Exhibit 4(i)(i)
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NEW YORK COMMUNITY BANCORP, INC.
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INDENTURE
Dated as of (.), (.)
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WILMINGTON TRUST COMPANY,
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as Trustee
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JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURES
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Tie Sheet of provisions of Trust Indenture Act of 1939 with Indenture dated
as of (.), (.) between New York Community Bancorp, Inc. and Wilmington Trust
Company, as Trustee:
ACT SECTION INDENTURE SECTION
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310(a)(1)...................................................................6.09
(a)(2).......................................................6.09, 6.10, 6.11
310(a)(3)....................................................................N/A
(a)(4)....................................................................N/A
310(a)(5).......................................................6.09, 6.10, 6.11
310(b)......................................................................6.08
310(c).......................................................................N/A
311(a)......................................................................6.13
311(b)......................................................................6.13
311(c).......................................................................N/A
312(a).......................................................4.01(a) and 4.02(a)
312(b)...................................................................4.02(b)
312(c)...................................................................4.02(c)
313(a)...................................................................4.04(a)
313(b)(1)................................................................4.04(a)
313(b)(2)................................................................4.04(a)
313(c)...................................................................4.04(a)
313(d)...................................................................4.04(b)
314(a)................................................................3.05, 4.03
314(b).......................................................................N/A
314(c)(1).........................................................6.07 and 13.06
314(c)(2).........................................................6.07 and 13.06
314(c)(3)....................................................................N/A
314(d).......................................................................N/A
314(e)...............................................................6.07, 13.06
314(f).......................................................................N/A
315(a)(c) and (d)...........................................................6.01
315(b)......................................................................5.08
315(e)......................................................................5.09
316(a)(1)...................................................................5.07
316(a)(2)....................................................................N/A
316(a) last sentence........................................................9.02
316(b).............................................................5.07 and 9.02
316(c).............................................................7.01 and 9.02
317(a)......................................................................5.05
317(b)......................................................................6.05
318........................................................................13.08
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THIS TIE-SHEET IS NOT PART OF THE INDENTURE AS EXECUTED.
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Page
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SECTION 1.01 Definitions 1
SECTION 1.02 Rules of Construction 11
ARTICLE II
DEBENTURES
SECTION 2.01 Forms Generally 11
SECTION 2.02 Execution and Authentication 14
SECTION 2.03 Form and Payment 15
SECTION 2.04 Global Debenture 15
SECTION 2.05 Payment of Principal and Interest 17
SECTION 2.06 Transfer 17
SECTION 2.07 Replacement Debentures 18
SECTION 2.08 Temporary Debentures 18
SECTION 2.09 Cancellation 19
SECTION 2.10 Defaulted Interest 19
SECTION 2.11 CUSIP Numbers 20
ARTICLE III
PARTICULAR COVENANTS OF THE COMPANY
SECTION 3.01 Payment of Principal and Interest 20
SECTION 3.02 Offices for Notices and Payments, etc 20
SECTION 3.03 Appointments to Fill Vacancies in Office of Trustee 21
SECTION 3.04 Provision as to Paying Agent 21
SECTION 3.05 Certificate to Trustee 22
SECTION 3.06 Compliance with Consolidation Provisions 22
SECTION 3.07 Limitation on Dividends 22
SECTION 3.08 Ownership of Common Securities 23
SECTION 3.09 Payment of Expenses 23
SECTION 3.10 Payment Upon Resignation or Removal 24
ARTICLE IV
LIST OF DEBENTUREHOLDERS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
SECTION 4.01 List of Debentureholders 24
SECTION 4.02 Preservation and Disclosure of Lists 25
SECTION 4.03 Reports by the Company 26
SECTION 4.04 Reports by the Trustee 27
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ARTICLE V
REMEDIES OF THE TRUSTEE AND
DEBENTUREHOLDERS UPON EVENT OF DEFAULT
SECTION 5.01 Events of Default 28
SECTION 5.02 Payment of Securities on Default; Suit Therefor 30
SECTION 5.03 Application of Moneys Collected by Trustee 32
SECTION 5.04 Proceedings by Debentureholders 32
SECTION 5.05 Proceedings by Trustee 33
SECTION 5.06 Remedies Cumulative and Continuing 34
SECTION 5.07 Restoration of Rights and Remedies 34
SECTION 5.08 Direction of Proceedings and Waiver of Defaults by
Majority of Debentureholders 34
SECTION 5.09 Notice of Defaults 35
SECTION 5.10 Undertaking to Pay Costs 36
ARTICLE VI
CONCERNING THE TRUSTEE
SECTION 6.01 Duties and Responsibilities of Trustee 36
SECTION 6.02 Reliance on Documents, Opinions, etc 37
SECTION 6.03 No Responsibility for Recitals, etc 39
SECTION 6.04 Trustee, Authenticating Agent, Paying Agents, Transfer
Agents and Registrar May Own Debentures 39
SECTION 6.05 Moneys to be Held in Trust 39
SECTION 6.06 Compensation and Expenses of Trustee 39
SECTION 6.07 Officers' Certificate as Evidence 40
SECTION 6.08 Conflicting Interest of Trustee 41
SECTION 6.09 Eligibility of Trustee 41
SECTION 6.10 Resignation or Removal of Trustee 41
SECTION 6.11 Acceptance by Successor Trustee 42
SECTION 6.12 Succession by Merger, etc 43
SECTION 6.13 Limitation on Rights of Trustee as a Creditor 43
SECTION 6.14 Authenticating Agents 44
ARTICLE VII
CONCERNING THE DEBENTUREHOLDERS
SECTION 7.01 Action by Debentureholders 45
SECTION 7.02 Proof of Execution by Debentureholders 46
SECTION 7.03 Who Are Deemed Absolute Owners 46
SECTION 7.04 Debentures Owned by Company Deemed Not Outstanding 46
SECTION 7.05 Revocation of Consents; Future Holders Bound 47
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ARTICLE VIII
MEETINGS OF DEBENTUREHOLDERS
SECTION 8.01 Purposes of Meetings 47
SECTION 8.02 Call of Meetings by Trustee 48
SECTION 8.03 Call of Meetings by Company or Debentureholders 48
SECTION 8.04 Qualifications for Voting 49
SECTION 8.05 Regulations 49
SECTION 8.06 Voting 50
ARTICLE IX
AMENDMENTS
SECTION 9.01 Without Consent of Debentureholders 50
SECTION 9.02 With Consent of Debentureholders 52
SECTION 9.03 Compliance with Trust Indenture Act; Effect of
Supplemental Indentures 53
SECTION 9.04 Notation on Debentures 54
SECTION 9.05 Evidence of Compliance of Supplemental Indenture to be
Furnished to Trustee 54
ARTICLE X
CONSOLIDATION, MERGER, SALE,
CONVEYANCE, TRANSFER AND LEASE
SECTION 10.01 Company May Consolidate, etc., on Certain Terms 54
SECTION 10.02 Successor Person to be Substituted for Company 55
SECTION 10.03 Opinion of Counsel to be Given Trustee 55
ARTICLE XI
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 11.01 Discharge of Indenture 55
SECTION 11.02 Deposited Moneys and U.S. Government Obligations
to be Held in Trust by Trustee 56
SECTION 11.03 Paying Agent to Repay Moneys Held 57
SECTION 11.04 Return of Unclaimed Moneys 57
SECTION 11.05 Defeasance Upon Deposit of Moneys or U.S.
Government Obligations 57
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.01 Indenture and Debentures Solely Corporate Obligations 59
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ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01 Successors 59
SECTION 13.02 Official Acts by Successor Company 59
SECTION 13.03 Surrender of Company Powers 59
SECTION 13.04 Addresses for Notices, etc 59
SECTION 13.05 Governing Law 60
SECTION 13.06 Evidence of Compliance with Conditions Precedent 60
SECTION 13.07 Business Days 60
SECTION 13.08 Trust Indenture Act to Control 61
SECTION 13.09 Table of Contents, Headings, etc 61
SECTION 13.10 Execution in Counterparts 61
SECTION 13.11 Separability 61
SECTION 13.12 Assignment 61
SECTION 13.13 Acknowledgment of Rights 61
ARTICLE XIV
PREPAYMENT OF DEBENTURES
SECTION 14.01 Special Event Prepayment 62
SECTION 14.02 Optional Prepayment by Company 62
SECTION 14.03 Notice of Prepayment; Selection of Debentures 63
SECTION 14.04 Payment of Debentures Called for Prepayment 63
ARTICLE XV
SUBORDINATION OF DEBENTURES
SECTION 15.01 Agreement to Subordinate 64
SECTION 15.02 Default on Senior Indebtedness 64
SECTION 15.03 Liquidation; Dissolution; Bankruptcy 65
SECTION 15.04 Subrogation 67
SECTION 15.05 Trustee to Effectuate Subordination 67
SECTION 15.06 Notice by the Company 67
SECTION 15.07 Rights of the Trustee; Holders of Senior Indebtedness 68
SECTION 15.08 Subordination May Not Be Impaired 69
SECTION 15.09 Payment Blockage Notice 69
ARTICLE XVI
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 16.01 Extension of Interest Payment Period 70
SECTION 16.02 Notice of Extension 00
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XXXXXXXXX, dated as of (.), between New York Community Bancorp, Inc.,
a Delaware corporation (the "Company"), and Wilmington Trust Company, a Delaware
banking corporation, as trustee (the "Trustee").
WHEREAS, the Company may from time to time create or establish one or
more statutory trusts for the purpose of issuing undivided beneficial interests
in the assets thereof (the "Trust Securities") and using the proceeds thereof to
acquire the Company's Debentures (as hereinafter defined).
WHEREAS, all things necessary to make the Debentures, when duly issued
and executed by the Company and authenticated and delivered hereunder, the valid
obligations of the Company, and to make this Indenture a valid and binding
agreement of the Company, enforceable in accordance with its terms, have been
done.
NOW THEREFORE:
Each of the Company and the Trustee, intending to be legally bound
hereby, agrees as follows for the benefit of the other party and for the equal
and ratable benefit of the Holders (as hereinafter defined) of the securities
issued hereunder:
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions. "Additional Sums" shall have the meaning set
forth in Section 2.05(d).
"Affiliate" shall have the meaning given to that term in Rule 405 under the
Securities Act or any successor rule thereunder.
"Allocable Amounts," when used with respect to any Senior Indebtedness,
means all amounts due or to become due on such Senior Indebtedness less, if
applicable, any amount which would have been paid to, and retained by, the
holders of such Senior Indebtedness (whether as a result of the receipt of
payments by the holders of such Senior Indebtedness from the Company or any
other obligor thereon or from any holders of, or trustee in respect of, other
indebtedness that is subordinate and junior in right of payment to such Senior
Indebtedness pursuant to any provision of such indebtedness for the payment over
of amounts received on account of such indebtedness to the holders of such
Senior Indebtedness or otherwise) but for the fact that such Senior Indebtedness
is subordinate or junior in right of payment to (or subject to a requirement
that amounts received on such Senior Indebtedness be paid over to obligees on)
trade accounts payable or accrued liabilities arising in the ordinary course of
business.
"Authenticating Agent" shall mean any agent or agents of the Trustee which
at the time shall be appointed and acting pursuant to Section 6.14.
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"Bankruptcy Law" shall mean Title 11, U.S. Code, or any similar federal or
state law for the relief of debtors.
"Board of Directors" shall mean either the Board of Directors of the
Company or any duly authorized committee of that board.
"Board Resolution" shall mean a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee or (ii) a certificate signed by the
authorized officer or officers to whom the Board of Directors has delegated
authority to make such certifications, and in each case, delivered to the
Trustee.
"Book-Entry Preferred Securities" shall have the meaning set forth in
Section 2.04(a)(i).
"Business Day" shall mean, with respect to any series of Debentures, any
day other than a Saturday, a Sunday or a day on which banking institutions in
(i) the Borough of Manhattan in the City of New York or (ii) Wilmington,
Delaware are authorized or required by law, regulation or executive order to
close.
"Commission" shall mean the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or if at any time
after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Securities" shall mean undivided beneficial interests in the assets
of a Trust which are designated as "Common Securities" and rank pari passu with
Preferred Securities issued by such Trust; provided, however, that if an Event
of Default has occurred and is continuing, no payments in respect of
distributions on, or payments upon liquidation, redemption or otherwise with
respect to, the Common Securities shall be made until the holders of the
Preferred Securities shall be paid in full the distributions and the
liquidation, redemption and other payments to which they are then entitled.
"Common Securities Guarantee" shall mean any guarantee that the Company may
enter into that operates directly or indirectly for the benefit of holders of
Common Securities.
"Common Stock" shall mean the Common Stock, $0.01 par value per share, of
the Company or any other class of stock resulting from changes or
reclassifications of such Common Stock consisting solely of changes in par
value, or from par value to no par value, or from no par value to par value.
"Compounded Interest" shall have the meaning set forth in Section 16.01.
"Company" shall mean the person identified as "Company" in the preamble to
this Indenture and, subject to the provisions of Article X, shall also include
its successors and assigns.
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"Company Request" or "Company Order" shall mean a written request or order
signed in the name of the Company by an Officer and delivered to the Trustee.
"Corporate Trust Office of the Trustee," or other similar term, shall mean
the office of the Trustee, at which at any particular time its corporate trust
business shall be administered.
"Coupon Rate" when used with respect to the Debentures of any series means
the stated rate of interest of that series.
"Custodian" shall mean any receiver, trustee, assignee, liquidator, or
similar official under any Bankruptcy Law.
"Debentures" shall mean any of the junior subordinated deferrable interest
debentures of any series issued, authenticated and delivered under this
Indenture.
"Debentureholder," "holder of Debentures," "Holder" or other similar terms,
shall mean any Person in whose name at the time a particular Debenture is
registered in the Debenture Register kept by the Company or the Trustee for that
purpose in accordance with the terms of this Indenture.
"Debenture Register" shall mean (i) prior to a Dissolution Event, the list
of holders provided to the Trustee pursuant to Section 4.01, and (ii) following
a Dissolution Event, any Debenture register maintained by a Debenture registrar
for the Debentures appointed by the Company following the execution of a
supplemental indenture providing for transfer procedures as provided for in
Section 2.06(a).
"Declaration" shall mean the Amended and Restated Declaration of Trust of a
Trust among the Company, as sponsor, Wilmington Trust Company, as Property
Trustee, the Delaware Trustee named therein and the Administrative Trustees
named therein, as the same may be amended from time to time.
"Default" shall mean any event, act or condition that with notice or lapse
of time, or both, would constitute an Event of Default.
"Defaulted Interest" shall have the meaning set forth in Section 2.10.
"Deferred Interest" shall have the meaning set forth in Section 16.01.
"Definitive Debentures" shall mean those Debentures issued in fully
registered certificated form not otherwise in global form.
"Depositary" shall mean, with respect to the Debentures for which the
Company shall determine that such Debentures will be issued as a Global
Debenture, The Depository Trust Company, New York, New York, or another clearing
agency, or any successor registered as a clearing agency pursuant to Section 17A
of the Exchange Act or other applicable statute or regulation, which, in each
case, shall be designated by the Company pursuant to Section 2.04(d).
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"Dissolution Event" shall mean any event resulting in the dissolution of a
Trust pursuant to a Declaration, and the distribution of the Debentures held by
the Property Trustee to the holders of the Trust Securities issued by such Trust
pro rata in accordance with the Declaration.
"Event of Default" shall mean any event specified in Section 5.01,
continued for the period of time, if any, and after the giving of the notice, if
any, therein designated.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
"Extended Period" shall have the meaning set forth in Section 16.01.
"Federal Reserve" shall mean the Board of Governors of the Federal Reserve
System.
"Global Debenture" shall mean, with respect to the Debentures of any
series, a Debenture of that series executed by the Company and delivered by the
Trustee to the Depositary or pursuant to the Depositary's instruction, or if no
instructions are received, then held by the Property Trustee as custodian on
behalf of the Depository, all in accordance with this Indenture, which Debenture
shall be registered in the name of the Depositary or its nominee, Cede & Co.
"Indebtedness" shall mean, whether recourse as to all or a portion of the
assets of the Company and whether or not contingent, (i) every obligation of the
Company for money borrowed; (ii) every obligation of the Company evidenced by
bonds, debentures, notes or other similar instruments, including obligations
incurred in connection with the acquisition of property, assets or businesses;
(iii) every reimbursement obligation of the Company with respect to letters of
credit, bankers' acceptances or similar facilities issued for the account of the
Company; (iv) every obligation of the Company issued, assumed as the deferred
purchase price of property or services (but excluding trade accounts payable or
accrued liabilities arising in the ordinary course of business); (v) every
capital lease obligation of the Company; (vi) all indebtedness of the Company,
whether incurred on or prior to the date of this Indenture or hereafter
incurred, for claims in respect of derivative products, including interest rate,
foreign exchange rate and commodity forward contracts, options and swaps and
similar arrangements; and (vii) every obligation of the type referred to in
clauses (i) through (vi) of another Person and all dividends of another Person
the payment of which, in either case, the Company has guaranteed or is
responsible or liable for directly or indirectly, as obligor or otherwise.
"Indebtedness Ranking on a Parity with the Debentures" shall mean (i)
Indebtedness, whether outstanding on the date of execution of this Indenture or
thereafter created, assumed or incurred, to the extent such Indebtedness by its
terms ranks pari passu with and not prior or senior to or junior to the
Debentures (or Indebtedness on a parity with the Debentures) in the right of
payment upon the happening of the dissolution, winding-up, liquidation or
reorganization of the Company including, without limitation, all other debt
securities, and guarantees in respect of those debt securities, issued to any
trust or a trustee of such trust, partnership or other entity affiliated with
the Company, that is a financing vehicle of the Company (a "financing entity")
in connection with the issuance by such financing entity of
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equity securities or other securities guaranteed by the Company pursuant to an
instrument that ranks pari passu to the Preferred Securities Guarantee. The
securing of any Indebtedness otherwise constituting Indebtedness Ranking on a
Parity with the Debentures shall not be deemed to prevent such Indebtedness from
constituting Indebtedness Ranking on a Parity with the Debentures with respect
to any assets of the Company not securing such Indebtedness.
"Indebtedness Ranking Junior to the Debentures" shall mean any
Indebtedness, whether outstanding on the date of execution of this Indenture or
hereafter created, assumed or incurred, to the extent such Indebtedness by its
terms ranks junior to and not pari passu with or prior or senior to the
Debentures (or Indebtedness on a parity with the Debentures) in right of payment
upon the happening of the dissolution or winding-up or liquidation or
reorganization of the Company. The securing of any Indebtedness otherwise
constituting Indebtedness Ranking Junior to the Debentures shall not be deemed
to prevent such Indebtedness from constituting Indebtedness Ranking Junior to
the Debentures with respect to any assets of the Company not securing such
Indebtedness.
"Indenture" shall mean this instrument as originally executed or, if
amended as herein provided, as so amended.
"Initial Optional Redemption Date" shall mean o,o.
"Interest Payment Date" when used with respect to the Debenture of any
series, means the stated maturity of any installment of interest on the
Debentures of that series.
"Interest Payment Date" when used with respect to the Debentures of any
series, means the stated maturity of any installment of interest on the
Debentures of that series.
"Investment Company" shall mean an investment company as defined in the
Investment Company Act.
"Investment Company Act" shall mean the Investment Company Act of 1940, as
amended from time to time, or any successor legislation.
