington Trust Company and, subject to the provisions of
Article X, shall also include its successors and assigns, and, if at any time
there is more than one Person acting in such capacity hereunder, "Trustee" shall
mean each such Person.
"Trust Indenture Act," means the Trust Indenture Act of 1939, as amended,
subject to the provisions of Sections 12.1, 12.2, and 13.1, as in effect at the
date of execution of this instrument.
"Trust Securities" means the Common Securities and Preferred Securities,
collectively.
"Voting Stock," as applied to stock of any Person, means shares, interests,
participations or other equivalents in the equity interest (however designated)
in such Person having ordinary voting power for the election of a majority of
the directors (or the equivalent) of such Person, other than shares, interests,
participations or other equivalents having such power only by reason of the
occurrence of a contingency.
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ARTICLE II
ISSUE, DESCRIPTION, TERMS, CONDITIONS
REGISTRATION AND EXCHANGE OF THE DEBENTURES
Section 2.1 Designation and Principal Amount.
There is hereby authorized Debentures designated the "_____% Convertible
Junior Subordinated Debentures due 2030," limited in aggregate principal amount
to $23,711,350, which amount shall be as set forth in any written order of the
Company for the authentication and delivery of Debentures pursuant to Section
2.6.
Section 2.2 Maturity.
(a) The Maturity Date shall be either:
(i) the Scheduled Maturity Date; or
(ii) if the Company elects to accelerate the Maturity Date to be a
date prior to the Scheduled Maturity Date in accordance with Section 2.2(c), the
Accelerated Maturity Date.
(b) the Company may at any time before the day which is 90 days before
the Scheduled Maturity Date and after September 30, 2005 elect to shorten the
Maturity Date only once to the Accelerated Maturity Date provided that the
Company has received the prior approval of the Federal Reserve if then required
under applicable capital guidelines, policies or regulations of the Federal
Reserve.
(c) if the Company elects to accelerate the Maturity Date in accordance
with Section 2.2(b), the Company shall give notice to the Trustee and the Trust
(unless the Trust is not the holder of the Debentures, in which case the Trustee
will give notice to the holders of the Debentures) of the acceleration of the
Maturity Date and the Accelerated Maturity Date at least 30 days and no more
than 180 days before the Accelerated Maturity Date; provided, however that
nothing provided in this Section 2.2 shall limit the Company's rights, as
provided in Article III hereof, to redeem all or a portion of the Debentures at
such time or times on or after September 30, 2003, as the Company may so
determine, or at any time upon the occurrence of a Special Event.
Section 2.3 Form and Payment.
The Debentures shall be issued in fully registered certificated form
without interest coupons. Principal and interest on the Debentures issued in
certificated form shall be payable, the transfer of such Debentures shall be
registrable and such Debentures shall be exchangeable for Debentures bearing
identical terms and provisions at the office or agency of the Trustee; provided,
however, that payment of interest may be made at the option of the Company by
check mailed to the holder at such
11
address as shall appear in the Debenture Register or by wire transfer to an
account maintained by the holder as specified in the Debenture Register,
provided that the holder provides proper transfer instructions by the regular
record date. Notwithstanding the foregoing, so long as the holder of any
Debentures is the Property Trustee, the payment of principal of and interest
(including Compounded Interest and Additional Interest, if any) on such
Debentures held by the Property Trustee shall be made at such place and to such
account as may be designated by the Property Trustee.
Section 2.4 [Intentionally Left Blank].
Section 2.5 Interest.
(a) Each Debenture shall bear interest at the rate of _____% per annum
(the "Coupon Rate") from the original date of issuance until the principal
thereof becomes due and payable, and on any overdue principal and (to the extent
that payment of such interest is enforceable under applicable law) on any
overdue installment of interest at the Coupon Rate, compounded quarterly,
payable (subject to the provisions of Article V) quarterly in arrears on March
31, June 30, September 30 and December 31 of each year (each, an "Interest
Payment Date"), commencing on December 31, 2000 to the Person in whose name such
Debenture or any Predecessor Debenture is registered, at the close of business
on the regular record date for such interest installment, which shall be the
fifteenth day of the last month of the calendar quarter.
(b) The amount of interest payable for any period shall be computed on the
basis of a 360-day year of twelve 30-day months. The amount of interest payable
for any period shorter than a full quarterly period for which interest is
computed, shall be computed on the basis of the number of days elapsed in a 360-
day year of twelve 30-day months. In the event that any date on which interest
is payable on the Debentures is not a Business Day, then payment of interest
payable on such date shall be made on the next succeeding day which is a
Business Day (and without any interest or other payment in respect of any such
delay) except that, if such Business Day is in the next succeeding calendar
year, such payment shall be made on the immediately preceding Business Day (and
without any reduction of interest or any other payment in respect of any such
acceleration), in each case with the same force and effect as if made on the
date such payment was originally payable.
(c) If, at any time while the Property Trustee is the holder of any
Debentures, the Trust or the Property Trustee is required to pay any taxes,
duties, assessments or governmental charges of whatever nature (other than
withholding taxes) imposed by the United States, or any other taxing authority,
then, in any case, the Company shall pay as additional interest ("Additional
Interest") on the Debentures held by the Property Trustee, such additional
amounts as shall be required so that the net amounts received and retained by
the Trust and the Property Trustee after paying such taxes, duties, assessments
or other governmental charges shall be equal to the amounts the Trust and the
Property Trustee would have received had no such taxes, duties, assessments or
other government charges been imposed.
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Section 2.6 Execution and Authentications.
(a) The Debentures shall be signed on behalf of the Company by its
President or one of its Executive Vice Presidents or Chief Financial Officer or
Treasurer, under its corporate seal attested by its Secretary or one of its
Assistant Secretaries. Signatures may be in the form of a manual or facsimile
signature. The Company may use the facsimile signature of any Person who shall
have been a President or Executive Vice President thereof, or of any Person who
shall have been a Secretary or Assistant Secretary thereof, notwithstanding the
fact that at the time the Debentures shall be authenticated and delivered or
disposed of such Person shall have ceased to be the President or a Vice
President, or the Secretary or an Assistant Secretary, of the Company (and any
such signature shall be binding on the Company). The seal of the Company may be
in the form of a facsimile of such seal and may be impressed, affixed, imprinted
or otherwise reproduced on the Debentures. The Debentures may contain such
notations, legends or endorsements required by law, stock exchange rule or
usage. Each Debenture shall be dated the date of its authentication by the
Trustee.
(b) A Debenture shall not be valid until authenticated manually by an
authorized signatory of the Trustee, or by an Authenticating Agent. Such
signature shall be conclusive evidence that the Debenture so authenticated has
been duly authenticated and delivered hereunder and that the holder is entitled
to the benefits of this Indenture.
(c) At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Debentures executed by the Company to
the Trustee for authentication, together with a written order of the Company for
the authentication and delivery of such Debentures signed by its President or
any Executive Vice President and its Chief Financial Officer or the Treasurer or
any Assistant Treasurer, and the Trustee in accordance with such written order
shall authenticate and deliver such Debentures.
(d) In authenticating such Debentures and accepting the additional
responsibilities under this Indenture in relation to such Debentures, the
Trustee shall be entitled to receive, and (subject to Section 10.1) shall be
fully protected in relying upon, an Opinion of Counsel stating that the form and
terms thereof have been established in conformity with the provisions of this
Indenture.
(e) The Trustee shall not be required to authenticate such Debentures if
the issue of such Debentures pursuant to this Indenture shall affect the
Trustee's own rights, duties or immunities under the Debentures and this
Indenture or otherwise in a manner that is not reasonably acceptable to the
Trustee.
Section 2.7 Registration of Transfer and Exchange.
(a) Debentures may be exchanged upon presentation thereof at the office or
agency of the Company designated for such purpose in the Borough of Manhattan,
The City of New York, or at the office of the Debenture Registrar, for other
Debentures and for a like aggregate principal
13
amount in denominations of integral multiples of $10, upon payment of a sum
sufficient to cover any tax or other governmental charge in relation thereto,
all as provided in this Section 2.7. In respect of any Debentures so surrendered
for exchange, the Company shall execute, the Trustee shall authenticate and such
office or agency shall deliver in exchange therefor the Debenture or Debentures
that the Debentureholder making the exchange shall be entitled to receive,
bearing numbers not contemporaneously outstanding.
(b) The Company shall keep, or cause to be kept, at its office or agency
designated for such purpose in the Borough of Manhattan, The City of New York,
or at the office of the Debenture Registrar or such other location designated by
the Company a register or registers (herein referred to as the "Debenture
Register") in which, subject to such reasonable regulations as the Debenture
Registrar (as defined below) may prescribe, the Company shall register the
Debentures and the transfers of Debentures as in this Article II provided and
which at all reasonable times shall be open for inspection by the Trustee. The
registrar for the purpose of registering Debentures and transfer of Debentures
as herein provided shall initially be the Trustee and thereafter as may be
appointed by the Company as authorized by Board Resolution (the "Debenture
Registrar"). Upon surrender for transfer of any Debenture at the office or
agency of the Company designated for such purpose, the Company shall execute,
the Trustee shall authenticate and such office or agency shall deliver in the
name of the transferee or transferees a new Debenture or Debentures for a like
aggregate principal amount. All Debentures presented or surrendered for
exchange or registration of transfer, as provided in this Section 2.7, shall be
accompanied (if so required by the Company or the Debenture Registrar) by a
written instrument or instruments of transfer, in form satisfactory to the
Company or the Debenture Registrar, duly executed by the registered holder or by
such holder's duly authorized attorney in writing.
(c) No service charge shall be made for any exchange or registration of
transfer of Debentures, or issue of new Debentures in case of partial
redemption, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge in relation thereto, other than exchanges
pursuant to Section 2.8, Section 3.5(b) and Section 12.4 not involving any
transfer.
(d) The Company shall not be required (i) to issue, exchange or register
the transfer of any Debentures during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of less
than all the Outstanding Debentures and ending at the close of business on the
day of such mailing; nor (ii) to register the transfer of or exchange any
Debentures or portions thereof called for redemption.
(e) Debentures may only be transferred, in whole or in part, in accordance
with the terms and conditions set forth in this Indenture. Any transfer or
purported transfer of any Debenture not made in accordance with this Indenture
shall be null and void.
14
Section 2.8 Temporary Debentures.
Pending the preparation of definitive Debentures, the Company may execute,
and the Trustee shall authenticate and deliver, temporary Debentures (printed,
lithographed, or typewritten). Such temporary Debentures shall be substantially
in the form of the definitive Debentures in lieu of which they are issued, but
with such omissions, insertions and variations as may be appropriate for
temporary Debentures, all as may be determined by the Company. Every temporary
Debenture shall be executed by the Company and be authenticated by the Trustee
upon the same conditions and in substantially the same manner, and with like
effect, as the definitive Debentures. Without unnecessary delay the Company
shall execute and shall furnish definitive Debentures and thereupon any or all
temporary Debentures may be surrendered in exchange therefor (without charge to
the holders), at the office or agency of the Company designated for the purpose
in the Borough of Manhattan, The City of New York, and the Trustee shall
authenticate and such office or agency shall deliver in exchange for such
temporary Debentures an equal aggregate principal amount of definitive
Debentures, unless the Company advises the Trustee to the effect that definitive
Debentures need not be executed and furnished until further notice from the
Company. Until so exchanged, the temporary Debentures shall be entitled to the
same benefits under this Indenture as definitive Debentures authenticated and
delivered hereunder.
Section 2.9 Mutilated, Destroyed, Lost or Stolen Debentures.
(a) In case any temporary or definitive Debenture shall become mutilated
or be destroyed, lost or stolen, the Company (subject to the next succeeding
sentence) shall execute, and upon the Company's request the Trustee (subject as
aforesaid) shall authenticate and deliver, a new Debenture bearing a number not
contemporaneously outstanding, in exchange and substitution for the mutilated
Debenture, or in lieu of and in substitution for the Debenture so destroyed,
lost, stolen or mutilated. In every case the applicant for a substituted
Debenture shall furnish to the Company and the Trustee such security or
indemnity as may be required by them to save each of them harmless, and, in
every case of destruction, loss or theft, the applicant shall also furnish to
the Company and the Trustee evidence to their satisfaction of the destruction,
loss or theft of the applicant's Debenture and of the ownership thereof. The
Trustee may authenticate any such substituted Debenture and deliver the same
upon the written request or authorization of the President or any Vice President
and the Chief Financial Officer or the Treasurer or any Assistant Treasurer of
the Company. Upon the issuance of any substituted Debenture, 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. In case any Debenture
that has matured or is about to mature shall become mutilated or be destroyed,
lost or stolen, the Company may, instead of issuing a substitute Debenture, pay
or authorize the payment of the same (without surrender thereof except in the
case of a mutilated Debenture) if the applicant for such payment shall furnish
to the Company and the Trustee such security or indemnity as they may require to
save them harmless, and, in case of destruction, loss or theft, evidence to the
satisfaction of the Company and the Trustee of the destruction, loss or theft of
such Debenture and of the ownership thereof.
15
(b) Every replacement Debenture issued pursuant to the provisions of this
Section 2.9 shall constitute an additional contractual obligation of the Company
whether or not the mutilated, destroyed, lost or stolen Debenture shall be found
at any time, or be enforceable by anyone, and shall be entitled to all the
benefits of this Indenture equally and proportionately with any and all other
Debentures duly issued hereunder. All Debentures shall be held and owned upon
the express condition that the foregoing provisions are exclusive with respect
to the replacement or payment of mutilated, destroyed, lost or stolen
Debentures, and shall preclude (to the extent lawful) any and all other rights
or remedies, notwithstanding any law or statute existing or hereafter enacted to
the contrary with respect to the replacement or payment of negotiable
instruments or other securities without their surrender.
Section 2.10 Cancellation.
All Debentures surrendered for the purpose of payment, redemption,
exchange, conversion or registration of transfer shall, if surrendered to the
Company or any paying agent, be delivered to the Trustee for cancellation, or,
if surrendered to the Trustee, shall be canceled by it, and no Debentures shall
be issued in lieu thereof except as expressly required or permitted by any of
the provisions of this Indenture. On request of the Company at the time of such
surrender, the Trustee shall deliver to the Company canceled Debentures held by
the Trustee. In the absence of such request the Trustee may dispose of canceled
Debentures in accordance with its standard procedures and deliver a certificate
of disposition to the Company. If the Company shall otherwise acquire any of
the Debentures, however, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Debentures unless and until
the same are delivered to the Trustee for cancellation.
Section 2.11 Benefit of Indenture.
Nothing in this Indenture or in the Debentures, express or implied, shall
give or be construed to give to any Person, other than the parties hereto and
the holders of the Debentures (and, with respect to the provisions of Article
XVII, the holders of Senior Indebtedness) any legal or equitable right, remedy
or claim under or in respect of this Indenture, or under any covenant, condition
or provision herein contained; all such covenants, conditions and provisions
being for the sole benefit of the parties hereto and of the holders of the
Debentures (and, with respect to the provisions of Article XVII, the holders of
Senior Indebtedness).
Section 2.12 Authenticating Agent.
(a) So long as any of the Debentures remain Outstanding there may be an
Authenticating Agent for any or all such Debentures, which Authenticating Agent
the Trustee shall have the right to appoint. Said Authenticating Agent shall be
authorized to act on behalf of the Trustee to authenticate Debentures issued
upon exchange, transfer or partial redemption thereof, and Debentures so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and
16
obligatory for all purposes as if authenticated by the Trustee hereunder. All
references in this Indenture to the authentication of Debentures by the Trustee
shall be deemed to include authentication by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and shall be a
corporation that has a combined capital and surplus, as most recently reported
or determined by it, sufficient under the laws of any jurisdiction under which
it is organized or in which it is doing business to conduct a trust business,
and that is otherwise authorized under such laws to conduct such business and is
subject to supervision or examination by federal or state authorities. If at any
time any Authenticating Agent shall cease to be eligible in accordance with
these provisions, it shall resign immediately.
(b) Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Trustee and to the Company. The Trustee may at any
time (and upon request by the Company shall) terminate the agency of any
Authenticating Agent by giving written notice of termination to such
Authenticating Agent and to the Company. Upon resignation, termination or
cessation of eligibility of any Authenticating Agent, the Trustee may appoint an
eligible successor Authenticating Agent acceptable to the Company. Any
successor Authenticating Agent, upon acceptance of its appointment hereunder,
shall become vested with all the rights, powers and duties of its predecessor
hereunder as if originally named as an Authenticating Agent pursuant hereto.
ARTICLE III
REDEMPTION OF DEBENTURES
Section 3.1 Redemption.
Subject to the Company having received prior approval of the Federal
Reserve, if then required under the applicable capital guidelines, policies or
regulations of the Federal Reserve, the Company may redeem the Debentures issued
hereunder on and after the dates set forth in and in accordance with the terms
of this Article III.
Section 3.2 Special Event Redemption.
Subject to the Company having received the prior approval of the Federal
Reserve, if then required under the applicable capital guidelines, policies or
regulations of the Federal Reserve, if a Special Event has occurred and is
continuing, then, notwithstanding Section 3.3(a) but subject to Section 3.3(b),
the Company shall have the right upon not less than 30 days' nor more than 60
days' notice to the holders of the Debentures to redeem the Debentures, in whole
but not in part, for cash within 180 days following the occurrence of such
Special Event (the "180-Day Period") at a redemption price equal to 100% of the
principal amount to be redeemed plus any accrued and unpaid interest thereon to
the date of such redemption (the "Redemption Price"), provided that if at the
time there is available to the Company the opportunity to eliminate, within the
180-Day Period, a Tax Event by taking some ministerial action (a "Ministerial
Action"), such as filing a form or making an election, or pursuing some other
similar reasonable measure which has no adverse effect on the
17
Company, the Trust or the holders of the Trust Securities issued by the Trust,
the Company shall pursue such Ministerial Action in lieu of redemption, and,
provided further, that the Company shall have no right to redeem the Debentures
-------- -------
pursuant to this Section 3.2 while it is pursuing any Ministerial Action
pursuant to its obligations hereunder, and, provided further, that, if it is
determined that the taking of a Ministerial Action would not eliminate the Tax
Event within the 180 Day Period, the Company's right to redeem the Debentures
pursuant to this Section 3.2 shall be restored and it shall have no further
obligations to pursue the Ministerial Action. The Redemption Price shall be paid
prior to 12:00 noon, New York time, on the date of such redemption or such
earlier time as the Company determines, provided that the Company shall deposit
with the Trustee an amount sufficient to pay the Redemption Price by 10:00 a.m.,
New York time, on the date such Redemption Price is to be paid.
Section 3.3 Optional Redemption by Company.
(a) Subject to the provisions of Section 3.3(c), except as otherwise may
be specified in this Indenture, the Company shall have the right to redeem the
Debentures, in whole or in part, from time to time, (i) on or after September
30, 2005, at a Redemption Price equal to 100% of the principal amount to be
redeemed plus any accrued and unpaid interest thereon to the date of such
redemption; (ii) on or after September 30, 2003 but before September 30, 2004,
at a Redemption Price equal to ____% of the principal amount to be redeemed plus
any accrued and unpaid interest thereon to the date of such redemption; and
(iii) on or after September 30, 2004 but before September 30, 2005, at a
Redemption Price equal to ____% of the principal to be redeemed plus any accrued
and unpaid interest thereon to the date of such redemption. The Company may
elect to redeem the Debentures pursuant to (ii) and (iii) above only if the
stock price for the Company's common stock has been at least 125% of the
Conversion Price for a period of twenty consecutive business days ending within
five days of the date of notice of redemption. Any redemption pursuant to this
Section 3.3(a) shall be made upon not less than 30 days' nor more than 60 days'
notice to the holder of the Debentures, at the Redemption Price. If the
Debentures are only partially redeemed pursuant to this Section 3.3(a), the
Debentures shall be redeemed pro rata or by lot or in such other manner as the
Trustee shall deem appropriate and fair in its discretion. The Redemption Price
shall be paid prior to 12:00 noon, New York time, on the date of such redemption
or at such earlier time as the Company determines provided that the Company
shall deposit with the Trustee an amount sufficient to pay the Redemption Price
by 10:00 a.m., New York time, on the date such Redemption Price is to be paid.
(b) Subject to the provisions of Section 3.3(c), the Company shall have
the right to redeem Debentures at any time and from time to time in a principal
amount equal to the Liquidation Amount (as defined in the Trust Agreement) of
any Preferred Securities purchased and beneficially owned by the Company, plus
an additional principal amount of Debentures equal to the Liquidation Amount (as
defined in the Trust Agreement) of that number of Common Securities that bears
the same proportion to the total number of Common Securities then outstanding as
the number of Preferred Securities to be redeemed bears to the total number of
Preferred Securities then outstanding. Such Debentures shall be redeemed
pursuant to this Section 3.3(b) only in exchange
18
for and upon surrender by the Company to the Property Trustee of the Preferred
Securities and a proportionate amount of Common Securities, whereupon the
Property Trustee shall cancel the Preferred Securities and Common Securities so
surrendered and a Like Amount (as defined in the Trust Agreement) of Debentures
shall be extinguished by the Trustee and shall no longer be deemed Outstanding.
(c) If a partial redemption of the Debentures would result in the
delisting of the Preferred Securities issued by the Trust from The Nasdaq
National Market(SM) or any national securities exchange or other organization on
which the Preferred Securities are then listed or quoted, the Company shall not
be permitted to effect such partial redemption and may only redeem the
Debentures in whole.
Section 3.4 Notice of Redemption.
(a) Except in the case of a redemption pursuant to Section 3.3(b), in case
the Company shall desire to exercise such right to redeem all or, as the case
may be, a portion of the Debentures in accordance with the right reserved so to
do, the Company shall, or shall cause the Trustee to upon receipt of 45 days'
written notice from the Company (which notice shall, in the event of a partial
redemption, include a representation to the effect that such partial redemption
will not result in the delisting of the Preferred Securities as described in
Section 3.3(c) above), give notice of such redemption to holders of the
Debentures to be redeemed by mailing, first class postage prepaid, a notice of
such redemption not less than 30 days and not more than 60 days before the date
fixed for redemption to such holders at their last addresses as they shall
appear upon the Debenture Register unless a shorter period is specified in the
Debentures to be redeemed. Any notice that is mailed in the manner herein
provided shall be conclusively presumed to have been duly given, whether or not
the registered holder receives the notice. In any case, failure duly to give
such notice to the holder of any Debenture designated for redemption in whole or
in part, or any defect in the notice, shall not affect the validity of the
proceedings for the redemption of any other Debentures. In the case of any
redemption of Debentures prior to the expiration of any restriction on such
redemption provided in the terms of such Debentures or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with any such restriction. Each such notice of redemption
shall specify the date fixed for redemption and the Redemption Price and shall
state that payment of the Redemption Price shall be made at the office or agency
of the Company in the Borough of Manhattan, The City of New York or at the
Corporate Trust Office, upon presentation and surrender of such Debentures, that
interest accrued to the date fixed for redemption shall be paid as specified in
said notice and that from and after said date interest shall cease to accrue.
If less than all the Debentures are to be redeemed, the notice to the holders of
the Debentures shall specify the particular Debentures to be redeemed. If the
Debentures are to be redeemed in part only, the notice shall state the portion
of the principal amount thereof to be redeemed and shall state that on and after
the redemption date, upon surrender of such Debenture, a new Debenture or
Debentures in principal amount equal to the unredeemed portion thereof shall be
issued.
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(b) Except in the case of redemption pursuant to Section 3.3(b), if less
than all the Debentures are to be redeemed, the Company shall give the Trustee
at least 45 days' notice in advance of the date fixed for redemption as to the
aggregate principal amount of Debentures to be redeemed, and thereupon the
Trustee shall select, pro rata or by lot or in such other manner as it shall
deem appropriate and fair in its discretion, the portion or portions (equal to
$10 or any integral multiple thereof) of the Debentures to be redeemed and shall
thereafter promptly notify the Company in writing of the numbers of the
Debentures to be redeemed, in whole or in part. The Company may, if and
whenever it shall so elect pursuant to the terms hereof, by delivery of
instructions signed on its behalf by its Chairman, its President or any Vice
President, instruct the Trustee or any paying agent to call all or any part of
the Debentures for redemption and to give notice of redemption in the manner set
forth in this Section 3.4, such notice to be in the name of the Company or its
own name as the Trustee or such paying agent may deem advisable. In any case in
which notice of redemption is to be given by the Trustee or any such paying
agent, the Company shall deliver or cause to be delivered to, or permit to
remain with, the Trustee or such paying agent, as the case may be, such
Debenture Register, transfer books or other records, or suitable copies or
extracts therefrom, sufficient to enable the Trustee or such paying agent to
give any notice by mail that may be required under the provisions of this
Section 3.4.
Section 3.5 Payment Upon Redemption.
(a) If the giving of notice of redemption shall have been completed as
above provided, the Debentures or portions of Debentures to be redeemed
specified in such notice shall become due and payable on the date and at the
place stated in such notice at the applicable Redemption Price, and interest on
such Debentures or portions of Debentures shall cease to accrue on and after the
date fixed for redemption, unless the Company shall default in the payment of
such Redemption Price with respect to any such Debenture or portion thereof. On
presentation and surrender of such Debentures on or after the date fixed for
redemption at the place of payment specified in the notice, said Debentures
shall be paid and redeemed at the Redemption Price (but if the date fixed for
redemption is an Interest Payment Date, the interest installment payable on such
date shall be payable to the registered holder at the close of business on the
applicable record date pursuant to Section 3.3).
(b) Upon presentation of any Debenture that is to be redeemed in part
only, the Company shall execute and the Trustee shall authenticate and the
office or agency where the Debenture is presented shall deliver to the holder
thereof, at the expense of the Company, a new Debenture of authorized
denomination in principal amount equal to the unredeemed portion of the
Debenture so presented.
Section 3.6 No Sinking Fund.
The Debentures are not entitled to the benefit of any sinking fund.
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ARTICLE IV
CONVERSION OF DEBENTURES
Section 4.1 Conversion Rights.
Subject to and upon compliance with the provisions of this Article IV, the
Debentures are convertible, at the option of the Debentureholder, at any time
after November 30, 2000, and on or before the close of business on the
Business Day immediately preceding the date of repayment of such Debentures,
whether at maturity or upon redemption, into fully paid and nonassessable shares
of Common Stock at an initial conversion ratio of _____ shares of Common Stock
for each $10 in aggregate principal amount of Debentures (equal to an initial
conversion price of $_____ per share of Common Stock), subject to adjustment as
described in this Article IV (the "Conversion Ratio"). A Debentureholder may
convert any portion of the principal amount of the Debentures into that number
of fully paid and nonassessable shares of Common Stock (calculated as to each
conversion to the nearest 1/100th of a share) obtained by multiplying (x) the
quotient obtained by dividing the principal amount of the Debentures to be
converted by $10.00, by (y) the Conversion Ratio. In case a Debenture or portion
thereof is called for redemption, such conversion right in respect of the
Debenture or portion so called shall expire at the close of business on the
Business Day immediately preceding the corresponding Maturity Date, unless the
Company defaults in making the payment due upon redemption.
Section 4.2 Conversion Procedures.
(a) To convert all or a portion of the Debentures, the Debentureholder
thereof shall deliver to the Conversion Agent an irrevocable Conversion Request
setting forth the principal amount of Debentures to be converted, together with
the name or names, if other than the Debentureholder, in which the shares of
Common Stock should be issued upon conversion and, if such Debentures are in
certificate form, surrender to the Conversion Agent the Debentures to be
converted, duly endorsed or assigned to the Company or in blank. In addition, a
holder of Preferred Securities may exercise its right under the Trust Agreement
to exchange such Preferred Securities for Debentures which shall be converted
into Common Stock by delivering to the Conversion Agent an irrevocable
Conversion Request setting forth the information called for by the preceding
sentence and directing the Conversion Agent (i) to exchange such Preferred
Security for a portion of the Debentures held by the Trust (at an exchange rate
of $10 principal amount of Debentures for each Preferred Security), and (ii) to
immediately convert such Debentures, on behalf of such Debentureholder, into
Common Stock pursuant to this Article IV and, if such Preferred Securities are
in certificate form, surrendering such Preferred Securities, duly endorsed or
assigned to the Company or in blank. So long as any Preferred Securities are
outstanding, the Trust shall not convert any Debentures except pursuant to a
Conversion Request delivered to the Conversion Agent by a holder of Preferred
Securities.
21
If a Conversion Request is delivered on or after the regular record date
and prior to the subsequent Interest Payment Date, the Debentureholder shall be
required to pay to the Company the interest payable to the Debentureholder on
the subsequent Interest Payment Date prior to receiving the shares of Common
Stock, and shall be entitled to receive the interest payable on the subsequent
Interest Payment Date, on the portion of Debentures to be converted
notwithstanding the conversion thereof prior to such Interest Payment Date.
Except as provided in the immediately preceding sentence, the Company shall not
make, or be required to make, any payment, allowance or adjustment for
accumulated and unpaid interest, whether or not in arrears, on converted
Debentures; provided, however, that if notice of redemption of Debentures is
mailed or otherwise given to Debentureholder, then, if any Debentureholder
converts any Debentures into Common Stock on any date on or after the date on
which such notice of prepayment is mailed or otherwise given, and if such date
of conversion falls on any day from and including the first day of an Extended
Interest Payment Period and on or prior to the Interest Payment Date upon which
such Extended Interest Payment Period ends, such converting Debentureholder
shall be entitled to receive either (i) if the date of such conversion falls
after a regular record date and on or prior to the next succeeding Interest
Payment Date, all accrued and unpaid interest on such Debentures (including
interest thereon, if any, to the extent permitted by applicable law) to such
Interest Payment Date, or (ii) if the date of such conversion does not fall on a
date described in clause (i) above, all accrued and unpaid interest on such
Debentures (including interest thereon, if any, to the extent permitted by
applicable law) to the most recent Interest Payment Date prior to the date of
such conversion, which interest shall, in either such case, be paid to such
converting Debentureholder unless the date of conversion of such Debentures is
on or prior to the Interest Payment Date upon which such Extended Interest
Payment Period ends and after the regular record date for such Interest Payment
Date, in which case such interest shall be paid to the person who was the
Debentureholder at the close of business on such regular record date. Except as
otherwise set forth above in this paragraph, in the case of any Debenture which
is converted, interest which is payable after the date of conversion of such
Debenture shall not be payable, and the Company shall not make nor be required
to make any other payment, adjustment or allowance with respect to accrued but
unpaid interest (including Additional Interest, if any) on the Debentures being
converted, which shall be deemed to be paid in full. If any Debenture called for
redemption is converted, any money deposited with the Trustee or with any paying
agent or so segregated and held in trust for the redemption of such Debenture
shall (subject to any right of the Debentureholder) be paid to the Company upon
Company Request or, if then held by the Company, shall be discharged from such
trust.
Each conversion shall be deemed to have been effected immediately prior to
close of business on the day on which the Conversion Request was received (the
"Conversion Date") by the Conversion Agent from the Debentureholder or from a
holder of the Preferred Securities effecting a conversion thereof pursuant to
its conversion rights under the Trust Agreement, as the case may be. The Person
or Persons entitled to receive the Common Stock issuable upon such conversion
shall be treated for all purposes as a record holder or holders of such Common
Stock as of the Conversion Date. As promptly as practicable on or after the
Conversion Date, the Company shall issue and deliver at the office of the
Conversion Agent, unless otherwise directed by the Debentureholder in the
Conversion Request, a certificate or certificates for the number of full shares
of Common Stock
22
issuable upon such conversion, together with the cash payment, if any, in lieu
of any fraction of any share to the Person or Persons entitled to receive the
same. The Conversion Agent shall deliver such certificate or certificates to
each Person or Persons.
(b) Subject to any right of the Debentureholder, the Company's delivery
upon conversion of the fixed number of shares of Common Stock into which the
Debentures are convertible (together with the cash payment, if any, in lieu of
fractional shares) shall be deemed to satisfy the Company's obligation to pay
the principal amount at maturity of the portion of Debentures so converted and
any unpaid interest (including Additional Interest, if any) accrued on such
Debentures at the time of such conversion.
(c) No fractional shares of Common Stock shall be issued as a result of
conversion, but in lieu thereof, the Company shall pay to the Conversion Agent a
cash adjustment in an amount equal to the same fraction of the last reported
sale price of such fractional interest on the date on which the Debentures or
Preferred Securities, as the case may be, were duly surrendered to the
Conversion Agent for conversion, or, if such day is not a Trading Day, on the
next Trading Day, and the Conversion Agent in turn shall make such payment, if
any, to the Debentureholder or the holder of the Preferred Securities so
converted.
(d) In the event of the conversion of any Debenture in part only, a new
Debenture or Debentures for the unconverted portion thereof shall be issued in
the name of the Debentureholder thereof upon the cancellation thereof in
accordance with Section 2.9.
(e) In effecting the conversion transactions described in this Section
4.2, the Conversion Agent is acting as agent of the holders of Preferred
Securities (in the exchange of Preferred Securities for Debentures) and as agent
of the Debentureholders (in the conversion of Debentures into Common Stock), as
the case may be, directing it to effect such conversion transactions. The
Conversion Agent is hereby authorized (i) to exchange Preferred Securities for
Debentures held by the Trust from time to time in connection with the conversion
of such Preferred Securities in accordance with this Article IV, and (ii) to
convert all or a portion of the Debentures into Common Stock and thereupon to
deliver such shares of Common Stock in accordance with the provisions of this
Article IV and to deliver to the Trust a new Debenture or Debentures for any
resulting unconverted principal amount.
Section 4.3 Conversion Ratio Adjustments.
The Conversion Ratio shall be subject to adjustment (without duplication)
from time to time as follows:
(a) In case the Company shall, while any of the Debentures are
outstanding, (i) pay a dividend or make a distribution with respect to its
Common Stock in shares of Common Stock, (ii) subdivide its outstanding shares of
Common Stock, (iii) combine its outstanding shares of Common Stock into a
smaller number of shares, or (iv) issue by reclassification of its shares of
23
Common Stock any shares of capital stock of the Company, then the Conversion
Ratio in effect immediately prior to such action shall be adjusted so that the
holders of any Debentures thereafter surrendered for conversion shall be
entitled to receive the number of shares of capital stock of the Company which
he would have owned immediately following such action had such Debentures been
converted immediately prior thereto. An adjustment made pursuant to this Section
4.3(a) shall become effective immediately after the record date in the case of a
dividend or other distribution and shall become effective immediately after the
effective date in case of a subdivision, combination or reclassification (or
immediately after the record date if a record date shall have been established
for such event). If, as a result of an adjustment made pursuant to this Section
4.3(a), the holder of any Debenture thereafter surrendered for conversion shall
become entitled to receive shares of two or more classes or series of capital
stock of the Company, the Board of Directors (whose determination shall be
conclusive and shall be described in a Board Resolution filed with the Trustee)
shall determine the allocation of the adjusted Conversion Ratio between or among
shares of such classes or series of capital stock.
(b) In case the Company shall, while any of the Debentures are
outstanding, issue rights or warrants to all holders of its Common Stock
entitling them (for a period expiring within 45 days after the record date
mentioned in this Section 4.3(b)) to subscribe for or purchase shares of Common
Stock at a price per share less than the Current Market Price (as defined below)
per share of Common Stock on such record date, then the Conversion Ratio for the
Debentures shall be adjusted so that the same shall equal the ratio determined
by multiplying the Conversion Ratio in effect immediately prior to the date of
issuance of such rights or warrants by a fraction of which the numerator shall
be the number of shares of Common Stock outstanding on the date of issuance of
such rights or warrants plus the number of additional shares of Common Stock
offered for subscription or purchase, and of which the denominator shall be the
number of shares of Common Stock outstanding on the date of issuance of such
rights or warrants plus the number of shares which the aggregate offering price
of the total number of shares so offered for subscription or purchase would
purchase at such Current Market Price. Such adjustment shall become effective
immediately after the record date for the determination of shareholders entitled
to receive such rights or warrants. For the purposes of this Section 4.3(b), the
number of shares of Common Stock at any time outstanding shall not include
shares held in the treasury of the Company. The Company shall not issue any
rights or warrants in respect of the shares of Common Stock held in the treasury
of the Company. In case any rights or warrants referred to in this Section
4.3(b) in respect of which an adjustment shall have been made shall expire
unexercised within 45 days after the same shall have been distributed or issued
by the Company, the Conversion Ratio shall be readjusted at the time of such
expiration to the Conversion Ratio that would have been in effect if no
adjustment had been made on account of the distribution or issuance of such
expired rights or warrants.