"Investment Company Event" shall mean the receipt by the Company and the
Trust of an opinion of independent securities counsel experienced in such
matters to the effect that as a result of (a) any amendment to, or change
(including any announced prospective change) in, the laws or any regulations
thereunder of the United States or any rules, guidelines or policies of any
applicable regulatory authority for the Company or (b) 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 original issuance
of the Debentures, the Trust is, or within 90 days of the date of such opinion
will be, considered an investment company that is required to be registered
under the Investment Company Act.
"Issue Date," with respect to Debentures, of any series, means the date on
which the Debentures of such series are originally issued.
"Like Amount" shall mean Debentures having a principal amount equal to the
liquidation amount of the Trust Securities of the holder to whom Debentures are
distributed pursuant to Section 2.04.
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"Non Book-Entry Preferred Securities" shall have the meaning set forth in
Section 2.04 (a)(ii).
"Officers" shall mean any of the Chairman, the Chief Executive Officer, the
President, an Executive or Senior Vice President, a Vice President, the Chief
Financial Officer, the Secretary or an Assistant Secretary of the Company.
"Officers' Certificate" means a certificate signed by any two of the
Chairman, a Vice Chairman, the Chief Executive Officer, the Chief Financial
Officer, the President, the Treasurer, the Chief Accounting Officer, a Vice
President, the Secretary and an Assistant Secretary of the Company, that
complies with the requirements of Section 13.06 and is delivered to the Trustee.
"Opinion of Counsel" shall mean a written opinion of counsel, who may be an
employee of the Company, and who shall be reasonably acceptable to the Trustee.
"Other Guarantees" shall mean all guarantees other than the Preferred
Securities Guarantee and the Common Securities Guarantee issued by the Company
with respect to preferred beneficial interests issued to trusts other than a
Trust, in each case similar to the Trust.
"Outstanding" when used with reference to the Debentures, shall mean,
subject to the provisions of Section 7.04, as of any particular time, all
Debentures authenticated and delivered by the Trustee or the Authenticating
Agent under this Indenture, except
(a) Debentures theretofore canceled by the Trustee or the
Authenticating Agent or delivered to the Trustee for cancellation;
(b) Debentures, or portions thereof, for the payment or prepayment of
which moneys 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 that, if such Debentures, or portions thereof, are
to be prepaid prior to maturity thereof, notice of such prepayment shall have
been given as set forth in Article XIV or provision satisfactory to the Trustee
shall have been made for giving such notice;
(c) Debentures in lieu of or in substitution for which other
Debentures shall have been authenticated and delivered pursuant to the terms of
Section 2.07 unless proof satisfactory to the Company and the Trustee is
presented that any such Debentures are held by bona fide holders in due course
and;
(d) Debentures held by the Company, the Trust or any Affiliate
thereof.
"Person" shall mean any individual, Company, estate, partnership, joint
venture, national banking association, association, joint-stock company, limited
liability company, trust, unincorporated organization or government or any
agency or political subdivision thereof.
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"Predecessor Debenture" of any particular Debenture shall mean 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, any Debenture authenticated and delivered under Section 2.07 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" shall mean undivided beneficial interests in the
assets of a Trust which are designated as "Preferred Securities" and rank pari
passu with the Common Securities issued by a Trust; provided, however, that if
an Event of Default has occurred and is continuing, no payments in respect of
distributions on, or payments upon liquidation, redemption or otherwise with
respect to, the Common Securities shall be made until the holders of the
Preferred Securities shall be paid in full the distributions and the
liquidation, redemption and other payments to which they are entitled.
"Preferred Securities Guarantee" shall mean any guarantee agreement that
the Company may enter into with Wilmington Trust Company or other Persons that
operates directly or indirectly for the benefit of holders of Preferred
Securities.
"Prepayment Date" with respect to the Debentures of any series to be
prepaid, means the date specified for prepayment thereof in accordance with the
terms thereof and pursuant to Article XIV.
"Prepayment Price" with respect to the Debentures of any series to be
prepaid, means the price at which such Debentures are to be prepaid in
accordance with the terms thereof and pursuant to Article XIV of this Indenture.
"Record Date," with respect to any series of the Debentures, means the
Regular Record Date, the Special Record Date or any date set to determine the
Holders of Debentures of such series entitled to vote, consent, make a request
or exercise any other right associated with such Debentures.
"Regular Record Date," with respect to an Interest Payment Date for the
Debentures of a series, means the date specified for such Debentures for the
determination of Holders entitled to receive the payment of interest on such
Interest Payment Date.
"Regulatory Capital Event" shall mean the receipt by the Company and the
applicable Trust of an opinion of independent bank regulatory counsel
experienced in such matters to the effect that as a result of (a) any amendment
to, or change (including any announced prospective change) in, the laws (or any
regulations thereunder) of the United States or any rules, guidelines or
policies of an applicable regulatory authority for the Company or (b) 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 original
issuance of the Debentures, the Preferred Securities do not constitute, or
within 90 days of the date of such opinion will not constitute, Tier 1 Capital
(or
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its then equivalent if the Company were subject to such capital requirement);
applied to bank holding companies for purposes of capital adequacy guidelines of
the Federal Reserve Board (or any successor regulatory authority with
jurisdiction over bank holding companies), or any capital adequacy guidelines as
then in effect and applicable to the Company; provided, however, that the
distribution of the Debentures in connection with the liquidation of the Trust
by the Company shall not in and of itself constitute a Regulatory Capital Event.
"Responsible Officer" shall mean any officer within the Corporate Trust
Office of the Trustee with direct responsibility for the administration of the
Indenture and also means, with respect to a particular corporate trust matter,
any other officer of the Trustee to whom such matter is referred because of such
officer's knowledge of and familiarity with the particular subject.
"Securities Act" shall have the meaning set forth in Section 1.02.
"Security Exchange," when used with respect to the Debentures of any series
which are held as assets of a Trust pursuant to the Declaration of such Trust,
means the distribution of the Debentures of such series by such Trust to the
holders of the Trust Securities of such Trust in exchange for such Trust
Securities upon certain events described in the applicable Declaration of such
Trust.
"Senior Indebtedness" means:
(a) except as otherwise provided in paragraph (b) below, the principal of,
premium, if any, and interest (including all interest accruing subsequent
to the commencement of any bankruptcy or similar proceeding, whether or not
a claim for post-petition interest is allowable as a claim in any such
proceeding) on:
(1) all indebtedness, obligations and other liabilities (contingent or
otherwise) of the Company for borrowed money (including obligations of the
Company in respect of overdrafts, foreign exchange contracts, currency
exchange agreements, interest rate protection agreements, and any loans or
advances from banks, whether or not evidenced by notes or similar
instruments) or evidenced by bonds, debentures, notes or other instruments
for the payment of money, or indebtedness incurred in connection with the
acquisition of any properties or assets (whether or not the recourse of the
lender is to the whole of the assets of the Company or to only a portion
thereof), other than any account payable or other accrued current liability
or obligation to trade creditors incurred in the ordinary course of
business;
(2) all obligations and liabilities (contingent or otherwise) in
respect of leases of the Company required or permitted, in conformity with
generally accepted accounting principles, to be accounted for as
capitalized lease obligations on the balance sheet of the Company;
(3) all direct or indirect guaranties or similar agreements by the
Company in respect of, and obligations or liabilities (contingent or
otherwise) of the Company to
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purchase or otherwise acquire or otherwise assure a creditor against loss
in respect of, indebtedness, obligations or liabilities of another Person
of the kind described in clauses (1) and (2);
(4) any and all amendments, renewals, extensions and refundings of any
indebtedness, obligation or liability of the kind described in clauses (1)
through (3).
(b) Not withstanding paragraph (a) above, Senior Indebtedness does not include:
(1) any indebtedness in which the instrument or instruments evidencing
or securing the same or pursuant to which the same is outstanding, or in
any amendment, renewal, extension or refunding of such instrument or
instruments, it is expressly provided that such indebtedness shall not be
senior in right of payment to the Debentures (or Indebtedness on a parity
with the Debentures) or expressly provides that such Indebtedness is pari
passu or junior to the Debentures;
(2) trade accounts payable in the ordinary course of business; and
(3) any series of subordinated debt securities, and guarantees in
connection with those debt securities, whether currently outstanding or
created, assumed or incurred at a later date, initially issued to any trust
or a trustee of such trust, partnerships or other entities affiliated with
the Company in connection with an issuance of securities similar to the
Preferred Securities.
A "series" of Debentures means all Debentures denoted as part of the same
series authorized by or pursuant to a particular Board Resolution or a
supplemental indenture.
"Special Event" shall mean an Investment Company Event, a Regulatory
Capital Event or a Tax Event, as the context requires.
"Special Event Prepayment Price" shall mean, with respect to any prepayment
of the Debentures following a Special Event, an amount in cash equal to 100% of
the principal amount of the Debentures to be prepaid plus any accrued and unpaid
interest thereon (including Compounded Interest and Additional Sums, if any) to
the date of such prepayment.
"Special Record Date" for the payment of any Defaulted Interest on the
Debentures of any series means the date determined pursuant to Section 2.10.
"Stated Maturity Date," with respect to the Debentures of any series, means
the date specified for such Debentures as the date on which the principal of
such Debentures is due and payable.
"Subsidiary" shall mean with respect to any Person: (i) any Company at
least a majority of the outstanding voting stock of which is 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, joint
venture, limited liability company or similar entity, at least a majority
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of whose outstanding partnership, membership 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. For the
purposes of this definition, "voting stock" 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.
"Tax Event" shall mean the receipt by a Trust and the Company of an opinion
of independent tax counsel experienced in such matters 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 original
issuance of the Debentures, there is more than an insubstantial risk that (i)
such Trust is, or will be within 90 days of the date of such opinion, subject to
United States federal income tax with respect to income received or accrued on
the Debentures, (ii) the interest payable by the Company on the Debentures is
not, or within 90 days of the date of such opinion will not be, deductible by
the Company, in whole or in part, for United States federal income tax purposes
or (iii) such Trust is, or will be within 90 days of the date of such opinion,
subject to more than a de minimis amount of other taxes, duties or other
governmental charges.
"Trust" shall mean any statutory trust created to issue Trust Securities
and to use the proceeds from the sale thereof to purchase Debentures.
"Trust Indenture Act" shall have the meaning set forth in Section 1.02.
"Trust Securities" shall mean, collectively, the Preferred Securities and
the Common Securities of a Trust.
"Trustee" shall mean the Person identified as "Trustee" in the preamble to
this Indenture and, subject to the provisions of Article VI hereof, shall also
include its successors and assigns.
"U.S. Government Obligations" shall mean 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, which, in either case under
clauses (i) or (ii), are not callable or prepayable at the option of the issuer
thereof, and shall also include a depository receipt issued by a bank or trust
company as custodian with respect to any such U.S. Government Obligation or a
specific payment of interest on or principal of any such U.S. Government
Obligation held by such custodian for the account of the holder of a depository
receipt, provided that (except as required by law) such custodian is not
authorized to make any
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deduction with respect to the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the U.S.
Government Obligation or the specific payment of interest on or principal of the
U.S. Government Obligation evidenced by such depository receipt.
The following terms have the meanings given to them in the Declaration: (i)
Clearing Agency; (ii) Delaware Trustee; (iii) Property Trustee; (iv)
Administrative Trustees; and (v) Distributions.
SECTION 1.02 Rules of Construction.
The terms defined in Section 1.01 (except as herein otherwise expressly
provided or unless the context otherwise requires) for all purposes of this
Indenture shall have the respective meanings specified in Section 1.01. All
other terms used in this Indenture which are defined in the Trust Indenture Act
of 1939, as amended (the "Trust Indenture Act"), or which are by reference
therein defined in the Securities Act of 1933, as amended (the "Securities
Act"), shall (except as herein otherwise expressly provided or unless the
context otherwise requires) have the meanings assigned to such terms in said
Trust Indenture Act and in said Securities Act as in force at the date of this
Indenture as originally executed. All accounting terms used herein and not
expressly defined shall have the meanings assigned to such terms in accordance
with generally accepted accounting principles, and the term "generally accepted
accounting principles" means such accounting principles as are generally
accepted at the time of any computation. The words "herein," "hereof" and
"hereunder" and other words of similar import refer to this Indenture as a whole
and not to any particular Article, Section or other subdivision. Headings are
used for convenience of reference only and do not affect interpretation. The
singular includes the plural and vice versa.
To the extent any provision in an indenture supplement hereto shall
conflict with a provision contained herein, the provision in such supplemental
indenture shall supercede such provision contained herein.
ARTICLE II
DEBENTURES
SECTION 2.01 Forms Generally. The aggregate principal amount of Debentures
which may be authenticated and delivered under this Indenture is unlimited.
The Debentures may be issued in one or more series in an amount not to
exceed the aggregate principal amount of Debentures of that series from time to
time authorized by or pursuant to a Board Resolution or pursuant to one or more
indentures supplemental hereto.
With respect to any Debentures of each series to be authenticated and
delivered hereunder, there shall be established in or pursuant to a Board
Resolution and set forth in an Officers' Certificate, or established in one or
more indentures supplemental hereto:
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(a) the title of the Debentures of the series (which shall distinguish the
Debentures of the series from all other Debentures);
(b) the aggregate principal amount of the Debentures of that series which
may be authenticated and delivered under this Indenture (except for Debentures
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Debentures of that series) and any limit thereon;
(c) Stated Maturity Date or Dates, which may be serial and the Company's
option, if any, to change the Stated Maturity Date or Dates;
(d) the rate or rates (which may be fixed or variable) at which the
Debentures of the series shall bear interest or the manner of calculation of
such rate or rates, if any (including the adjustment that would occur upon any
remarketing of Trust Securities);
(e) the percentage of principal amount at which the Debentures shall be
issued;
(f) the basis upon which interest shall be computed if other than a 360-day
year composed of twelve 30-day months;
(g) the date or dates from which such interest shall accrue, the Dates on
which such interest will be payable or the manner of determination and frequency
of such Dates and the Regular Record Dates therefor;
(h) the right, if any, to extend the periods and the duration of any such
Extended Period, including the maximum consecutive period during which periods
may be extended;
(i) Issue Date or Dates;
(j) authorized denominations;
(k) the place or places for the payment of principal and premium, if any,
and interest;
(l) the date or dates on which or the period or periods within which, the
price or prices at which, and the terms and conditions upon which, Debentures of
the series may be redeemed, in whole or in part, at the option of the Company;
(m) the obligation, if any, of the Company to redeem or purchase Debentures
of the series pursuant to any sinking fund or analogous provisions (including
payments made in cash in anticipation of future sinking fund obligations) or at
the option of a Holder and the date or dates on which or the period or periods
within which, the price or prices at which, and the terms and conditions upon
which, Debentures of the series shall be redeemed or purchased, in whole or in
part, pursuant to such obligation;
(n) the form of the Debentures of the series, including the form of the
Certificate of Authentication for such series;
(o) the right or obligation of any Holder or the Company or the applicable
Trust to convert or exchange any Debenture into other securities of the Company
or such Trust and the terms and conditions of any such conversion or exchange
and, if so provided, the terms and conditions upon which such conversion or
exchange will be effected, including, the conversion or exchange price, the
conversion or exchange date(s) or period(s), provisions as to whether
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conversion or exchange will be at the option of the Holder or the Company or
such Trust, the events requiring adjustment of the conversion or exchange price
and provisions affecting conversion or exchange in the event of redemption of
the Debenture of any series and any deletions from or modifications or additions
to this Indenture to permit or to facilitate the issuance of such convertible or
exchangeable Debentures or the administration thereof;
(p) whether the Debentures are issuable as a Global Debenture and, in such
case, the identity of the Depositary for such series;
(q) if other than denominations of one thousand U.S. dollars ($1,000) or
any integral multiple thereof, the denominations in which the Debentures shall
be issuable;
(r) the terms and conditions, if any, pursuant to which the Debentures of a
series are secured;
(s) any and all other terms with respect to such series (which terms shall
not be inconsistent with the terms of this Indenture); and
(t) the name of the applicable Trust (which shall distinguish such
statutory trust from all other Trusts) to which the Debentures of such series
are to be deposited as assets and the date of its Declaration of Trust.
The Debentures of any series and the Trustee's Certificate of
Authentication to be borne by such Debentures shall be substantially as is set
forth in one or more indentures supplemental hereto, or as provided in a Board
Resolution and as set forth in an Officers' Certificate, and may have such
letters, numbers or other marks of identification or designation and such
legends or endorsements printed, lithographed or engraved thereon as the Company
may deem appropriate and as are not inconsistent with the provisions of this
Indenture, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any stock
exchange on which Debentures of that series may be listed, or to conform to
usage.
All Debentures of any one series shall be substantially identical
except as may otherwise be provided by the Company in or pursuant to the Board
Resolution and set forth in the Officers' Certificate, or in any indenture or
indentures supplemental hereto, pertaining to such series of Debentures. The
terms of the Debentures of any series may provide, without limitation, that the
Debentures shall be authenticated and delivered by the Trustee on original issue
from time to time upon telephonic or written order of persons designated in the
Officers' Certificate or supplemental indenture (telephonic instructions to be
promptly confirmed in writing by such person) and that such persons are
authorized to determine, consistent with such Officers' Certificate or any
applicable supplemental indenture, such terms and conditions of the Debentures
of such series as are specified in such Officers' Certificate or supplemental
indenture. All Debentures of any one series need not be issued at the same time
and, unless otherwise so provided by the Company, a series may be reopened for
issuances of additional Debentures of such series or to establish additional
terms of such series of Debentures.
If any of the terms of the Debentures of any series shall be
established by action taken by or pursuant to a Board Resolution, the Board
Resolution shall be delivered to the
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Trustee at or prior to the delivery of the Officers' Certificate setting forth
the terms of such series.
SECTION 2.02 Execution and Authentication.
(a) The Debentures shall be executed on behalf of the Company by at least
one of the Chief Executive Officer, the Chief Financial Officer, the President
or a Vice President. The signature of any such Officer on the Debentures may be
manual or facsimile.
(b) Debentures bearing the manual or facsimile signature of an individual
who was at any time a proper Officer of the Company shall bind the Company,
notwithstanding that any such individual shall have ceased to hold such office
prior to the authentication and delivery of such Debentures or did not hold such
office at the date of such Debentures.
(c) No Debenture shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Debenture a
Certificate of Authentication duly executed by the Trustee by manual signature
of an authorized signatory of the Trustee, and such Certificate of
Authentication upon any Debenture shall be conclusive evidence, and the only
evidence, that such Debenture has been duly authenticated and made available for
delivery hereunder.
(d) The Trustee shall be authorized to and shall authenticate and deliver
Debentures of a series, for original issue, at one time or from time to time in
accordance with the Company Order referred to below, upon receipt by the Trustee
of:
(i) a Board Resolution as required by Section 2.01;
(ii) a Company Order requesting the authentication and delivery of
such Debentures and stating the identity of the applicable Trust
and the aggregate liquidation amount of the Trust Securities to
be issued by such Trust concurrently with such Debentures;
(iii) an Officers' Certificate or, unless previously delivered, a
supplemental indenture hereto setting forth the form of such
Debentures and, except as set forth in a Board Resolution,
establishing the terms thereof;
(iv) such Debentures, executed on behalf of the Company in accordance
with clause (a) of this Section; and
(v) an Opinion of Counsel that complies with the provisions of
Section 13.06.