(c) Subject to the last sentence of this Section 4.3(c), in case the
Company shall, by dividend or otherwise, distribute to all holders of its Common
Stock evidences of its indebtedness, shares of any class or series of capital
stock, cash or assets (including securities, but excluding any rights or
warrants referred to in Section 4.3(b), any dividend or distribution paid
exclusively in cash and any dividend or distribution referred to in Section
4.3(a)), then the Conversion Ratio shall be
24
increased so that the same shall equal the ratio determined by multiplying the
Conversion Ratio in effect immediately prior to the effectiveness of the
Conversion Ratio increase contemplated by this Section 4.3(c) by a fraction of
which the numerator shall be the Current Market Price per share of Common Stock
on the date fixed for the payment of such distribution (the "Reference Date"),
and of which the denominator shall be, the Current Market Price per share of the
Common Stock on the Reference Date less the fair market value (as determined in
good faith by the Board of Directors, whose determination shall be conclusive
and described in a Board Resolution), on the Reference Date, of the portion of
the evidences of indebtedness, shares of capital stock, cash and assets so
distributed applicable to one share of Common Stock, such increase to become
effective immediately prior to the opening of business on the day following the
Reference Date. In the event that such dividend or distribution is not so paid
or made, the Conversion Ratio shall again be adjusted to be the Conversion Ratio
which would then be in effect if such dividend or distribution had not occurred.
If the Board of Directors determines the fair market value of any distribution
for purposes of this Section 4.3(c) by reference to the actual or when issued
trading market for any securities comprising such distribution, it must in doing
so consider the prices in such market over the same period used in computing the
Current Market Price per share of Common Stock. For purposes of this Section
4.3(c), any dividend or distribution that includes shares of Common Stock or
rights or warrants to subscribe for or purchase shares of Common Stock shall be
deemed instead to be (1) a dividend or distribution of the evidences of
indebtedness, shares of capital stock, cash or assets other than such shares of
Common Stock or such rights or warrants (making any Conversion Ratio increase
required by this Section 4.3(c)) immediately followed by (2) a dividend or
distribution of such shares of Common Stock or such rights or warrants (making
any further Conversion Ratio increase required by Section 4.3(a) or 4.3 (b)),
except (A) the Reference Date of such dividend or distribution as defined in
this Section 4.3(c) shall be substituted as (a) "the record date in the case of
a dividend or other distribution," and (b) "the record date for the
determination of shareholders entitled to receive such rights or warrants," and
(c) "the date fixed for such determination" within the meaning of Sections
4.3(a) and 4.3(b), and (B) any shares of Common Stock included in such dividend
or distribution shall not be deemed outstanding for purposes of computing any
adjustment of the Conversion Ratio in Section 4.3(a).
(d) In case the Company shall pay or make a dividend or other distribution
on its Common Stock exclusively in cash (excluding all cash dividends paid out
of the retained earnings of the Company), then the Conversion Ratio shall be
increased so that the same shall equal the ratio determined by multiplying the
Conversion Ratio in effect immediately prior to the effectiveness of the
Conversion Ratio increase contemplated by this Section 4.3(d) by a fraction of
which the numerator shall be the Current Market Price per share of the Common
Stock, and of which the denominator shall be the Current Market Price per share
of Common Stock on the date fixed for the payment of such distribution less the
amount of cash so distributed and not excluded as provided applicable to one
share of Common Stock on the date fixed for the payment of such distribution,
such increase to become effective immediately prior to the opening of business
on the day following the date fixed for the payment of such distribution;
provided, however, that in the event the portion of the cash so distributed
applicable to one share of Common Stock is equal to or greater than the Current
Market Price per share of the Common Stock on the record date mentioned above,
in lieu
25
of the foregoing adjustment, adequate provision shall be made so that each
Debentureholder shall have the right to receive upon conversion the amount of
cash such Debentureholder would have received had such Debentureholder converted
each Debenture immediately prior to the record date for the distribution of the
cash. In the event that such dividend or distribution is not so paid or made,
the Conversion Ratio shall again be adjusted to be the Conversion Ratio which
would then be in effect if such record date had not been fixed.
(e) In case a tender or exchange offer (other than an odd-lot offer) made
by the Company or any subsidiary of the Company for all or any portion of the
Common Stock shall expire and such tender or exchange offer shall involve the
payment by the Company or such subsidiary of consideration per share of Common
Stock having a fair market value (as determined in good faith by the Board of
Directors, whose determination shall be conclusive and described in a Board
Resolution) at the last time (the "Expiration Time") tenders or exchanges may be
made pursuant to such tender or exchange offer (as it shall have been amended)
that exceeds 110% of the Current Market Price per share of Common Stock on the
Trading Day next succeeding the Expiration Time, then the Conversion Ratio shall
be increased so that the same shall equal the ratio determined by multiplying
the Conversion Ratio in effect immediately prior to the effectiveness of the
Conversion Ratio increase contemplated by this Section 4.3(e) by a fraction of
which the numerator shall be the sum of (x) the fair market value (determined as
aforesaid) of the aggregate consideration payable to shareholders based on the
acceptance (up to any maximum specified in the terms of the tender or exchange
offer) of all shares validly tendered or exchanged and not withdrawn as of the
Expiration Time (the shares deemed so accepted, up to any such maximum, being
referred to as the "Purchased Shares"), and (y) the product of the number of
shares of Common Stock outstanding (less any Purchased Shares) at the Expiration
Time and the Current Market Price per share of Common Stock on the Trading Day
next succeeding the Expiration Time, and of which the denominator shall be the
number of shares of Common Stock outstanding (including any tendered or
exchanged shares) at the Expiration Time multiplied by the Current Market Price
per share of Common Stock on the Trading Day next succeeding the Expiration
Time, such increase to become effective immediately prior to the opening of
business on the day following the Expiration Time.
(f) For the purpose of any computation under Sections 4.3(b), (c), (d) or
(e), the "Current Market Price" per share of Common Stock on any date in
question shall be deemed to be the average of the daily Closing Prices for the
five consecutive Trading Days selected by the Company commencing not more than
20 Trading Days before, and ending not later than the earlier of the day in
question or, if applicable, the day before the "ex" date with respect to the
issuance or distribution requiring such computation; provided, however, that if
another event occurs that would require an adjustment pursuant to Sections
4.3(a) through (e), inclusive, the Board of Directors may make such adjustments
to the Closing Prices during such five Trading Day period as it deems
appropriate to effectuate the intent of the adjustments in this Section 4.3, in
which case any such determination by the Board of Directors shall be set forth
in a Board Resolution and shall be conclusive. For purposes of this Section
4.3(f), the term "ex" date, (i) when used with respect to any issuance or
distribution, means the first date on which the Common Stock trades regular way
on The Nasdaq National Market(SM) or on such successor securities quotation
system as the Common Stock may be listed or
26
in the relevant market from which the Closing Prices were obtained without the
right to receive such issuance or distribution, and (ii) when used with respect
to any tender or exchange offer, means the first date on which the Common Stock
trades regular way on such securities exchange or in such market after the
Expiration Time of such offer.
(g) The Company may make such increases in the Conversion Ratio, in
addition to those required by Sections (a) through (e), as it considers to be
advisable to avoid or diminish any income tax to holders of Common Stock or
rights to purchase Common Stock resulting from any dividend or distribution of
stock (or rights to acquire stock) or from any event treated as such for income
tax purposes. The Company from time to time may increase the Conversion Ratio by
any amount for any period of time if the period is at least 20 days, the
increase is irrevocable during the period, and the Board of Directors shall have
made a determination that such increase would be in the best interest of the
Company, which determination shall be conclusive. Whenever the Conversion Ratio
is increased pursuant to the preceding sentence, the Company shall mail to
Debentureholders of record a notice of the increase at least fifteen days prior
to the date the increased Conversion Ratio takes effect, and such notice shall
state the increased Conversion Ratio and the period it shall be in effect.
(h) No adjustment in the Conversion Ratio shall be required unless such
adjustment would require an increase or decrease of at least 1% in the
Conversion Ratio; provided, however, that any adjustments which by reason of
this Section 4.3(h) are not required to be made shall be carried forward and
taken into account in determining whether any subsequent adjustment shall be
required. The adjusted Conversion Ratio will be rounded to four decimal places.
(i) If any action would require adjustment of the Conversion Ratio
pursuant to more than one of the provisions described above, only one adjustment
shall be made and such adjustment shall be the amount of adjustment that has the
highest absolute value to the Debentureholders.
Section 4.4 Reclassification, Consolidation, Merger or Sale of Assets.
In the event that the Company shall be a party to any transaction,
including without limitation (a) any recapitalization or reclassification of the
Common Stock (other than a change in par value, or from par value to no par
value, or from no par value to par value, or as a result of a subdivision or
combination of the Common Stock), (b) any consolidation of the Company with, or
merger of the Company into any other Person, any merger of another Person into
the Company (other than a merger which does not result in a reclassification,
conversion, exchange or cancellation of outstanding shares of Common Stock of
the Company), (c) any sale, transfer or lease of all or substantially all of the
assets of the Company, or (d) any compulsory share exchange, in each case
pursuant to which the Common Stock is converted into the right to receive other
securities, cash or other property, then lawful provision shall be made as part
of the terms of such transaction whereby the holder of each Debenture then
outstanding shall have the right thereafter to convert each Debenture only into
the kind and amount of securities, cash or other property receivable upon
consummation of such transaction by a holder of the number of shares of Common
Stock of the
27
Company into which such Debenture could have been converted immediately prior to
such transaction.
The Company or the Person formed by such consolidation or resulting from
such merger or which acquired such assets or which acquires the shares of the
Company, as the case may be, shall make provision in its certificate or articles
of incorporation or other constituent document to establish such right. Such
certificate or articles of incorporation or other constituent document shall
provide for adjustments which, for events subsequent to the effective date of
such certificate or articles of incorporation or other constitution document,
shall be as nearly equivalent as may be practicable to the adjustments provided
for in this Article IV. The above provisions shall similarly apply to successive
transactions of the foregoing type.
Section 4.5 Notice of Adjustments of Conversion Ratio.
Whenever the Conversion Ratio is adjusted as herein provided:
(a) The Company shall compute the adjusted Conversion Ratio and shall
prepare a certificate signed by the Chairman of the Board, President or a Vice
President of the Company and by its Treasurer or an Assistant Treasurer of the
Company setting forth the adjusted Conversion Ratio and showing in reasonable
detail the facts upon which such adjustment is based, and such certificate shall
forthwith be filed with the Trustee, the Conversion Agent and the transfer agent
for the Preferred Securities and the Debentures; and
(b) a notice stating that the Conversion Ratio has been adjusted and
setting forth the adjusted Conversion Ratio shall as soon as practicable be
mailed by the Company to all record holders of Preferred Securities and the
Debentures at their last addresses as they appear upon the stock transfer books
of the Company and the Trust.
Section 4.6 Prior Notice of Certain Events.
In case:
(a) the Company shall (i) declare any dividend (or any other distribution)
on its Common Stock, other than (A) a dividend payable in shares of Common
Stock, or (B) a dividend payable in cash that would not require an adjustment
pursuant to Section 4.3(c) or (d), or (ii) authorize a tender or exchange offer
that would require an adjustment pursuant to Section 4.3(e);
(b) the Company shall authorize the granting to all holders of Common
Stock of rights or warrants to subscribe for or purchase any shares of stock of
any class or series or of any other rights or warrants;
(c) of any reclassification of Common Stock (other than a subdivision or
combination of the outstanding Common Stock, or a change in par value, or from
par value to no par value, or
28
from no par value to par value), or of any consolidation or merger to which the
Company is a party and for which approval of any shareholders of the Company
shall be required, or the sale or transfer of all or substantially all of the
assets of the Company or of any compulsory share exchange whereby the Common
Stock is converted into other securities, cash or other property; or
(d) of the voluntary or involuntary dissolution, liquidation or winding up
of the Company; then the Company shall (1) if any Preferred Securities are
outstanding, cause to be filed with the transfer agent for the Preferred
Securities, and shall cause to be mailed to the holders of record of the
Preferred Securities, at their last addresses as they shall appear upon the
securities register of the Trust, or (2) shall cause to be mailed to all
Debentureholders at their last addresses as they shall appear in the Debenture
Register, at least fifteen days prior to the applicable record or effective date
hereinafter specified, a notice stating (x) the date on which a record (if any)
is to be taken for the purpose of such dividend, distribution, rights or
warrants or, if a record is not to be taken, the date as of which the holders of
Common Stock of record to be entitled to such dividend, distribution, rights or
warrants are to be determined, or (y) the date on which such reclassification,
consolidation, merger, sale, transfer, share exchange, dissolution, liquidation
or winding up is expected to become effective, and the date as of which it is
expected that holders of Common Stock of record shall be entitled to exchange
their shares of Common Stock for securities, cash or other property deliverable
upon such reclassification, consolidation, merger, sale, transfer, share
exchange, dissolution, liquidation or winding up (but no failure to mail such
notice or any defect therein or in the mailing thereof shall affect the validity
of the corporate action required to be specified in such notice).
Section 4.7 Certain Defined Terms.
The following definitions shall apply to terms used in this Article IV:
(a) "Closing Prices" of any security on any day shall mean the last
reported sale price for such security, regular way, on such day or, if no sale
takes place on such day, the average of the reported closing bid and asked
prices on such day, regular way, of such security, in either case as reported on
the National Market System of the National Association of Securities Dealers,
Inc. or, if such security is not quoted or admitted to trading on such quotation
system, on the principal quotation system on which such security is listed or
admitted to trading or quoted, or, if not listed or admitted to trading or
quoted on any national securities exchange or quotation system, the average of
the closing bid and asked prices of such security in the over-the-counter market
on the day in question as reported by the National Quotation Bureau
Incorporated, or a similar generally accepted reporting service, or, if not so
available in such manner, as furnished by any Nasdaq member firm selected from
time to time by the Board of Directors for that purpose or, if not so available
in such manner, as otherwise determined in good faith by the Board of Directors.
(b) "Trading Day" shall mean a day on which securities are traded on the
national securities exchange or quotation system used to determine the Closing
Price.
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Section 4.8 Dividend or Interest Reinvestment Plans.
Notwithstanding the foregoing provisions, the issuance of any shares of
Common Stock pursuant to any plan providing for the reinvestment of dividends or
interest payable on securities of the Company and the investment of additional
optional amounts in shares of Common Stock under any such plan, and the issuance
of any shares of Common Stock or options or rights to purchase such shares
pursuant to any employee benefit plan or program of the Company or pursuant to
any option, warrant, right or exercisable, exchangeable or convertible security
outstanding as of the date the Debentures were first issued, shall not be deemed
to constitute an issuance of Common Stock or exercisable, exchangeable or
convertible securities by the Company to which any of the adjustment provisions
described above shall apply. There also shall be no adjustment of the Conversion
Ratio in case of the issuance of any stock (or securities convertible into or
exchangeable for stock) of the Company except as specifically described in this
Article IV.
Section 4.9 Certain Additional Rights.
In case the Company shall, by dividend or otherwise, declare or make a
distribution on its Common Stock referred to in Section 4.3(c) or (d)
(including, without limitation, dividends or distributions referred to in the
last sentence of Section 4.3(c)), then the Debentureholders, upon the conversion
thereof subsequent to the close of business on the date fixed for the
determination of shareholders entitled to receive such distribution and prior to
the effectiveness of the Conversion Ratio adjustment in respect of such
distribution, also shall be entitled to receive for each share of Common Stock
into which the Debentures are converted, the portion of the shares of Common
Stock, rights, warrants, evidences of indebtedness, shares of capital stock,
cash and assets so distributed applicable to one share of Common Stock;
provided, however, that, at the election of the Company (whose election shall be
evidenced by a Board Resolution) with respect to all Debentureholders so
converting, the Company may, in lieu of distributing to such Debentureholder any
portion of such distribution not consisting of cash or securities of the
Company, pay such Debentureholder an amount in cash equal to the fair market
value thereof (as determined in good faith by the Board of Directors, whose
determination shall be conclusive and described in a Board Resolution). If any
conversion of Debentures described in the immediately preceding sentence occurs
prior to the payment date for a distribution to holders of Common Stock which
the Debentureholders so converted is entitled to receive in accordance with the
immediately preceding sentence, the Company may elect (such election to be
evidenced by a Board Resolution) to distribute to such Debentureholder a due
xxxx for the shares of Common Stock, rights, warrants, evidences of
indebtedness, shares of capital stock, cash or assets to which such
Debentureholder is so entitled, provided, that such due xxxx (i) meets any
applicable requirements of the principal national securities quotation system or
other market on which the Common Stock is then traded, and (ii) requires payment
or delivery of such shares of Common Stock, rights, warrants, evidences of
indebtedness, shares of capital stock, cash or assets no later than the date of
payment or delivery thereof to holders of shares of Common Stock receiving such
distribution.
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Section 4.10 Trustee Not Responsible for Determining Conversion Ratio or
Adjustments.
Neither the Trustee nor any Conversion Agent shall at any time be under any
duty or responsibility to any Debentureholder to determine whether any facts
exist which may require any adjustment of the Conversion Ratio, or with respect
to the nature or extent of any such adjustment when made, or with respect to the
method employed, or herein or in any supplemental indenture provided to be
employed, in making the same. Neither the Trustee nor any Conversion Agent shall
be accountable with respect to the validity or value (or the kind of account) of
any shares of Common Stock or of any securities or property, which may at any
time be issued or delivered upon the conversion of any Debenture; and neither
the Trustee nor any Conversion Agent makes any representation with respect
thereto. Neither the Trustee nor any Conversion Agent shall be responsible for
any failure of the Company to make any cash payment or to issue, transfer or
deliver any shares of Common Stock or stock certificates or other securities or
property upon the surrender of any Debenture for the purpose of conversion, or,
except as expressly herein provided, to comply with any of the covenants of the
Company contained in Article VI or this Article IV.
ARTICLE V
EXTENSION OF INTEREST PAYMENT PERIOD
Section 5.1 Extension of Interest Payment Period.
The Company shall have the right, at any time and from time to time during
the term of the Debentures so long as no Event of Default has occurred and is
continuing, to defer payments of interest by extending the interest payment
period of such Debentures for a period not exceeding 20 consecutive quarters
(the "Extended Interest Payment Period"), during which Extended Interest Payment
Period no interest shall be due and payable; provided that no Extended Interest
Payment Period may extend beyond the Maturity Date or end on a date other than
an Interest Payment Date. To the extent permitted by applicable law, interest,
the payment of which has been deferred because of the extension of the interest
payment period pursuant to this Section 5.1, shall bear interest thereon at the
Coupon Rate compounded quarterly for each quarter of the Extended Interest
Payment Period ("Compounded Interest"). At the end of the Extended Interest
Payment Period, the Company shall calculate (and deliver such calculation to the
Trustee) and pay all interest accrued and unpaid on the Debentures, including
any Additional Interest and Compounded Interest (together, "Deferred Interest")
that shall be payable to the holders of the Debentures in whose names the
Debentures are registered in the Debenture Register on the first record date
after the end of the Extended Interest Payment Period. Before the termination
of any Extended Interest Payment Period, the Company may further extend such
period so long as no Event of Default has occurred and is continuing, provided
that such period together with all such further extensions thereof shall not
exceed 20 consecutive quarters, or extend beyond the Maturity Date of the
Debentures or end on a date other than an Interest Payment Date. Upon the
termination of any Extended Interest Payment Period and upon the payment of all
Deferred Interest then due, the Company may commence a new Extended
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Interest Payment Period, subject to the foregoing requirements. No interest
shall be due and payable during an Extended Interest Payment Period, except at
the end thereof, but the Company may prepay at any time all or any portion of
the interest accrued during an Extended Interest Payment Period.
Section 5.2 Notice of Extension.
(a) If the Property Trustee is the only registered holder of the
Debentures at the time the Company selects an Extended Interest Payment Period,
the Company shall give written notice to the Administrative Trustees, the
Property Trustee and the Trustee of its selection of such Extended Interest
Payment Period two Business Days before the earlier of (i) the next succeeding
date on which Distributions on the Trust Securities issued by the Trust are
payable; or (ii) the date the Trust is required to give notice of the record
date, or the date such Distributions are payable, to The Nasdaq National
Market(SM) or other applicable self-regulatory organization or to holders of the
Preferred Securities issued by the Trust, but in any event at least one Business
Day before such record date.
(b) If the Property Trustee is not the only holder of the Debentures at
the time the Company selects an Extended Interest Payment Period, the Company
shall give the holders of the Debentures and the Trustee written notice of its
selection of such Extended Interest Payment Period at least two Business Days
before the earlier of (i) the next succeeding Interest Payment Date; or (ii) the
date the Company is required to give notice of the record or payment date of
such interest payment to The Nasdaq National Market(SM) or other applicable
self-regulatory organization or to holders of the Debentures.
(c) The quarter in which any notice is given pursuant to paragraphs (a) or
(b) of this Section 5.2 shall be counted as one of the 20 quarters permitted in
the maximum Extended Interest Payment Period permitted under Section 5.1.
Section 5.3 Limitation on Transactions.
If (i) the Company shall exercise its right to defer payment of interest as
provided in Section 5.1, or (ii) there shall have occurred and be continuing any
Event of Default, then (a) the Company shall not declare or pay any dividend on,
make any distributions with respect to, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of its capital stock (other than (A)
dividends or distributions in common stock of the Company, or any declaration of
a non-cash dividend in connection with the implementation of a shareholder
rights plan, or the issuance of stock under any such plan in the future, or the
redemption or repurchase of any such rights pursuant thereto, (B) purchases of
common stock of the Company related to the rights under any of the Company's
benefit plans for its directors, officers or employees, or (C) as a result of a
reclassification of its capital stock for another class of its capital stock);
(b) the Company shall not make any payment of interest, principal or premium, if
any, or repay, repurchase or redeem any debt securities issued by the Company
which rank pari passu with or junior to the Debentures or make any guarantee
payment with respect to any guarantee by the Company of the debt securities of
any
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subsidiary of the Company if such guarantee ranks pari passu with or junior to
the Debentures; provided, however, that notwithstanding the foregoing the
Company may make payments pursuant to its obligations under the Preferred
Securities Guarantee; and (c) the Company shall not redeem, purchase or acquire
less than all of the outstanding Debentures or any of the Preferred Securities.
ARTICLE VI
PARTICULAR COVENANTS OF THE COMPANY
Section 6.1 Payment of Principal and Interest.
The Company shall duly and punctually pay or cause to be paid the principal
of and interest on the Debentures at the time and place and in the manner
provided herein. Each such payment of the principal of and interest on the
Debentures shall relate only to the Debentures, shall not be combined with any
other payment of the principal of or interest on any other obligation of the
Company, and shall be clearly and unmistakably identified as pertaining to the
Debentures.
Section 6.2 Maintenance of Agency.
So long as any of the Debentures remain Outstanding, the Company shall
maintain, or shall cause to be maintained, an office or agency in the Borough of
Manhattan, The City of New York, and at such other location or locations as may
be designated as provided in this Section 6.2, where (i) Debentures may be
presented for payment; (ii) Debentures may be presented as hereinabove
authorized for registration of transfer, conversion or exchange; and (iii)
notices and demands to or upon the Company in respect of the Debentures and this
Indenture may be given or served, such designation to continue with respect to
such office or agency until the Company shall, by written notice signed by its
President or an Executive Vice President and delivered to the Trustee, designate
some other office or agency for such purposes or any of them. 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,
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, notices and demands. In addition to any such office or
agency, the Company may from time to time designate one or more offices or
agencies outside of the Borough of Manhattan, The City of New York, where the
Debentures may be presented for registration or transfer and for exchange in the
manner provided herein, and the Company may from time to time rescind such
designation as the Company may deem desirable or expedient; provided, however,
that no such designation or rescission shall in any manner relieve the Company
of its obligation to maintain any such office or agency in the Borough of
Manhattan, The City of New York, for the purposes above mentioned. The Company
shall give the Trustee prompt written notice of any such designation or
rescission thereof.
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Section 6.3 Paying Agents.
(a) The Company shall be the initial paying agent. If the Company shall
appoint one or more paying agents for the Debentures, other than the Trustee,
the Company shall cause each such paying agent to execute and deliver to the
Trustee an instrument in which such agent shall agree with the Trustee, subject
to the provisions of this Section 6.3:
(i) that it shall hold all sums held by it as such agent for the
payment of the principal of or interest on the Debentures (whether such sums
have been paid to it by the Company or by any other obligor of such Debentures)
in trust for the benefit of the Persons entitled thereto;
(ii) that it shall give the Trustee notice of any failure by the
Company (or by any other obligor of such Debentures) to make any payment of the
principal of or interest on the Debentures when the same shall be due and
payable;
(iii) that it shall, at any time during the continuance of any failure
referred to in the preceding paragraph (a)(ii) above, upon the written request
of the Trustee, forthwith pay to the Trustee all sums so held in trust by such
paying agent; and
(iv) that it shall perform all other duties of paying agent as set
forth in this Indenture.
(b) If the Company shall act as its own paying agent with respect to the
Debentures, it shall on or before each due date of the principal of or interest
on such Debentures, set aside, segregate and hold in trust for the benefit of
the Persons entitled thereto a sum sufficient to pay such principal or interest
so becoming due on Debentures until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and shall promptly notify the Trustee
of such action, or any failure (by it or any other obligor on such Debentures)
to take such action. Whenever the Company shall have one or more paying agents
for the Debentures, it shall, prior to each due date of the principal of or
interest on any Debentures, deposit with the paying agent a sum sufficient to
pay the principal or interest so becoming due, such sum to be held in trust for
the benefit of the Persons entitled to such principal or interest, and (unless
such paying agent is the Trustee) the Company shall promptly notify the Trustee
of this action or failure so to act.
(c) Notwithstanding anything in this Section 6.3 to the contrary, (i) the
agreement to hold sums in trust as provided in this Section 6.3 is subject to
the provisions of Section 14.3 and 14.4; and (ii) 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 direct any paying agent to pay, to the Trustee
all sums held in trust by the Company or such paying agent, such sums to be held
by the Trustee upon the same terms and conditions as those upon which such sums
were held by 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.
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Section 6.4 Appointment to Fill Vacancy in Office of Trustee.
The Company, whenever necessary to avoid or fill a vacancy in the office of
Trustee, shall appoint, in the manner provided in Section 10.11, a Trustee, so
that there shall at all times be a Trustee hereunder.
Section 6.5 Compliance with Consolidation Provisions.
The Company shall not, while any of the Debentures remain outstanding,
consolidate with, or merge into, or merge into itself, or sell or convey all or
substantially all of its property to any other company unless the provisions of
Article XIII hereof are complied with.
Section 6.6 Limitation on Transactions.
If Debentures are issued to the Trust or a Trustee of the Trust in
connection with the issuance of Trust Securities by the Trust and (i) there
shall have occurred any event that would constitute an Event of Default; (ii)
the Company shall be in default with respect to any of its obligations under the
Preferred Securities Guarantee relating to the Trust; or (iii) the Company shall
have given notice of its election to defer payments of interest on such
Debentures by extending the interest payment period as provided in this
Indenture and such period, or any extension thereof, shall be continuing, then
(a) the Company shall not declare or pay any dividend on, make any distributions
with respect to, or redeem, purchase, acquire or make a liquidation payment with
respect to, any of its capital stock (other than (A) dividends or distributions
in common stock of the Company, or any declaration of a non-cash dividend in
connection with the implementation of a shareholder rights plan, or the issuance
of stock under any such plan in the future, or the redemption or repurchase of
any such rights pursuant thereto, (B) purchases of common stock of the Company
related to the rights under any of the Company's benefit plans for its
directors, officers or employees, or (C) as a result of a reclassification of
its capital stock); and (b) the Company shall not make any payment of interest,
principal or premium, if any, or repay, repurchase or redeem any debt securities
issued by the Company which rank pari passu with or junior to the Debentures or
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 Debentures; provided, however, that the
Company may make payments pursuant to its obligations under the Preferred
Securities Guarantee; and (c) the Company shall not redeem, purchase or acquire
less than all of the outstanding Debentures or any of the Preferred Securities.
Section 6.7 Covenants as to the Trust.
For so long as such Trust Securities of the Trust remain outstanding, the
Company shall (i) maintain 100% direct or indirect ownership of the Common
Securities of the Trust; provided, however, that any permitted successor of the
Company under this Indenture may succeed to the Company's ownership of the
Common Securities; (ii) not voluntarily terminate, wind up or liquidate the
Trust, except upon prior approval of the Federal Reserve if then so required
under applicable
35
capital guidelines, policies or regulations of the Federal Reserve and use its
reasonable efforts to cause the Trust (a) to remain a business trust (and to
avoid involuntary termination, winding up or liquidation), except in connection
with a distribution of Debentures, the redemption of all of the Trust Securities
of the Trust or certain mergers, consolidations or amalgamations, each as
permitted by the Trust Agreement; and (b) to otherwise continue not to be
treated as an association taxable as a corporation or partnership for United
States federal income tax purposes; (iii) use its reasonable efforts to cause
each holder of Trust Securities to be treated as owning an individual beneficial
interest in the Debentures; and (iv) the Company, and any successor to the
Company, shall use reasonable efforts to maintain the eligibility of the
Preferred Securities for quotation or listing on any national securities
exchange or other organization on which the Preferred Securities are then quoted
or listed (including, if applicable, the Nasdaq National Market) and shall use
reasonable efforts to keep the Preferred Securities so quoted or listed for so
long as the Preferred Securities remain outstanding. In connection with the
distribution of the Debentures to the holders of the Preferred Securities issued
by the Trust upon a Dissolution Event, the Company shall use its best efforts to
list such Debentures on The Nasdaq National Market(SM) or on such other exchange
as the Preferred Securities are then listed.
Section 6.8 Covenants as to Purchases.
Except upon the exercise by the Company of its right to redeem the
Debentures pursuant to Section 3.2 upon the occurrence and continuation of a
Special Event or pursuant to Section 3.3(b), prior to September 30, 2003, the
Company shall not purchase any Debentures, in whole or in part, from the Trust.
Section 6.9 Waiver of Usury, Stay or Extension Laws.
The Company shall not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any usury, stay or
extension law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performances 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.
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ARTICLE VII
DEBENTUREHOLDERS' LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
Section 7.1 Company to Furnish Trustee Names and Addresses of
Debentureholders.
The Company shall furnish or cause to be furnished to the Trustee (a) on a
quarterly basis on each regular record date (as described in Section 2.5) a
list, in such form as the Trustee may reasonably require, of the names and
addresses of the holders of the Debentures as of such regular record date,
provided that the Company shall not be obligated to furnish or cause to furnish
such list at any time that the list shall not differ in any respect from the
most recent list furnished to the Trustee by the Company (in the event the
Company fails to provide such list on a quarterly basis, the Trustee shall be
entitled to rely on the most recent list provided by the Company); 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;
provided, however, that, in either case, no such list need be furnished if the
Trustee shall be the Debenture Registrar.
Section 7.2 Preservation of Information Communications with Debentureholders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the holders of
Debentures contained in the most recent list furnished to it as provided in
Section 7.1 and as to the names and addresses of holders of Debentures received
by the Trustee in its capacity as registrar for the Debentures (if acting in
such capacity).
(b) The Trustee may destroy any list furnished to it as provided in
Section 7.1 upon receipt of a new list so furnished.
(c) Debentureholders may communicate as provided in Section 312(b) of the
Trust Indenture Act with other Debentureholders with respect to their rights
under this Indenture or under the Debentures.
Section 7.3 Reports by the Company.
(a) The Company covenants and agrees to file with the Trustee, within 15
days after the Company is required to file the same with the Commission, copies
of the annual reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as the Commission may from time
to time by rules and regulations prescribe) that the Company may be required to
file with the Commission pursuant to Section 13 or Section 15(d) of the Exchange
Act; or, if the Company is not required to file information, documents or
reports pursuant to either of such sections, then to file with the Trustee and
the Commission, in accordance with the rules and
37
regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports that may be
required pursuant to Section 13 of the Exchange Act in respect of a security
listed and registered on a national securities exchange as may be prescribed
from time to time in such rules and regulations.
(b) The Company covenants and agrees to file with the Trustee and the
Commission, in accordance with the rules and regulations prescribed from time to
time by the Commission, such additional information, documents and reports with
respect to compliance by the Company with the conditions and covenants provided
for in this Indenture as may be required from time to time by such rules and
regulations.
(c) The Company covenants and agrees to transmit by mail, first class
postage prepaid, or reputable overnight delivery service that provides for
evidence of receipt, to the Debentureholders, as their names and addresses
appear upon the Debenture Register, within 30 days after the filing thereof with
the Trustee, such summaries of any information, documents and reports required
to be filed by the Company pursuant to subsections (a) and (b) of this Section
7.3 as may be required by rules and regulations prescribed from time to time by
the Commission.
Section 7.4 Reports by the Trustee.
(a) On or before July 31 in each year in which any of the Debentures are
Outstanding, the Trustee shall transmit by mail, first class postage prepaid, to
the Debentureholders, as their names and addresses appear upon the Debenture
Register, a brief report dated as of the preceding June 30, if and to the extent
required under Section 313(a) of the Trust Indenture Act.
(b) The Trustee shall comply with Section 313(b) and 313(c) of the Trust
Indenture Act.
(c) A copy of each such report shall, at the time of such transmission to
Debentureholders, be filed by the Trustee with the Company, with each stock
exchange upon which any Debentures are listed (if so listed) and also with the
Commission. The Company agrees to notify the Trustee when any Debentures become
listed on any stock exchange.
ARTICLE VII
REMEDIES OF THE TRUSTEE AND DEBENTUREHOLDERS
ON EVENT OF DEFAULT
Section 8.1 Events of Default.
(a) Whenever used herein with respect to the Debentures, "Event of
Default" means any one or more of the following events that has occurred and is
continuing:
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(i) the Company defaults in the payment of any installment of
interest upon any of the Debentures, as and when the same shall become due and
payable, and continuance of such default for a period of 30 days; provided,
however, that a valid extension of an interest payment period by the Company in
accordance with the terms of this Indenture shall not constitute a default in
the payment of interest for this purpose;
(ii) the Company defaults in the payment of the principal on the
Debentures as and when the same shall become due and payable whether at
maturity, upon redemption, by declaration or otherwise;
(iii) the Company fails to observe or perform any other of its
covenants or agreements with respect to the Debentures for a period of 90 days
after the date on which written notice of such failure, requiring the same to be
remedied and stating that such notice is a "Notice of Default" hereunder, shall
have been given to the Company by the Trustee, by registered or certified mail,
or to the Company and the Trustee by the holders of at least 25% in principal
amount of the Debentures at the time Outstanding;
(iv) the Company pursuant to or within the meaning of any Bankruptcy
Law (i) commences a voluntary case; (ii) consents to the entry of an order for
relief against it in an involuntary case; (iii) consents to the appointment of a
Custodian of it or for all or substantially all of its property; or (iv) makes a
general assignment for the benefit of its creditors;
(v) a court of competent jurisdiction enters an order under any
Bankruptcy Law that (i) is for relief against the Company in an involuntary
case; (ii) appoints a Custodian of the Company for all or substantially all of
its property; or (iii) orders the liquidation of the Company, and the order or
decree remains unstayed and in effect for 90 days; or
(vi) the Trust shall have voluntarily or involuntarily dissolved,
wound-up its business or otherwise terminated its existence except in connection
with (i) the distribution of Debentures to holders of Trust Securities in
liquidation of their interests in the Trust; (ii) the redemption of all of the
outstanding Trust Securities of the Trust; or (iii) certain mergers,
consolidations or amalgamations, each as permitted by the Trust Agreement.
(b) In each and every such case referred to in paragraph (i) through (vi)
of this Section 8.1(a), unless the principal of all the Debentures shall have
already become due and payable, either the Trustee or the holders of not less
than 25% in aggregate principal amount of the Debentures then Outstanding
hereunder, by notice in writing to the Company (and to the Trustee if given by
such Debentureholders) may declare the principal of all the Debentures to be due
and payable immediately, and upon any such declaration the same shall become and
shall be immediately due and payable, notwithstanding anything contained in this
Indenture or in the Debentures.
(c) At any time after the principal of the Debentures shall have been so
declared due and payable, and before any judgment or decree for the payment of
the moneys due shall have been
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obtained or entered as hereinafter provided, the holders of a majority in
aggregate principal amount of the Debentures then Outstanding hereunder, by
written notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if: (i) the Company has paid or deposited with
the Trustee a sum sufficient to pay all matured installments of interest upon
all the Debentures and the principal of any and all Debentures that shall have
become due otherwise than by acceleration (with interest upon such principal,
and, to the extent that such payment is enforceable under applicable law, upon
overdue installments of interest, at the rate per annum expressed in the
Debentures to the date of such payment or deposit) and the amount payable to the
Trustee under Section 10.7; and (ii) any and all Events of Default under this
Indenture, other than the nonpayment of principal on Debentures that shall not
have become due by their terms, shall have been remedied or waived as provided
in Section 8.6. No such rescission and annulment shall extend to or shall affect
any subsequent default or impair any right consequent thereon.
(d) In case the Trustee shall have proceeded to enforce any right with
respect to Debentures under this Indenture and such proceedings shall have been
discontinued or abandoned because of such rescission or annulment or for any
other reason or shall have been determined adversely to the Trustee, then and in
every such case the Company and the Trustee shall be restored respectively to
their former positions and rights hereunder, and all rights, remedies and powers
of the Company and the Trustee shall continue as though no such proceedings had
been taken.