(e) The Trustee shall act as the initial authenticating agent. Thereafter,
the Trustee may appoint an authenticating agent. Each authenticating agent shall
be acceptable to the Company and, except as provided in or pursuant to this
Indenture, shall at all times be a corporation that would be permitted by the
Trust Indenture Act to act as trustee under an indenture qualified under the
Trust Indenture Act, is authorized under applicable law and by its charter to
act as an authenticating agent and has a combined capital and surplus (computed
in accordance with Section 310(a)(2) of the Trust Indenture Act) of at least
$50,000,000. If at any time an authenticating agent shall cease to be eligible
in accordance with the provisions of this Section, it shall resign immediately
in the manner and with the effect specified in this Section.
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An authenticating agent may authenticate Debentures whenever the Trustee may do
so. Each reference in this Indenture to authentication by the Trustee includes
authentication by an authenticating agent. The Trustee shall pay any
authenticating agent appointed by the Trustee reasonable compensation for its
services and the Trustee shall be reimbursed for such payment by the Company
pursuant to Section 6.06. The provisions set forth in Sections 6.02, 6.03 and
6.06 shall be applicable to any authenticating agent.
(f) If all the Debentures of any series are not to be issued at one time,
it shall not be necessary to deliver an Opinion of Counsel and an Officers'
Certificate at the time of issuance of each Debenture, but such opinion and
certificate, with appropriate modifications, shall be delivered at or before the
time of issuance of the first Debenture of such series. After any such first
delivery, any separate request by the Company that the Trustee authenticate
Debentures of such series for original issue will be deemed to be a
certification by the Company that all conditions precedent provided for in this
Indenture relating to authentication and delivery of such Debentures continue to
have been complied with.
SECTION 2.03 Form and Payment.
Except as provided in Section 2.04, the Debentures shall be issued in fully
registered certificated form without interest coupons. Principal of and interest
on the Debentures issued in certificated form will be payable, the transfer of
such Debentures will be registerable and such Debentures will be exchangeable
for Debentures bearing identical terms and provisions, at the office or agency
of the Company maintained for such purpose under Section 3.02; provided,
however, that payments of interest may be made at the option of the Company: (i)
by check mailed to the holder at such address as shall appear in the Debenture
Register; or (ii) by transfer to an account maintained by the Person entitled
thereto, provided that proper transfer instructions have been received in
writing by the relevant record date. Notwithstanding the foregoing, so long as
the holder of any Debentures is the Property Trustee, the payment of the
principal of and interest (including Compounded Interest and Additional Sums, if
any) on such Debentures held by the Property Trustee will be made at such place
and to such account as may be designated by the Property Trustee.
SECTION 2.04 Global Debenture.
(a) In connection with a Dissolution Event:
(i) if any Preferred Securities are held in book-entry form
("Book-Entry Preferred Securities"), a Like Amount of Definitive Debentures
shall be presented to the Trustee (if an arrangement with the Depositary has
been maintained) by the Property Trustee in exchange for one or more Global
Debentures (as may be required pursuant to Section 2.06), to be registered in
the name of the Depositary, or its nominee, and delivered by the Trustee to the
Depositary for crediting to the accounts of its participants pursuant to the
instructions of the Administrative Trustees; the Company upon any such
presentation shall execute one or more Global Debentures in such aggregate
principal amount and deliver the same to the Trustee for
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authentication and delivery in accordance with this Indenture; and payments on
the Debentures issued as a Global Debenture will be made to the Depositary; and
(ii) if any Preferred Securities are held in certificated form, the
related Definitive Debentures may be presented to the Trustee, by the Property
Trustee and any Preferred Security certificates which represent Preferred
Securities other than Book-Entry Preferred Securities ("Non Book-Entry Preferred
Securities") will be deemed to represent beneficial interests in Debentures
presented to the Trustee by the Property Trustee having an aggregate principal
amount equal to the aggregate liquidation amount of the Non Book-Entry Preferred
Securities until such Preferred Security certificates are presented to the
Debenture registrar for the Debentures for transfer or reissuance, at which time
such Preferred Security certificates will be canceled, and a Debenture in a Like
Amount, registered in the name of the holder of the Preferred Security
certificate or the transferee of the holder of such Preferred Security
certificate, as the case may be, will be executed by the Company and delivered
to the Trustee for authentication and delivery in accordance with this
Indenture; and upon the issuance of such Debentures, Preferred Security
certificates with an equivalent aggregate principal amount that were presented
by the Property Trustee to the Trustee will be canceled.
(b) The Global Debentures shall respectively represent the aggregate amount
of outstanding Debentures of a series from time to time endorsed thereon;
provided, however, that the aggregate principal amount of outstanding Debentures
represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges and prepayments. Any endorsement of a Global
Debenture to reflect the amount of any increase or decrease in the aggregate
principal amount of outstanding Debentures of a series represented thereby shall
be made by the Trustee, in accordance with instructions given by the Company as
required by this Section 2.04.
(c) The Global Debentures may be transferred, in whole but not in part,
only to the Depositary, to another nominee of the Depositary, or to a successor
Depositary selected or approved by the Company or to a nominee of such successor
Depositary.
(d) If at any time the Depositary notifies the Company that it is unwilling
or unable to continue as Depositary or the Depositary has ceased to be a
clearing agency registered under the Exchange Act, and, in each case, a
successor Depositary is not appointed by the Company within 90 days after the
Company receives such notice or becomes aware of such condition, as the case may
be, the Company will execute, and the Trustee, upon receipt of a Company Order,
will authenticate and make available for delivery the Definitive Debentures, in
authorized denominations, and in an aggregate principal amount equal to the
principal amount of the Global Debenture, in exchange for such Global Debenture.
If there is a Default or an Event of Default, the Depositary shall have the
right to exchange the Global Debentures for Definitive Debentures. In addition,
the Company may at any time determine that the Debentures of a series shall no
longer be represented by a Global Debenture. In the event of such an Event of
Default or such a determination, the Company shall execute, and subject to
Section 2.06, the Trustee, upon receipt of an Officers' Certificate evidencing
such determination by the Company and a Company Order, will authenticate and
make available for delivery the Definitive Debentures, in authorized
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denominations, and in an aggregate principal amount equal to the principal
amount of the Global Debenture, in exchange for such Global Debenture. Upon the
exchange of the Global Debenture for such Definitive Debentures, in authorized
denominations, the Global Debenture shall be canceled by the Trustee. Such
Definitive Debentures issued in exchange for the Global Debenture shall be
registered in such names and in such authorized denominations as the Depositary,
pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee. The Trustee shall deliver such Definitive Debentures
to the Depositary for delivery to the Persons in whose names such Definitive
Debentures are so registered.
SECTION 2.05 Payment of Principal and Interest.
Unless otherwise provided with respect to a series of Debentures;
(a) the principal and Prepayment Price or Special Event Prepayment Price of
and interest on each Debenture shall be payable in such coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts;
(b) the principal and Prepayment Price or Special Event Prepayment Price of
any Debenture and interest payable on the Stated Maturity Date (if other than an
Interest Payment Date) or Prepayment Date shall be payable upon surrender of
such Debenture at the office or agency of any paying agent therefor; and
(c) interest on any Debenture shall be paid on each Interest Payment Date
therefor to the Holder thereof at the close of business on the Record Date
therefor, such interest to be payable by check mailed to the address of the
Person entitled thereto as such address appears on the Debenture register;
provided, however, that payments made in respect of Global Debentures shall be
made in immediately available funds to the Depositary;
(d) During such time as a Property Trustee is the holder of any Debentures,
the Company shall pay any additional amounts on the Debentures as may be
necessary in order that the amount of Distributions then due and payable by the
Trust on the outstanding Trust Securities shall not be reduced as a result of
any additional taxes, duties and other governmental charges to which the Trust
has become subject as a result of a Tax Event ("Additional Sums"); and
(e) Subject to the foregoing provisions of this Section, each Debenture
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Debenture shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Debenture.
SECTION 2.06 Transfer.
(a) General Provisions Relating to Transfers. To permit registrations of
transfers, the Company shall execute and the Trustee shall authenticate
Definitive Debentures and Global Debentures at the request of the Debenture
registrar for the Debentures. All Definitive Debentures and Global Debentures
issued upon any registration of transfer or exchange of
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Definitive Debentures or Global Debentures shall be the valid obligations of the
Company, evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Definitive Debentures or Global Debentures surrendered upon
such registration of transfer or exchange.
No service charge shall be made to a holder for any registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any transfer tax or similar governmental charge payable in connection
therewith.
The Company shall not be required to: (i) issue or register the transfer or
exchange of Debentures during a period beginning at the opening of business 15
days before the day of mailing of a notice of prepayment or any notice of
selection of Debentures for prepayment under Article XIV hereof and ending at
the close of business on the day of such mailing; or (ii) register the transfer
or exchange of any Debenture so selected for prepayment in whole or in part,
except the nonprepaid portion of any Debenture being prepaid in part.
Prior to due presentment for the registration of a transfer of any
Debenture, the Trustee, the Company and any agent of the Trustee or the Company
may deem and treat the Person in whose name any Debenture is registered as the
absolute owner of such Debenture for the purpose of receiving payment of
principal of and premium, if any, and interest on such Debentures, and none of
the Trustee, the Company or any agents of the Trustee or the Company shall be
affected by notice to the contrary.
SECTION 2.07 Replacement Debentures.
If any mutilated Debenture is surrendered to the Trustee, or the Company
and the Trustee receive evidence to their satisfaction of the destruction, loss
or theft of any Debenture, the Company shall issue and the Trustee shall
authenticate a replacement Debenture if the Trustee's requirements for
replacements of Debentures are met. An indemnity bond must be supplied by the
holder that is sufficient in the judgment of the Trustee and the Company to
protect the Company, the Trustee, any agent thereof or any Authenticating Agent
from any loss that any of them may suffer if a Debenture is replaced. The
Company or the Trustee may charge for its expenses in replacing a Debenture.
Every replacement Debenture is an obligation of the Company and shall be
entitled to all of the benefits of this Indenture equally and proportionately
with all other Debentures duly issued hereunder.
SECTION 2.08 Temporary Debentures.
Pending the preparation of Definitive Debentures, the Company may execute,
and upon receipt of a Company Order the Trustee shall authenticate and make
available for delivery, temporary Debentures that are printed, lithographed,
typewritten, mimeographed or otherwise reproduced, in any authorized
denomination, substantially of the tenor of the Definitive Debentures in lieu of
which they are issued and with such appropriate insertions, omissions,
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substitutions and other variations as the Officers executing such Debentures may
determine, as conclusively evidenced by their execution of such Debentures.
If temporary Debentures are issued, the Company shall cause Definitive
Debentures to be prepared without unreasonable delay. The Definitive Debentures
shall be printed, lithographed or engraved, or provided by any combination
thereof, or in any other manner permitted by the rules and regulations of any
applicable Debentures exchange, all as determined by the Officers executing such
Definitive Debentures. After the preparation of Definitive Debentures, the
temporary Debentures shall be exchangeable for Definitive Debentures upon
surrender of the temporary Debentures at the office or agency maintained by the
Company for such purpose pursuant to Section 3.02 hereof, without charge to the
holder thereof. Upon surrender for cancellation of any one or more temporary
Debentures, the Company shall execute, and the Trustee, upon receipt of a
Company Order, shall authenticate and make available for delivery, in exchange
therefor the same aggregate principal amount of Definitive Debentures of
authorized denominations. Until so exchanged, the temporary Debentures shall in
all respects be entitled to the same benefits under this Indenture as Definitive
Debentures.
SECTION 2.09 Cancellation.
The Company at any time may deliver Debentures to the Trustee for
cancellation. The Trustee and no one else shall cancel all Debentures
surrendered for registration of transfer, exchange, payment, replacement or
cancellation and shall return such canceled Debentures to the Company. The
Company may not issue new Debentures to replace Debentures that have been
prepaid or paid or that have been delivered to the Trustee for cancellation.
SECTION 2.10 Defaulted Interest.
Any interest on any Debenture that is payable, but is not punctually paid
or duly provided for, on any Interest Payment Date (herein called "Defaulted
Interest") shall forthwith cease to be payable to the holder on the relevant
regular record date by virtue of having been such holder; and such Defaulted
Interest shall be paid by the Company, at its election, as provided in clause
(a) or clause (b) below:
(a) The Company may make payment of any Defaulted Interest on Debentures to
the Persons in whose names such Debentures (or their respective Predecessor
Debentures) are registered at the close of business on the Special Record Date
for the payment of such Defaulted Interest, which shall be fixed in the
following manner: the Company shall notify the Trustee in writing of the amount
of Defaulted Interest proposed to be paid on each such Debenture and the date of
the proposed payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this clause provided. Thereupon, the Trustee
shall fix the Special Record Date for the payment of such Defaulted Interest
which shall not be more than 15 nor less than 10 days prior to the date of the
proposed payment and not less
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than 10 days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such Special Record
Date and, in the name and at the expense of the Company, shall cause notice of
the proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first class postage prepaid, to each Debentureholder at
his or her address as it appears in the Debenture Register, not less than 10
days prior to such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been mailed as
aforesaid, such Defaulted Interest shall be paid to the Persons in whose names
such Debentures (or their respective Predecessor Debentures) are registered on
such Special Record Date and shall be no longer payable pursuant to the
following clause (b).
(b) The Company may make payment of any Defaulted Interest on any
Debentures in any other lawful manner not inconsistent with the requirements of
any Debentures exchange on which such Debentures may be listed, and upon such
notice as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this clause, such
manner of payment shall be deemed practicable by the Trustee.
SECTION 2.11 CUSIP Numbers.
The Company in issuing the Debentures may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of prepayment as a convenience to Debentureholders; provided, however, that any
such notice may state that no representation is made as to the correctness of
such numbers either as printed on the Debentures or as contained in any notice
of a prepayment and that reliance may be placed only on the other identification
numbers printed on the Debentures, and any such prepayment shall not be affected
by any defect in or omission of such numbers. The Company will promptly notify
the Trustee of any change in the CUSIP numbers.
ARTICLE III
PARTICULAR COVENANTS OF THE COMPANY
SECTION 3.01 Payment of Principal and Interest.
The Company covenants and agrees for the benefit of the holders of the
Debentures that it will duly and punctually pay or cause to be paid the
principal of and interest on the Debentures at the place, at the respective
times and in the manner provided herein. The Company further covenants to pay
any and all amounts due in respect of the Debentures, including, without
limitation, Additional Sums, as may be required pursuant to Section 2.05(d) and
Compounded Interest, as may be required pursuant to Section 16.01.
SECTION 3.02 Offices for Notices and Payments, etc.
So long as any of the Debentures remain outstanding, the Company will
maintain in Wilmington, Delaware an office or agency where the Debentures may be
presented for payment,
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an office or agency where the Debentures may be presented for registration of
transfer as in this Indenture provided and an office or agency where notices and
demands to or upon the Company in respect of the Debentures or this Indenture
may be served. The Company will give to the Trustee written notice of the
location of any such office or agency and of any change of location thereof.
Until otherwise designated from time to time by the Company in a notice to the
Trustee, any such office or agency for all of the above purposes shall be the
Corporate Trust Office of the Trustee. In case the Company shall fail to
maintain any such office or agency in Wilmington, Delaware or shall fail to give
such notice of the location or of any change in the location thereof,
presentations and demands may be made and notices may be served at the Corporate
Trust Office of the Trustee.
In addition to any such office or agency, the Company may from time to
time designate one or more offices or agencies outside Wilmington, Delaware
where the Debentures may be presented for payment, for registration of transfer
and where notices and demands to or upon the Company in respect of the
Debentures or this Indenture may be served in the manner provided in this
Indenture, 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 Wilmington, Delaware for the
purposes above mentioned. The Company will give to the Trustee prompt written
notice of any such designation or rescission thereof.
SECTION 3.03 Appointments to Fill Vacancies in Office of Trustee.
The Company, whenever necessary to avoid or fill a vacancy in the office of
Trustee, will appoint, in the manner provided in Section 6.10, a Trustee, so
that there shall at all times be a Trustee hereunder.
SECTION 3.04 Provision as to Paying Agent.
(a) If the Company shall appoint a paying agent other than the Trustee with
respect to the Debentures, it will cause such paying agent to execute and
deliver to the Trustee an instrument in which such agent shall agree with the
Trustee, subject to the provisions of this Section 3.04,
(1) that it will 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 on the Debentures)
in trust for the benefit of the holders of the Debentures; and
(2) that it will give the Trustee notice of any failure by the Company
(or by any other obligor on the Debentures) to make any payment of the principal
of or interest (including Additional Sums and Compounded Interest, if any) on
the Debentures when the same shall be due and payable.
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(b) If the Company shall act as its own paying agent, it will, on or before
each due date of the principal of or interest on the Debentures, set aside,
segregate and hold in trust for the benefit of the holders of the Debentures a
sum sufficient to pay such principal or interest so becoming due and will notify
the Trustee of any failure to take such action and of any failure by the Company
(or by any other obligor under the Debentures) to make any payment of the
principal of or interest on the Debentures when the same shall become due and
payable.
(c) Anything in this Section 3.04 to the contrary notwithstanding, the
Company may, at any time, for the purpose of obtaining a satisfaction and
discharge with respect to the Debentures hereunder, or for any other reason, pay
or cause to be paid to the Trustee all sums payable with respect to the
Debentures, such sums to be held by the Trustee upon the trusts herein
contained.
(d) Anything in this Section 3.04 to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section 3.04 is subject to
Sections 11.03 and 11.04.
SECTION 3.05 Certificate to Trustee.
The Company will deliver to the Trustee on or before 120 days after the end
of each fiscal year of the Company, commencing with the first fiscal year ending
after the date hereof, so long as Debentures are outstanding hereunder, an
Officers' Certificate, one of the signers of which shall be the principal
executive, principal financial or principal accounting officer of the Company,
stating that in the course of the performance by the signers of their duties as
officers of the Company they would normally have knowledge of any Default by the
Company in the performance of any covenants contained herein, stating whether or
not they have knowledge of any such Default and, if so, specifying each such
Default of which the signers have knowledge, the nature thereof and the action,
if any, the Company intends to undertake as a result of such Default.
SECTION 3.06 Compliance with Consolidation Provisions.
The Company will 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 Person unless the provisions of
Article X hereof are complied with.
SECTION 3.07 Limitation on Dividends.
The Company will not: (i) declare or pay any dividends or distributions on,
or redeem, purchase, acquire, or make a liquidation payment with respect to, any
of the Company's capital stock; (ii) make any payment of principal of or
interest on, or repay, repurchase or redeem any debt securities of the Company
that rank pari passu with or junior in right of payment to the Debentures; or
(iii) make any guarantee payments with respect to any guarantee by the Company
of the debt securities of any Subsidiary of the Company (including Other
Guarantees) if such guarantee ranks pari passu with or junior in right of
payment to the Debentures (other than (a) dividends or distributions in shares
of, or options, warrants or rights to subscribe for or purchase
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shares of, Common Stock, (b) any declaration of a dividend in connection with
the implementation of a stockholders' 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, (c) payments under a Preferred Securities Guarantee, as
defined in the Indenture, (d) as a result of a reclassification of the Company's
capital stock or the exchange or conversion of one class or series of the
Company's capital stock for another class or series of the Company's capital
stock, (e) the purchase of fractional interests in shares of the Company's
capital stock pursuant to the conversion or exchange provisions of such capital
stock or the security being converted or exchanged and (f) purchases of Common
Stock related to the issuance of Common Stock or rights under any of the
Company's benefit or compensation plans for its directors, officers or employees
or any of the Company's dividend reinvestment plans), if at such time (1) there
shall have occurred any event of which the Company has actual knowledge that (a)
is a Default or an Event of Default and (b) in respect of which the Company
shall not have taken reasonable steps to cure, (2) such Debentures are held by
the Property Trustee of a Trust and the Company shall be in default with respect
to its payment of any obligations under a Preferred Securities Guarantee or (3)
the Company shall have given notice of its election to exercise its right to
commence an Extended Period and shall not have rescinded such notice, and such
Extended Period or any extension thereof shall have commenced and be continuing.