Section 8.2 Collection of Indebtedness and Suits for Enforcement by Trustee.
(a) The Company covenants that (1) in case it shall default in the payment
of any installment of interest on any of the Debentures, and such default shall
have continued for a period of 30 days; or (2) in case it shall default in the
payment of the principal of any of the Debentures when the same shall have
become due and payable, whether upon maturity of the Debentures or upon
redemption or upon declaration or otherwise, then, upon demand of the Trustee,
the Company shall pay to the Trustee, for the benefit of the holders of the
Debentures, the whole amount that then shall have become due and payable on all
such Debentures for principal or interest, or both, as the case may be, with
interest upon the overdue principal and (to the extent that payment of such
interest is enforceable under applicable law and, if the Debentures are held by
the Trust or a trustee of the Trust, without duplication of any other amounts
paid by the Trust or trustee in respect thereof) upon overdue installments of
interest at the rate per annum expressed in the Debentures; and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, and the amount payable to the Trustee under Section
10.7.
(b) If the Company shall fail to pay such amounts set forth in Section
8.2(a) forthwith upon such demand, the Trustee, in its own name and as trustee
of an express trust, shall be entitled and empowered to institute any action or
proceedings at law or in equity for the collection of the sums so due and
unpaid, and may prosecute any such action or proceeding to judgment or final
decree, and may enforce any such judgment or final decree against the Company or
other obligor upon the Debentures and collect the moneys adjudged or decreed to
be payable in the manner
40
provided by law out of the property of the Company or other obligor upon the
Debentures, wherever situated.
(c) In case of any receivership, insolvency, liquidation, bankruptcy,
reorganization, readjustment, arrangement, composition or judicial proceedings
affecting the Company, the Trust, or the creditors or property of either, the
Trustee shall have power to intervene in such proceedings and take any action
therein that may be permitted by the court and shall (except as may be otherwise
provided by law) be entitled to file such proofs of claim and other papers and
documents as may be necessary or advisable in order to have the claims of the
Trustee and of the holders of the Debentures allowed for the entire amount due
and payable by the Company under this Indenture at the date of institution of
such proceedings and for any additional amount that may become due and payable
by the Company after such date, and to collect and receive any moneys or other
property payable or deliverable on any such claim, and to distribute the same
after the deduction of the amount payable to the Trustee under Section 10.7; and
any receiver, assignee or trustee in bankruptcy or reorganization is hereby
authorized by each of the holders of the Debentures to make such payments to the
Trustee, and, in the event that the Trustee shall consent to the making of such
payments directly to such Debentureholders, to pay to the Trustee any amount due
it under Section 10.7.
(d) All rights of action and of asserting claims under this Indenture, or
under any of the terms established with respect to the Debentures, may be
enforced by the Trustee without the possession of any of such Debentures, or the
production thereof at any trial or other proceeding relative thereto, and any
such suit or proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment shall, after
provision for payment to the Trustee of any amounts due under Section 10.7, be
for the ratable benefit of the holders of the Debentures. In case of an Event
of Default hereunder, the Trustee may in its discretion proceed to protect and
enforce the rights vested in it by this Indenture by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce any
of such rights, either at law or in equity or in bankruptcy or otherwise,
whether for the specific enforcement of any covenant or agreement contained in
this Indenture or in aid of the exercise of any power granted in this Indenture,
or to enforce any other legal or equitable right vested in the Trustee by this
Indenture or by law. Nothing contained herein shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any
Debentureholder any plan of reorganization, arrangement, adjustment or
composition affecting the Debentures or the rights of any holder thereof or to
authorize the Trustee to vote in respect of the claim of any Debentureholder in
any such proceeding.
Section 8.3 Application of Moneys Collected.
Any moneys or other assets collected by the Trustee pursuant to this
Article VIII with respect to the Debentures shall be applied in the following
order, at the date or dates fixed by the Trustee and, in case of the
distribution of such moneys or other assets on account of principal or interest,
upon presentation of the Debentures, and notation thereon the payment, if only
partially paid, and upon surrender thereof if fully paid:
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FIRST: To the payment of costs and expenses of collection and of all
amounts payable to the Trustee under Section 10.7;
SECOND: To the payment of all Senior Indebtedness of the Company if and to
the extent required by Article XVII; and
THIRD: To the payment of the amounts then due and unpaid upon the
Debentures for principal and interest, in respect of which or for the
benefit of which such money has been collected, ratably, without preference
or priority of any kind, according to the amounts due and payable on such
Debentures for principal and interest, respectively.
Section 8.4 Limitation on Suits.
(a) Except as set forth in this Indenture, no holder of any Debenture shall
have any right by virtue or by availing of any provision of this Indenture to
institute any suit, action or proceeding in equity or at law upon or under or
with respect to this Indenture or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless (i) such holder previously shall have
given to the Trustee written notice of an Event of Default and of the
continuance thereof with respect to the Debentures specifying such Event of
Default, as hereinbefore provided; (ii) the holders of not less than 25% in
aggregate principal amount of the Debentures then Outstanding shall have made
written request upon the Trustee to institute such action, suit or proceeding in
its own name as trustee hereunder; (iii) such holder or holders shall have
offered to the Trustee such reasonable indemnity as it may require against the
costs, expenses and liabilities to be incurred therein or thereby; (iv) the
Trustee for 60 days after its receipt of such notice, request and offer of
indemnity, shall have failed to institute any such action, suit or proceeding;
and (v) during such 60 day period, the holders of a majority in principal amount
of the Debentures do not give the Trustee a direction inconsistent with the
request.
(b) Notwithstanding anything contained herein to the contrary or any other
provisions of this Indenture, the right of any holder of the Debentures to
receive payment of the principal of and interest on the Debentures, as therein
provided, on or after the respective due dates expressed in such Debenture (or
in the case of redemption, on the redemption date), or to institute suit for the
enforcement of any such payment on or after such respective dates or redemption
date, shall not be impaired or affected without the consent of such holder and
by accepting a Debenture hereunder it is expressly understood, intended and
covenanted by the taker and holder of every Debenture with every other such
taker and holder and the Trustee, that no one or more holders of Debentures
shall have any right in any manner whatsoever by virtue or by availing of any
provision of this Indenture to affect, disturb or prejudice the rights of the
holders of any other of such Debentures, or to obtain or seek to obtain priority
over or preference to any other such holder, or to enforce any right under this
Indenture, except in the manner herein provided and for the equal, ratable and
common benefit of all holders of Debentures. For the protection and enforcement
of the provisions of this Section 8.4, each and every Debentureholder and the
Trustee shall be entitled to such relief as can be given either at law or in
equity.
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Section 8.5 Rights and Remedies Cumulative; Delay or Omission not Waiver.
(a) Except as otherwise provided in Section 2.9(b), all powers and remedies
given by this Article VIII to the Trustee or to the Debentureholders shall, to
the extent permitted by law, be deemed cumulative and not exclusive of any other
powers and remedies available to the Trustee or the holders of the Debentures,
by judicial proceedings or otherwise, to enforce the performance or observance
of the covenants and agreements contained in this Indenture or otherwise
established with respect to such Debentures.
(b) No delay or omission of the Trustee or of any holder of any of the
Debentures to exercise any right or power accruing upon any Event of Default
occurring and continuing as aforesaid shall impair any such right or power, or
shall be construed to be a waiver of any such default or on acquiescence
therein; and, subject to the provisions of Section 8.4, every power and remedy
given by this Article VIII or by law to the Trustee or the Debentureholders may
be exercised from time to time, and as often as shall be deemed expedient, by
the Trustee or by the Debentureholders.
Section 8.6 Control by Debentureholders.
The holders of a majority in aggregate principal amount of the Debentures
at the time Outstanding, determined in accordance with Section 11.4, shall have
the right to direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust or power conferred
on the Trustee; provided, however, that such direction shall not be in conflict
with any rule of law or with this Indenture. Subject to the provisions of
Section 10.1, the Trustee shall have the right to decline to follow any such
direction if the Trustee in good faith shall, by a Responsible Officer or
Officers of the Trustee, determine that the proceeding so directed would involve
the Trustee in personal liability. The holders of a majority in aggregate
principal amount of the Debentures at the time Outstanding affected thereby,
determined in accordance with Section 11.4, may on behalf of the holders of all
of the Debentures waive any past default in the performance of any of the
covenants contained herein and its consequences, except (i) a default in the
payment of the principal of, or interest on, any of the Debentures as and when
the same shall become due by the terms of such Debentures otherwise than by
acceleration (unless such default has been cured and a sum sufficient to pay all
matured installments of interest and principal has been deposited with the
Trustee (in accordance with Section 8.1(c)); (ii) a default in the covenants
contained in Section 6.7; or (iii) in respect of a covenant or provision hereof
which cannot be modified or amended without the consent of the holder of each
Outstanding Debenture affected; provided, however, that if the Debentures are
held by the Trust or a trustee of the Trust, such waiver or modification to such
waiver shall not be effective until the holders of a majority in liquidation
preference of Trust Securities of the Trust shall have consented to such waiver
or modification to such waiver; provided further, that if the consent of the
holder of each Outstanding Debenture is required, such waiver shall not be
effective until each holder of the Trust Securities of the Trust shall have
consented to such waiver. Upon any such waiver, the default covered thereby
shall be deemed
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to be cured for all purposes of this Indenture and the Company, the Trustee and
the holders of the Debentures shall be restored to their former positions and
rights hereunder, respectively; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
Section 8.7 Undertaking to Pay Costs.
All parties to this Indenture agree, and each holder of any Debentures by
such holder's acceptance thereof shall be deemed to have agreed, that any court
may in its discretion require, in any suit for the enforcement of any right or
remedy under this Indenture, or in any suit against the Trustee for any action
taken or omitted by it as Trustee, the filing by any party litigant in such suit
of an undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section 8.7 shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Debentureholder, or group of
Debentureholders holding more than 10% in aggregate principal amount of the
Outstanding Debentures, or to any suit instituted by any Debentureholder for the
enforcement of the payment of the principal of or interest on the Debentures, on
or after the respective due dates expressed in such Debenture or established
pursuant to this Indenture.
Section 8.8 Direct Action; Right of Set-Off
In the event that an Event of Default has occurred and is continuing and
such event is attributable to the failure of the Company to pay interest on or
principal of the Debentures on an Interest Payment Date or Maturity Date, as
applicable, then a holder of Preferred Securities may institute a legal
proceeding directly against the Company for enforcement of payment to such
holder of the principal of or interest on such Debentures having a principal
amount equal to the aggregate Liquidation Amount of the Preferred Securities of
such holders (a "Direct Action"). In connection with such Direct Action, the
Company will have a right of set-off under this Indenture to the extent of any
payment actually made by the Company to such holder of the Preferred Securities
with respect to such Direct Action.
ARTICLE IX
FORM OF DEBENTURE AND ORIGINAL ISSUE
Section 9.1 Form of Debenture.
The Debenture and the Trustee's Certificate of Authentication to be
endorsed thereon are to be substantially in the forms contained as Exhibit A to
this Indenture, attached hereto and incorporated herein by reference.
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Section 9.2 Original Issue of Debentures.
Debentures in the aggregate principal amount of $20,618,560 may, upon
execution of this Indenture, be executed by the Company and delivered to the
Trustee for authentication. If the Underwriters exercise their Option and there
is an Option Closing Date (as such terms are defined in the Underwriting
Agreement, dated September ___, 2000, by and among the Company, the Trust,
Xxxxxx, Xxxxxxxx & Company, Incorporated, McDonald Investments Inc. and Xxxx
Xxxxx Xxxx Xxxxxx, Incorporated, as Representatives of the several Underwriters
named therein) then, on such Option Closing Date, Debentures in the additional
aggregate principal amount of up to $3,092,790 may be executed by the Company
and delivered to the Trustee for authentication. The Trustee shall thereupon
authenticate and deliver said Debentures to or upon the written order of the
Company, signed by its President, or any Vice President and its Chief Financial
Officer or the Treasurer or an Assistant Treasurer, without any further action
by the Company.
ARTICLE X
CONCERNING THE TRUSTEE
Section 10.1 Certain Duties and Responsibilities of the Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default and after
the curing of all Events of Default that may have occurred, shall undertake to
perform with respect to the Debentures such duties and only such duties as are
specifically set forth in this Indenture, and no implied covenants shall be read
into this Indenture against the Trustee. In case an Event of Default has
occurred that has not been cured or waived, the Trustee shall exercise such of
the rights and powers vested in it by this Indenture, and use the same degree of
care and skill in its exercise, as a prudent person would exercise or use under
the circumstances in the conduct of his or her own affairs.
(b) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that:
(i) prior to the occurrence of an Event of Default and after the curing
or waiving of all such Events of Default that may have occurred:
(1) the duties and obligations of the Trustee shall with respect to
the Debentures be determined solely by the express provisions of this
Indenture, and the Trustee shall not be liable with respect to the
Debentures except for the performance of such duties and obligations as are
specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
45
(2) in the absence of bad faith on the part of the Trustee, the
Trustee may with respect to the Debentures conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the case of any
such certificates or opinions that by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be under a duty
to examine the same to determine whether or not they conform to the
requirements of this Indenture;
(ii) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it shall be proved that the Trustee was negligent in ascertaining the
pertinent facts;
(iii) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction of
the holders of not less than a majority in principal amount of the Debentures at
the time Outstanding relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee under this Indenture with respect to the
Debentures; and
(iv) none of the provisions contained in this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the exercise
of any of its rights or powers, if there is reasonable ground for believing that
the repayment of such funds or liability is not reasonably assured to it under
the terms of this Indenture or adequate indemnity against such risk is not
reasonably assured to it.
Section 10.2 Notice of Defaults.
Within 90 days after actual knowledge by a Responsible Officer of the
Trustee of the occurrence of any default hereunder with respect to the
Debentures, the Trustee shall transmit by mail to all holders of the Debentures,
as their names and addresses appear in the Debenture Register, notice of such
default, unless such default shall have been cured or waived; provided, however,
that, except in the case default in the payment of the principal or interest
(including any Additional Interest) on any Debenture, 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 the directors and/or Responsible
Officers of the Trustee determines in good faith that the withholding of such
notice is in the interests of the holders of such Debentures; and provided,
further, that in the case of any default of the character specified in Section
8.1(a)(3), no such notice to holders of Debentures need be sent until at least
30 days after the occurrence thereof. For the purposes of this Section 10.2, the
term "default" means any event which is, or after notice or lapse of time or
both, would become, an Event of Default with respect to the Debentures.
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Section 10.3 Certain Rights of Trustee.
Except as otherwise provided in Section 10.1:
(a) The Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval, bond, security or other paper
or document believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(b) Any request, direction, order or demand of the Company mentioned herein
shall be sufficiently evidenced by a Board Resolution or an instrument signed in
the name of the Company by its President or any Vice President and by the
Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer
thereof (unless other evidence in respect thereof is specifically prescribed
herein);
(c) The Trustee shall not be deemed to have knowledge of a default or an
Event of Default, other than an Event of Default specified in Section 8.1(a)(i);
or (ii), unless and until it receives written notification of such Event of
Default from the Company or by holders of at least 25% of the aggregate
principal amount of the Debentures at the time Outstanding;
(d) The Trustee may consult with counsel and the written advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken or suffered or omitted 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, order or direction of
any of the Debentureholders, pursuant to the provisions of this Indenture,
unless such Debentureholders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities that may be
incurred therein or thereby; nothing contained herein shall, however, relieve
the Trustee of the obligation, upon the occurrence of an Event of Default (that
has not been cured or waived) to exercise with respect to the Debentures such of
the rights and powers vested in it by this Indenture, and to use the same degree
of care and skill in its exercise, as a prudent person would exercise or use
under the circumstances in the conduct of his or her own affairs;
(f) The Trustee shall not be liable for any action taken or omitted to be
taken by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture;
(g) The Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond, security, or
other papers or documents, unless requested in writing so to do by the holders
of not less than a majority in principal amount of the Outstanding Debentures
(determined as provided in Section 11.4); provided, however, that if the payment
within a reasonable
47
time to the Trustee of the costs, expenses or liabilities likely to be incurred
by it in the making of such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to it by the terms of
this Indenture, the Trustee may require reasonable indemnity against such costs,
expenses or liabilities as a condition to so proceeding. The reasonable expense
of every such examination shall be paid by the Company or, if paid by the
Trustee, shall be repaid by the Company upon demand; and
(h) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder.
Section 10.4 Trustee Not Responsible for Recitals, etc.
(a) The Recitals contained herein and in the Debentures shall be taken as
the statements of the Company, and the Trustee assumes no responsibility for the
correctness of the same.
(b) The Trustee makes no representations as to the validity or sufficiency
of this Indenture or of the Debentures.
(c) The Trustee shall not be accountable for the use or application by the
Company of any of the Debentures or of the proceeds of such Debentures, or for
the use or application of any moneys paid over by the Trustee in accordance with
any provision of this Indenture, or for the use or application of any moneys
received by any paying agent other than the Trustee.
Section 10.5 May Hold Debentures.
The Trustee or any paying agent or registrar for the Debentures, in its
individual or any other capacity, may become the owner or pledgee of Debentures
with the same rights it would have if it were not Trustee, paying agent or
Debenture Registrar.
Section 10.6 Moneys Held in Trust.
Subject to the provisions of Section 14.5, all moneys received by the
Trustee shall, until used or applied as herein provided, be held in trust for
the purposes for which they were received, but need not be segregated from other
funds except to the extent required by law. The Trustee shall be under no
liability for interest on any moneys received by it hereunder except such as it
may agree with the Company to pay thereon.
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Section 10.7 Compensation and Reimbursement.
(a) The Company covenants and agrees to pay to the Trustee, and the Trustee
shall be entitled to, such reasonable compensation (which shall not be limited
by any provision of law in regard to the compensation of a trustee of an express
trust), as the Company and the Trustee may from time to time agree in writing,
for all services rendered by it in the execution of the trusts hereby created
and in the exercise and performance of any of the powers and duties hereunder of
the Trustee, and, except as otherwise expressly provided herein, the Company
shall pay or reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any of the provisions of this Indenture (including the reasonable compensation
and the expenses and disbursements of its counsel and of all Persons not
regularly in its employ) except any such expense, disbursement or advance as may
arise from its negligence or bad faith. The Company also covenants to indemnify
the Trustee (and its officers, agents, directors and employees) for, and to hold
it harmless against, any loss, liability or expense incurred without negligence
or bad faith on the part of the Trustee and arising out of or in connection with
the acceptance or administration of this trust, including the costs and expenses
of defending itself against any claim of liability in the premises.
(b) The obligations of the Company under this Section 10.7 to compensate
and indemnify the Trustee and to pay or reimburse the Trustee for expenses,
disbursements and advances shall constitute additional indebtedness hereunder.
Such additional indebtedness shall be secured by a lien prior to that of the
Debentures upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the benefit of the holders of particular
Debentures.
Section 10.8 Reliance on Officers' Certificate.
Except as otherwise provided in Section 10.1, whenever in the
administration of the provisions of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking or
suffering or omitting to take any action hereunder, such matter (unless other
evidence in respect thereof be herein specifically prescribed) may, in the
absence of negligence or bad faith on the part of the Trustee, be deemed to be
conclusively proved and established by an Officers' Certificate delivered to the
Trustee and such certificate, in the absence of negligence or bad faith on the
part of the Trustee, shall be full warrant to the Trustee for any action taken,
suffered or omitted to be taken by it under the provisions of this Indenture
upon the faith thereof.
Section 10.9 Disqualification: Conflicting Interests.
If the Trustee has or shall acquire any "conflicting interest" within the
meaning of Section 310(b) of the Trust Indenture Act, the Trustee and the
Company shall in all respects comply with the provisions of Section 310(b) of
the Trust Indenture Act.
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Section 10.10 Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee with respect to the Debentures issued
hereunder which shall at all times be a corporation organized and doing business
under the laws of the United States of America or any state or territory thereof
or of the District of Columbia, or a corporation or other Person permitted to
act as trustee by the Commission, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least
$50,000,000, and subject to supervision or examination by federal, state,
territorial, or District of Columbia authority. If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid supervising or examining authority, then for the purposes of
this Section 10.10, the combined capital and surplus of such corporation shall
be deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. The Company may not, nor may any Person
directly or indirectly controlling, controlled by, or under common control with
the Company, serve as Trustee. In case at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section 10.10, the Trustee
shall resign immediately in the manner and with the effect specified in Section
10.11.
Section 10.11 Resignation and Removal; Appointment of Successor.
(a) The Trustee or any successor hereafter appointed, may at any time
resign by giving written notice thereof to the Company and by transmitting
notice of resignation by mail, first class postage prepaid, to the
Debentureholders, as their names and addresses appear upon the Debenture
Register. Upon receiving such notice of resignation, the Company shall promptly
appoint a successor trustee with respect to Debentures by written instrument, in
duplicate, executed by order of the Board of Directors, one copy of which
instrument shall be delivered to the resigning Trustee and one copy to the
successor trustee. If no successor trustee shall have been so appointed and have
accepted appointment within 30 days after the mailing of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee with respect to
Debentures, or any Debentureholder who has been a bona fide holder of a
Debenture or Debentures for at least six months may, subject to the provisions
of Sections 10.9 and 10.10, on behalf of himself and all others similarly
situated, petition any such court for the appointment of a successor trustee.
Such court may thereupon after such notice, if any, as it may deem proper and
prescribe, appoint a successor trustee.
(b) In case at any time any one of the following shall occur
(i) the Trustee shall fail to comply with the provisions of Section
9.9 after written request therefor by the Company or by any Debentureholder who
has been a bona fide holder of a Debenture or Debentures for at least six
months; or
(ii) the Trustee shall cease to be eligible in accordance with the
provisions of Section 9.10 and shall fail to resign after written request
therefor by the Company or by any such Debentureholder; or
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(iii) the Trustee shall become incapable of acting, or shall be
adjudged a bankrupt or insolvent, or commence a voluntary bankruptcy proceeding,
or a receiver of the Trustee or of its property shall be appointed or consented
to, or any public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, then, in any such case, the Company may remove the Trustee with
respect to all Debentures and appoint a successor trustee by written instrument,
in duplicate, executed by order of the Board of Directors, one copy of which
instrument shall be delivered to the Trustee so removed and one copy to the
successor trustee, or, subject to the provisions of Sections 10.9 and 10.10,
unless the Trustee's duty to resign is stayed as provided herein, any
Debentureholder who has been a bona fide holder of a Debenture or Debentures for
at least six months may, on behalf of that holder and all others similarly
situated, petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor trustee. Such court may thereupon
after such notice, if any, as it may deem proper and prescribe, remove the
Trustee and appoint a successor trustee.
(c) The holders of a majority in aggregate principal amount of the
Debentures at the time Outstanding may at any time remove the Trustee by so
notifying the Trustee and the Company and may appoint a successor Trustee with
the consent of the Company.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee with respect to the Debentures pursuant to any of the
provisions of this Section 10.11 shall become effective upon acceptance of
appointment by the successor trustee as provided in Section 10.12.
(e) Any successor trustee appointed pursuant to this Section 10.11 may be
appointed with respect to the Debentures, and at any time there shall be only
one Trustee with respect to the Debentures.
Section 10.12 Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor trustee with
respect to the Debentures, every successor trustee so appointed shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; but, on the 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.
(b) Upon request of any successor trustee, the Company shall execute any
and all instruments for more fully and certainly vesting in and confirming to
such successor trustee all such rights, powers and trusts referred to in
paragraph (a) of this Section 10.12.
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(c) No successor trustee shall accept its appointment unless at the time of
such acceptance such successor trustee shall be qualified and eligible under
this Article X.
(d) Upon acceptance of appointment by a successor trustee as provided in
this Section 10.12, the Company shall transmit notice of the succession of such
trustee hereunder by mail, first class postage prepaid, to the Debentureholders,
as their names and addresses appear upon the Debenture Register. If the Company
fails to transmit such notice within ten days after acceptance of appointment by
the successor trustee, the successor trustee shall cause such notice to be
transmitted at the expense of the Company.
Section 10.13 Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to the corporate trust business of the Trustee, shall be
the successor of the Trustee hereunder, provided that such corporation shall be
qualified under the provisions of Section 10.9 and eligible under the provisions
of Section 9.10, without the execution or filing of any paper or any further act
on the part of any of the parties hereto, anything herein to the contrary
notwithstanding. In case any Debentures 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 Debentures so authenticated with the same effect as if such
successor Trustee had itself authenticated such Debentures.
Section 10.14 Preferential Collection of Claims Against the Company.
The Trustee shall comply with Section 311(a) of the Trust Indenture Act,
excluding any creditor relationship described in Section 311(b) of the Trust
Indenture Act. A Trustee who has resigned or been removed shall be subject to
Section 311(a) of the Trust Indenture Act to the extent included therein.
ARTICLE XI
CONCERNING THE DEBENTUREHOLDERS
Section 11.1 Evidence of Action by Holders.
(a) Whenever in this Indenture it is provided that the holders of a
majority or specified percentage in aggregate principal amount of the Debentures
may take any action (including the making of any demand or request, the giving
of any notice, consent or waiver or the taking of any other action), the fact
that at the time of taking any such action the holders of such majority or
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specified percentage have joined therein may be evidenced by any instrument or
any number of instruments of similar tenor executed by such holders of
Debentures in Person or by agent or proxy appointed in writing.
(b) If the Company shall solicit from the Debentureholders any
request, demand, authorization, direction, notice, consent, waiver or other
action, the Company may, at its option, as evidenced by an Officers'
Certificate, fix in advance a record date for the determination of
Debentureholders entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other action, but the Company shall have
no obligation to do so. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other action may be given
before or after the record date, but only the Debentureholders of record at the
close of business on the record date shall be deemed to be Debentureholders for
the purposes of determining whether Debentureholders of the requisite proportion
of Outstanding Debentures have authorized or agreed or consented to such
request, demand, authorization, direction, notice, consent, waiver or other
action, and for that purpose the Outstanding Debentures shall be computed as of
the record date; provided, however, that no such authorization, agreement or
consent by such Debentureholders on the record date shall be deemed effective
unless it shall become effective pursuant to the provisions of this Indenture
not later than six months after the record date.
Section 11.2 Proof of Execution by Debentureholders.
Subject to the provisions of Section 10.1, proof of the execution of any
instrument by a Debentureholder (such proof shall not require notarization) or
such Debentureholder's agent or proxy and proof of the holding by any Person of
any of the Debentures shall be sufficient if made in the following manner:
(a) The fact and date of the execution by any such Person of any
instrument may be proved in any reasonable manner acceptable to the Trustee.
(b) The ownership of Debentures shall be proved by the Debenture
Register of such Debentures or by a certificate of the Debenture Registrar
thereof.
(c) The Trustee may require such additional proof of any matter
referred to in this Section 11.2 as it shall deem necessary.
Section 11.3 Who May be Deemed Owners.
Prior to the due presentment for registration of transfer of any Debenture,
the Company, the Trustee, any paying agent, any Authenticating Agent and any
Debenture Registrar may deem and treat the Person in whose name such Debenture
shall be registered upon the books of the Company as the absolute owner of such
Debenture (whether or not such Debenture shall be overdue and notwithstanding
any notice of ownership or writing thereon made by anyone other than the
Debenture Registrar) for the purpose of receiving payment of or on account of
the principal of and
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interest on such Debenture (subject to Section 2.3) and for all other purposes;
and neither the Company nor the Trustee nor any paying agent nor any
Authenticating Agent nor any Debenture Registrar shall be affected by any notice
to the contrary.
Section 11.4 Certain Debentures Owned by Company Disregarded.
In determining whether the holders of the requisite aggregate principal
amount of Debentures have concurred in any direction, consent or waiver under
this Indenture, the Debentures that are owned by the Company or any other
obligor on the Debentures or by any Person directly or indirectly controlling or
controlled by or under common control with the Company or any other obligor on
the Debentures shall be disregarded and deemed not to be Outstanding for the
purpose of any such determination, except (i) that for the purpose of
determining whether the Trustee shall be protected in relying on any such
direction, consent or waiver, only Debentures that the Trustee actually knows
are so owned shall be so disregarded; and (ii) for purposes of this Section
11.4, the Trust shall be deemed not to be controlled by the Company. The
Debentures so owned that have been pledged in good faith may be regarded as
Outstanding for the purposes of this Section 11.4, if the pledgee shall
establish to the satisfaction of the Trustee the pledgee's right so to act with
respect to such Debentures and that the pledgee is not a Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company or any such other obligor. In case of a dispute as to
such right, any decision by the Trustee taken upon the advice of counsel shall
be full protection to the Trustee.
Section 11.5 Actions Binding on Future Debentureholders.
At any time prior to (but not after) the evidencing to the Trustee, as
provided in Section 11.1, of the taking of any action by the holders of the
majority or percentage in aggregate principal amount of the Debentures specified
in this Indenture in connection with such action, any holder of a Debenture that
is shown by the evidence to be included in the Debentures the holders of which
have consented to such action may, by filing written notice with the Trustee,
and upon proof of holding as provided in Section 11.2, revoke such action so far
as concerns such Debenture. Except as aforesaid any such action taken by the
holder of any Debenture shall be conclusive and binding upon such holder and
upon all future holders and owners of such Debenture, and of any Debenture
issued in exchange therefor, on registration of transfer thereof or in place
thereof, irrespective of whether or not any notation in regard thereto is made
upon such Debenture. Any action taken by the holders of the majority or
percentage in aggregate principal amount of the Debentures specified in this
Indenture in connection with such action shall be conclusively binding upon the
Company, the Trustee and the holders of all the Debentures.
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ARTICLE XII
SUPPLEMENTAL INDENTURES
Section 12.1 Supplemental Indentures Without the Consent of Debentureholders.
In addition to any supplemental indenture otherwise authorized by this
Indenture, the Company and the Trustee may from time to time and at any time
enter into an indenture or indentures supplemental hereto (which shall conform
to the provisions of the Trust Indenture Act as then in effect), without the
consent of the Debentureholders, for one or more of the following purposes:
(a) to cure any ambiguity, defect, or inconsistency herein, or in the
Debentures;
(b) to comply with Article XI;
(c) to provide for uncertificated Debentures in addition to or in
place of certificated Debentures;
(d) to add to the covenants of the Company for the benefit of the
holders of all or any of the Debentures or to surrender any right or power
herein conferred upon the Company;
(e) to add to, delete from, or revise the conditions, limitations,
and restrictions on the authorized amount, terms, or purposes of issue,
authentication, and delivery of Debentures, only as herein set forth;
(f) to make any change that does not adversely affect the rights of
any Debentureholder in any material respect;
(g) to provide for the issuance of and establish the form and terms
and conditions of the Debentures, to establish the form of any certifications
required to be furnished pursuant to the terms of this Indenture or of the
Debentures, or to add to the rights of the holders of the Debentures;
(h) to qualify or maintain the qualification of this Indenture under
the Trust Indenture Act; or
(i) to evidence a consolidation or merger involving the Company as
permitted under Section 13.1.
The Trustee is hereby authorized to join with the Company in the execution of
any such supplemental indenture, and to make any further appropriate agreements
and stipulations that may be therein contained, but the Trustee shall not be
obligated to enter into any such supplemental indenture that affects the
Trustee's own rights, duties or immunities under this Indenture or
55
otherwise. Any supplemental indenture authorized by the provisions of this
Section 12.1 may be executed by the Company and the Trustee without the consent
of the holders of any of the Debentures at the time Outstanding, notwithstanding
any of the provisions of Section 12.2.
Section 12.2 Supplemental Indentures with Consent of Debentureholders.
With the consent (evidenced as provided in Section 11.1) of the holders of
not less than a majority in aggregate principal amount of the Debentures at the
time Outstanding, the Company, when authorized by Board Resolutions, and the
Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act as then in effect) for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this
Indenture or of any supplemental indenture or of modifying in any manner not
covered by Section 12.1 the rights of the holders of the Debentures under this
Indenture; provided, however, that no such supplemental indenture shall without
the consent of the holders of each Debenture then Outstanding and affected
thereby, (i) extend the fixed maturity of any Debentures, reduce the principal
amount thereof, reduce the rate or extend the time of payment of interest
thereon, or modify the provisions in Article IV with respect to the conversion
of Outstanding Debentures in a manner adverse to the holders thereof, or without
the consent of the holder of each Debenture so affected; or (ii) reduce the
aforesaid percentage of Debentures, the holders of which are required to consent
to any such supplemental indenture; provided further, that if the Debentures are
held by the Trust or a trustee of the Trust, such supplemental indenture shall
not be effective until the holders of a majority in liquidation preference of
Trust Securities of the Trust shall have consented to such supplemental
indenture; provided further, that if the consent of the holder of each
Outstanding Debenture is required, such supplemental indenture shall not be
effective until each holder of the Trust Securities of the Trust shall have
consented to such supplemental indenture. It shall not be necessary for the
consent of the Debentureholders affected thereby under this Section 12.2 to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such consent shall approve the substance thereof.
Section 12.3 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture pursuant to the provisions
of this Article XII, this Indenture shall be and be deemed to be modified and
amended in accordance therewith and the respective rights, limitations of
rights, obligations, duties and immunities under this Indenture of the Trustee,
the Company and the holders of Debentures shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such modifications
and amendments, and all the terms and conditions of any such supplemental
indenture shall be and be deemed to be part of the terms and conditions of this
Indenture for any and all purposes.
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Section 12.4 Debentures Affected by Supplemental Indentures.
Debentures affected by a supplemental indenture, authenticated and
delivered after the execution of such supplemental indenture pursuant to the
provisions of this Article XII, may bear a notation in form approved by the
Company, provided such form meets the requirements of any exchange or automated
quotation system upon which the Debentures may be listed or quoted, as to any
matter provided for in such supplemental indenture. If the Company shall so
determine, new Debentures so modified as to conform, in the opinion of the Board
of Directors of the Company, to any modification of this Indenture contained in
any such supplemental indenture may be prepared by the Company, authenticated by
the Trustee and delivered in exchange for the Debentures then Outstanding.
Section 12.5 Execution of Supplemental Indentures.
(a) Upon the request of the Company, accompanied by its Board
Resolutions authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee of evidence of the consent of Debentureholders
required to consent thereto as aforesaid, the Trustee shall join with the
Company in the execution of such supplemental indenture unless such supplemental
indenture affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise, in which case the Trustee may in its discretion but
shall not be obligated to enter into such supplemental indenture. The Trustee,
subject to the provisions of Sections 10.1, may receive an Opinion of Counsel as
conclusive evidence that any supplemental indenture executed pursuant to this
Article XII is authorized or permitted by, and conforms to, the terms of this
Article XII and that it is proper for the Trustee under the provisions of this
Article XII to join in the execution thereof.
(b) Promptly after the execution by the Company and the Trustee of
any supplemental indenture pursuant to the provisions of this Section 12.5, the
Trustee shall transmit by mail, first class postage prepaid, a notice, setting
forth in general terms the substance of such supplemental indenture, to the
Debentureholders as their names and addresses appear upon the Debenture
Register. Any failure of the Trustee to mail such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any such
supplemental indenture.
ARTICLE XII
SUCCESSOR CORPORATION
Section 13.1 Company May Consolidate, etc.
Nothing contained in this Indenture or in any of the Debentures shall
prevent any consolidation or merger of the Company with or into any other
corporation or corporations (whether or not affiliated with the Company, as the
case may be), or successive consolidations or mergers in which the Company, as
the case may be, or its successor or successors shall be a party or parties, or
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shall prevent any sale, conveyance, transfer or other disposition of the
property of the Company, as the case may be, or its successor or successors as
an entirety, or substantially as an entirety, to any other corporation (whether
or not affiliated with the Company, as the case may be, or its successor or
successors) authorized to acquire and operate the same; provided, however, the
Company hereby covenants and agrees that, (i) upon any such consolidation,
merger, sale, conveyance, transfer or other disposition, the due and punctual
payment, in the case of the Company, of the principal of and interest on all of
the Debentures, according to their tenor and the due and punctual performance
and observance of all the covenants and conditions of this Indenture to be kept
or performed by the Company as the case may be, shall be expressly assumed, by
supplemental indenture (which shall conform to the provisions of the Trust
Indenture Act, as then in effect) satisfactory in form to the Trustee executed
and delivered to the Trustee by the entity formed by such consolidation, or into
which the Company, as the case may be, shall have been merged, or by the entity
which shall have acquired such property; (ii) in case the Company consolidates
with or merges into another Person or conveys or transfers its properties and
assets substantially as an entirety to any Person, the successor Person is
organized under the laws of the United States or any state or the District of
Columbia; and (iii) immediately after giving effect thereto, an Event of
Default, and no event which, after notice or lapse of time or both, would become
an Event of Default, shall have occurred and be continuing.
Section 13.2 Successor Corporation Substituted.