SECTION 3.08 Ownership of Common Securities.
In the event Debentures are issued to a Trust or a trustee of such Trust in
connection with the issuance of Trust Securities by such Trust, for so long as
such Trust Securities remain outstanding, the Company: (i) will maintain 100%
direct or indirect ownership of the Common Securities of such Trust; provided,
however, that any successor of the Company, permitted pursuant to Article X, may
succeed to the Company's ownership of such Common Securities; (ii) will use
commercially reasonable efforts to cause such Trust (a) to remain a statutory
trust, except in connection with a distribution of Debentures to the holders of
Trust Securities in liquidation of such Trust, the redemption of all of the
Trust Securities of such Trust, or certain mergers, consolidations or
amalgamations, each as permitted by the Declaration, and (b) to otherwise
continue to be classified as a grantor trust and not an association taxable as a
Company for United States federal income tax purposes; (iii) will use
commercially reasonable efforts to cause each holder of such Trust's Trust
Securities to be treated as owning an undivided beneficial interest in the
Debentures; and (iv) will not cause, as sponsor of such Trust, or permit, as
holder of the Common Securities, the dissolution, winding-up or liquidation of
such Trust, except as provided in the Declaration.
SECTION 3.09 Payment of Expenses.
In connection with the offering, sale and issuance of any series of
Debentures to a Trust and in connection with the sale of the Trust Securities by
such Trust, the Company, in its capacity as borrower with respect to the
Debentures, shall:
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(a) pay all costs and expenses relating to the offering, sale and issuance
of each series of Debentures, and compensation of the Trustee in accordance with
the provisions of Section 6.06;
(b) pay all costs and expenses of each Trust, including, but not limited
to, costs and expenses relating to the organization of each Trust, the offering,
sale and issuance of the Trust Securities, the fees and expenses of the Property
Trustee and the Delaware Trustee, the costs and expenses relating to the
operation of each Trust, including without limitation, costs and expenses of
accountants, attorneys, statistical or bookkeeping services, expenses for
printing and engraving and computing or accounting equipment, paying agent(s),
registrar(s), transfer agent(s), duplicating, travel and telephone and other
telecommunications expenses and costs and expenses incurred in connection with
the acquisition, financing, and disposition of assets of each Trust;
(c) be primarily and fully liable for any indemnification obligations
arising with respect to the Declaration;
(d) pay any and all taxes (other than United States withholding taxes
attributable to the Trust or its assets) and all liabilities, costs and expenses
with respect to such taxes of each Trust; and
(e) pay all other fees, expenses, debts and obligations (other than in
respect of the Trust Securities) related to each Trust.
SECTION 3.10 Payment Upon Resignation or Removal.
Upon termination of this Indenture or the removal or resignation of the
Trustee, unless otherwise stated, the Company shall pay to the Trustee all
amounts accrued and owing to the Trustee to the date of such termination,
removal or resignation. Upon termination of the Declaration or the removal or
resignation of the Delaware Trustee or the Property Trustee, as the case may be,
pursuant to Section 5.6 of the Declaration, the Company shall pay to the
Delaware Trustee or the Property Trustee, as the case may be, all amounts
accrued and owing to such trustee(s) to the date of such termination, removal or
resignation.
ARTICLE IV
LIST OF DEBENTUREHOLDERS AND REPORTS BY THE
COMPANY AND THE TRUSTEE
SECTION 4.01 List of Debentureholders.
The Company covenants and agrees that it will furnish or cause to be
furnished to the Trustee:
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(a) on a semi-annual basis on each regular record date for each series of
Debentures issued under this Indenture, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Debentureholders of each
such series as of such record date; 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, except that, no such lists need be furnished so long as the
Trustee is in possession thereof by reason of its acting as security registrar
for the Debentures.
SECTION 4.02 Preservation and Disclosure of Lists.
(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
each series of Debentures issued under this Indenture (i) contained in the most
recent list furnished to it as provided in Section 4.01; or (ii) received by it
in the capacity of security registrar (if so acting) hereunder. The Trustee may
destroy any list furnished to it as provided in Section 4.01 upon receipt of a
new list so furnished.
(b) In case three or more holders of Debenture (hereinafter referred to as
"applicants") apply in writing to the Trustee and furnish to the Trustee
reasonable proof that each such applicant has owned a Debenture for a period of
at least six months preceding the date of such application, and such application
states that the applicants desire to communicate with other holders of
Debentures or with holders of all Debentures with respect to their rights under
this Indenture and is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then the Trustee shall,
within five Business Days after the receipt of such application, at its
election, either:
(1) afford such applicants access to the information preserved at the
time by the Trustee in accordance with the provisions of subsection (a) of this
Section 4.02, or
(2) inform such applicants as to the approximate number of holders of
all Debentures whose names and addresses appear in the information preserved at
the time by the Trustee in accordance with the provisions of subsection (a) of
this Section 4.02, and as to the approximate cost of mailing to such
Debentureholders the form of proxy or other communication, if any, specified in
such application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Debentureholder whose name and address appear in the information
preserved at the time by the Trustee in accordance with the provisions of
subsection (a) of this Section 4.02 a copy of the form of proxy or other
communication which is specified in such request with reasonable promptness
after a tender to the Trustee of the material to be mailed and of payment, or
provision for the payment, of the reasonable expenses of mailing, unless within
five Business Days after such tender, the Trustee shall mail to such applicants
and file with the Commission, together with a copy of the material
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to be mailed, a written statement to the effect that, in the opinion of the
Trustee, such mailing would be contrary to the best interests of the holders of
Debentures or would be in violation of applicable law. Such written statement
shall specify the basis of such opinion. If the Commission, after opportunity
for a hearing upon the objections specified in the written statement so filed,
shall enter an order refusing to sustain any of such objections or if, after the
entry of an order sustaining one or more of such objections, the Commission
shall find, after notice and opportunity for hearing, that all the objections so
sustained have been met and shall enter an order so declaring, the Trustee shall
mail copies of such material to all such Debentureholders with reasonable
promptness after the entry of such order and the renewal of such tender;
otherwise the Trustee shall be relieved of any obligation or duty to such
applicants respecting their application.
(c) The Trustee, if it is acting in the capacity of security registrar
hereunder, shall preserve in as current a form as is reasonably practicable the
most recent list available to it of the names and addresses of Debentureholders.
If the Trustee is not acting in the capacity of security registrar hereunder,
the Company shall cause to be furnished to the Trustee on or before the Record
Date for each Interest Payment Date and at such other times as the Trustee may
request in writing, within five Business Days of such request, a list, in such
form as the Trustee may reasonably require of the names and addresses of
Debentureholders.
(d) Each and every holder of Debentures, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any paying agent shall be held accountable by reason of the disclosure of
any such information as to the names and addresses of the holders of Debentures
in accordance with the provisions of subsection (b) of this Section 4.02,
regardless of the source from which such information was derived, and that the
Trustee shall not be held accountable by reason of mailing any material pursuant
to a request made under said subsection (b).
SECTION 4.03 Reports by the Company.
(a) The Company covenants and agrees to file with the Trustee, within 15
days after the date on which 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 said
Commission may from time to time by rules and regulations prescribe) which the
Company may be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Exchange Act; or, if the Company is not required to file
information, documents or reports pursuant to either of such sections, then to
provide to the Trustee, such of the supplementary and periodic information,
documents and reports which would have been 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. The Company also covenants and agrees to comply with the provisions
of Section 314(a) of the Trust Indenture Act.
(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 said Commission,
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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 to all holders of
Debentures, as the names and addresses of such holders 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 4.03 as may be
required by rules and regulations prescribed from time to time by the
Commission.
(d) Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
SECTION 4.04 Reports by the Trustee.
(a) The Trustee shall transmit to Debentureholders such reports concerning
the Trustee and its actions under this Indenture as may be required pursuant to
the Trust Indenture Act at the times and in the manner provided pursuant
thereto. If required by Section 313(a) of the Trust Indenture Act, the Trustee
shall, within 60 days after the date hereof, and no later than the anniversary
date hereof in each succeeding year, deliver to Debentureholders a brief report,
dated as of each such date which complies with the provisions of such Section
313(a).
(b) A copy of each such report shall, at the time of such transmission to
Debentureholders, be filed by the Trustee with each stock exchange, if any, upon
which the Debentures are listed, with the Commission and with the Company. The
Company will promptly notify the Trustee when the Debentures are listed on any
stock exchange.
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ARTICLE V
REMEDIES OF THE TRUSTEE AND
DEBENTUREHOLDERS UPON EVENT OF DEFAULT
SECTION 5.01 Events of Default.
One or more of the following events of default with respect to Debentures
of any series shall constitute an Event of Default hereunder with respect to
such series (whatever the reason for such Event of Default and whether it shall
be voluntary or involuntary or be effected by operation of law or pursuant to
any judgment, decree or order of any court or any order, rule or regulation of
any administrative or governmental body) unless, with respect to Debentures of
such series, such event is specifically deleted or modified by or pursuant to a
supplemental indenture, Board Resolution or Officer's Certificate establishing
the terms of such series pursuant to this Indenture:
(a) default in the payment of any interest (including Compounded Interest
and Additional Sums, if any) on any Debentures of that series when due, 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 any particular series of Debentures established as contemplated in
this Indenture shall not constitute a default in the payment of interest with
respect to Debentures of that series for this purpose; or
(b) default in the payment of any principal of or premium, if any, on any
Debentures of that series when due, whether at maturity, upon prepayment, by
declaration of acceleration of maturity or otherwise; or
(c) default in the performance, or breach, of any covenant or warranty of
the Company in this Indenture with respect to the Debentures of that series
(other than a covenant or warranty a default in whose performance or whose
breach is elsewhere in this Section specifically dealt with), and continuance of
such default or breach for a period of 90 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the Company
and the Trustee by the holders of at least 25% in aggregate principal amount of
the outstanding Debentures of that series a written notice specifying such
default or breach and requiring it to be remedied and stating that such notice
is a "Notice of Default" hereunder; or
(d) a court having jurisdiction in the premises shall enter a decree or
order for relief in respect of the Company in an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of the Company or for any substantial part of
its property, or ordering the winding-up or liquidation of its affairs and such
decree or order shall remain unstayed and in effect for a period of 90
consecutive days; or
(e) the Company shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, shall
consent to the entry of an order
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for relief in an involuntary case under any such law, or shall consent to the
appointment of or taking possession by a receiver, liquidator, assignee,
trustee, custodian, sequestrator (or other similar official) of the Company or
of any substantial part of its property, or shall make any general assignment
for the benefit of creditors, or shall fail generally to pay its debts as they
become due.
If an Event of Default with respect to Debentures of any series other than
an Event of Default under clauses (d) or (e) of Section 5.01 occurs and is
continuing, then in every such case the Trustee or the holders of not less than
25% in aggregate principal amount of the Debentures of such series then
outstanding may declare the principal amount of all Debentures of such series to
be due and payable immediately, by a notice in writing to the Company (and to
the Trustee if given by the holders of the outstanding Debentures), and upon any
such declaration the same shall become immediately due and payable; provided
that in the case of a series of Debentures then held by a Trust, if upon an
Event of Default with respect to the Debentures of that series the Trustee has,
or the Holders of at least 25% in aggregate principal amount of the Debentures
of that series then outstanding have, failed to declare the principal of, and
any accrued interest on, the Debentures of that series to be immediately due and
payable, the holders of at least 25% in aggregate liquidation amount of the
outstanding Preferred Securities of that Trust shall have the right to declare
the principal of, and any accrued interest on, the Debentures of that series to
be immediately due and payable by delivering a notice in writing to the Company
and the Trustee. If an Event of Default specified in clause (d) or (e) of
Section 5.01 occurs, the principal of, and any accrued interest on, all the
Debentures shall ipso facto become and be immediately due and payable without
any declaration or other act on the part of the Trustee or any Debentureholders.
The foregoing provisions, however, are subject to the condition that if, at
any time after the principal of the Debentures of any series shall have been so
declared due and payable, and before any judgment or decree for the payment of
the moneys due shall have been obtained or entered as hereinafter provided, (i)
the Company shall pay or shall deposit with the Trustee a sum sufficient to pay
(A) all matured installments of interest (including Compounded Interest and
Additional Sums, if any) on all the Debentures of that series and the principal
of and premium, if any, on all Debentures of that series which shall have become
due otherwise than by acceleration (with interest upon such principal, and, to
the extent that payment of such interest is enforceable under applicable law, on
overdue installments of interest, at the same rate as the rate of interest
specified in the Debentures of that series to the date of such payment or
deposit) and (B) such amount as shall be sufficient to cover compensation due to
the Trustee and each predecessor Trustee, their respective agents, attorneys and
counsel, pursuant to Section 6.06, and (ii) any and all Events of Default under
the Indenture, other than the non-payment of the principal of the Debentures of
that series which shall have become due solely by such declaration of
acceleration, shall have been cured, waived or otherwise remedied as provided
herein, then, in every such case, the holders of a majority in aggregate
principal amount of the Debentures of that series then outstanding (subject to,
in the case of any series of Debentures held as assets of a Trust and with
respect to which a Security Exchange has not theretofore occurred, such consent
of the holders of the Preferred Securities and the Common Securities of such
Trust as may be required under the Declaration of such Trust), by written notice
to the Company and to the Trustee, may rescind and annul such declaration and
its consequences, but no such waiver or
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rescission and annulment shall extend to or shall affect any subsequent default
or shall impair any right consequent thereon.
In case the Trustee shall have proceeded to enforce any right under this
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,
the Trustee and the holders of the Debentures of that series shall be restored
respectively to their several positions and rights hereunder, and all rights,
remedies and powers of the Company, the Trustee and the holders of the
Debentures of that series shall continue as though no such proceeding had been
taken.
SECTION 5.02 Payment of Securities on Default; Suit Therefor.
The Company covenants that: (i) in case default shall be made in the
payment of any installment of interest (including Compounded Interest and
Additional Sums, if any) on any of the Debentures of a series as and when the
same shall become due and payable, and such default shall have continued for a
period of 30 days; or (ii) in case default shall be made in the payment of the
principal of any of the Debentures of that series as and when the same shall
have become due and payable, whether at maturity of the Debentures of that
series or upon prepayment or by declaration or otherwise, then, upon demand of
the Trustee, the Company will pay to the Trustee, for the benefit of the holders
of the Debentures of that series, the whole amount that then shall have become
due and payable on all such Debentures for principal or interest (including
Compounded Interest and Additional Sums, if any) 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 of that
series are held by a Trust or a trustee of such Trust, without duplication of
any other amounts paid by the Trust or a trustee in respect thereof) upon the
overdue installments of interest (including Compounded Interest and Additional
Sums, if any) at the rate borne by such Debentures; and, in addition thereto,
such further amount as shall be sufficient to cover the costs and expenses of
collection, including reasonable compensation to the Trustee, its agents,
attorneys and counsel, and any other amount due to the Trustee pursuant to
Section 6.06.
In case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any actions or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Company or any other obligor on such
Debentures and collect in the manner provided by law out of the property of the
Company or any other obligor on the Debentures, wherever situated, the moneys
adjudged or decreed to be payable.
In case there shall be pending proceedings for the bankruptcy or for the
reorganization of the Company or any other obligor on the Debentures of a series
under Xxxxx 00, Xxxxxx Xxxxxx Code, or any other applicable law, or in case a
receiver or trustee shall have been appointed for the property of the Company or
such other obligor of a series or in the case of any other similar
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judicial proceedings relative to the Company or other obligor of a series upon
the Debentures of that series, or to the creditors or property of the Company or
such other obligor, the Trustee, irrespective of whether the principal of the
Debentures of that series shall then be due and payable as therein expressed or
by declaration or otherwise and irrespective of whether the Trustee shall have
made any demand pursuant to the provisions of this Section 5.02, shall be
entitled and empowered, by intervention in such proceedings or otherwise, to
file and prove a claim or claims for the whole amount of principal and interest
owing and unpaid in respect of the Debentures of that series and, in case of any
judicial proceedings, to file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have the claims of the Trustee
(including any claim for amounts due to the Trustee pursuant to Section 6.06)
and of the Debentureholders of that series allowed in such judicial proceedings
relative to the Company or any other obligor on the Debentures of that series,
or to the creditors or property of the Company or such other obligor, unless
prohibited by applicable law and regulations, to vote on behalf of the holders
of the Debentures of that series in any election of a trustee or a standby
trustee in arrangement, reorganization, liquidation or other bankruptcy or
insolvency proceedings or person performing similar functions in comparable
proceedings, and to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute the same after the deduction
of its charges and expenses; and any receiver, assignee or trustee in bankruptcy
or reorganization is hereby authorized by each of the Debentureholders of that
series to make such payments to the Trustee, and, in the event that the Trustee
shall consent to the making of such payments directly to the Debentureholders of
that series, to pay to the Trustee such amounts as shall be sufficient to cover
reasonable compensation to, and expenses of, the Trustee, each predecessor
Trustee and their respective agents, attorneys and counsel, and all other
amounts due to the Trustee pursuant to Section 6.06.
Nothing herein contained shall be construed 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 of a series 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.
All rights of action and of asserting claims under this Indenture, or under
any of the Debentures of a series, may be enforced by the Trustee without the
possession of any of the Debentures of that series, or the production thereof on
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, subject to the terms of this
Indenture, be for the ratable benefit of the holders of the Debentures of that
series.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party), the Trustee shall be held to represent all the
holders of the Debentures, and it shall not be necessary to make any holders of
the Debentures parties to any such proceedings.
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SECTION 5.03 Application of Moneys Collected by Trustee.
Any moneys collected by the Trustee shall be applied in the following
order, at the date or dates fixed by the Trustee for the distribution of such
moneys, upon presentation of the Debentures in respect of which moneys have been
collected, and stamping thereon the payment, if only partially paid, and upon
surrender thereof if fully paid:
First: To the payment of costs and expenses of collection applicable to the
Debentures and all other amounts due to the Trustee under Section 6.06;
Second: To the payment of all Senior Indebtedness of the Company, if and to
the extent required by Article XV;
Third: To the payment of the amounts then due and unpaid upon Debentures
for principal of and interest (including Compounded Interest and Additional
Sums, if any) on the Debentures, in respect of which or for the benefit of which
money has been collected, ratably, without preference of priority of any kind,
according to the amounts due on such Debentures for principal and interest,
respectively; and
Fourth: To the Company.
SECTION 5.04 Proceedings by Debentureholders.