(a) In case of any such consolidation, merger, sale, conveyance,
transfer or other disposition and upon the assumption by the successor
corporation, by supplemental indenture, executed and delivered to the Trustee
and satisfactory in form to the Trustee, of, in the case of the Company, the due
and punctual payment of the principal of and interest on all of the Debentures
Outstanding and the due and punctual performance of all of the covenants and
conditions of this Indenture to be performed by the Company, as the case may be,
such successor corporation shall succeed to and be substituted for the Company,
with the same effect as if it had been named as the Company herein, and
thereupon the predecessor corporation shall be relieved of all obligations and
covenants under this Indenture and the Debentures.
(b) In case of any such consolidation, merger, sale, conveyance,
transfer or other disposition such changes in phraseology and form (but not in
substance) may be made in the Debentures thereafter to be issued as may be
appropriate.
(c) Nothing contained in this Indenture or in any of the Debentures
shall prevent the Company from merging into itself or acquiring by purchase or
otherwise all or any part of the property of any other Person (whether or not
affiliated with the Company).
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Section 13.3 Evidence of Consolidation, etc. to Trustee.
The Trustee, subject to the provisions of Section 10.1, may receive an
Opinion of Counsel as conclusive evidence that any such consolidation, merger,
sale, conveyance, transfer or other disposition, and any such assumption, comply
with the provisions of this Article XIII.
ARTICLE XIV
SATISFACTION AND DISCHARGE
Section 14.1 Satisfaction and Discharge of Indenture.
If at any time: (a) the Company shall have delivered to the Trustee for
cancellation all Debentures theretofore authenticated (other than any Debentures
that shall have been destroyed, lost or stolen and that shall have been replaced
or paid as provided in Section 2.9) and all Debentures for whose payment money
or Governmental Obligations have theretofore been deposited in trust or
segregated and held in trust by the Company (and thereupon repaid to the Company
or discharged from such trust, as provided in Section 14.5); or (b) all such
Debentures not theretofore delivered to the Trustee for cancellation shall have
become due and payable, or are by their terms to become due and payable within
one year or are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption, and the
Company shall deposit or cause to be deposited with the Trustee as trust funds
the entire amount in moneys or Governmental Obligations sufficient or a
combination thereof, sufficient in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay at maturity or upon redemption all Debentures
not theretofore delivered to the Trustee for cancellation, including principal
and interest due or to become due to such date of maturity or date fixed for
redemption, as the case may be, and if the Company shall also pay or cause to be
paid all other sums payable hereunder by the Company; then this Indenture shall
thereupon cease to be of further effect except for the provisions of Sections
2.3, 2.7, 2.9, 6.1, 6.2, 5.3, 10.7 and 10.10, that shall survive until the date
of maturity or redemption date, as the case may be, and Sections 10.7 and 14.5,
that shall survive to such date and thereafter, and the Trustee, on demand of
the Company and at the cost and expense of the Company, shall execute proper
instruments acknowledging satisfaction of and discharging this Indenture.
Section 14.2 Discharge of Obligations.
If at any time all Debentures not heretofore delivered to the Trustee for
cancellation or that have not become due and payable as described in Section
14.1 shall have been paid by the Company by depositing irrevocably with the
Trustee as trust funds moneys or an amount of Governmental Obligations
sufficient in the opinion of a nationally recognized certified public accounting
firm to pay at maturity or upon redemption all Debentures not theretofore
delivered to the Trustee for cancellation, including principal and interest due
or to become due to such date of maturity or date
59
fixed for redemption, as the case may be, and if the Company shall also pay or
cause to be paid all other sums payable hereunder by the Company, then after the
date such moneys or Governmental Obligations, as the case may be, are deposited
with the Trustee, the obligations of the Company under this Indenture shall
cease to be of further effect except for the provisions of Sections 2.3, 2.7,
2.9, 6.1, 6.2, 6.3, 10.6, 10.7 and 14.5 hereof that shall survive until such
Debentures shall mature and be paid. Thereafter, Sections 10.7 and 14.5 shall
survive.
Section 14.3 Deposited Moneys to be Held in Trust.
All monies or Governmental Obligations deposited with the Trustee pursuant
to Sections 14.1 or 14.2 shall be held in trust and shall be available for
payment as due, either directly or through any paying agent (including the
Company acting as its own paying agent), to the holders of the Debentures for
the payment or redemption of which such moneys or Governmental Obligations have
been deposited with the Trustee.
Section 14.4 Payment of Monies Held by Paying Agents.
In connection with the satisfaction and discharge of this Indenture, all
moneys or Governmental Obligations then held by any paying agent under the
provisions of this Indenture shall, upon demand of the Company, be paid to the
Trustee and thereupon such paying agent shall be released from all further
liability with respect to such moneys or Governmental Obligations.
Section 14.5 Repayment to Company.
Any monies or Governmental Obligations deposited with any paying agent or
the Trustee, or then held by the Company in trust, for payment of principal of
or interest on the Debentures that are not applied but remain unclaimed by the
holders of such Debentures for at least two years after the date upon which the
principal of or interest on such Debentures shall have respectively become due
and payable, shall be repaid to the Company, as the case may be, on June 30 of
each year or (if then held by the Company) shall be discharged from such trust;
and thereupon the paying agent and the Trustee shall be released from all
further liability with respect to such moneys or Governmental Obligations, and
the holder of any of the Debentures entitled to receive such payment shall
thereafter, as an unsecured general creditor, look only to the Company for the
payment thereof.
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ARTICLE XV
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS
AND DIRECTORS
Section 15.1 No Recourse.
No recourse under or upon any obligation, covenant or agreement of this
Indenture, or of the Debentures, or for any claim based thereon or otherwise in
respect thereof, shall be had against any incorporator, stockholder, officer or
director, past, present or future as such, of the Company or of any predecessor
or successor corporation, either directly or through the Company or any such
predecessor or successor corporation, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise; it being expressly understood that this Indenture and the obligations
issued hereunder are solely corporate obligations, and that no such personal
liability whatever shall attach to, or is or shall be incurred by, the
incorporators, stockholders, officers or directors as such, of the Company or of
any predecessor or successor corporation, or any of them, because of the
creation of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any of
the Debentures or implied therefrom; and that any and all such personal
liability of every name and nature, either at common law or in equity or by
constitution or statute, of, and any and all such rights and claims against,
every such incorporator, stockholder, officer or director as such, because of
the creation of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any of
the Debentures or implied therefrom, are hereby expressly waived and released as
a condition of, and as a consideration for, the execution of this Indenture and
the issuance of such Debentures.
ARTICLE XVI
MISCELLANEOUS PROVISIONS
Section 16.1 Effect on Successors and Assigns.
All the covenants, stipulations, promises and agreements in this Indenture
contained by or on behalf of the Company shall bind its respective successors
and assigns, whether so expressed or not.
Section 16.2 Actions by Successor.
Any act or proceeding by any provision of this Indenture authorized or
required to be done or performed by any board, committee or officer of the
Company shall and may be done and performed with like force and effect by the
corresponding board, committee or officer of any corporation that shall at the
time be the lawful sole successor of the Company.
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Section 16.3 Surrender of Company Powers.
The Company by instrument in writing executed by appropriate authority of
its Board of Directors and delivered to the Trustee may surrender any of the
powers reserved to the Company, and thereupon such power so surrendered shall
terminate both as to the Company, as the case may be, and as to any successor
corporation.
Section 16.4 Notices.
Except as otherwise expressly provided herein any notice or demand that by
any provision of this Indenture is required or permitted to be given or served
by the Trustee or by the holders of Debentures to or on the Company may be given
or served by being deposited first class postage prepaid in a post-office
letterbox addressed (until another address is filed in writing by the Company
with the Trustee), as follows: Xxxxx Financial Corporation, 000 Xxxxxxxxxx
Xxxxxx, Xxxxxxxx, Xxxxxxx 00000, Attention: Chief Financial Officer. Any
notice, election, request or demand by the Company or any Debentureholder to or
upon the Trustee shall be deemed to have been sufficiently given or made, for
all purposes, if given or made in writing at the Corporate Trust Office of the
Trustee.
Section 16.5 Governing Law.
This Indenture and each Debenture shall be deemed to be a contract made
under the internal laws of the State of Indiana and for all purposes shall be
construed in accordance with the laws of said State.
Section 16.6 Treatment of Debentures as Debt.
It is intended that the Debentures shall be treated as indebtedness and not
as equity for federal income tax purposes. The provisions of this Indenture
shall be interpreted to further this intention.
Section 16.7 Compliance Certificates and Opinions.
(a) Upon any application or demand by the Company to the Trustee to
take any action under any of the provisions of this Indenture, the Company shall
furnish to the Trustee an Officers' Certificate stating that all conditions
precedent provided for in this Indenture relating to the proposed action have
been complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent have been complied with, except that in
the case of any such application or demand as to which the furnishing of such
documents is specifically required by any provision of this Indenture relating
to such particular application or demand, no additional certificate or opinion
need be furnished.
(b) Each certificate or opinion of the Company provided for in this
Indenture and delivered to the Trustee with respect to compliance with a
condition or covenant in this Indenture
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shall include (1) a statement that the Person making such certificate or opinion
has read such covenant or condition; (2) a brief statement as to the nature and
scope of the examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based; (3) a statement that, in the
opinion of such Person, he has made such examination or investigation as, in the
opinion of such Person, is necessary to enable him to express an informed
opinion as to whether or not such covenant or condition has been complied with;
and (4) a statement as to whether or not, in the opinion of such Person, such
condition or covenant has been complied with; provided, however, that each such
certificate shall comply with the provisions of Section 314 of the Trust
Indenture Act.
Section 16.8 Payments on Business Days.
In any case where the date of maturity of interest or principal of any
Debenture or the date of redemption of any Debenture shall not be a Business
Day, then payment of interest or principal may be made on the next succeeding
Business Day with the same force and effect as if made on the nominal date of
maturity or redemption, and no interest shall accrue for the period after such
nominal date.
Section 16.9 Conflict with Trust Indenture Act.
If and to the extent that any provision of this Indenture limits, qualifies
or conflicts with the duties imposed by Sections 310 to 317, inclusive, of the
Trust Indenture Act, such imposed duties shall control.
Section 16.10 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 16.11 Separability.
In case any one or more of the provisions contained in this Indenture or in
the Debentures shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions of this Indenture or of the Debentures,
but this Indenture and the Debentures shall be construed as if such invalid or
illegal or unenforceable provision had never been contained herein or therein.
Section 16.12 Assignment.
The Company shall have the right at all times to assign any of its
respective rights or obligations under this Indenture to a direct or indirect
wholly owned Subsidiary of the Company, provided that, in the event of any such
assignment, the Company shall remain liable for all such obligations. Subject
to the foregoing, this Indenture is binding upon and inures to the benefit of
the
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parties thereto and their respective successors and assigns. This Indenture may
not otherwise be assigned by the parties thereto.
Section 16.13 Acknowledgment of Rights.
The Company acknowledges that, with respect to any Debentures held by the
Trust or a trustee of the Trust, if the Property Trustee fails to enforce its
rights under this Indenture as the holder of the Debentures held as the assets
of the Trust, any holder of Preferred Securities may institute legal proceedings
directly against the Company to enforce such Property Trustee's rights under
this Indenture without first instituting any legal proceedings against such
Property Trustee or any other person or entity. Notwithstanding the foregoing,
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
Debentures on the date such interest or principal is otherwise payable (or in
the case of redemption, on the redemption date), the Company acknowledges that a
holder of Preferred Securities may directly institute a proceeding for
enforcement of payment to such holder of the principal of or interest on the
Debentures having a principal amount equal to the aggregate liquidation amount
of the Preferred Securities of such holder on or after the respective due date
specified in the Debentures.
ARTICLE XVII
SUBORDINATION OF DEBENTURES
Section 17.1 Agreement to Subordinate.
The Company covenants and agrees, and each holder of Debentures issued
hereunder by such holder's acceptance thereof likewise covenants and agrees,
that all Debentures shall be issued subject to the provisions of this Article
XVII; and each holder of a Debenture, whether upon original issue or upon
transfer or assignment thereof, accepts and agrees to be bound by such
provisions. The payment by the Company of the principal of and interest on all
Debentures issued hereunder shall, to the extent and in the manner hereinafter
set forth, be subordinated and junior in right of payment to the prior payment
in full of all Senior Debt, Subordinated Debt and Additional Senior Obligations
(collectively, "Senior Indebtedness") to the extent provided herein, whether
outstanding at the date of this Indenture or thereafter incurred. No provision
of this Article XVII shall prevent the occurrence of any default or Event of
Default hereunder.
Section 17.2 Default on Senior Debt, Subordinated Debt or Additional Senior
Obligations.
In the event and during the continuation of any default by the Company in
the payment of principal, premium, interest or any other payment due on any
Senior Indebtedness of the Company, or in the event that the maturity of any
Senior Indebtedness of the Company has been accelerated because of a default,
then, in either case, no payment shall be made by the Company with respect
64
to the principal (including redemption payments) of or interest on the
Debentures. In the event that, notwithstanding the foregoing, any payment shall
be received by the Trustee when such payment is prohibited by the preceding
sentence of this Section 17.2, such payment shall be held in trust for the
benefit of, and shall be paid over or delivered to, the holders of Senior
Indebtedness or their respective representatives, or to the trustee or trustees
under any indenture pursuant to which any of such Senior Indebtedness may have
been issued, as their respective interests may appear, but only to the extent
that the holders of the Senior Indebtedness (or their representative or
representatives or a trustee) notify the Trustee in writing within 90 days of
such payment of the amounts then due and owing on the Senior Indebtedness and
only the amounts specified in such notice to the Trustee shall be paid to the
holders of Senior Indebtedness.
Section 17.3 Liquidation; Dissolution; Bankruptcy.
(a) 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 amounts due upon all Senior Indebtedness
of the Company shall first be paid in full, or payment thereof provided for in
money in accordance with its terms, before any payment is made by the Company on
account of the principal or interest on the Debentures; and upon any such
dissolution or winding-up or liquidation or reorganization, any payment by the
Company, or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, to which the holders of the Debentures
or the Trustee would be entitled to receive from the Company, except for the
provisions of this Article XVII, 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 of the Debentures or by
the Trustee under this Indenture if received by them or it, directly to the
holders of Senior Indebtedness of the Company (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 such Senior Indebtedness may have been issued, as their respective
interests may appear, to the extent necessary to pay such Senior Indebtedness in
full, in money or money's worth, after giving effect to any concurrent payment
or distribution to or for the holders of such Senior Indebtedness, before any
payment or distribution is made to the holders of Debentures or to the Trustee.
(b) 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 before all Senior Indebtedness of the Company is paid in full, 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 such Senior Indebtedness or their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing such Senior Indebtedness
may have been issued, and their respective interests may appear, as calculated
by the Company, for
65
application to the payment of all Senior Indebtedness of the Company, as the
case may be, remaining unpaid to the extent necessary to pay such Senior
Indebtedness in full in money in accordance with its terms, after giving effect
to any concurrent payment or distribution to or for the benefit of the holders
of such Senior Indebtedness.
(c) For purposes of this Article XVII, 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 XVII with
respect to the Debentures to the payment of all Senior Indebtedness of the
Company, as the case may be, that may at the time be outstanding, provided that
(i) such 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 such Senior Indebtedness are not, without the consent of such
holders, altered by such reorganization or readjustment. The consolidation of
the Company with, or the 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 XIII shall not
be deemed a dissolution, winding-up, liquidation or reorganization for the
purposes of this Section 17.3 if such other corporation shall, as a part of such
consolidation, merger, conveyance or transfer, comply with the conditions stated
in Article XIII. Nothing in Section 17.2 or in this Section 17.3 shall apply to
claims of, or payments to, the Trustee under or pursuant to Section 10.7.
Section 17.4 Subrogation.
(a) Subject to the payment in full of all Senior Indebtedness of the
Company, the rights of the holders of the Debentures shall be subrogated to the
rights of the holders of such Senior Indebtedness to receive payments or
distributions of cash, property or securities of the Company, as the case may
be, applicable to such Senior Indebtedness until the principal of and interest
on the Debentures shall be paid in full; and, for the purposes of such
subrogation, no payments or distributions to the holders of such Senior
Indebtedness of any cash, property or securities to which the holders of the
Debentures or the Trustee would be entitled except for the provisions of this
Article XVII, and no payment over pursuant to the provisions of this Article
XVII to or for the benefit of the holders of such Senior Indebtedness by holders
of the Debentures or the Trustee, shall, as between the Company, its creditors
other than holders of Senior Indebtedness of the Company, and the holders of the
Debentures, be deemed to be a payment by the Company to or on account of such
Senior Indebtedness. It is understood that the provisions of this Article XVII
are and are intended solely for the purposes of defining the relative rights of
the holders of the Debentures, on the one hand, and the holders of such Senior
Indebtedness on the other hand.
(b) Nothing contained in this Article XVII or elsewhere in this Indenture
or in the Debentures is intended to or shall impair, as between the Company, its
creditors (other than the holders of Senior Indebtedness of the Company), and
the holders of the Debentures, the obligation of the Company, which is absolute
and unconditional, to pay to the holders of the Debentures the
66
principal of and interest on the Debentures as and when the same shall become
due and payable in accordance with their terms, or is intended to or shall
affect the relative rights of the holders of the Debentures and creditors of the
Company, as the case may be, other than the holders of Senior Indebtedness of
the Company, as the case may be, nor shall anything herein or therein prevent
the Trustee or the holder of any Debenture from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture, subject
to the rights, if any, under this Article XVII of the holders of such Senior
Indebtedness in respect of cash, property or securities of the Company, as the
case may be, received upon the exercise of any such remedy.
(c) Upon any payment or distribution of assets of the Company referred to
in this Article XVII, the Trustee, subject to the provisions of Article X, and
the holders of the Debentures shall be entitled to conclusively 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 of the Debentures, for the purposes of ascertaining
the Persons entitled to participate in such distribution, the holders of Senior
Indebtedness and other indebtedness of the Company, as the case may be, the
amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article XVII.
Section 17.5 Trustee to Effectuate Subordination.
Each holder of Debentures by such holder's acceptance thereof authorizes
and directs the Trustee on such holder's behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article XVII and appoints the Trustee such holder's attorney-in-fact for any and
all such purposes.
Section 17.6 Notice by the Company.
(a) 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 Debentures
pursuant to the provisions of this Article XVII. Notwithstanding the provisions
of this Article XVII 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
Debentures pursuant to the provisions of this Article XVII, unless and until a
Responsible Officer of the Trustee shall have received written notice thereof
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 10.1, 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 17.6 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 Debenture), then, anything herein
contained to the contrary notwithstanding,
67
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.
(b) The Trustee, subject to the provisions of Section 10.1, shall be
entitled to conclusively rely on the delivery to it of a written notice by a
Person representing himself to be a holder of Senior Indebtedness of the Company
(or a trustee on behalf of such holder) to establish that such notice has been
given by a holder of such 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 such Senior Indebtedness to participate in any payment or distribution
pursuant to this Article XVII, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of such
Senior Indebtedness held by such Person, 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 XVII, 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 17.7 Rights of the Trustee; Holders of Senior Indebtedness.
(a) The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article XVII 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. The Trustee's right to compensation and
reimbursement of expenses as set forth in Section 10.7 shall not be subject to
the subordination provisions of the Article XVII.
(b) With respect to the holders of Senior Indebtedness of the Company, the
Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article XVII, and no implied
covenants or obligations with respect to the holders of such Senior Indebtedness
shall be read into this Indenture against the Trustee. The Trustee shall not be
deemed to owe any fiduciary duty to the holders of such Senior Indebtedness and,
subject to the provisions of Section 10.1, the Trustee shall not be liable to
any holder of such Senior Indebtedness if it shall pay over or deliver to
holders of Debentures, the Company or any other Person money or assets to which
any holder of such Senior Indebtedness shall be entitled by virtue of this
Article XVII or otherwise.
Section 17.8 Subordination may not be Impaired.
(a) No right of any present or future holder of any Senior Indebtedness of
the Company 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.
68
(b) Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Indebtedness of the Company may, at any time and from time
to time, without the consent of or notice to the Trustee or the holders of the
Debentures, without incurring responsibility to the holders of the Debentures
and without impairing or releasing the subordination provided in this Article
XVII or the obligations hereunder of the holders of the Debentures to the
holders of such 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, such Senior Indebtedness, or otherwise amend or supplement in
any manner such Senior Indebtedness or any instrument evidencing the same or any
agreement under which such Senior Indebtedness is outstanding; (ii) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing such Senior Indebtedness; (iii) release any Person liable in
any manner for the collection of such Senior Indebtedness; and (iv) exercise or
refrain from exercising any rights against the Company and any other Person.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the day and year first above written.
XXXXX FINANCIAL CORPORATION
By:_____________________________________
Name:___________________________________
Title:__________________________________
WILMINGTON TRUST COMPANY,
AS TRUSTEE
By:_____________________________________
Name:___________________________________
Title:__________________________________
69
STATE OF INDIANA )
) ss:
COUNTY OF __________ )
On the __th day of ____, 2000, before me personally came________________ to
me known, who, being by me duly sworn, did depose and say that he is the
______________________ of Company, one of the corporations described in and
which executed the above instrument; that he knows the corporate seal of said
corporation; that the seal affixed to the said instrument is such corporation
seal; that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like
authority.
___________________________________
Notary Public, ____________________
[seal] My Commission expires:_____________
70
EXHIBIT A
(FORM OF FACE OF DEBENTURE)
XXXXX FINANCIAL CORPORATION
______% CONVERTIBLE JUNIOR SUBORDINATED DEBENTURE
DUE SEPTEMBER 30, 2030
No. ___ $___________
CUSIP No. ______________
Xxxxx Financial Corporation, an Indiana corporation (the "Company," which
term includes any successor corporation under the Indenture hereinafter referred
to), for value received, hereby promises to pay to, _______________ or
registered assigns, the principal sum of _________________________
($___________) on September 30, 2030 (the "Stated Maturity"), and to pay
interest on said principal sum from September ___, 2000, or from the most recent
interest payment date (each such date, an "Interest Payment Date") to which
interest has been paid or duly provided for, quarterly (subject to deferral as
set forth herein) in arrears on the last day of March, June, September and
December of each year commencing December 31, 2000, 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 compounded quarterly. The amount of
interest payable on any Interest Payment Date shall be computed on the basis of
a 360-day year of twelve 30-day months. The amount of interest for any partial
period shall be computed on the basis of the number of days elapsed in a 360-day
year of twelve 30-day months. In the event that any date on which interest is
payable on this Debenture is not a business day, then payment of interest
payable on such date shall be made on the next succeeding day that is a business
day (and without any interest or other payment in respect of any such delay)
except that, if such business day is in the next succeeding calendar year,
payment of such interest will be made on the immediately preceding business day,
in each case, with the same force and effect as if made on such date. The
interest installment so payable, and punctually paid or duly provided for, on
any Interest Payment Date shall, as provided in the Indenture, be paid to the
person in whose name this Debenture (or one or more Predecessor Debentures, as
defined in said Indenture) is registered at the close of business on the regular
record date for such interest installment, which shall be the close of business
on the business day next preceding such Interest Payment Date unless otherwise
provided in the Indenture. Any such interest installment not punctually paid or
duly provided for shall forthwith cease to be payable to the registered holders
on such regular record date and may be paid to the Person in whose name this
Debenture (or one or more Predecessor Debentures) is registered at the close of
business on a special record date to be fixed by the Trustee for the payment of
such
A-1
defaulted interest, notice thereof shall be fixed by the Trustee for the payment
of such defaulted interest, notice thereof shall be given to the registered
holders of the Debentures not less than 10 days prior to such special record
date, or may be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange or quotation system on or in
which the Debentures may be listed or quoted, and upon such notice as may be
required by such exchange, all as more fully provided in the Indenture. The
principal of and the interest on this Debenture shall be payable at the office
or agency of the Trustee maintained for that purpose in any coin or currency of
the United States of America that at the time of payment is legal tender for
payment of public and private debts; provided, however, that payment of interest
may be made at the option of the Company by check mailed to the registered
holder at such address as shall appear in the Debenture Register.
Notwithstanding the foregoing, so long as the holder of this Debenture is the
Property Trustee, the payment of the principal of and interest on this Debenture
shall be made at such place and to such account as may be designated by the
Trustee.
The Stated Maturity may be shortened at any time by the Company to any date
not earlier than September 30, 2005, subject to the Company having received
prior approval of the Federal Reserve if then required under applicable capital
guidelines, policies or regulations of the Federal Reserve.
The indebtedness evidenced by this Debenture is, to the extent provided in
the Indenture, subordinate and junior in right of payment to the prior payment
in full of all Senior Indebtedness, and this Debenture is issued subject to the
provisions of the Indenture with respect thereto. Each holder of this Debenture,
by accepting the same, (a) agrees to and shall be bound by such provisions; (b)
authorizes and directs the Trustee on his or her behalf to take such action as
may be necessary or appropriate to acknowledge or effectuate the subordination
so provided; and (c) appoints the Trustee his or her attorney-in-fact for any
and all such purposes. Each holder hereof, by his or her acceptance hereof,
hereby waives all notice of the acceptance of the subordination provisions
contained herein and in the Indenture by each holder of Senior Indebtedness,
whether now outstanding or hereafter incurred, and waives reliance by each such
holder upon said provisions.
This Debenture shall not be entitled to any benefit under the Indenture
hereinafter referred to, be valid or become obligatory for any purpose until the
Certificate of Authentication hereon shall have been signed by or on behalf of
the Trustee.
The provisions of this Debenture are continued on the reverse side hereof
and such continued provisions shall for all purposes have the same effect as
though fully set forth at this place.
A-2
IN WITNESS WHEREOF, the Company has caused this instrument to be executed.
Dated ___________________, 20__.
XXXXX FINANCIAL CORPORATION
By:____________________________
Name:__________________________
Title:_________________________
Attest:
By: _______________________________
Name: _____________________________
Title: ____________________________
A-3
[FORM OF CERTIFICATE OF AUTHENTICATION]
CERTIFICATE OF AUTHENTICATION
This is one of the Debentures described in the within-mentioned Indenture.
Dated: _____________, 20___
Wilmington Trust Company, _________________________
as Trustee or Authentication Agent
By ________________________ By ______________________
Authorized Signatory
A-4
[FORM OF REVERSE OF DEBENTURE]
_______% CONVERTIBLE JUNIOR SUBORDINATED DEBENTURE DUE 2030
(CONTINUED)
This Debenture is one of the subordinated debentures of the Company (herein
sometimes referred to as the "Debentures"), all issued or to be issued under and
pursuant to an Indenture dated as of September ___, 2000 (the "Indenture") duly
executed and delivered between the Company and Wilmington Trust Company, as
Trustee (the "Trustee"), to which Indenture reference is hereby made for a
description of the rights, limitations of rights, obligations, duties and
immunities thereunder of the Trustee, the Company and the holders of the
Debentures. The Debentures are limited in aggregate principal amount as
specified in the Indenture.
Because of the occurrence and continuation of a Special Event (as defined
in the Indenture), in certain circumstances, this Debenture may become due and
payable at the principal amount together with any interest accrued thereon (the
"Redemption Price"). The Redemption Price shall be paid prior to 12:00 noon,
Eastern Standard Time, on the date of such redemption or at such earlier time as
the Company determines. The Company shall have the right as set forth in the
Indenture to redeem this Debenture at the option of the Company, as set forth in
the Indenture, in whole or in part (i) at any time on or after September 30,
2003 at a Redemption Price equal to ____% of the principal amount so redeemed
until September 29, 2003 and equal to ____% of the principal amount so redeemed
on or after September 30, 2004, plus in each case accrued but unpaid interest
hereon to the date of redemption (an "Early Redemption"); provided, however, the
Company shall have no right to an Early Redemption unless the stock price for
the Company's common stock has been at least 125% of the Conversion Price for a
period of twenty consecutive days ending within five days of the date of notice
of redemption; (ii) at any time on or after September 30, 2005 at a Redemption
Price equal to 100% of the principal amount so redeemed plus any accrued but
unpaid interest hereon to the date of redemption ("Optional Redemption"); or
(iii) at any time in certain circumstances upon the occurrence of a Special
Event, at a Redemption Price equal to 100% of the principal amount hereof plus
any accrued but unpaid interest hereon, to the date of such redemption. Any
redemption pursuant to this paragraph shall be made upon not less than 30 days
nor more than 60 days notice, at the Redemption Price. The Redemption Price
shall be paid at the time and in the manner provided therefor in the Indenture.
If the Debentures are only partially redeemed by the Company pursuant to an
Early Redemption or an Optional Redemption, the Debentures shall be redeemed pro
rata or by lot or by any other method utilized by the Trustee as described in
the Indenture.
In the event of redemption of this Debenture in part only, a new Debenture
or Debentures for the unredeemed portion hereof shall be issued in the name of
the holder hereof upon the cancellation hereof.
A-5
In case an Event of Default (as defined in the Indenture) shall have
occurred and be continuing, the principal of all of the Debentures may be
declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the holders of not less than a majority in aggregate
principal amount of the Debentures at the time Outstanding (as defined in the
Indenture) to execute supplemental indentures for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Indenture or of any supplemental indenture or of modifying in any manner the
rights of the holders of the Debentures; provided, however, that no such
supplemental indenture shall (i) extend the fixed maturity of the Debentures
except as provided in the Indenture, or reduce the principal amount thereof, or
reduce the rate or extend the time of payment of interest thereon, without the
consent of the holder of each Debenture so affected; or (ii) reduce the
aforesaid percentage of Debentures, the holders of which are required to consent
to any such supplemental indenture, without the consent of the holders of each
Debenture then Outstanding and affected thereby. The Indenture also contains
provisions permitting the holders of a majority in aggregate principal amount of
the Debentures at the time Outstanding, on behalf of all of the holders of the
Debentures, to waive any past default in the performance of any of the covenants
contained in the Indenture, or established pursuant to the Indenture, and its
consequences, except a default in the payment of the principal of or interest on
any of the Debentures. Any such consent or waiver by the registered holder of
this Debenture (unless revoked as provided in the Indenture) shall be conclusive
and binding upon such holder and upon all future holders and owners of this
Debenture and of any Debenture issued in exchange herefor or in place hereof
(whether by registration of transfer or otherwise), irrespective of whether or
not any notation of such consent or waiver is made upon this Debenture.
Any Debentureholder has the right, exercisable at any time after
__________, 2000 and on or before the close of business on the Business Day
immediately preceding the date of repayment of the Debentures, whether at
maturity or upon redemption (either at the option of the Company or pursuant to
a Special Event), to convert the principal amount thereof (or any portion
thereof that is an integral multiple of $10) into fully paid and nonassessable
shares of Common Stock of the Company at an initial conversion ratio of _____
shares of Common Stock for each $10 in aggregate principal amount of Debentures
(equal to an initial conversion price of $_____ per share of Common Stock),
subject to adjustment under certain circumstances (the "Conversion Ratio"). The
number of shares issuable upon conversion of a principal amount of Debentures
shall be determined by dividing such principal amount by 10 and multiplying the
quotient so obtained by the Conversion Ratio in effect on the Conversion Date.
No fractional shares of Common Stock shall be issued upon conversion and, in
lieu thereof, a cash payment shall be made for any fractional interest. The
outstanding principal amount of any Debenture shall be reduced by the portion of
the principal amount thereof converted into shares of Common Stock.
To convert a Debenture, a Debentureholder must (i) complete and sign a
Conversion Request substantially in the form attached hereto, (ii) surrender the
Debenture to the Conversion Agent,
A-6
(iii) furnish appropriate endorsements or transfer documents if required by the
Debenture Registrar or Conversion Agent, and (iv) pay any transfer or similar
tax, if required. If a Conversion Request is delivered on or after the regular
record date and prior to the subsequent Interest Payment Date, the
Debentureholder shall be required to pay to the Company the interest payment to
be made on the subsequent Interest Payment Date, and shall be entitled to
receive the interest payable on the subsequent Interest Payment Date, on the
portion of Debentures to be converted notwithstanding the conversion thereof
prior to such Interest Payment Date. Notwithstanding the foregoing, if, during
an Extended Interest Payment Period, a notice of redemption is mailed pursuant
to Section 3.4 of the Indenture and a Debenture is converted after such mailing
but prior to the relevant redemption date, all accrued but unpaid interest
(including Additional Payments, if any) through the date of conversion shall be
paid to the Debentureholder of such Debenture on the redemption date. Except as
otherwise provided in the immediately preceding two sentences, in the case of
any Debenture which is converted, interest with a Stated Maturity which is after
the date of conversion of such Debenture shall not be payable, and the Company
shall not make or be required to make any other payment, adjustment or allowance
with respect to accrued but unpaid interest (including Additional Payments, if
any) on the Debentures being converted, which shall be deemed to be paid in
full. If any Debenture called for redemption is converted, any money deposited
with the Trustee or with any Paying Agent or so segregated and held in trust for
the redemption of such Debenture shall be paid to the Company upon Company
request or, if then held by the Company, shall be discharged from such trust.
No reference herein to the Indenture and no provision of this Debenture or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal and interest on this Debenture
at the time and place and at the rate and in the money herein prescribed.
Provided certain conditions are met, the Company shall have the right at
any time during the term of the Debentures and from time to time to extend the
interest payment period of such Debentures for up to 20 consecutive quarters
(each, an "Extended Interest Payment Period"), at the end of which period the
Company shall pay all interest then accrued and unpaid (together with interest
thereon at the rate specified for the Debentures to the extent that payment of
such interest is enforceable under applicable law). Before the termination of
any such Extended Interest Payment Period, so long as no Event of Default shall
have occurred and be continuing, the Company may further extend such Extended
Interest Payment Period, provided that such Extended Interest Payment Period
together with all such further extensions thereof shall not exceed 00
xxxxxxxxxxx xxxxxxxx, xxxxxx beyond the Stated Maturity or end on a date other
than an Interest Payment Date. At the termination of any such Extended Interest
Payment Period and upon the payment of all accrued and unpaid interest and any
additional amounts then due and subject to the foregoing conditions, the Company
may commence a new Extended Interest Payment Period.
As provided in the Indenture and subject to certain limitations therein set
forth, this Debenture is transferable by the registered holder hereof on the
Debenture Register of the Company, upon surrender of this Debenture for
registration of transfer at the office or agency of the Trustee
A-7
accompanied by a written instrument or instruments of transfer in form
satisfactory to the Company or the Trustee duly executed by the registered
holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Debentures of authorized denominations and for the same aggregate
principal amount shall be issued to the designated transferee or transferees. No
service charge shall be made for any such transfer, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in relation thereto.
Prior to due presentment for registration of transfer of this Debenture,
the Company, the Trustee, any paying agent and the Debenture Registrar may deem
and treat the registered holder hereof as the absolute owner hereof (whether or
not this Debenture shall be overdue and notwithstanding any notice of ownership
or writing hereon made by anyone other than the Debenture Registrar) for the
purpose of receiving payment of or on account of the principal hereof and
interest due hereon and for all other purposes, and neither the Company nor the
Trustee nor any paying agent nor any Debenture Registrar shall be affected by
any notice to the contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Debenture, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture, against any
incorporator, stockholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the acceptance
hereof and as part of the consideration for the issuance hereof, expressly
waived and released.
The Debentures are issuable only in registered form without coupons in
denominations of $10 and any integral multiple thereof.
All terms used in this Debenture that are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
A-8
FORM OF CONVERSION REQUEST
To: Xxxxx Financial Corporation
The undersigned owner of these Preferred Securities hereby irrevocably
elects to convert these Preferred Securities, or the portion below designated,
into Common Stock of the Company (the "Common Stock") in accordance with the
terms of the Indenture (the "Indenture"), dated as of __________, 2000, between
Xxxxx Financial Corporation and Wilmington Trust Company.
The undersigned owner of these Preferred Securities hereby directs the
Conversion Agent to convert such Preferred Securities on behalf of the
undersigned, into Common Stock (at the Conversion Ratio specified in the
Indenture). The undersigned owner of these Preferred Securities also hereby
notifies the Conversion Agent that the shares issuable and deliverable upon
conversion, together with any check in payment for fractional shares, should be
issued in the name of and delivered to the undersigned, unless a different name
has been indicated in the assignment below. (if shares are to be issued in the
name of a person other than the undersigned, the undersigned shall pay all
transfer taxes payable with respect thereto.)
Date:
_____________________
Principal Amount of Securities to be converted ($10 or integral multiples
thereof): $
________________
If a name of names other than the undersigned, please indicate in the spaces
below the name or names in which the shares of Common Stock are to be issued,
along with the address or addresses of such person or persons:
___________________________
___________________________
___________________________
(Sign exactly as your name appears on the other side of this Preferred Security)
(for conversion only)
Please print or type name and address, including zip code, and social security
or other identifying number:
___________________________
___________________________
___________________________
Signature Guarantee:* ______________________
________________
*Signature must be guaranteed by an "eligible guarantor institution" that
is a bank, stockbroker, savings and loan association or credit union meeting the
requirements of the Registrar, which requirements include membership or
participation in the Securities Transfer Agents Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities and Exchange Act of 1934, as amended.
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