No holder of any Debenture of a series shall have any right by virtue of 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 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 of that series specifying such Event of Default, as hereinbefore
provided, and unless also the holders of not less than 25% in aggregate
principal amount of the Debentures of that series or (so long as the Debentures
of that series are held by a Trust) the holders of at least 25% in aggregate
liquidation amount of the Preferred Securities of the applicable Trust then
outstanding shall have made written request upon the Trustee to institute such
action, suit or proceeding in its own name as Trustee hereunder and shall have
offered to the Trustee such reasonable indemnity as it may require against the
costs, expenses and liabilities to be incurred therein or thereby, and 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, it
being understood and intended, and being expressly covenanted by the taker and
holder of every Debenture of that series with every other taker and holder and
the Trustee, that no one or more holders of Debentures of that series shall have
any right in any manner whatever by virtue of or by availing itself of any
provision of this Indenture to affect, disturb or prejudice the rights of any
other holder of Debentures of that series, 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 of that series.
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Notwithstanding any other provisions in this Indenture, however, the right
of any holder of any Debenture of a series to receive payment of the principal
of and interest on (including Compounded Interest and Additional Sums, if any)
on such Debenture, on or after the same shall have become due and payable, or to
institute suit for the enforcement of any such payment, shall not be impaired or
affected without the consent of such holder, and by accepting a Debenture of
that series hereunder it is expressly understood, intended and covenanted by the
taker and holder of every Debenture of that series with every other such taker
and holder and the Trustee, that no one or more holders of Debentures of that
series shall have any right in any manner whatsoever by virtue or by availing
itself of any provision of this Indenture to affect, disturb or prejudice the
rights of the holders of any other Debentures of that series, 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 of that
series. For the protection and enforcement of the provisions of this Section,
each and every Debentureholder and the Trustee shall be entitled to such relief
as can be given either at law or in equity.
If an Event of Default has occurred and is continuing and is attributable
to the failure of the Company to pay the principal of or premium, if any, or
interest on the Debentures of a series on the due date therefor and an event of
default has occurred and is continuing under the applicable Declaration, a
holder of the related Preferred Securities, in lieu of any action that may
otherwise be taken hereunder as a Holder of Debentures of a series, may
institute a legal proceeding directly against the Company for enforcement of
payment to such holder of the principal of or premium, if any, or interest on
such Debentures having a principal amount equal to the liquidation amount of the
Preferred Securities held by such holder or for enforcement of such conversion
or exchange rights, as the case may be (a "Direct Action"). Notwithstanding
anything contained herein to the contrary, the Company may not amend this
Indenture to remove the foregoing right to bring a Direct Action without the
prior written consent of the holders of all of the Preferred Securities of a
Trust outstanding. Notwithstanding any payments made to a holder of Preferred
Securities by the Company in connection with a Direct Action, the Company shall
remain obligated to pay the principal and premium, if any, or interest on the
related Debentures, and the Company shall be subrogated to the rights of the
holder of such Preferred Securities with respect to payments on the Preferred
Securities to the extent of any payments made by the Company to such holder in
any Direct Action.
SECTION 5.05 Proceedings by Trustee.
In case an Event of Default occurs with respect to Debentures of a series
and is continuing, 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 by suit in equity or by action at law or by proceeding 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.
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SECTION 5.06 Remedies Cumulative and Continuing.
All powers and remedies given by this Article V 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 Debentureholders, as applicable, 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
the Debentures of a series, and no delay or omission of the Trustee or of any
holder of any of the Debentures of that series 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 an acquiescence therein; and, subject to the provisions of Section
5.04, every power and remedy given by this Article V or by law to the Trustee or
to the Debentureholders may be exercised from time to time, and as often as
shall be deemed expedient, by the Trustee or by the Debentureholders, as
applicable.
SECTION 5.07 Restoration of Rights and Remedies.
If the Trustee or any Debentureholder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Debentureholder, then and in every such case the Company,
the Trustee and the Debentureholders shall, subject to any determination in such
proceeding, be restored severally and respectively to their former positions
hereunder, and thereafter all rights and remedies of the Trustee and the
Debentureholders shall continue as though no such proceeding had been
instituted.
SECTION 5.08 Direction of Proceedings and Waiver of Defaults by Majority of
Debentureholders.
The holders of a majority in aggregate principal amount of the Debentures
of any and all series affected (voting as one class) at the time outstanding
shall have the right to direct the time, method, and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred on the Trustee; provided, however, that (subject to the
provisions of Section 6.01) the Trustee shall have the right to decline to
follow any such direction if the Trustee shall determine that the action so
directed would be unjustly prejudicial to the holders not taking part in such
direction or if the Trustee being advised by counsel determines that the action
or proceeding so directed may not lawfully be taken or if the Trustee in good
faith by one of its Responsible Officers shall determine that the action or
proceedings so directed would involve the Trustee in personal liability. Prior
to any declaration accelerating the maturity of a series of Debentures of a
series, the holders of a majority in aggregate principal amount of that series
of Debentures, at the time outstanding may on behalf of the holders of all of
that series of Debentures waive any past Default or Event of Default and its
consequences except a Default (a) in the payment of principal of or interest on
(including Compounded Interest and Additional Sums, if any) on any Debentures of
that series (unless such default has been
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cured and a sum sufficient to pay all matured installments of interest
(including Compounded Interest and Additional Sums, if any) and principal, due
otherwise than by acceleration has been deposited with the Trustee) or (b) in
respect of covenants or provisions hereof which cannot be modified or amended
without the consent of the holder of each Debenture of that series affected;
provided, however, that if the Debentures of a series are held by a Trust, such
waiver or modification to such waiver shall not be effective until the holders
of a majority in aggregate liquidation amount of the Preferred Securities of
that 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 of that series is required, such waiver shall not be effective until
each holder of the Preferred Securities of that Trust shall have consented to
such waiver. Upon any such waiver, the Default covered thereby shall be deemed
to be cured for all purposes of this Indenture and the Company, the Trustee and
the Holders of the Debentures of that series 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. Whenever
any Default or Event of Default hereunder shall have been waived as permitted by
this Section 5.08, said Default or Event of Default shall for all purposes of
the Debentures of that series and this Indenture be deemed to have been cured
and to be not continuing.
SECTION 5.09 Notice of Defaults
(a) The Trustee shall, within 90 days after the occurrence of a Default
with respect to a series of Debentures actually known to a Responsible Officer
of the Trustee, mail to all Debentureholders of that series, as the names and
addresses of such holders appear upon the Debenture Register, notice of all such
Defaults, unless such Default shall have been cured before the giving of such
notice (the term "Default" for the purpose of this Section 5.09 being hereby
defined to be any of the events specified in clauses (a), (b), (c), (d) and (e)
of Section 5.01, not including periods of grace, if any, provided for therein,
and irrespective of the giving of written notice specified in clause (c) of
Section 5.01); provided, however, that, except in the case of Default in the
payment of the principal of or interest (including Compounded Interest or
Additional Sums, if any) on any of the Debentures of such series, the Trustee
shall be protected in withholding such notice if and so long as the board of
directors, the executive committee, or a trust committee of directors and/or
Responsible Officers of the Trustee in good faith determines that the
withholding of such notice is in the interests of the Debentureholders of that
series; provided, further, that in the case of any Default of the character
specified in Section 5.01(c), no such notice to Debentureholders shall be given
until at least 60 days after the occurrence thereof, but shall be given within
90 days after such occurrence.
(b) Within ten Business Days after the occurrence of any Event of Default
actually known to a Responsible Officer of the Trustee, the Trustee shall
transmit notice of such Event of Default to all Debentureholders of that series
as their names and addresses appear on the Debenture Register, unless such Event
of Default shall have been cured or waived.
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SECTION 5.10 Undertaking to Pay Costs.
All parties to this Indenture agree, and each holder of any Debenture by
its 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 and
expenses, 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 5.10 shall not apply to any suit instituted by
the Trustee, to any suit instituted by any Debentureholder, or group of
Debentureholders, holding in the aggregate more than 10% in aggregate principal
amount of the Debentures of a series outstanding with respect to that series, or
to any suit instituted by any Debentureholder for the enforcement of the payment
of the principal of or interest (including Compounded Interest and Additional
Sums, if any) on any Debenture against the Company on or after the same shall
have become due and payable.
ARTICLE VI
CONCERNING THE TRUSTEE
SECTION 6.01 Duties and Responsibilities of Trustee.
With respect to the holders of any series of Debentures issued hereunder,
the Trustee, prior to the occurrence of an Event of Default with respect to
Debentures of that series (which, other than in the case of Sections 5.01(a) and
5.01(b) hereof, is known to the Trustee) and after the curing or waiving of all
such Events of Default which may have occurred with respect to Debentures of
that series, undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture. In case an Event of Default (which,
other than in the case of Sections 5.01(a) and 5.01(b) hereof, is known to the
Trustee) has occurred (which 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 their exercise as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
No provision of this Indenture shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act or
its own willful misconduct, except that:
(a) prior to the occurrence of an Event of Default (which, other than in
the case of Sections 5.01(a) and 5.01(b) hereof, is known to the
Trustee) and after the curing or waiving of all such Events of Default
which may have occurred,
(1) the duties and obligations of the Trustee shall be determined
solely by the express provisions of this Indenture, and the Trustee shall not be
liable except for the
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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
(2) in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificate or opinion
furnished to the Trustee and conforming to the requirements of this Indenture;
but, in the case of any such certificate or opinion which by any provision
hereof is specifically required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine whether or not it
conforms on its face to the requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer or Responsible Officers, unless it shall be
proved that the Trustee was negligent in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction of the
Debentureholders pursuant to Section 5.08, 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.
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 it reasonably believes 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 6.02 Reliance on Documents, Opinions, etc.
Except as otherwise provided in Section 6.01:
(a) the Trustee may conclusively rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, bond, note, debenture or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request, direction, order or demand of the Company mentioned herein
may be sufficiently evidenced by an Officers' Certificate (unless other evidence
in respect thereof be herein specifically prescribed); and any Board Resolution
may be evidenced to the Trustee by a copy thereof certified by the Secretary or
an Assistant Secretary of the Company;
(c) the Trustee may consult with counsel of its selection and any advice or
Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken or suffered or omitted by it hereunder in good faith
and in accordance with such advice or Opinion of Counsel;
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(d) 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 and
sufficient security or indemnity against the costs, expenses and liabilities
which may be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken or omitted by it
in good faith and believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Indenture; nothing contained herein
shall, however, relieve the Trustee of the obligation, upon the occurrence of an
Event of Default (which, other than in the case of Sections 5.01(a) and 5.01(b)
hereof, is known to the Trustee) (that has not been cured or waived), to
exercise 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 bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond, debenture,
coupon or other paper or document, unless requested in writing to do so by the
holders of a majority in aggregate principal amount of the outstanding
Debentures; provided, however, that if the payment within a reasonable time to
the Trustee of the costs, expenses or liabilities likely to be incurred by it in
the making of such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to it by the terms of
this Indenture, the Trustee may require reasonable indemnity against such
expense or liability as a condition to so proceeding;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents (including
any Authenticating Agent) or attorneys, and the Trustee shall not be responsible
for any misconduct or negligence on the part of any such agent or attorney
appointed by it with due care;
(h) the Trustee shall not be charged with knowledge of any Default or Event
of Default unless: (i) such Default or Event of Default falls within Section
5.01(a) (other than a default with respect to the payment or nonpayment of
Compounded Interest, or Additional Sums) or Section 5.01(b) of the Indenture,
(ii) a Responsible Officer shall have actual knowledge of such Default or Event
of Default; or (iii) written notice of such Default or Event of Default shall
have been given to the Trustee by the Company or any other obligor on the
Debentures or by any holder of the Debentures;
(i) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith, without negligence or willful misconduct and
believed by it to be authorized or within the discretion or rights or powers
conferred upon it by this Indenture; and
(j) in the event that the Trustee is unable to decide between alternative
courses of action permitted or required under this Indenture or any other
document, or is unsure as to the application of any provision of this Indenture
or any other document, or any such provision may
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be ambiguous as to its application or in conflict with any other applicable
provision, permits any determination by the Trustee, or is silent or incomplete
as to the course of action that the Trustee is required to take with respect to
a particular set of facts, the Trustee may give notice (in such form as shall be
appropriate under the circumstances) to the Company and/or to the Holders
requesting instruction from any of them, and to the extent that the Trustee acts
or refrains from acting in good faith in accordance with any such instruction
received, the Trustee shall not be personally liable, on account of such action
or inaction, to any Person, and if the Trustee shall not have received
appropriate instruction within 10 days of such notice (or within such shorter
period of time as reasonably may be specified in such notice or may be necessary
under the circumstances) it may, but shall be under no duty to, take or refrain
from taking action, and shall have no personal liability to any Person for such
action or inaction.
SECTION 6.03 No Responsibility for Recitals, etc.
The recitals contained herein and in the Debentures (except in the
certificate of authentication of the Trustee or the Authenticating Agent) shall
be taken as the statements of the Company, and the Trustee and the
Authenticating Agent assume no responsibility for the correctness of the same.
The Trustee and the Authenticating Agent make no representations as to the
validity or sufficiency of this Indenture or of the Debentures. The Trustee and
the Authenticating Agent shall not be accountable for the use or application by
the Company of any Debentures or the proceeds of any Debentures authenticated
and delivered by the Trustee or the Authenticating Agent in conformity with the
provisions of this Indenture.
SECTION 6.04 Trustee, Authenticating Agent, Paying Agents, Transfer Agents
and Registrar May Own Debentures.
The Trustee or any Authenticating Agent or any paying agent or any transfer
agent or any security 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, Authenticating Agent, paying agent,
transfer agent or security registrar for the Debentures.
SECTION 6.05 Moneys to be Held in Trust.
Subject to the provisions of Section 11.04, all moneys received by the
Trustee or any paying agent shall, until used or applied as herein provided, be
held in trust for the purpose for which they were received, but need not be
segregated from other funds except to the extent required by law. The Trustee
and any paying agent shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed in writing with the Company.
So long as no Event of Default shall have occurred and be continuing, all
interest allowed on any such moneys shall be paid from time to time upon the
written order of the Company, signed by an Officer thereof.
SECTION 6.06 Compensation and Expenses of Trustee.
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The Company, as issuer of Debentures under this Indenture, covenants and
agrees to pay to the Trustee from time to time, and the Trustee shall be
entitled to, such compensation as shall be agreed to in writing between the
Company and the Trustee (which shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust), and the Company
will 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 each of the Trustee (including in its individual capacity) and any
predecessor Trustee (and its officers, agents, directors and employees) for, and
to hold it harmless against, any and all loss, damage, claim, action, suit,
liability or expense including taxes (other than taxes based on the income of
the Trustee) 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. The obligations of the Company under this Section 6.06 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.
The Company covenants and agrees to advance expenses (including legal fees)
incurred by the Trustee (including in its individual capacity) in defending any
claim, demand, action, suit or proceeding, from time to time, prior to the final
disposition of such claim, demand, action, suit or proceeding, upon receipt by
the Company of an undertaking by or on behalf of the Trustee to repay such
amount if it shall be determined that the Trustee is not entitled to be
indemnified as authorized in this Section.
When the Trustee incurs expenses or renders services in connection with an
Event of Default as specified in Section 5.01(d) or Section 5.01(e), the
expenses (including the reasonable charges and expenses of its counsel) and the
compensation for its services are intended to constitute expenses of
administration under any applicable federal or state bankruptcy, insolvency or
other similar law.
The provisions of this Section shall survive the resignation or removal of
the Trustee and the defeasance or other termination of this Indenture.
SECTION 6.07 Officers' Certificate as Evidence.
Except as otherwise provided in Sections 6.01 and 6.02, 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
omitting any action hereunder, such matter (unless other evidence in respect
thereof is 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
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established by an Officers' Certificate delivered to the Trustee, and such
Officers' 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 or
omitted by it under the provisions of this Indenture upon the faith thereof.
SECTION 6.08 Conflicting Interest of Trustee.
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.
SECTION 6.09 Eligibility of Trustee.
The Trustee hereunder shall at all times be a Person 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 Company 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 fifty million U.S. dollars ($50,000,000) and subject to supervision or
examination by federal, state, territorial, or District of Columbia authority.
If such Person 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 6.09 the combined capital and surplus of such
Person shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published.
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 6.09, the Trustee shall resign immediately
in the manner and with the effect specified in Section 6.10.
SECTION 6.10 Resignation or Removal of Trustee.
(a) The Trustee, or any trustee or trustees hereafter appointed, may at any
time resign by giving written notice of such resignation to the Company and by
mailing notice thereof to the holders of the Debentures at their addresses as
they shall appear on the Debenture Register. Upon receiving such notice of
resignation, the Company shall promptly appoint a successor trustee or trustees,
in accordance with the provisions of Section 6.09, by written instrument, in
duplicate, 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 60 days after the
mailing of such notice of resignation to the affected Debentureholders, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor trustee, or any Debentureholder who has been a bona
fide holder of a Debenture for at least six months may, subject to the
provisions of Section 5.10, on behalf of himself and all others similarly
situated, petition any such court for the appointment of a
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successor trustee. Such court may thereupon, after such notice, if any, as it
may deem proper and prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(1) the Trustee shall fail to comply with the provisions of Section
6.08 after written request therefor by the Company or by any Debentureholder
entitled to give such request who has been a bona fide holder of a Debenture or
Debentures of the applicable series for at least six months, or
(2) the Trustee shall cease to be eligible in accordance with the
provisions of Section 6.09 and shall fail to resign after written request
therefor by the Company or by any such Debentureholder, or
(3) the Trustee shall become incapable of acting, or shall be adjudged
a bankrupt or insolvent, or a receiver of the Trustee or of its property shall
be appointed, or any public officer shall take charge or control of the Trustee
or of its property or affairs for the purpose of rehabilitation, conservation or
liquidation, then, in any such case, the Company may remove the Trustee and
appoint a successor trustee, in accordance with the provisions of Section 6.09,
by written instrument, in duplicate, one copy of which instrument shall be
delivered to the Trustee so removed and one copy to the successor trustee, or,
subject to the provisions of Section 5.10, any Debentureholder who has been a
bona fide holder of a Debenture of the applicable series for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee and the appointment of
a successor trustee. 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 of any series at the time outstanding may at any time remove the
Trustee with respect to that series and nominate a successor trustee, which
shall be deemed appointed as successor trustee unless within 10 days after
written notification of such nomination the Company objects thereto, or if no
successor trustee shall have been so appointed and shall have accepted
appointment within 30 days after such removal, in which case the Trustee so
removed or any such Debentureholder, upon the terms and conditions and otherwise
as in subsection (a) of this Section 6.10 provided, may petition any court of
competent jurisdiction for an appointment of a successor trustee.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 6.10 shall
become effective upon acceptance of appointment by the successor trustee as
provided in Section 6.11.
SECTION 6.11 Acceptance by Successor Trustee.
Any successor trustee appointed as provided in Section 6.10 shall execute,
acknowledge and deliver to the Company and to its predecessor trustee an
instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the retiring trustee shall
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become effective and such successor trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with like effect as if originally
named as trustee herein; but, nevertheless, on the written request of the
Company or of the successor trustee, the trustee ceasing to act shall, upon
payment of all amounts then due it pursuant to the provisions of Section 6.06,
execute and deliver an instrument transferring to such successor trustee all the
rights and powers of the trustee so ceasing to act and shall duly assign,
transfer and deliver to such successor trustee all property and money held by
such retiring trustee thereunder. Upon request of any such successor trustee,
the Company shall execute any and all instruments in writing for more fully and
certainly vesting in and confirming to such successor trustee all such rights
and powers. Any trustee ceasing to act shall, nevertheless, retain a lien upon
all property or funds held or collected by such trustee to secure any amounts
then due it pursuant to the provisions of Section 6.06.
No successor trustee shall accept appointment as provided in this Section
6.11 unless at the time of such acceptance such successor trustee shall be
qualified under the provisions of Section 6.08 and eligible under the provisions
of Section 6.09.
Upon acceptance of appointment by a successor trustee as provided in this
Section 6.11, the Company shall mail notice of the succession of such trustee
hereunder to the holders of Debentures at their addresses as they shall appear
on the Debenture Register. If the Company fails to mail such notice within 10
days after the acceptance of appointment by the successor trustee, the successor
trustee shall cause such notice to be mailed at the expense of the Company.
SECTION 6.12 Succession by Merger, etc.
Any Person into which the Trustee may be merged or converted or with which
it may be consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any Person succeeding to
all or substantially all of the corporate trust business of the Trustee, shall
be the successor of the Trustee hereunder without the execution or filing of any
paper or any further act on the part of any of the parties hereto.
In case any Debentures shall have been authenticated but not delivered at
the time such successor to the Trustee shall succeed to the trusts created by
this Indenture, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Debentures so
authenticated; and in case at that time any of the Debentures shall not have
been authenticated, any successor to the Trustee may authenticate such
Debentures either in the name of any predecessor hereunder or in the name of the
successor trustee; and in all such cases such certificates shall have the full
force which the Debentures or this Indenture elsewhere provides that the
certificate of the Trustee shall have; provided, however, that the right to
adopt the certificate of authentication of any predecessor Trustee or
authenticate Debentures in the name of any predecessor Trustee shall apply only
to its successor or successors by merger, conversion or consolidation.
SECTION 6.13 Limitation on Rights of Trustee as a Creditor.
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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.
SECTION 6.14 Authenticating Agents.
There may be one or more Authenticating Agents appointed by the Trustee
upon the request of the Company with power to act on the Trustee's behalf and
subject to the Trustee's direction in the authentication and delivery of
Debentures issued upon transfer thereof as fully to all intents and purposes as
though any such Authenticating Agent had been expressly authorized to
authenticate and deliver Debentures; provided, however, that the Trustee shall
have no liability to the Company for any acts or omissions of the Authenticating
Agent with respect to the authentication and delivery of Debentures. Any such
Authenticating Agent shall at all times be a Person organized and doing business
under the laws of the United States or of any state or territory thereof or of
the District of Columbia authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of at least $5,000,000 and being
subject to supervision or examination by federal, state, territorial or District
of Columbia authority. If such Person publishes reports of condition at least
annually pursuant to law or the requirements of such authority, then for the
purposes of this Section 6.14 the combined capital and surplus of such Person
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect herein specified in
this Section.
Any Person into which any Authenticating Agent may be merged, converted or
with which it may be consolidated, or any Person resulting from any merger or
consolidation to which any Authenticating Agent shall be a party, or any Person
succeeding to the corporate trust business of any Authenticating Agent, shall be
the successor of such Authenticating Agent hereunder, if such successor Person
is otherwise eligible under this Section 6.14 without the execution or filing of
any paper or any further act on the part of the parties hereto or such
Authenticating Agent.
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
terminate the agency of any Authenticating Agent by giving written notice of
termination to such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time any
Authenticating Agent shall cease to be eligible under this Section 6.14, the
Trustee may, and upon the request of the Company shall, promptly appoint a
successor Authenticating Agent eligible under this Section 6.14, shall give
written notice of such appointment to the Company and shall mail notice of such
appointment to all Debentureholders as the names and addresses of such holders
appear on the Debenture Register. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all rights,
powers, duties and responsibilities of its predecessor hereunder, with like
effect as if originally named as Authenticating Agent herein.
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The Company, as issuer of the Debentures, agrees to pay to any
Authenticating Agent from time to time reasonable compensation for its services.
Any Authenticating Agent shall have no responsibility or liability for any
action taken by it as such in accordance with the directions of the Trustee.
ARTICLE VII
CONCERNING THE DEBENTUREHOLDERS
SECTION 7.01 Action by Debentureholders.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Holders or by
holders of Preferred Securities may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders or holders of
Preferred Securities, as applicable, personally or by an agent duly appointed in
writing and, except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments are delivered to the
Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of Holders or holders of
Preferred Securities signing such instrument or instruments. Proof of execution
of any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and conclusive in favor of the
Trustee and the Company, if made in the manner provided in this Section.
Without limiting the generality of this Section, unless otherwise provided
in or pursuant to this Indenture, a Holder, including a Depositary that is a
Holder of a Global Debenture, may make, give or take, by a proxy, or proxies,
duly appointed in writing, any request, demand, authorization, direction,
notice, consent, waiver or other action provided in or pursuant to this
Indenture to be made, given or taken by Holders, and a Depositary that is a
Holder of a Global Debenture may provide its proxy or proxies to the beneficial
owners of interests in any such Global Debenture through such Depositary's
standing instructions and customary practices.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved in any manner which the Trustee deems sufficient.
(c) The Holders of Debentures shall be proved by the Debenture Register.
(d) Any Act of the Holder of any Debenture shall bind every future Holder
of the same Debenture and the Holder of every Debenture issued upon the transfer
thereof or in exchange therefor or in lieu thereof in respect of anything done,
omitted or suffered to be done by the Trustee or the Company in reliance
thereon, whether or not notation of such action is made upon such Debenture.
(e) If the Company solicits from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other action, the Company
may, at its option, by or pursuant to a resolution of its Board of Directors,
fix in advance a Record Date for the determination of Holders entitled to give
such Act, 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 such Record Date, but only
Holders of record as proved
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by the Debenture Register at the close of business on such Record Date shall be
deemed to be Holders for the purposes of determining whether Holders of the
requisite proportion of outstanding Debentures have authorized or agreed or
consented to such Act, and for that purpose the outstanding Debentures shall be
computed as of such Record Date.
SECTION 7.02 Proof of Execution by Debentureholders.
Subject to the provisions of Sections 6.01, 6.02 and 8.05, proof of the
execution of any instrument by a Debentureholder or his agent or proxy shall be
sufficient if made in accordance with such reasonable rules and regulations as
may be prescribed by the Trustee or in such manner as shall be satisfactory to
the Trustee. The ownership of Debentures shall be proved by the Debenture
Register or by a certificate of the security registrar for the Debentures. The
Trustee may require such additional proof of any matter referred to in this
Section 7.02 as it shall deem necessary.
The record of any Debentureholders' meeting shall be proved in the manner
provided in Section 8.06.
SECTION 7.03 Who Are Deemed Absolute Owners.
Prior to due presentment for registration of transfer of any Debenture, the
Company, the Trustee, any Authenticating Agent, any paying agent, any transfer
agent and any security registrar for the Debentures may deem the person in whose
name such Debenture shall be registered upon the Debenture Register to be, and
may treat him or her as, the absolute owner of such Debenture (whether or not
such Debenture shall be overdue) for the purpose of receiving payment of or on
account of the principal of and premium, if any, and (subject to Section 2.05)
interest on such Debenture and for all other purposes; and neither the Company
nor the Trustee nor any Authenticating Agent nor any paying agent nor any
transfer agent nor any security registrar for the Debentures shall be affected
by any notice to the contrary. All such payments so made to any holder for the
time being or upon his or her order shall be valid and, to the extent of the sum
or sums so paid, effectual to satisfy and discharge the liability for moneys
payable upon any such Debenture.
SECTION 7.04 Debentures Owned by Company Deemed Not Outstanding.
In determining whether the holders of the requisite aggregate principal
amount of Debentures have concurred in any direction, consent or waiver under
this Indenture, 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 direct or indirect 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; provided, however, that for the
purposes of determining whether the Trustee shall be protected in relying on any
such direction, consent or waiver, only Debentures which a Responsible Officer
of the Trustee actually knows are so owned shall be so disregarded. Debentures
so owned which have been pledged in good faith may be regarded as outstanding
for the purposes of this Section 7.04 if the pledgee shall establish
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to the satisfaction of the Trustee the pledgee's right to vote such Debentures
and that the pledgee is not the Company or any such other obligor or Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Company or any such other obligor. In the 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 7.05 Revocation of Consents; Future Holders Bound.
At any time prior to (but not after) the evidencing to the Trustee, as
provided in Section 7.01, of the taking of any action by the holders of the
percentage in aggregate principal amount of the Debentures specified in this
Indenture in connection with such action, any holder of a Debenture (or any
Debenture issued in whole or in part in exchange or substitution therefor),
subject to Section 7.01, the serial number of which is shown by the evidence to
be included in the group of Debentures the holders of which have consented to
such action, may, by filing written notice with the Trustee at its Corporate
Trust Office and upon proof of holding as provided in Section 7.02, revoke such
action so far as concerns such Debenture (or so far as concerns the principal
amount represented by any exchanged or substituted 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 or substitution
therefor, irrespective of whether or not any notation in regard thereto is
made upon such Debenture or any Debenture issued in exchange or substitution
therefor.
ARTICLE VIII
MEETINGS OF DEBENTUREHOLDERS
SECTION 8.01 Purposes of Meetings.
A meeting of Debentureholders of any or all series at the time outstanding
may be called at any time and from time to time pursuant to the provisions of
this Article VIII for any of the following purposes:
(a) to give any notice to the Company or to the Trustee, or to give any
directions to the Trustee, or to consent to the waiving of any Default hereunder
and its consequences, or to take any other action authorized to be taken by
Debentureholders of such series pursuant to any of the provisions of Article V;
(b) to remove the Trustee and nominate a successor trustee pursuant to the
provisions of Article VI;
(c) to consent to the execution of an indenture or indentures supplemental
hereto pursuant to the provisions of Section 9.02; or
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(d) to take any other action authorized to be taken by or on behalf of the
holders of any specified aggregate principal amount of such Debentures under any
other provision of this Indenture or under applicable law.
SECTION 8.02 Call of Meetings by Trustee.
The Trustee may at any time call a meeting of Debentureholders or
Debentureholders of Debentures of any series, as applicable, to take any action
specified in Section 8.01, to be held at such time and at such place in
Wilmington, Delaware as the Trustee shall determine. Notice of every meeting of
such Debentureholders, setting forth the time and the place of such meeting and
in general terms the action proposed to be taken at such meeting, shall be
mailed to such holders of Debentures at their addresses as they shall appear on
the Debenture Register. Such notice shall be mailed not less than 21 nor more
than 180 days prior to the date fixed for the meeting.
SECTION 8.03 Call of Meetings by Company or Debentureholders.
In case at any time the Company, pursuant to a resolution of the Board of
Directors, or the holders of at least 20% in aggregate principal amount of the
Debentures or the Debentures of any series, as applicable, then outstanding,
shall have requested the Trustee to call a meeting of such Debentureholders, by
written request setting forth in reasonable detail the action proposed to be
taken at the meeting, and the Trustee shall not have mailed the notice of such
meeting within 21 days after receipt of such request, then the Company or such
Debentureholders may determine the time and the place in The City of New York
for such meeting and may call such meeting to take any action authorized in
Section 8.01, by mailing notice thereof as provided in Section 8.02.
(a) Except as provided below, the Persons entitled to vote a majority in
principal amount of the Outstanding Debentures or Outstanding Debentures of a
series, as applicable, shall constitute a quorum. In the absence of a quorum
within 30 minutes of the time appointed for any such meeting, the meeting shall,
if convened at the request of Holders of Debentures, be dissolved. In any other
case, the meeting may be adjourned for a period of not less than 10 days as
determined by the chairman of the meeting prior to the adjournment of such
meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10 days
as determined by the chairman of the meeting prior to the adjournment of such
adjourned meeting. Notice of the reconvening of any adjourned meeting shall be
given as provided herein, except that such notice need be given only once and
not less than five days prior to the date on which the meeting is scheduled to
be reconvened. Notice of the reconvening of an adjourned meeting shall state
expressly the percentage of the principal amount of the Outstanding Debentures
of such series which shall constitute a quorum.
(b) Subject to the foregoing, at the reconvening of any meeting adjourned
for a lack of a quorum, the Persons entitled to vote 25% in principal amount of
the Outstanding Debentures entitled to vote at such meeting at the time shall
constitute a quorum for the taking of any action set forth in the notice of the
original meeting.
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(c) At a meeting or an adjourned meeting duly reconvened and at which a
quorum is present as aforesaid, any resolution and all matters shall be
effectively passed and decided if passed or decided by the Persons entitled to
vote the lesser of:
(i) a majority in principal amount of such Debentures of such series
entitled to vote at such meeting then Outstanding; or
(ii) 66 2/3% in principal amount of the Debentures of such series
represented and voting at such meeting;
provided, however, that if any consent, waiver or other action is required
by this Indenture to be given, made or taken by the Holders of a specified
percentage in principal amount of Outstanding Debentures entitled to vote, then
such consent, waiver or other action must be given, made or taken by the Holders
of such specified percentage of Debentures entitled to vote.
(d) Any resolution passed or decisions taken at any meeting of Holders of
Debentures duly held in accordance with this Section shall be binding on all the
Holders of Debentures, or of the Debentures of such series, as applicable,
whether or not present or represented at the meeting.
SECTION 8.04 Qualifications for Voting.
To be entitled to vote at any meeting of Debentureholders, a Person shall
be: (i) a holder of one or more Debentures of the applicable series; or (ii) a
Person appointed by an instrument in writing as proxy by a holder of one or more
Debentures of that series. The only Persons who shall be entitled to be present
or to speak at any meeting of Debentureholders shall be the Persons entitled to
vote at such meeting and their counsel and any representatives of the Trustee
and its counsel and any representatives of the Company and its counsel.
SECTION 8.05 Regulations.
Notwithstanding any other provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting of
Debentureholders, in regard to proof of the holding of Debentures and of the
appointment of proxies, and in regard to the appointment and duties of
inspectors of votes, the submission and examination of proxies, certificates and
other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Debentureholders as provided in Section 8.03, in which case the
Company or the Debentureholders calling the meeting, as the case may be, shall
in like manner appoint a temporary chairman. A permanent chairman and a
permanent secretary of the meeting shall be elected by majority vote of the
meeting.
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Subject to the provisions of Section 8.04, at any meeting each holder of
Debentures of the applicable series or proxy therefor shall be entitled to one
vote for each $1,000 principal amount of Debentures of that series held or
represented by him or her; provided, however, that no vote shall be cast or
counted at any meeting in respect of any Debenture challenged as not outstanding
and ruled by the chairman of the meeting to be not outstanding. The chairman of
the meeting shall have no right to vote other than by virtue of Debentures of
the applicable series held by him or instruments in writing as aforesaid duly
designating him as the person to vote on behalf of other Debentureholders. Any
meeting of Debentureholders duly called pursuant to the provisions of Section
8.02 or 8.03 may be adjourned from time to time by holders of a majority of
Debentures entitled to vote at such meeting and which are represented at such
meeting, and the meeting may be held as so adjourned without further notice.
SECTION 8.06 Voting.
The vote upon any resolution submitted to any meeting of holders of
Debentures shall be by written ballots on which shall be subscribed the
signatures of such holders or of their representatives by proxy and the serial
number or numbers of the Debentures of the applicable series held or represented
by them. The permanent chairman of the meeting shall appoint two inspectors of
votes who shall count all votes cast at the meeting for or against any
resolution and who shall make and file with the secretary of the meeting their
verified written reports in triplicate of all votes cast at the meeting. A
record in duplicate of the proceedings of each meeting of Debentureholders shall
be prepared by the secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more persons having knowledge of the
facts setting forth a copy of the notice of the meeting and showing that said
notice was mailed as provided in Section 8.02. The record shall show the serial
numbers of the Debentures voting in favor of or against any resolution. The
record shall be signed and verified by the affidavits of the permanent chairman
and secretary of the meeting and one of the duplicates shall be delivered to the
Company and the other to the Trustee to be preserved by the Trustee, the latter
to have attached thereto the ballots voted at the meeting. Any record so signed
and verified shall be conclusive evidence of the matters therein stated. The
holders of the Debentures entitled to vote at the meeting shall vote for all
purposes as a single class.
ARTICLE IX
AMENDMENTS
SECTION 9.01 Without Consent of Debentureholders.
The Company and the Trustee may from time to time and at any time amend
this Indenture, without the consent of the Debentureholders, for one or more of
the following purposes:
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(a) to evidence the succession of another Person to the Company, or
successive successions, and the assumption by the successor Person of the
covenants, agreements and obligations of the Company pursuant to Article X
hereof;
(b) to add to the covenants of the Company such further covenants,
restrictions or conditions for the protection of the Debentureholders of all or
any series of Debentures as the Board of Directors and the Trustee shall
consider to be for the protection of the Debentureholders of such series, and to
make the occurrence, or the occurrence and continuance, of a default in any of
such additional covenants, restrictions or conditions a Default or an Event of
Default permitting the enforcement of all or any of the remedies provided in
this Indenture as herein set forth; provided, however, that in respect of any
such additional covenant, restriction or condition such amendment may provide
for a particular period of grace after default (which period may be shorter or
longer than that allowed in the case of other defaults) or may provide for an
immediate enforcement upon such default or may limit the remedies available to
the Trustee upon such default;
(c) to provide for the issuance under this Indenture of Debentures in
coupon form (including Debentures registrable as to principal only) and to
provide for exchangeability of such Debentures with the Debentures issued
hereunder in fully registered form and to make all appropriate changes for such
purpose;
(d) to (i) cure any ambiguity; (ii) or to correct or supplement any
provision contained herein or in any supplemental indenture which may be
defective or inconsistent with any other provision contained herein or in any
supplemental indenture; or (iii) to make such other provisions in regard to
matters or questions arising under this Indenture, provided that any such action
shall not materially adversely affect the interests of the holders of Debentures
of a series affected thereby;
(e) to evidence and provide for the acceptance of appointment hereunder by
a successor trustee with respect to the Debentures of any series; and to add to
or change any of the provisions of this Indenture as shall be necessary to
provide for or to facilitate the administration of the trusts hereunder by more
than one trustee;
(f) to make provision for transfer procedures, certification, book-entry
provisions, the form of restricted Debentures legends, if any, to be placed on
Debentures, and all other matters required pursuant to Section 2.06 or otherwise
necessary, desirable or appropriate in connection with the issuance of
Debentures of a series to holders of Preferred Securities of a Trust in the
event of a distribution of Debentures by such Trust following a Dissolution
Event, provided that any such action shall not materially adversely affect the
interests of the holders of such Debentures;
(g) to qualify or maintain qualification of this Indenture under the Trust
Indenture Act;
(h) to make any change that does not adversely affect the rights of any
Holder of an outstanding Debenture in any material respect;
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(i) surrender any right or power herein conferred upon the Company; or
(j) to add any Events of Default with respect to all or any series of
Debenture (as shall be specified in such supplemental indenture);
(k) to establish the form or terms of Debentures of any series as permitted
by Section 2.01 or, in lieu of any such supplemental indenture, the Company may
provide the Trustee with an Officers' Certificate with respect to the form or
terms of such Debentures; or
(l) to supplement any of the provisions of this Indenture to such extent as
shall be necessary to permit or facilitate the defeasance and discharge of any
series of Debentures provided that any such action shall not adversely affect
the interests of any Holder of a Debenture of such series or any other Debenture
in any material respect.
The Trustee is hereby authorized to join with the Company in the execution
of any supplemental indenture to effect such amendment, to make any further
appropriate agreements and stipulations which may be therein contained and to
accept the conveyance, transfer and assignment of any property thereunder, but
the Trustee shall not be obligated to, but may in its discretion, enter into any
such supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Any amendment to this Indenture authorized by the provisions of this
Section 9.01 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 9.02.
SECTION 9.02 With Consent of Debentureholders.
The Company and the Trustee may amend this Indenture with respect to any
series of Debentures in any manner not permitted by Section 9.01 or may waive
future compliance by the Company with any provisions of this Indenture with
respect to such series with the consent of the Holders of at least a majority in
aggregate principal amount of the Debentures of that series affected thereby
then outstanding (and, in the case of any series of Debentures held as assets of
a Trust and with respect to which a Security Exchange has not theretofore
occurred, the consent of at least a majority of the aggregate liquidation amount
of the outstanding holders of the Preferred Securities of such Trust). Such an
amendment or waiver may not, without the consent of each Holder of any Debenture
affected thereby:
(a) reduce the principal amount of such Debentures;
(b) reduce the percentage of the principal amount of such Debentures
of a series the Holders of which must consent to modify or amend of this
Indenture or waive compliance by the Company with any covenant hereunder or past
Default or Event of Default with respect to such series;
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(c) change (i) the Stated Maturity of the principal of or the interest
on such Debentures, except in connection with any Extended Period, (ii) the rate
of interest (or the manner of calculation thereof) on such Debentures, or (iii)
the duration of the maximum consecutive period that payments of interest on such
Debentures may be deferred;
(d) change adversely to the Holders the redemption, conversion or
exchange provisions applicable to such Debentures, if any;
(e) change the currency in respect of which the payments on such
Debentures are to be made;
(f) make any change in Article XV that adversely affects the rights of
the Holders of the Debentures or any change to any other Section hereof that
adversely affects their rights under Article XV; or
(g) change Section 5.04;
provided that, in the case of the outstanding Debentures of a series then held
by a Trust or the trustee of a Trust, (i) no such amendment or supplement shall
be made, without the prior consent of the holders of at least a majority of the
aggregate liquidation amount of the outstanding Preferred Securities of that
Trust, and (ii) if the consent of each Holder of each Debenture of a series is
required with respect to any such amendment, such amendment shall not be
effective without the prior consent of each Holder of Preferred Securities of
the applicable Trust.
A supplemental indenture that changes or eliminates any covenant or other
provision of this Indenture that has expressly been included solely for the
benefit of one or more particular series of Debentures, or which modifies the
rights of the Holders of Debentures of such series with respect to such covenant
or other provision, shall be deemed to affect only the rights under this
Indenture of the Holders of Debentures of such series and not to affect the
rights under this Indenture of the Holders of Debentures of any other series.
It shall not be necessary for the consent of the Holders of Debentures or
holders of Preferred Securities under this Section to approve the particular
form of any proposed amendment, but it shall be sufficient if such consent
approves the substance thereof.
After an amendment or waiver under this Section becomes effective, the
Company shall mail to each Holder affected thereby a notice briefly describing
the amendment or waiver. Any failure of the Company to mail such notices, or any
defect therein, shall not, however, in any way impair or affect the validity of
such amendment or waiver.
SECTION 9.03 Compliance with Trust Indenture Act; Effect of Supplemental
Indentures.
Any supplemental indenture executed pursuant to the provisions of this
Article IX shall comply with the Trust Indenture Act. Upon the execution of any
supplemental indenture pursuant to the provisions of this Article IX, this
Indenture shall be and be deemed to be
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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 affected by such
supplemental indenture 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 with respect to any series of Debenture affected by such supplemental
indenture.
SECTION 9.04 Notation on Debentures.
Debentures authenticated and delivered after the execution of any
supplemental indenture pursuant to the provisions of this Article IX may bear a
notation in form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company or the Trustee shall so determine, new
Debentures so modified as to conform, in the opinion of the Trustee and the
Board of Directors, to any modification of this Indenture contained in any such
supplemental indenture may be prepared and executed by the Company,
authenticated by the Trustee or the Authenticating Agent and delivered in
exchange for the Debentures then outstanding.
SECTION 9.05 Evidence of Compliance of Supplemental Indenture to be
Furnished to Trustee.
The Trustee, subject to the provisions of Sections 6.01 and 6.02, may
receive an Officers' Certificate and an Opinion of Counsel as conclusive
evidence that any supplemental indenture executed pursuant hereto complies with
the requirements of this Article IX.
ARTICLE X
CONSOLIDATION, MERGER, SALE, CONVEYANCE, TRANSFER AND LEASE
SECTION 10.01 Company May Consolidate, etc., on Certain Terms.
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 Person
(whether or not affiliated with the Company, as the case may be), or successive
consolidations or mergers in which the Company or its successor or successors,
as the case may be, shall be a party or parties, or shall prevent any sale,
conveyance, transfer or lease of the property of the Company, or its successor
or successors as the case may be, as an entirety, or substantially as an
entirety, to any other Person (whether or not affiliated with the Company, or
its successor or successors, as the case may be) authorized to acquire and
operate the same; provided, that (a) the Company is the surviving Person, or the
Person formed by or surviving any such consolidation or merger (if other than
the Company) or to which such sale, conveyance, transfer or lease of property is
made is a Person organized and existing under the laws of the United States or
any State thereof or the District of Columbia, and (b) if the Company is not the
surviving Person, upon any such consolidation, merger, sale, conveyance,
transfer or lease, the due and punctual payment of the principal of and interest
on the Debentures according to their tenor and the due and punctual
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performance and observance of all the covenants and conditions of this Indenture
to be kept or performed by the Company shall be expressly assumed by the
surviving Person, 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 Person formed by such
consolidation, or into which the Company shall have been merged, or by the
Person which shall have acquired such property, as the case may be, and (c)
after giving effect to such consolidation, merger, sale, conveyance, transfer or
lease, no Default or Event of Default shall have occurred and be continuing.
SECTION 10.02 Successor Person to be Substituted for Company.
In case of any such consolidation, merger, sale, conveyance, transfer or
lease, and upon the assumption by the successor Company, by supplemental
indenture, executed and delivered to the Trustee and satisfactory in form to the
Trustee, of the obligation of due and punctual payment of the principal of and
interest on all of the Debentures and the due and punctual performance and
observance of all of the covenants and conditions of this Indenture to be
performed or observed by the Company, such successor Person shall succeed to and
be substituted for the Company, with the same effect as if it had been named
herein as a party hereto, and the Company thereupon shall be relieved of any
further liability or obligation hereunder or upon the Debentures. Such successor
Person thereupon may cause to be signed, and may issue either in its own name or
in the name of the Company, any or all of the Debentures issuable hereunder
which theretofore shall not have been signed by the Company and delivered to the
Trustee or the Authenticating Agent; and, upon the order of such successor
Person instead of the Company and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee or the Authenticating
Agent shall authenticate and deliver any Debentures which previously shall have
been signed and delivered by any Officer of the Company to the Trustee or the
Authenticating Agent for authentication, and any Debentures which such successor
Person thereafter shall cause to be signed and delivered to the Trustee or the
Authenticating Agent for that purpose. All the Debentures so issued shall in all
respects have the same legal rank and benefit under this Indenture as the
Debentures theretofore or thereafter issued in accordance with the terms of this
Indenture as though all of such Debentures had been issued at the date of the
execution hereof.
SECTION 10.03 Opinion of Counsel to be Given Trustee.
The Trustee, subject to the provisions of Sections 6.01 and 6.02, may
receive an Opinion of Counsel as conclusive evidence that any consolidation,
merger, sale, conveyance, transfer or lease, and any assumption, permitted or
required by the terms of this Article X complies with the provisions of this
Article X.
ARTICLE XI
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 11.01 Discharge of Indenture.
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When (a) the Company shall deliver to the Trustee for cancellation all
Debentures of any series theretofore authenticated (other than any Debentures
which shall have been destroyed, lost or stolen and which shall have been
replaced as provided in Section 2.07) and not theretofore canceled, or (b) all
the Debentures of such series not theretofore canceled or 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
prepayment within one year under arrangements satisfactory to the Trustee for
the giving of notice of prepayment, and the Company shall deposit or cause to be
deposited with the Trustee, in trust, funds or U.S. Government Obligations
sufficient to pay on the Stated Maturity Date or upon prepayment all of the
Debentures of such series (other than any Debentures which shall have been
destroyed, lost or stolen and which shall have been replaced as provided in
Section 2.07) not theretofore canceled or delivered to the Trustee for
cancellation, including principal and interest (including Compounded Interest
and Additional Sums, if any) due or to become due to the Stated Maturity Date or
prepayment date, as the case may be, but excluding, however, the amount of any
moneys for the payment of principal of or interest (including Compounded
Interest and Additional Sums, if any) on the Debentures of such series (1)
theretofore repaid to the Company in accordance with the provisions of Section
11.04, or (2) paid to any State or to the District of Columbia pursuant to its
unclaimed property or similar laws, and if, in either case the Company shall
also pay or cause to be paid all other sums payable hereunder by the Company,
then this Indenture shall cease to be of further effect with respect to
Debentures of such series, except for the provisions of Sections 2.02, 2.06,
2.07, 3.01, 3.02, 3.04, 6.06, 6.10 and 11.04 hereof, which shall survive until
such Debentures of such series shall mature and be paid. Thereafter, Sections
6.06, 6.10 and 11.04 shall survive, and the Trustee, on demand of the Company
accompanied by any Officers' Certificate and an Opinion of Counsel and at the
cost and expense of the Company, shall execute proper instruments acknowledging
satisfaction of and discharging this Indenture with respect to Debentures of
such series; the Company, however, hereby agrees to reimburse the Trustee for
any costs or expenses thereafter reasonably and properly incurred by the Trustee
in connection with this Indenture or the Debentures of such series.
SECTION 11.02 Deposited Moneys and U.S. Government Obligations to be Held
in Trust by Trustee.
Subject to the provisions of Section 11.04, all moneys and U.S. Government
Obligations deposited with the Trustee pursuant to Sections 11.01 or 11.05 shall
be held in trust and applied by it to the payment, either directly or through
any paying agent (including the Company if acting as its own paying agent), to
the holders of a particular series of Debentures for the payment of which such
moneys or U.S. Government Obligations have been deposited with the Trustee, of
all sums due and to become due thereon for principal and interest.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Governmental Obligations
deposited pursuant to Section 11.05 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the holders of outstanding Debentures.
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SECTION 11.03 Paying Agent to Repay Moneys Held.
Upon the satisfaction and discharge of this Indenture all moneys then held
by any paying agent of the Debentures (other than the Trustee) shall, upon
written demand of the Company, be repaid to it or paid to the Trustee, and
thereupon such paying agent shall be released from all further liability with
respect to such moneys.
SECTION 11.04 Return of Unclaimed Moneys.
Any moneys deposited with or paid to the Trustee or any paying agent for
payment of the principal of or interest (including Compounded Interest and
Additional Sums, if any) on Debentures of any series and not applied but
remaining unclaimed by the holders of Debentures for two years after the date
upon which the principal of or interest (including Compounded Interest and
Additional Sums, if any) on such Debentures, as the case may be, shall have
become due and payable, shall be repaid to the Company by the Trustee or such
paying agent; and the holder of any of the Debentures shall thereafter look only
to the Company for any payment which such holder may be entitled to collect and
all liability of the Trustee or such paying agent with respect to such moneys
shall thereupon cease.
SECTION 11.05 Defeasance Upon Deposit of Moneys or U.S. Government
Obligations.
The Company shall be deemed to have been Discharged (as defined below) from
its obligations with respect to the Debentures of any series on the 91st day
after the applicable conditions set forth below have been satisfied:
(a) the Company shall have deposited or caused to be deposited irrevocably
with the Trustee or the Defeasance Agent (as defined below) as trust funds in
trust, specifically pledged as security for, and dedicated solely to, the
benefit of the holders of the Debentures of such series: (i) money in an amount;
or (ii) U.S. Government Obligations which through the payment of interest and
principal in respect thereof in accordance with their terms will provide, not
later than one day before the due date of any payment, money in an amount; or
(iii) a combination of (i) and (ii), sufficient, in the opinion (with respect to
(ii) and (iii)) of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee and the Defeasance Agent, if any, to pay and discharge each installment
of principal of and interest on the outstanding Debentures of such series on the
dates such installments of principal and interest are due;
(b) if the Debentures of such series are then listed on any national
Debentures exchange, the Company shall have delivered to the Trustee and the
Defeasance Agent, if any, an Opinion of Counsel to the effect that the exercise
of the option under this Section 11.05 would not cause such Debentures to be
delisted from such exchange;
(c) no Default or Event of Default with respect to the Debentures shall
have occurred and be continuing on the date of such deposit;
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(d) the Company shall have delivered to the Trustee and the Defeasance
Agent, if any, an Opinion of Counsel to the effect that holders of the
Debentures of such series will not recognize income, gain or loss for United
States federal income tax purposes as a result of the exercise of the option
under this Section 11.05 and will be subject to United States federal income tax
on the same amount and in the same manner and at the same times as would have
been the case if such option had not been exercised;
(e) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the intent
of preferring the Holders over any other creditors of the Company or with the
intent of defeating, hindering, delaying or defrauding any other creditors of
the Company;
(f) such deposit shall not result in an Investment Company Event, or such
trust shall be qualified under such Act or exempt from regulation thereunder;
and
(g) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent relating to the defeasance contemplated by this Section 2.12 have been
complied with.
"Discharged" means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by, and obligations under, the
Debentures of any series and to have satisfied all the obligations under this
Indenture relating to the Debentures of such series (and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging the
same), except (1) the rights of holders of Debentures of such series to receive,
from the trust fund described in clause (a) above, payment of the principal of
and the interest if any, on the Debentures of such series when such payments are
due; (2) the Company's obligations with respect to the Debentures of such series
under Sections 2.07, 2.08, 5.02 and 11.04; and (3) the rights, powers, trusts,
duties and immunities of the Trustee hereunder.
"Defeasance Agent" means another financial institution which is eligible to
act as Trustee hereunder and which assumes all of the obligations of the Trustee
necessary to enable the Trustee to act hereunder. In the event such a Defeasance
Agent is appointed pursuant to this Section, the following conditions shall
apply:
(1) the Trustee shall have approval rights over the document appointing
such Defeasance Agent and the document setting forth such Defeasance Agent's
rights and responsibilities; and
(2) the Defeasance Agent shall provide verification to the Trustee
acknowledging receipt of sufficient money and/or U.S. Government Obligations to
meet the applicable conditions set forth in this Section 11.05.
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ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.01 Indenture and Debentures Solely Corporate Obligations.
No recourse for the payment of the principal of or interest (including
Compounded Interest and Additional Sums, if any) on any Debenture, or for any
claim based thereon or otherwise in respect thereof, and no recourse under or
upon any obligation, covenant or agreement of the Company in this Indenture, or
in any Debenture, or because of the creation of any indebtedness represented
thereby, shall be had against any incorporator, stockholder, employee, officer
or director, as such, past, present or future, of the Company or of any
successor Person to the Company, either directly or through the Company or any
successor Person to the Company, 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 all such liability is hereby expressly waived
and released as a condition of, and as a consideration for, the execution of
this Indenture and the issuance of the Debentures.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01 Successors.
All of the covenants, stipulations, promises and agreements of the Company
contained in this Indenture shall also bind the Company's successors and assigns
whether so expressed or not.
SECTION 13.02 Official Acts by Successor Company.
Any act or proceeding that, by any provision of this Indenture, is
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 like board, committee or officer of any Company that shall at the
time be the lawful sole successor of the Company.
SECTION 13.03 Surrender of Company Powers.
The Company by instrument in writing executed by authority of 2/3
(two-thirds) of its Board of Directors and delivered to the Trustee may
surrender any of the powers reserved to the Company hereunder, and thereupon
such power so surrendered shall terminate both as to the Company, as the case
may be, and as to any successor Person.
SECTION 13.04 Addresses for Notices, etc.
Any notice or demand which by any provision of this Indenture is required
or permitted to be given or served by the Trustee or by the holders of
Debentures on the Company may be
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given or served by being deposited postage prepaid by first class mail,
registered or certified mail, overnight courier service or conformed telecopy
addressed (until another address is filed by the Company with the Trustee for
the purpose) to New York Community Bancorp, Inc. at 000 Xxxxxxx Xxxxxx,
Xxxxxxxx, Xxx Xxxx 00000, Attention: Chief Executive Officer. Any notice,
direction, request or demand by 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 office of Wilmington Trust Company at Xxxxxx Square
North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention:
Corporate Trust Administration (unless another address is provided by the
Trustee to the Company for such purpose). Any notice or communication to a
Debentureholder shall be mailed by first class mail to his or her address shown
on the Debenture Register kept by the security registrar for the Debentures.
Notices required to be given to the Trustee or the Authenticating Agent shall be
in writing, personally delivered or mailed first class postage prepaid to each
of the foregoing, or at such other address as shall be designated by written
notice to the other parties.
SECTION 13.05 Governing Law.
This Indenture and each Debenture shall be deemed to be a contract made
under the laws of the State of New York, and for all purposes shall be governed
by and construed in accordance with the laws of said State without regard to
conflict of law principles thereof.
SECTION 13.06 Evidence of Compliance with Conditions Precedent.
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 (which the Trustee shall be fully protected relying on) an
Officers' Certificate stating that in the opinion of the signers all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that, in the
opinion of such counsel, all such conditions precedent have been complied with.
Each certificate or opinion provided for in this Indenture and delivered to
the Trustee with respect to compliance with a condition or covenant provided for
in this Indenture (except certificates delivered pursuant to Section 3.05) 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 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.
SECTION 13.07 Business Days.
In any case where the date of payment of principal of or interest on the
Debentures is not a Business Day, the payment of such principal of or interest
on the Debentures will not be made
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on such date but will be made on the next succeeding Business Day, except if
such Business Day is in the next succeeding calendar year, such payment will be
made on the immediately preceding Business Day, with the same force and effect
as if made on the original date of payment, and no interest shall accrue for the
period from and after such date.
SECTION 13.08 Trust Indenture Act to Control.
If and to the extent that any provision of this Indenture limits, qualifies
or conflicts with the duties imposed by Sections 310 to 318, inclusive, of the
Trust Indenture Act, such imposed duties shall control.
SECTION 13.09 Table of Contents, Headings, etc.
The table of contents and the titles and headings of the articles and
sections of this Indenture have been inserted for convenience of reference only,
are not to be considered a part hereof, and shall in no way modify or restrict
any of the terms or provisions hereof.
SECTION 13.10 Execution in Counterparts.
This Indenture may be executed in any number of counterparts, each of which
shall be an original, but such counterparts shall together constitute but one
and the same instrument.
SECTION 13.11 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 13.12 Assignment.
The Company will 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 will remain liable for all such obligations. Subject to
the foregoing, this Indenture is binding upon and inures to the benefit of the
parties thereto and their respective successors and assigns. This Indenture may
not otherwise be assigned by the parties thereto.
SECTION 13.13 Acknowledgment of Rights.
The Company acknowledges that, with respect to any Debentures of any series
held by a Trust or a trustee of such Trust, if the Property Trustee of such
Trust fails to enforce its rights under this Indenture as the holder of the
Debentures held as the assets of such Trust, any holder of Preferred Securities
may institute legal proceedings, subject to Section 5.08, directly against
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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 principal of or interest on the Debentures when
due, 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 an aggregate 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 XIV
PREPAYMENT OF DEBENTURES
SECTION 14.01 Special Event Prepayment.
If a Special Event has occurred and is continuing, then notwithstanding
Section 14.02(a) but subject to Section 14.02(c), the Company shall have the
right, at any time within 90 days following the occurrence of such Special
Event, upon: (i) not less than 45 days' written notice to the Trustee; and (ii)
not less than 30 days nor more than 60 days' written notice to the
Debentureholders, to prepay the Debentures, in whole (but not in part), at the
Special Event Prepayment Price. Following a Special Event, the Company shall
take such action as is necessary to promptly determine the Special Event
Prepayment Price. The Special Event Prepayment Price shall be paid prior to
12:00 noon, New York City time, on the date of such prepayment or such earlier
time as the Company determines, provided that the Company shall deposit with the
Trustee an amount sufficient to pay the Special Event Prepayment Price by 10:00
a.m., New York City time, on the date such Special Event Prepayment Price is to
be paid.
SECTION 14.02 Optional Prepayment by Company.
(a) The Company may prepay the Debentures of any series issued hereunder on
and after the dates and in accordance with the terms established for such series
pursuant to Section 2.01.
(b) If any or all of the Debentures are to be prepaid pursuant to this
Section, the Company shall deliver to the Trustee no more than 60 and no less
than 45 days prior to the Prepayment Date a Company Order specifying the series
and principal amount of Debentures to be prepaid and the Prepayment Date and
Prepayment Price for such Debentures. Such Company Order shall be accompanied by
a Board Resolution authorizing such prepayment. If the Debentures of a series
are held by a Trust, the Company shall also deliver a copy of such Company Order
to the Property Trustee for such Trust.
If the Debentures of any series are only partially prepaid pursuant to this
Section 14.02, the Debentures to be prepaid shall be selected on a pro rata
basis not more than 60 days prior to the date fixed for prepayment from the
outstanding Debentures not previously called for prepayment; provided, further,
that any such proration may be made on the basis of the
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aggregate principal amount of Debentures held by each Debentureholder and may be
made by making such adjustments as the Company deems fair and appropriate.
(c) Any prepayment of Debentures pursuant to Section 14.01 or Section 14.02
shall be subject to the Company obtaining any required prior approval of the
Federal Reserve under regulatory capital regulations or policies.
SECTION 14.03 Notice of Prepayment; Selection of Debentures.
In case the Company shall desire to exercise the right to prepay all, or,
as the case may be, any part of the Debentures of any series in accordance with
their terms, it shall fix a date for prepayment and shall mail a notice of such
prepayment at least 30 and not more than 60 days' prior to the date fixed for
prepayment to the holders of Debentures of such series to be so prepaid as a
whole or in part at their last addresses as the same appear on the Debenture
Register. Such mailing shall be by first class mail. The notice, if mailed in
the manner herein provided, shall be conclusively presumed to have been duly
given, whether or not the holder receives such notice. In any case, failure to
give such notice by mail or any defect in the notice to the holder of any
Debenture of such series designated for prepayment as a whole or in part shall
not affect the validity of the proceedings for the prepayment of any other
Debenture of such series.
Each such notice of prepayment shall specify the CUSIP number of the
Debentures of such series to be prepaid, the date fixed for prepayment, the
Prepayment Price at which the Debentures of such series are to be prepaid (or
the method by which such Prepayment Price is to be calculated), the place or
places of payment where payment will be made upon presentation and surrender of
the Debentures of such series, that interest accrued to the date fixed for
prepayment will be paid as specified in said notice, and that on and after said
date interest thereon or on the portions thereof to be prepaid will cease to
accrue. If less than all the Debentures of such series are to be prepaid, the
notice of prepayment shall specify the numbers of the Debentures of such series
to be prepaid. In case any Debenture of such series is to be prepaid in part
only, the notice of prepayment shall state the portion of the principal amount
thereof to be prepaid and shall state that on and after the date fixed for
prepayment, upon surrender of such Debenture of such series, a new Debenture or
Debentures in principal amount equal to the portion thereof that has not been
prepaid will be issued.
By 10:00 a.m., New York City time, on the prepayment date specified in the
notice of prepayment given as provided in this Section, the Company will deposit
with the Trustee or with one or more paying agents an amount of money sufficient
to prepay on the prepayment date all the Debentures of such series so called for
prepayment at the Prepayment Price.
SECTION 14.04 Payment of Debentures Called for Prepayment.
If notice of prepayment has been given as provided in Section 14.03, the
Debentures of such series or portions of Debentures of such series with respect
to which such notice has been given shall become due and payable on the date and
at the place or places stated in such notice at the Prepayment Price (subject to
the rights of holders of Debentures of such series at the close of
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business on a regular record date in respect of an Interest Payment Date
occurring on or prior to the prepayment date) and on and after said date (unless
the Company shall default in the payment of such Debentures of such series at
the Prepayment Price) interest (including Compounded Interest and Additional
Sums, if any) on the Debentures of such series or portions of Debentures of such
series so called for prepayment shall cease to accrue. On presentation and
surrender of such Debentures of such series at a place of payment specified in
said notice, the said Debentures of such series or the specified portions
thereof shall be paid and prepaid by the Company at the applicable Prepayment
Price (subject to the rights of holders of Debentures of such series on the
close of business on a regular record date in respect of an Interest Payment
Date occurring on or prior to the prepayment date).
Upon presentation of any Debenture prepaid in part only, the Company shall
execute and the Trustee shall authenticate and make available for delivery to
the holder thereof, at the expense of the Company, a new Debenture or Debentures
of authorized denominations, in principal amount equal to the portion of the
Debenture so presented that has not been prepaid.
ARTICLE XV
SUBORDINATION OF DEBENTURES
SECTION 15.01 Agreement to Subordinate.
The Company covenants and agrees, and each holder of Debentures issued
hereunder likewise covenants and agrees, that the Debentures shall be issued
subject to the provisions of this Article XV; 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 (including
Compounded Interest and Additional Sums, if any) on all Debentures issued
hereunder shall, to the extent and in the manner hereinafter set forth, be
subordinated and subject in right of payment to the prior payment in full of all
Allocable Amounts then due and payable in respect of Senior Indebtedness,
whether outstanding at the date of this Indenture or thereafter incurred.
Unless otherwise specified in their terms, the Debentures will rank on a
parity with any series of junior subordinated debentures, whether currently
outstanding or created, assumed or incurred at a later date, initially issued to
a trust, partnership, or other entity affiliated with the Company in connection
with an issuance of securities similar to the Preferred Securities.
No provision of this Article XV shall prevent the occurrence of any Default
or Event of Default hereunder.
SECTION 15.02 Default on Senior Indebtedness.
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, or in the
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event that the maturity of any Senior Indebtedness has been accelerated because
of a default and such acceleration has not been rescinded or canceled, then, in
either case, no payment shall be made by the Company with respect to the
principal (including prepayment payments) of or interest on the Debentures
(including Compounded Interest and Additional Sums, if any, or any other amounts
which may be due on the Debentures pursuant to the terms hereof or thereof).
In the event of the acceleration of the maturity of the Debentures, then no
payment shall be made by the Company with respect to the principal (including
prepayment payments) of or interest on the Debentures (including Compounded
Interest and Additional Sums, if any, or any other amounts which may be due on
the Debentures pursuant to the terms hereof or thereof) until the holders of all
Senior Indebtedness outstanding at the time of such acceleration shall receive
payment, in full, of all Allocable Amounts due on or in respect of such Senior
Indebtedness (including any amounts due upon acceleration).
In the event that, notwithstanding the foregoing, any payment is received
by the Trustee, or any Debentureholder, when such payment is prohibited by the
preceding paragraphs of this Section 15.02, such payment shall be held in trust
for the benefit of, and shall be paid over or delivered by the Trustee (if the
notice requested by Section 15.06 has been received by the Trustee) or by any
Debentureholder, 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 of the Allocable Amounts in respect
of such Senior Indebtedness and 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 prior to the Trustee's receipt of such
payment of the Allocable Amounts then due and owing on such Senior Indebtedness,
and only the Allocable Amounts specified in such notice to the Trustee shall be
paid to the holders of such Senior Indebtedness.
SECTION 15.03 Liquidation; Dissolution; Bankruptcy.
Upon any payment by the Company or distribution of assets of the Company of
any kind or character, whether in cash, property or securities, to creditors
upon any dissolution, winding-up, liquidation or reorganization of the Company,
whether voluntary or involuntary or in bankruptcy, insolvency, receivership or
other proceedings, the holders of all Senior Indebtedness of the Company will
first be entitled to receive payment in full of Allocable Amounts due on or in
respect of such Senior Indebtedness, before any payment is made by the Company
on account of the principal of or interest on the Debentures (including
Compounded Interest and Additional Sums (if any) or any other amounts which may
be due on the Debentures pursuant to the terms hereof or thereof); and upon any
such dissolution, winding-up, 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, which the Debentureholders or the
Trustee would be entitled to receive from the Company, except for the provisions
of this Article XV, 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 Debentureholders or by the Trustee under the Indenture
if received by them or it, directly to the holders of Senior Indebtedness of the
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Company (pro rata to such holders on the basis of the respective Allocable
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 all such Allocable Amounts of Senior
Indebtedness in full, in money or moneys 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 Debentureholders
or to the Trustee.
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character prohibited by the
foregoing, whether in cash, property or Debentures, shall be received by the
Trustee, or any Debentureholder, before the Allocable Amounts of all Senior
Indebtedness 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 by the Trustee (if the
Notice required by Section 15.06 has been received by the Trustee) or by any
Debentureholder, 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, as their respective interests may appear, as calculated by
the Company, for application to the payment of all Allocable Amounts of Senior
Indebtedness remaining unpaid to the extent necessary to pay all Allocable
Amounts due on or in respect of 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.
For purposes of this Article XV, the words "cash, property or securities"
shall not be deemed to include shares of stock of the Company as reorganized or
readjusted, or Debentures of the Company or any other Company provided for by a
plan of reorganization or readjustment, the payment of which is subordinated at
least to the extent provided in this Article XV with respect to the Debentures
to the payment of Senior Indebtedness 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
Person or the liquidation or dissolution of the Company following the sale,
conveyance, transfer or lease of its property as an entirety, or substantially
as an entirety, to another Person upon the terms and conditions provided for in
Article X of this Indenture shall not be deemed a dissolution, winding-up,
liquidation or reorganization for the purposes of this Section 15.03 if such
other Person shall, as a part of such consolidation, merger, sale, conveyance,
transfer or lease, comply with the conditions stated in Article X of this
Indenture. Nothing in Section 15.02 or in this Section 15.03 shall apply to
claims of, or payments to, the Trustee under or pursuant to Section 6.06 of this
Indenture.
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SECTION 15.04 Subrogation.
Subject to the payment in full of all Allocable Amounts of Senior
Indebtedness, the rights of the Debentureholders 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 Debentures to which the Debentureholders
or the Trustee would be entitled except for the provisions of this Article XV,
and no payment over pursuant to the provisions of this Article XV to or for the
benefit of the holders of such Senior Indebtedness by Debentureholders 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 XV 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.
Nothing contained in this Article XV 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 principal of and
interest (including Compounded Interest and Additional Sums, if any) 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 XV 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.
SECTION 15.05 Trustee to Effectuate Subordination.
Each Debentureholder, by such Debentureholder's acceptance thereof,
authorizes and directs the Trustee on such Debentureholder's behalf to take such
action (as the Trustee, in its discretion, deems necessary or appropriate, upon
instruction or otherwise) to effectuate the subordination provided in this
Article XV and appoints the Trustee such Debentureholder's attorney-in-fact for
any and all such purposes.
SECTION 15.06 Notice by the Company.
The Company shall give prompt written notice to a Responsible Officer of
the Trustee of any fact known to the Company that would prohibit the making of
any payment of monies to or by the Trustee in respect of the Debentures pursuant
to the provisions of this Article XV. Notwithstanding the provisions of this
Article XV or any other provision of this Indenture, the
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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 XV, 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 Article VI of this Indenture, 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 15.06 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 (including Compounded
Interest and Additional Sums, if any) on any Debenture), then, anything herein
contained to the contrary notwithstanding, the Trustee shall have full power and
authority to receive such money and to apply the same to the purposes for which
they were received, and shall not be affected by any notice to the contrary that
may be received by it within two Business Days prior to such date.
The Trustee, subject to the provisions of Article VI of this Indenture,
shall be entitled to conclusively rely on a written notice delivered to it by a
Person representing himself to be a holder of Senior Indebtedness of the Company
(or a trustee on behalf of such holder), as the case may be, 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 XV, 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 XV,
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.
Upon any payment or distribution of assets of the Company referred to in
this Article XV, the Trustee, subject to the provisions of Article VI of this
Indenture, and the Debentureholders shall be entitled to conclusively rely upon
any order or decree entered by any court of competent jurisdiction in which such
insolvency, bankruptcy, receivership, liquidation, reorganization, dissolution,
winding-up or similar case or proceeding is pending, or a certificate of the
trustee in bankruptcy, liquidating trustee, custodian, receiver, assignee for
the benefit of creditors, agent or other person making such payment or
distribution, delivered to the Trustee or to the Debentureholders, for the
purpose of ascertaining the persons entitled to participate in such payment or
distribution, the holders of Senior Indebtedness and other indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article XV.
SECTION 15.07 Rights of the Trustee; Holders of Senior Indebtedness.
The Trustee in its individual capacity shall be entitled to all the rights
set forth in this Article XV in respect of any Senior Indebtedness at any time
held by it, to the same extent as any
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other holder of Senior Indebtedness, and nothing in this Indenture shall deprive
the Trustee of any of its rights as such holder.
With respect to the holders of Senior Indebtedness 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 XV, 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 Article VI of this Indenture, the Trustee shall not
be liable to any holder of such Senior Indebtedness if it shall pay over or
deliver to Debentureholders, 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 XV or otherwise.
Nothing in this Article XV shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 6.06.
SECTION 15.08 Subordination May Not Be Impaired.
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, as the case may be, or by any act or failure to act, in good faith, by
any such holder, or by any noncompliance by the Company, as the case may be,
with the terms, provisions and covenants of this Indenture, regardless of any
knowledge thereof that any such holder may have or otherwise be charged with.
Without in any way limiting the generality of the foregoing paragraph, the
holders of Senior Indebtedness of the Company may, at any time and from time to
time, without the consent of or notice to the Trustee or the Debentureholders,
without incurring responsibility to the Debentureholders and without impairing
or releasing the subordination provided in this Article XV 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, as the case may be, and any other
Person.
SECION 15.09 Payment Blockage Notice
During the continuance of any event of default with respect to any Senior
Indebtedness, as such event of default is defined under any such Senior
Indebtedness or in any agreement pursuant to which any Senior Indebtedness has
been issued (other than a default in payment of the principal of or interest on
any Senior Indebtedness), permitting the holder or holders of such
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Senior Indebtedness to accelerate the maturity thereof, no payment shall be made
by the Company, directly or indirectly, with respect to principal of, premium,
if any, or interest on the Debentures for 179 days following notice in writing
(a "Payment Blockage Notice") to the Company, from any holder or holders of such
Senior Indebtedness or their representative or representatives or the trustee or
trustees under any indenture or under which any instrument evidencing any such
Senior Indebtedness may have been issued, that such an event of default has
occurred and is continuing, unless such event of default has been cured or
waived or such Senior Indebtedness has been paid in full; provided, however, if
the maturity of such Senior Indebtedness is accelerated, no payment may be made
on the Debentures until such Senior Indebtedness has been paid in full in cash
or other payment satisfactory to the holders of such Senior Indebtedness or such
acceleration (or termination, in the case of a lease) has been cured or waived.
For purposes of this Section 15.09, such Payment Blockage Notice shall be
deemed to include notice of all other events of default under such indenture or
instrument which are continuing at the time of the event of default specified in
such Payment Blockage Notice. The provisions of this Section 15.09 shall apply
only to one such Payment Blockage Notice given in any period of 365 days with
respect to any issue of Senior Indebtedness, and no such continuing event of
default that existed or was continuing on the date of delivery of any Payment
Blockage Notice shall be, or shall be made, the basis for a subsequent Payment
Blockage Notice.
ARTICLE XVI
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 16.01 Extension of Interest Payment Period.
So long as no Event of Default has occurred and is continuing, the Company
shall have the right, at any time and from time to time during the term of the
Debentures of any series, to defer payments of interest by extending the
interest payment period of such Debentures of such series for a period not
exceeding 10 consecutive semi-annual periods, including the first such
semi-annual period during such extension period (the "Extended Period"), during
which Extended Period no interest shall be due and payable, provided that no
Extended Period shall end on a date other than an Interest Payment Date or
extend beyond the Stated Maturity 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 16.01, will bear
interest thereon at the Coupon Rate compounded semi-annually for each
semi-annual period during the Extended Period ("Compounded Interest"). At the
end of the Extended Period, the Company shall pay all interest accrued and
unpaid on the Debentures of such series, including any Additional Sums and
Compounded Interest (together, "Deferred Interest"), that shall be payable to
the holders of the Debentures of such series in whose names the Debentures are
registered in the Debenture Register on the record date immediately preceding
the end of the Extended Period. Before the termination of any Extended Period,
the Company may further defer payments of interest by further extending such
Extended Period, provided that such Extended Period, together with all such
previous and further extensions within such Extended Period, shall not (i)
exceed 10 consecutive semi-annual periods, including the first such semi-
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annual period during such Extended Period, (ii) end on a date other than an
Interest Payment Date or (iii) extend beyond the Stated Maturity Date of the
Debentures of such series. Upon the termination of any Extended Period and the
payment of all amounts then due, the Company may commence a new Extended Period,
subject to the foregoing requirements. No interest shall be due and payable
during an Extended 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
Period.
SECTION 16.02 Notice of Extension.
(a) If the Property Trustee is the only holder of the Debentures of any
series at the time the Company elects to commence an Extended Period, the
Company shall give written notice to the Administrative Trustees, the Property
Trustee and the Trustee of its election to commence such Extended Period at
least five Business Days before the earlier of (i) the next succeeding date on
which Distributions on the Trust Securities would have been payable, and (ii)
the date the Property Trustee is required to give notice of the record date, or
the date such Distributions are payable, to any national securities exchange or
to holders of the Preferred Securities, but in any event at least five Business
Days before such record date.
(b) If the Property Trustee is not the only holder of the Debentures of
such series at the time the Company elects to commence an Extended Period, the
Company shall give the holders of the Debentures of such series and the Trustee
written notice of its election of such Extended Period at least 10 Business Days
before the earlier of (i) the next succeeding Interest Payment Date, and (ii)
the date the Trustee is required to give notice of the record or payment date of
such interest payment to any national securities exchange.
(c) The semi-annual period in which any notice is given pursuant to
paragraphs (a) or (b) of this Section 16.02 shall be counted as one of the 10
semi-annual periods permitted in the maximum Extended Period permitted under
Section 16.01.
Wilmington Trust Company hereby accepts the trusts in this Indenture
declared and provided, upon the terms and conditions hereinabove set forth.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed by their respective officers thereunto duly authorized, as of
the day and year first above written.
NEW YORK COMMUNITY BANCORP, INC.
By:
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Name:
Title:
WILMINGTON TRUST COMPANY,
as Trustee
By:
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Name:
Title:
