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EXHIBIT 4.1
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SUMMIT BANCORP.
as Issuer
INDENTURE
Dated as of March 20, 1997
THE FIRST NATIONAL BANK OF CHICAGO
as Trustee
SUBORDINATED DEBT SECURITIES
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TIE-SHEET
of provisions of Trust Indenture Act of 1939 with Indenture dated as of March
20, 1997 between Summit Bancorp., as Issuer, and The First National Bank of
Chicago, as Trustee:
ACT SECTION INDENTURE SECTION
310(a)(1)........................................... 6.09
310(a)(2)........................................... 6.09
310(a)(3)........................................... N.A.
310(a)(4)........................................... N.A.
310(a)(5)........................................... 6.09
310(b).............................................. 6.08; 6.10(a)(b) and (d)
310(c).............................................. N.A.
311(a) and (b)...................................... 6.13
311(c).............................................. N.A.
312(a).............................................. 4.01; 4.02(a)
312(b) and (c)...................................... 4.02(b) and (c)
313(a).............................................. 4.04(a)
313(b)(1)........................................... N.A.
313(b)(2)........................................... 4.04(a)
313(c).............................................. 4.04(a)
313(d).............................................. 4.04(b)
314(a).............................................. 4.03
314(b).............................................. N.A.
314(c)(1) and (2)................................... 13.06
314(c)(3)........................................... N.A.
314(d).............................................. N.A.
314(e).............................................. 13.06
314(f).............................................. N.A.
315(a)(c) and (d)................................... 6.01
315(b).............................................. 5.08
315(e).............................................. 5.09
316(a)(1)........................................... 5.01; 5.07
316(a)(2)........................................... N.A.
316(a) last sentence................................ 7.04
316(b).............................................. 5.04
317(a).............................................. 5.02
317(b).............................................. 3.04(a)
318(a).............................................. 13.08
THIS TIE-SHEET IS NOT PART OF THE INDENTURE AS EXECUTED.
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TABLE OF CONTENTS
Page
Parties........................................................................1
Recitals.......................................................................1
Authorization of Indenture.....................................................1
Compliance with Legal Requirements.............................................1
Purpose of and Consideration for Indenture.....................................1
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions.....................................................1
Affiliate.............................................................2
Allocable Amounts.....................................................2
Authenticating Agent..................................................2
Bankruptcy Law........................................................2
Board of Directors....................................................2
Board Resolution......................................................2
Business Day..........................................................2
Capital Securities....................................................2
Capital Securities Guarantee..........................................2
Certificate...........................................................2
Common Securities.....................................................3
Common Securities Guarantee...........................................3
Company...............................................................3
Custodian.............................................................3
Debt Security or Debt Securities......................................3
Debt Security Register................................................3
Declaration...........................................................3
Default...............................................................3
Depositary............................................................3
Event of Default......................................................3
Exchange Act..........................................................3
Global Security.......................................................3
Indebtedness for Money Borrowed.......................................4
Indebtedness Ranking Junior to the Debt Securities....................4
Indebtedness Ranking on a Parity with the Debt Securities.............4
Indenture.............................................................4
Institutional Trustee.................................................4
Interest..............................................................4
Interest Payment Date.................................................4
Mortgage..............................................................4
Officers' Certificate.................................................4
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Opinion of Counsel....................................................4
Original Issue Date...................................................4
Original Issue Discount Security......................................5
outstanding...........................................................5
Person................................................................5
Predecessor Security..................................................5
Principal Office of the Trustee.......................................5
Responsible Officer...................................................6
Restricted Securities Legend..........................................6
Securityholder, holder of Debt Securities.............................6
Senior Indebtedness...................................................6
Subsidiary............................................................6
Summit Trust..........................................................6
Trust Indenture Act...................................................6
Trust Securities......................................................6
Trustee...............................................................7
Yield to Maturity.....................................................7
ARTICLE II
DEBT SECURITIES
SECTION 2.01. Forms Generally.................................................7
SECTION 2.02. Form of Trustee's Certificate of Authentication.................7
SECTION 2.03. Amount Unlimited; Issuable in Series............................8
SECTION 2.04. Authentication and Dating......................................10
SECTION 2.05. Date and Denomination of Debt Securities.......................11
SECTION 2.06. Execution of Debt Securities...................................12
SECTION 2.07. Exchange and Registration of Transfer of Debt Securities.......13
SECTION 2.08. Mutilated, Destroyed, Lost or Stolen Debt Securities...........15
SECTION 2.09. Temporary Debt Securities......................................16
SECTION 2.10. Cancellation of Debt Securities Paid, etc......................17
SECTION 2.11. Global Securities..............................................17
SECTION 2.12. CUSIP Numbers..................................................18
ARTICLE III
PARTICULAR COVENANTS OF THE COMPANY
SECTION 3.01. Payment of Principal, Premium and Interest.....................18
SECTION 3.02. Offices for Notices and Payments, etc..........................19
SECTION 3.03. Appointments to Fill Vacancies in Trustee's Office.............19
SECTION 3.04. Provision as to Paying Agent...................................19
SECTION 3.05. Certificate to Trustee.........................................20
SECTION 3.06. Compliance with Consolidation Provisions.......................21
SECTION 3.07. Limitation on Dividends........................................21
SECTION 3.08. Covenants as to Summit Trusts..................................21
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SECTION 3.09. Calculation of Original Issue Discount.........................22
ARTICLE IV
SECURITYHOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
SECTION 4.01. Securityholders' Lists.........................................22
SECTION 4.02. Preservation and Disclosure of Lists...........................22
SECTION 4.03. [Reserved].....................................................24
SECTION 4.04. Reports by the Trustee.........................................24
ARTICLE V
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS UPON AN EVENT OF
DEFAULT
SECTION 5.01. Events of Default..............................................24
SECTION 5.02. Payment of Debt Securities on Default; Suit Therefor...........27
SECTION 5.03. Application of Moneys Collected by Trustee.....................28
SECTION 5.04. Proceedings by Securityholders.................................29
SECTION 5.05. Proceedings by Trustee.........................................29
SECTION 5.06. Remedies Cumulative and Continuing.............................29
SECTION 5.07. Direction of Proceedings and Waiver of Defaults by Majority of
Securityholders...........................................30
SECTION 5.08. Notice of Defaults.............................................31
SECTION 5.09. Undertaking to Pay Costs.......................................31
ARTICLE VI
CONCERNING THE TRUSTEE
SECTION 6.01. Duties and Responsibilities of Trustee.........................31
SECTION 6.02. Reliance on Documents, Opinions, etc...........................33
SECTION 6.03. No Responsibility for Recitals, etc............................34
SECTION 6.04. Trustee, Authenticating Agent, Paying Agents, Transfer Agents or
Registrar May Own Debt Securities.........................34
SECTION 6.05. Moneys to be Held in Trust.....................................34
SECTION 6.06. Compensation and Expenses of Trustee...........................34
SECTION 6.07. Officers' Certificate as Evidence..............................35
SECTION 6.08. Conflicting Interest of Trustee................................35
SECTION 6.09. Eligibility of Trustee.........................................36
SECTION 6.10. Resignation or Removal of Trustee..............................36
SECTION 6.11. Acceptance by Successor Trustee................................37
SECTION 6.12. Succession by Merger, etc......................................38
SECTION 6.13. Limitation on Rights of Trustee as a Creditor..................39
SECTION 6.14. Authenticating Agents..........................................39
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ARTICLE VII
CONCERNING THE SECURITYHOLDERS
SECTION 7.01. Action by Securityholders......................................40
SECTION 7.02. Proof of Execution by Securityholders..........................41
SECTION 7.03. Who Are Deemed Absolute Owners.................................41
SECTION 7.04. Debt Securities Owned by Company Deemed Not Outstanding........41
SECTION 7.05. Revocation of Consents; Future Holders Bound...................42
ARTICLE VIII
SECURITYHOLDERS' MEETINGS
SECTION 8.01. Purposes of Meetings...........................................42
SECTION 8.02. Call of Meetings by Trustee....................................43
SECTION 8.03. Call of Meetings by Company or Securityholders.................43
SECTION 8.04. Qualifications for Voting......................................43
SECTION 8.05. Regulations....................................................43
SECTION 8.06. Voting.........................................................44
SECTION 8.07. Quorum; Actions................................................45
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures without Consent of Securityholders.....45
SECTION 9.02. Supplemental Indentures with Consent of Securityholders........47
SECTION 9.03. Compliance with Trust Indenture Act; Effect of Supplemental
Indentures................................................48
SECTION 9.04. Notation on Debt Securities....................................49
SECTION 9.05. Evidence of Compliance of Supplemental Indenture to be Furnished
to Trustee................................................49
ARTICLE X
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
SECTION 10.01. Company May Consolidate, etc., on Certain Terms................49
SECTION 10.02. Successor Entity to be Substituted.............................50
SECTION 10.03. Opinion of Counsel to be Given to Trustee......................50
ARTICLE XI
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 11.01. Discharge of Indenture........................................50
SECTION 11.02. Deposited Moneys to be Held in Trust by Trustee...............51
SECTION 11.03. Paying Agent to Repay Moneys Held.............................51
SECTION 11.04. Return of Unclaimed Moneys....................................51
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ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.01. Indenture and Debt Securities Solely Corporate Obligations....52
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01. Successors....................................................52
SECTION 13.02. Official Acts by Successor Entity.............................52
SECTION 13.03. Surrender of Company Powers...................................52
SECTION 13.04. Addresses for Notices, etc....................................53
SECTION 13.05. Governing Law.................................................53
SECTION 13.06. Evidence of Compliance with Conditions Precedent..............53
SECTION 13.07. Non-Business Days.............................................53
SECTION 13.08. Trust Indenture Act to Control................................54
SECTION 13.09. Table of Contents, Headings, etc..............................54
SECTION 13.10. Execution in Counterparts.....................................54
SECTION 13.11. Separability..................................................54
SECTION 13.12. Assignment....................................................54
SECTION 13.13. Acknowledgment of Rights......................................54
ARTICLE XIV
REDEMPTION OF SECURITIES -- MANDATORY AND OPTIONAL SINKING FUND
SECTION 14.01. Applicability of Article......................................55
SECTION 14.02. Notice of Redemption; Selection of Debt Securities............55
SECTION 14.03. Payment of Debt Securities Called for Redemption..............56
SECTION 14.04. Mandatory and Optional Sinking Fund...........................56
ARTICLE XV
SUBORDINATION OF DEBT SECURITIES
SECTION 15.01. Agreement to Subordinate......................................58
SECTION 15.02. Default on Senior Indebtedness................................60
SECTION 15.03. Liquidation; Dissolution; Bankruptcy..........................60
SECTION 15.04. Subrogation...................................................62
SECTION 15.05. Trustee to Effectuate Subordination...........................63
SECTION 15.06. Notice by the Company.........................................63
SECTION 15.07. Rights of the Trustee; Holders of Senior Indebtedness.........64
SECTION 15.08. Subordination May Not Be Impaired.............................64
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THIS INDENTURE, dated as of March 20, 1997, between Summit Bancorp., a
New Jersey corporation (hereinafter sometimes called the "Company"), and The
First National Bank of Chicago, a national banking association, as trustee
(hereinafter sometimes called the "Trustee"),
W I T N E S S E T H :
WHEREAS, for its lawful corporate purposes, the Company has duly
authorized the issue from time to time of its subordinated unsecured debentures,
notes or other evidence of indebtedness to be issued in one or more series (the
"Debt Securities") up to such principal amount or amounts as may from time to
time be authorized in accordance with the terms of this Indenture and, to
provide the terms and conditions upon which the Debt Securities are to be
authenticated, issued and delivered, the Company has duly authorized the
execution of this Indenture; and
WHEREAS, all acts and things necessary to make this Indenture a valid
agreement according to its terms, have been done and performed;
NOW, THEREFORE, This Indenture Witnesseth:
In consideration of the premises, and the purchase of the Debt
Securities by the holders thereof, the Company covenants and agrees with the
Trustee for the equal and proportionate benefit of the respective holders from
time to time of the Debt Securities or of a series thereof, as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions.
The terms defined in this Section 1.01 (except as herein otherwise
expressly provided or unless the context otherwise requires) for all purposes of
this Indenture and of any indenture supplemental hereto shall have the
respective meanings specified in this Section 1.01. 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.
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"Affiliate" means, with respect to a specified Person, (a) any Person
directly or indirectly owning, controlling or holding with power to vote 10% or
more of the outstanding voting securities or other ownership interests of the
specified Person, (b) any Person 10% or more of whose outstanding voting
securities or other ownership interests are directly or indirectly owned,
controlled or held with power to vote by the specified Person, (c) any Person
directly or indirectly controlling, controlled by, or under common control with
the specified Person, (d) a partnership in which the specified Person is a
general partner, (e) any executive officer or director of the specified Person,
and (f) if the specified Person is an individual, any entity of which the
specified Person is an executive officer, director or general partner.
"Allocable Amounts" shall have the meaning set forth in Section 15.01
hereof.
"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.
"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 the board of directors or the executive
committee or any other duly authorized designated officers of the Company.
"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.
"Business Day" shall mean, with respect to any series of Debt
Securities, any day other than a Saturday, Sunday or any other day on which
banking institutions in ▇▇▇ ▇▇▇▇ ▇▇▇▇ (▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇) and Princeton
(in the State of New Jersey) are permitted or required by any applicable law to
close.
"Capital Securities" shall mean undivided beneficial interests in the
assets of a Summit Trust which rank pari passu with Common Securities issued by
such Summit Trust; provided, however, that upon the occurrence of an Event of
Default (as defined in the Declaration with respect to such Summit Trust), the
rights of holders of such Common Securities to payment in respect of
distributions and payments upon liquidation, redemption and otherwise are
subordinated to the rights of holders of such Capital Securities.
"Capital Securities Guarantee" shall mean, in respect of any Summit
Trust, any guarantee that the Company may enter into with The First National
Bank of Chicago or other Persons that operates directly or indirectly for the
benefit of holders of Capital Securities of such Summit Trust.
"Certificate" shall mean a certificate signed by any one of the
principal executive officer, the principal financial officer or the principal
accounting officer of the Company.
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"Common Securities" shall mean undivided beneficial interests in the
assets of a Summit Trust which rank pari passu with Capital Securities issued by
such Summit Trust; provided, however, that upon the occurrence of an Event of
Default (as defined in the Declaration with respect to such Summit Trust), the
rights of holders of such Common Securities to payment in respect of
distributions and payments upon liquidation, redemption and otherwise are
subordinated to the rights of holders of such Capital Securities.
"Common Securities Guarantee" shall mean, in respect of any Summit
Trust, any guarantee that the Company may enter into with any Person or Persons
and that operates directly or indirectly for the benefit of holders of Common
Securities of such Summit Trust.
"Company" shall mean Summit Bancorp., a New Jersey corporation, and,
subject to the provisions of Article X, shall include its successors and
assigns.
"Custodian" shall mean any receiver, trustee, assignee, liquidator, or
similar official under any Bankruptcy Law.
"Debt Security" or "Debt Securities" shall have the meaning stated in
the first recital of this Indenture and more particularly means any debt
security or debt securities, as the case may be, authenticated and delivered
under this Indenture.
"Debt Security Register" shall have the meaning specified in Section
2.07.
"Declaration," with respect to a Summit Trust, shall mean the Amended
and Restated Declaration of Trust of such Summit Trust, as amended or
supplemented from time to time.
"Default" means any event, act or condition that with notice or lapse
of time, or both, would constitute an Event of Default.
"Depositary" shall mean, with respect to Debt Securities of any series
for which the Company shall determine that such Debt Securities will be issued
as a Global Security, The Depository Trust Company, New York, New York, another
clearing agency, or any successor registered as a clearing agency under the
Exchange Act, or other applicable statute or regulation, which, in each case,
shall be designated by the Company pursuant to either Section 2.03 or 2.11.
"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.
"Global Security" shall mean, with respect to any series of Debt
Securities, a Debt Security executed by the Company and delivered by the Trustee
to the Depositary or pursuant to the Depositary's instruction, all in accordance
with this Indenture, which shall be registered in the name of the Depositary or
its nominee.
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"Indebtedness for Money Borrowed" shall have the meaning set forth in
Section 15.01 hereof.
"Indebtedness Ranking Junior to the Debt Securities" shall have the
meaning set forth in Section 15.01 hereof.
"Indebtedness Ranking on a Parity with the Debt Securities" shall have
the meaning set forth in Section 15.01 hereof.
"Indenture" shall mean this instrument as originally executed or, if
amended or supplemented as herein provided, as so amended or supplemented, or
both, and shall include the form and terms of particular series of Debt
Securities established as contemplated hereunder.
"Institutional Trustee" has the meaning set forth in the Declaration of
the applicable Summit Trust.
"Interest" shall mean, when used with respect to noninterest bearing
Debt Securities, interest payable after maturity.
"Interest Payment Date," when used with respect to any installment of
interest on a Debt Security of a particular series, shall mean the date
specified in such Debt Security or in a Board Resolution or in an indenture
supplemental hereto with respect to such series as the fixed date on which an
installment of interest with respect to Debt Securities of that series is due
and payable.
"Mortgage" shall mean and include any mortgage, pledge, lien, security
interest, conditional sale or other title retention agreement or other similar
encumbrance.
"Officers' Certificate" shall mean a certificate signed by the Chairman
of the Board, the Vice Chairman, the President, or any Vice President, and by
the Treasurer, an Assistant Treasurer, the Comptroller, an Assistant
Comptroller, the Secretary or an Assistant Secretary of the Company, and
delivered to the Trustee. Each such certificate shall include the statements
provided for in Section 13.06 if and to the extent required by the provisions of
such Section.
"Opinion of Counsel" shall mean an opinion in writing signed by legal
counsel, who may be an employee of or counsel to the Company, or may be other
counsel satisfactory to the Trustee. Each such opinion shall include the
statements provided for in Section 13.06 if and to the extent required by the
provisions of such Section.
"Original Issue Date" of any Debt Security (or any portion thereof)
shall mean the earlier of (a) the date of such Debt Security or (b) the date of
any Debt Security (or portion thereof) for which such Debt Security was issued
(directly or indirectly) on registration of transfer, exchange or substitution.
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"Original Issue Discount Security" shall mean any Debt Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the maturity thereof pursuant to
Section 5.01.
The term "outstanding," when used with reference to Debt Securities,
shall, subject to the provisions of Section 7.04, mean, as of any particular
time, all Debt Securities authenticated and delivered by the Trustee or the
Authenticating Agent under this Indenture, except
(a) Debt Securities theretofore canceled by the Trustee or the
Authenticating Agent or delivered to the Trustee for cancellation;
(b) Debt Securities, or portions thereof, for the payment or redemption
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 Debt Securities,
or portions thereof, are to be redeemed prior to maturity thereof, notice of
such redemption shall have been given as provided in Article Fourteen or
provision satisfactory to the Trustee shall have been made for giving such
notice; and
(c) Debt Securities paid pursuant to Section 2.08 or in lieu of or in
substitution for which other Debt Securities shall have been authenticated
and delivered pursuant to the terms of Section 2.08 unless proof
satisfactory to the Company and the Trustee is presented that any such Debt
Securities are held by bona fide holders in due course.
In determining whether the holders of the requisite principal amount of
outstanding Debt Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, the principal amount of an
Original Issue Discount Security that shall be deemed to be outstanding for such
purposes shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon a declaration of acceleration
of the maturity thereof pursuant to Section 5.01.
"Person" shall mean any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Predecessor Security" of any particular Debt Security means every
previous Debt Security evidencing all or a portion of the same debt as that
evidenced by such particular Debt Security; and, for the purposes of this
definition, any Debt Security authenticated and delivered under Section 2.08 in
lieu of a lost, destroyed or stolen Debt Security shall be deemed to evidence
the same debt as the lost, destroyed or stolen Debt Security.
"Principal 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 principally
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administered, which at the time of the execution of this Indenture shall be ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇.
"Responsible Officer" shall mean, with respect to the Trustee, any
officer within the Principal Office of the Trustee, including any
vice-president, any assistant vice-president, any secretary, any assistant
secretary, the treasurer, any assistant treasurer, any trust officer or other
officer of the Principal Trust Office of the Trustee customarily performing
functions similar to those performed by any of the above designated officers and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of that officer's knowledge of
and familiarity with the particular subject.
"Restricted Securities Legend" shall have the meaning as set forth in
Section 2.7.
"Securityholder," "holder of Debt Securities," or other similar terms,
shall mean any Person in whose name at the time a particular Debt Security is
registered on the register kept by the Company or the Trustee for that purpose
in accordance with the terms hereof.
"Senior Indebtedness" shall have the meaning as set forth in Section
15.01.
"Subsidiary" shall mean with respect to any Person, (i) any corporation
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 or similar entity, at least a majority of the outstanding partnership or
similar interests of which 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.
"Summit Trust" shall mean a Delaware business trust, or any other
similar trust created for the purpose of issuing Capital Securities in
connection with the issuance of Debt Securities under this Indenture, of which
the Company is the sponsor.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939 as in
force at the date of execution of this Indenture, except as provided in Section
9.03; provided, however, that, in the event the Trust Indenture Act of 1939 is
amended after such date, "Trust Indenture Act" shall mean, to the extent
required by any such amendment, the Trust Indenture Act of 1939 as so amended.
"Trust Securities" shall mean Common Securities and Capital Securities
of a Summit Trust.
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"Trustee" shall mean the Person identified as "Trustee" in the first
paragraph hereof, and, subject to the provisions of Article VI hereof, shall
also include its successors and assigns as Trustee hereunder. The term "Trustee"
as used with respect to a particular series of Debt Securities shall mean the
trustee with respect to that series.
"Yield to Maturity" shall mean the yield to maturity on a series of
Debt Securities, calculated at the time of issuance of such series of Debt
Securities, or if applicable, at the most recent predetermination of interest on
such series and calculated in accordance with accepted financial practice.
ARTICLE II
DEBT SECURITIES
SECTION 2.01. Forms Generally.
The Debt Securities of each series shall be in substantially the form
as shall be established by or pursuant to a Board Resolution and as set forth in
an Officers' Certificate of the Company or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with any law or with any rules made pursuant thereto or with any rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution of the Debt
Securities.
In the event the Debt Securities are issued in definitive form pursuant
to this Indenture, such Debt Securities shall be typed, printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner, all
as determined by the officers executing such Debt Securities, as evidenced by
their execution of such Debt Securities.
SECTION 2.02. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication on all Debt Securities
shall be in substantially the following form:
This is one of the Debt Securities of the series designated therein
referred to in the within-mentioned Indenture.
The First National Bank of Chicago, as Trustee
By_________________________
Authorized Officer
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SECTION 2.03. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Debt Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Debt Securities may be issued in one or more series up to the
aggregate principal amount of Debt Securities of that series from time to time
authorized by or pursuant to a Board Resolution of the Company or pursuant to
one or more indentures supplemental hereto. Prior to the initial issuance of
Debt Securities of any series, there shall be established in or pursuant to a
Board Resolution of the Company and set forth in an Officers' Certificate of the
Company or established in one or more indentures supplemental hereto:
(1) the title of the Debt Securities of the series (which shall
distinguish Debt Securities of the series from all other Debt Securities);
(2) any limit upon the aggregate principal amount of the Debt
Securities of the series which may be authenticated and delivered under this
Indenture (except for Debt Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other Debt
Securities of the series pursuant to Section 2.07, 2.08, 2.09, 9.04 or
14.03);
(3) the date or dates on which the principal of and premium, if
any, on the Debt Securities of the series is payable;
(4) the rate or rates at which the Debt Securities of the series
shall bear interest, if any, or the method by which such interest may be
determined, the date or dates from which such interest shall accrue, the
Interest Payment Dates on which such interest shall be payable or the manner
of determination of such Interest Payment Dates and the record dates for the
determination of holders to whom interest is payable on any such Interest
Payment Dates;
(5) the place or places where the principal of, and premium, if
any, and any interest on Debt Securities of the series shall be payable;
(6) the right, if any, to extend the interest payment periods and
the duration of such extension;
(7) the price or prices at which, the period or periods within
which and the terms and conditions upon which Debt Securities of the series
may be redeemed, in whole or in part, at the option of the Company, pursuant
to any sinking fund or otherwise:
(8) the obligation, if any, of the Company to redeem, purchase or
repay Debt Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Securityholder thereof and the
price or prices at which and the period or periods within which, and the
terms and conditions upon which Debt Securities of the
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series shall be redeemed, purchased or repaid, in whole or in part, pursuant
to such obligation;
(9) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Debt Securities of the series shall be
issuable;
(10) if other than the principal amount thereof, the portion of the
principal amount of Debt Securities of the series which shall be payable
upon declaration of acceleration of the maturity thereof pursuant to Section
5.01 or provable in bankruptcy pursuant to Section 5.02;
(11) any Events of Default with respect to the Debt Securities of a
particular series, if not set forth herein;
(12) the form of the Debt Securities of the series including the
form of the certificate of authentication of such series;
(13) any trustee, authenticating or paying agents, warrant agents,
transfer agents or registrars with respect to the Debt Securities of such
series;
(14) whether the Debt Securities of the series shall be issued in
whole or in part in the form of one or more Global Securities and, in such
case, the Depositary for such Global Security or Securities, and whether
beneficial owners of interests in any such Global Securities may exchange
such interests for other Debt Securities of such series in the manner
provided in Section 2.07, and the manner and the circumstances under which
and the place or places where any such exchanges may occur if other than in
the manner provided in Section 2.07, and any other terms of the series
relating to the global nature of the Global Securities of such series and
the exchange, registration or transfer thereof and the payment of any
principal thereof, or interest or premium, if any, thereon;
(15) if the Debt Securities of the series are issued pursuant to an
exemption from registration under the Securities Act; and
(16) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Debt Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to such resolution of the Board of Directors or in any such indenture
supplemental hereto.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution of the Company, a copy of an appropriate record
of such action shall be certified by the Secretary or an Assistant Secretary of
the Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate of the Company setting forth the terms of the series.
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SECTION 2.04. Authentication and Dating.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Debt Securities of any series executed
by the Company to the Trustee for authentication, and the Trustee shall
thereupon authenticate and make available for delivery said Debt Securities to
or upon the written order of the Company, signed by manual or facsimile
signature of its Chairman of the Board of Directors, Vice Chairman, the
President or one of its Vice Presidents and by its Secretary, any Assistant
Secretary, Treasurer or any Assistant Treasurer, without any further action by
the Company hereunder. In authenticating such Debt Securities, and accepting the
additional responsibilities under this Indenture in relation to such Debt
Securities, the Trustee shall be entitled to receive, and (subject to Section
6.01) shall be fully protected in relying upon:
(1) a copy of any Board Resolution or Board Resolutions relating
thereto and, if applicable, an appropriate record of any action taken
pursuant to such resolution, in each case certified by the Secretary or an
Assistant Secretary of the Company as the case may be;
(2) an executed supplemental indenture, if any;
(3) an Officers' Certificate prepared in accordance with Section
13.06 setting forth the form and terms of the Debt Securities if and as
required pursuant to Sections 2.01 and 2.03, respectively; and
(4) an Opinion of Counsel prepared in accordance with Section 13.06
which shall also state:
(a) that the form of such Debt Securities has been established by or
pursuant to a Board Resolution or by a supplemental indenture as permitted
by Section 2.01 in conformity with the provisions of this Indenture;
(b) that the terms of such Debt Securities have been established by or
pursuant to a resolution of the Board of Directors or by a supplemental
indenture as permitted by Section 2.03 in conformity with the provisions of
this Indenture;
(c) that such Debt Securities, when authenticated and delivered by the
Trustee and issued by the Company in each case in the manner and subject to
any conditions specified in such Opinion of Counsel, will constitute valid
and legally binding obligations of the Company; and
(d) that all laws and requirements in respect of the execution and
delivery by the Company of the Debt Securities, have been complied with and
that authentication and delivery of the Debt Securities by the Trustee will
not violate the terms of this Indenture.
The Trustee shall have the right to decline to authenticate and deliver
any Debt Securities under this Section if the Trustee, being advised by counsel,
determines that such action
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may not lawfully be taken or if a Responsible Officer of the Trustee in good
faith shall determine that such action would expose the Trustee to personal
liability to existing holders.
SECTION 2.05. Date and Denomination of Debt Securities.
The Debt Securities shall be issuable as registered Debt Securities
without coupons and in such denominations as shall be specified as contemplated
by Section 2.03. In the absence of any such specification with respect to the
Debt Securities of any series, the Debt Securities of such series shall be
issuable in the denominations of $1,000 and any multiple thereof. The Debt
Securities shall be numbered, lettered, or otherwise distinguished in such
manner or in accordance with such plans as the officers executing the same may
determine with the approval of the Trustee as evidenced by the execution and
authentication thereof.
Every Debt Security shall be dated the date of its authentication,
shall bear interest, if any, from such date and shall be payable on such dates,
in each case, as contemplated by Section 2.03. The interest installment on any
Security that is payable, and is punctually paid or duly provided for, on any
Interest Payment Date for Debt Securities of that series shall be paid to the
Person in whose name said Debt Security (or one or more Predecessor Securities)
is registered at the close of business on the regular record date for such
interest installment. In the event that any Debt Security of a particular series
or portion thereof is called for redemption and the redemption date is
subsequent to a regular record date with respect to any Interest Payment Date
and prior to such Interest Payment Date, interest on such Debt Security will be
paid upon presentation and surrender of such Debt Security as provided in
Section 14.03.
Any interest on any Debt Security that is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date for a Debt
Security of the same series (herein called "Defaulted Interest") shall forthwith
cease to be payable to the registered 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 (1) or clause (2) below:
(1) The Company may make payment of any Defaulted Interest on Debt
Securities to the Persons in whose names such Debt Securities (or their
respective Predecessor Securities) are registered at the close of business
on a special record date for the payment of such Defaulted Interest, which
shall be fixed in the following manner: the Company shall notify the Trustee
in writing of the amount of Defaulted Interest proposed to be paid on each
such Debt Security and the date of the proposed payment, and at the same
time the Company shall deposit with the Trustee an amount of money equal to
the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for such
deposit prior to the date of the proposed payment, such money when deposited
to be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this clause provided. Thereupon the Trustee shall
fix a special record date for the payment of such Defaulted Interest which
shall not be more than 15 nor less than ten days prior to the date of the
proposed payment and not less than ten 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
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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 Securityholder
at his or her address as it appears in the Debt Security Register, not less
than ten 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 Debt Securities (or their respective
Predecessor Securities) are registered on such special record date and shall
be no longer payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on any
Debt Securities in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant
to this clause, such manner of payment shall be deemed practicable by the
Trustee.
In respect of any series of Debt Securities in which the right to extend the
interest payment periods has been provided pursuant to Section 2.03(6), any
interest scheduled to become payable on an Interest Payment Date occurring
during a valid extension of an interest payment period shall not be Defaulted
Interest and shall be payable on such other date as may be specified in the
terms of such Debt Securities.
Unless otherwise set forth in a Board Resolution of the Company or one
or more indentures supplemental hereto establishing the terms of any series of
Debt Securities pursuant to Section 2.01 hereof, the term "regular record date"
as used in this Section with respect to a series of Debt Securities with respect
to any Interest Payment Date for such series shall mean either the fifteenth day
of the month immediately preceding the month in which an Interest Payment Date
established for such series pursuant to Section 2.01 hereof shall occur, if such
Interest Payment Date is the first day of a month, or the last day of the month
immediately preceding the month in which an Interest Payment Date established
for such series pursuant to Section 2.01 hereof shall occur, if such Interest
Payment Date is the fifteenth day of a month, whether or not such date is a
Business Day.
Subject to the foregoing provisions of this Section, each Debt Security
of a series delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Debt Security of such series shall carry
the rights to interest accrued and unpaid, and to accrue, that were carried by
such other Debt Security.
SECTION 2.06. Execution of Debt Securities.
The Debt Securities shall be signed in the name and on behalf of the
Company by the manual or facsimile signature of its Chairman of the Board of
Directors, Vice Chairman, President or one of its Executive Vice Presidents,
Senior Vice Presidents or Vice Presidents and by the manual or facsimile
signature of its Secretary, one of its Assistant Secretaries, its Treasurer or
one of its Assistant Treasurers, under its corporate seal which may be affixed
thereto
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or printed, engraved or otherwise reproduced thereon, by facsimile or otherwise,
and which need not be attested. Only such Debt Securities as shall bear thereon
a certificate of authentication substantially in the form herein before recited,
executed by the Trustee or the Authenticating Agent by the manual signature of
an authorized officer, shall be entitled to the benefits of this Indenture or be
valid or obligatory for any purpose. Such certificate by the Trustee or the
Authenticating Agent upon any Debt Security executed by the Company shall be
conclusive evidence that the Debt Security so authenticated has been duly
authenticated and delivered hereunder and that the holder is entitled to the
benefits of this Indenture.
In case any officer of the Company who shall have signed any of the
Debt Securities shall cease to be such officer before the Debt Securities so
signed shall have been authenticated and delivered by the Trustee or the
Authenticating Agent, or disposed of by the Company, such Debt Securities
nevertheless may be authenticated and delivered or disposed of as though the
Person who signed such Debt Securities had not ceased to be such officer of the
Company; and any Debt Security may be signed on behalf of the Company by such
Persons as, at the actual date of the execution of such Debt Security, shall be
the proper officers of the Company, although at the date of the execution of
this Indenture any such person was not such an officer.
SECTION 2.07. Exchange and Registration of Transfer of Debt Securities.
Subject to Section 2.03(14), Debt Securities of any series may be
exchanged for a like aggregate principal amount of Debt Securities of the same
series of other authorized denominations. Debt Securities to be exchanged may be
surrendered at the principal corporate trust office of the Trustee or at any
office or agency to be maintained by the Company for such purpose as provided in
Section 3.02, and the Company shall execute, the Company or the Trustee shall
register and the Trustee or the Authenticating Agent shall authenticate and make
available for delivery in exchange therefor the Debt Security or Debt Securities
which the Securityholder making the exchange shall be entitled to receive.
Subject to Section 2.03(14), upon due presentment for registration of transfer
of any Debt Security of any series at the principal corporate trust office of
the Trustee or at any office or agency of the Company maintained for such
purpose as provided in Section 3.02, the Company shall execute, the Company or
the Trustee shall register and the Trustee or the Authenticating Agent shall
authenticate and make available for delivery in the name of the transferee or
transferees a new Debt Security or Debt Securities of the same series for a like
aggregate principal amount. Registration or registration of transfer of any Debt
Security by the Trustee or by any agent of the Company appointed pursuant to
Section 3.02, and delivery of such Debt Security, shall be deemed to complete
the registration or registration of transfer of such Debt Security.
The Company shall cause to be kept, at the office or agency maintained
for the purpose of registration of transfer and for exchange as provided in
Section 3.02, a register (the "Debt Security Register") for each series of Debt
Securities issued hereunder in which, subject to such reasonable regulations as
it may prescribe, the Company shall provide for the registration and transfer of
all Debt Securities as in this Article Two provided. Such register shall be in
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written form or in any other form capable of being converted into written form
within a reasonable time.
All Debt Securities presented for registration of transfer or for
exchange or payment shall (if so required by the Company or the Trustee or the
Authenticating Agent) be duly endorsed by, or be accompanied by a written
instrument or instruments of transfer in form satisfactory to the Company and
the Trustee or the Authenticating Agent duly executed by, the holder or his
attorney duly authorized in writing.
No service charge shall be made for any exchange or registration of
transfer of Debt Securities, but the Company or the Trustee may require payment
of a sum sufficient to cover any tax, fee or other governmental charge that may
be imposed in connection therewith.
The Company or the Trustee shall not be required to exchange or
register a transfer of (a) any Debt Security for a period of 15 days next
preceding the date of selection of Debt Securities of such series for
redemption, or (b) any Debt Securities of any series selected, called or being
called for redemption in whole or in part, except in the case of any Debt
Securities of any series to be redeemed in part, the portion thereof not so to
be redeemed.
Notwithstanding the foregoing, if pursuant to Section 2.03, a series of
Debt Securities are issued pursuant to an exemption from registration under the
Securities Act, such Debt Securities may not be transferred except in compliance
with the restricted securities legend set forth below (the "Restricted
Securities Legend"), unless otherwise determined by the Company pursuant to
Section 2.03 and in accordance with applicable law:
THE DEBT SECURITIES HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR ANY STATE SECURITIES LAWS.
NEITHER THIS DEBT SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. THE HOLDER OF THIS DEBT SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH DEBT SECURITY PRIOR TO THE DATE WHICH IS THREE
YEARS (OR SUCH SHORTER PERIOD AFTER WHICH THIS DEBT SECURITY MAY BE TRANSFERRED
WITHOUT REGISTRATION UNDER THE SECURITIES ACT PURSUANT TO RULE 144(K)
THEREUNDER) AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE
ON WHICH SUMMIT BANCORP. (THE "COMPANY") OR ANY AFFILIATE OF THE COMPANY WAS THE
OWNER OF THIS DEBT SECURITY OR ANY PREDECESSOR OF THIS DEBT SECURITY (THE
"RESALE RESTRICTIONS TERMINATION DATE") ONLY (A) TO THE COMPANY, (B) PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (C) FOR SO LONG AS
THE DEBT SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS
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DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING
MADE IN RELIANCE ON RULE 144A, (D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR"
WITHIN THE MEANING OF SUBPARAGRAPH (a) (1), (2), (3) OR (7) OF RULE 501 UNDER
THE SECURITIES ACT THAT IS ACQUIRING THE DEBT SECURITY FOR ITS OWN ACCOUNT OR
FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL "ACCREDITED INVESTOR," FOR INVESTMENT
PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT TO THE COMPANY'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (X)
PURSUANT TO CLAUSE D, TO REQUIRE THAT THE TRANSFEROR DELIVER TO THE TRUST A
LETTER SUBSTANTIALLY IN THE FORM OF ANNEX A TO THE OFFERING MEMORANDUM DATED
MARCH 13, 1997 FROM THE TRANSFEREE AND (Y) PURSUANT TO CLAUSES (D) OR (E) TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO IT IN ACCORDANCE WITH THE INDENTURE, A COPY OF WHICH
MAY BE OBTAINED FROM THE COMPANY. THE HOLDER OF THIS DEBT SECURITY AGREES THAT
IT WILL COMPLY WITH THE FOREGOING RESTRICTIONS. DEBT SECURITIES OWNED BY A
PURCHASER THAT IS NOT A QUALIFIED INSTITUTIONAL BUYER MAY NOT BE HELD IN
BOOK-ENTRY FORM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF A HOLDER AFTER
THE RESALE RESTRICTIONS TERMINATION DATE.
Prior to any distribution of the Debt Securities to the holders of
Capital Securities in accordance with the related Declaration, the Company and
the Trustee shall enter into a supplemental indenture pursuant to Article IX to
provide for transfer procedures and restrictions with respect to the Debt
Securities substantially similar to those contained in the Declaration with
respect to Capital Securities of the corresponding series to the extent
applicable in the circumstances existing at the time of such distribution for
purposes of assuring, if applicable, that no registration of such Debt
Securities is required under the Securities Act of 1933, as amended.
SECTION 2.08. Mutilated, Destroyed, Lost or Stolen Debt Securities.
In case any temporary or definitive Debt Security shall become
mutilated or be destroyed, lost or stolen, the Company shall execute, and upon
its written request the Trustee shall authenticate and deliver, a new Debt
Security of the same series bearing a number not contemporaneously outstanding,
in exchange and substitution for the mutilated Debt Security, or in lieu of and
in substitution for the Debt Security so destroyed, lost or stolen. In every
case the applicant for a substituted Debt Security shall furnish to the Company
and the Trustee such security or indemnity as may be required by them to save
each of them harmless, and, in every case of destruction, loss or theft, the
applicant shall also furnish to the Company and the Trustee evidence to their
satisfaction of the destruction, loss or theft of such Debt Security and of the
ownership thereof.
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The Trustee may authenticate any such substituted Debt Security and
deliver the same upon the written request or authorization of any officer of the
Company. Upon the issuance of any substituted Debt Security, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses connected
therewith. In case any Debt Security which has matured or is about to mature or
has been called for redemption in full shall become mutilated or be destroyed,
lost or stolen, the Company may, instead of issuing a substitute Debt Security,
pay or authorize the payment of the same (without surrender thereof except in
the case of a mutilated Debt Security) if the applicant for such payment shall
furnish to the Company and the Trustee such security or indemnity as may be
required by them to save each of them harmless and, in case of destruction, loss
or theft, evidence satisfactory to the Company and to the Trustee of the
destruction, loss or theft of such Security and of the ownership thereof.
Every substituted Debt Security of any series issued pursuant to the
provisions of this Section 2.08 by virtue of the fact that any such Debt
Security is destroyed, lost or stolen shall constitute an additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Debt
Security shall be found at any time, and shall be entitled to all the benefits
of this Indenture equally and proportionately with any and all other Debt
Securities of the same series duly issued hereunder. All Debt Securities shall
be held and owned upon the express condition that, to the extent permitted by
applicable law, the foregoing provisions are exclusive with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Debt Securities
and shall preclude any and all other rights or remedies notwithstanding any law
or statute existing or hereafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other securities without
their surrender.
SECTION 2.09. Temporary Debt Securities.
Pending the preparation of definitive Debt Securities of any series,
the Company may execute and the Trustee shall authenticate and make available
for delivery temporary Debt Securities that are typed, printed or lithographed.
Temporary Debt Securities shall be issuable in any authorized denomination, and
substantially in the form of the definitive Debt Securities but with such
omissions, insertions and variations as may be appropriate for temporary Debt
Securities, all as may be determined by the Company. Every such temporary Debt
Security shall be executed by the Company and be authenticated by the Trustee
upon the same conditions and in substantially the same manner, and with the same
effect, as the definitive Debt Securities. Without unreasonable delay the
Company will execute and deliver to the Trustee or the Authenticating Agent
definitive Debt Securities and thereupon any or all temporary Debt Securities of
such series may be surrendered in exchange therefor, at the principal corporate
trust office of the Trustee or at any office or agency maintained by the Company
for such purpose as provided in Section 3.02, and the Trustee or the
Authenticating Agent shall authenticate and make available for delivery in
exchange for such temporary Debt Securities a like aggregate principal amount of
such definitive Debt Securities. Such exchange shall be made by the Company at
its own expense and without any charge therefor except that in case of any such
exchange involving a registration of transfer the Company may require payment of
a sum sufficient to cover any tax, fee or other governmental charge that may be
imposed in relation
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thereto. Until so exchanged, the temporary Debt Securities of any series shall
in all respects be entitled to the same benefits under this Indenture as
definitive Debt Securities of the same series authenticated and delivered
hereunder.
SECTION 2.10. Cancellation of Debt Securities Paid, etc.
All Debt Securities surrendered for the purpose of payment, redemption,
exchange or registration of transfer, shall, if surrendered to the Company or
any paying agent, be surrendered to the Trustee and promptly canceled by it, or,
if surrendered to the Trustee or any Authenticating Agent, shall be promptly
canceled by it, and no Debt Securities shall be issued in lieu thereof except as
expressly permitted by any of the provisions of this Indenture. All Debt
Securities canceled by any Authenticating Agent shall be delivered to the
Trustee. The Trustee shall destroy all canceled Debt Securities unless the
Company otherwise directs the Trustee in writing. If the Company shall acquire
any of the Debt Securities, however, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by such Debt
Securities unless and until the same are surrendered to the Trustee for
cancellation.
SECTION 2.11. Global Securities.
(a) If the Company shall establish pursuant to Section 2.03 that the
Debt Securities of a particular series are to be issued as a Global Security,
then the Company shall execute and the Trustee shall, in accordance with Section
2.04, authenticate and deliver, a Global Security that (i) shall represent, and
shall be denominated in an amount equal to the aggregate principal amount of,
all or a specified portion of the outstanding Debt Securities of such series,
(ii) shall be registered in the name of the Depositary or its nominee, (iii)
shall be delivered by the Trustee to the Depositary or pursuant to the
Depositary's instruction and (iv) shall bear a legend substantially to the
following effect: "Except as otherwise provided in Section 2.11 of the
Indenture, this Debt Security may be transferred, in whole but not in part, only
to another nominee of the Depositary or to a successor Depositary or to a
nominee of such successor Depositary."
(b) Notwithstanding the provisions of Section 2.07, the Global Security
of a series may be transferred, in whole but not in part and only in the manner
provided in Section 2.07, only to another nominee of the Depositary for such
series, or to a successor Depositary for such series selected or approved by the
Company or to a nominee of such successor Depositary.
(c) If at any time the Depositary for a series of the Debt Securities
notifies the Company that it is unwilling or unable to continue as Depositary
for such series or if at any time the Depositary for such series shall no longer
be registered or in good standing under the Exchange Act, or other applicable
statute or regulation, and a successor Depositary for such series 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, this Section 2.11 shall
no longer be applicable to the Debt Securities of such series and the Company
will execute, and subject to Section 2.07, the Trustee, upon written request of
the Company, will authenticate and make available for delivery the Debt
Securities of such series in definitive registered form without coupons, in
authorized denominations, and in an aggregate principal amount equal to the
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principal amount of the Global Security of such series in exchange for such
Global Security. In addition, the Company may at any time determine that the
Debt Securities of any series shall no longer be represented by a Global
Security and that the provisions of this Section 2.11 shall no longer apply to
the Debt Securities of such series. In such event the Company will execute and
subject to Section 2.07, the Trustee, upon receipt of an Officers' Certificate
evidencing such determination by the Company, will authenticate and make
available for delivery the Debt Securities of such series in definitive
registered form without coupons, in authorized denominations, and in an
aggregate principal amount equal to the principal amount of the Global Security
of such series in exchange for such Global Security. Upon the exchange of the
Global Security for such Debt Securities in definitive registered form without
coupons, in authorized denominations, the Global Security shall be canceled by
the Trustee. Such Debt Securities in definitive registered form issued in
exchange for the Global Security pursuant to this Section 2.11(c) 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 Debt Securities to
the Depositary for delivery to the Persons in whose names such Debt Securities
are so registered.
SECTION 2.12. CUSIP Numbers.
The Company in issuing the Debt Securities may use "CUSIP" numbers (if
then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in
notices of redemption as a convenience to Securityholders; provided that any
such notice may state that no representation is made as to the correctness of
such numbers either as printed on the Debt Securities or as contained in any
notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Debt Securities, and any such redemption
shall not be affected by any defect in or omission of such numbers. The Company
will promptly notify the Trustee in writing of any change in the CUSIP numbers.
ARTICLE III
PARTICULAR COVENANTS OF THE COMPANY
SECTION 3.01. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of Debt
Securities that it will duly and punctually pay or cause to be paid the
principal of and premium, if any, and interest on each of the Debt Securities of
that series at the place, at the respective times and in the manner provided in
such Debt Securities. At the option of the Company, each installment of interest
on the Debt Securities of any series may be paid (i) by mailing checks for such
interest payable to the order of the holders of Debt Securities entitled thereto
as they appear on the registry books of the Company or (ii) if so specified with
respect to the Debt Securities of such series as contemplated by Section 2.03,
by wire transfer to any account with a banking institution located in the United
States designated by such Person to the paying agent no later than the related
record date.
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SECTION 3.02. Offices for Notices and Payments, etc.
So long as any of the Debt Securities remain outstanding, the Company
will maintain in the Borough of Manhattan, The City of New York, an office or
agency where the Debt Securities of each series may be presented for payment, an
office or agency where the Debt Securities of that series may be presented for
registration of transfer and for exchange as in this Indenture provided and an
office or agency where notices and demands to or upon the Company in respect of
the Debt Securities of that series or of 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, or
specified as contemplated by Section 2.03, such office or agency for all of the
above purposes shall be the office or agency of the Trustee. In case the Company
shall fail to maintain any such office or agency in the Borough of Manhattan,
The City of New York, 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 principal 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 the Borough of Manhattan,
The City of New York, where the Debt Securities may be presented for
registration of transfer and for exchange 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 the Borough of Manhattan,
The City of New York, 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 Trustee's Office.
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 Debt Securities of any series, it will cause such paying
agent to execute and deliver to the Trustee an instrument in which such agent
shall agree with the Trustee, subject to the provision 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 and premium, if any, or interest, if any, on the Debt
Securities of such series (whether such sums have been paid to it by the Company
or by any other obligor on the Debt Securities of such series) in trust for the
benefit of the holders of the Debt Securities of such series;
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(2) that it will give the Trustee prompt written notice of any failure
by the Company (or by any other obligor on the Debt Securities of such series)
to make any payment of the principal of and premium, if any, or interest, if
any, on the Debt Securities of such series when the same shall be due and
payable; and
(3) that it will, at any time during the continuance of any Event of
Default, upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such paying agent.
(b) If the Company shall act as its own paying agent, it will, on or
before each due date of the principal of and premium, if any, or interest, if
any, on the Debt Securities of any series, set aside, segregate and hold in
trust for the benefit of the holders of the Debt Securities of such series a sum
sufficient to pay such principal, premium or interest so becoming due and will
notify the Trustee in writing of any failure to take such action and of any
failure by the Company (or by any other obligor under the Debt Securities of
such series) to make any payment of the principal of and premium, if any, or
interest, if any, on the Debt Securities of such series when the same shall
become due and payable.
Whenever the Company shall have one or more paying agents for any
series of Debt Securities, it will, on or prior to each due date of the
principal of and premium, if any, or interest, if any, on any Debt Securities of
such series, deposit with a paying agent a sum sufficient to pay the principal,
premium or interest so becoming due, such sum to be held in trust for the
benefit of the Persons entitled thereto and (unless such paying agent is the
Trustee) the Company shall promptly notify the Trustee in writing of its action
or failure to act.
(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 one or more or all series of Debt Securities
hereunder, or for any other reason, pay, or direct any paying agent to pay to
the Trustee all sums held in trust for any such series by the Company or any
such paying agent, 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 in each year, so long as Debt Securities of any series
are outstanding hereunder, a Certificate 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 and the nature thereof.
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SECTION 3.06. Compliance with Consolidation Provisions.
The Company will not, while any of the Debt Securities 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.
If Debt Securities of a series are initially issued to a Summit Trust
or a trustee of such trust in connection with the issuance of Trust Securities
by such Summit Trust (regardless of whether Debt Securities continue to be held
by such trust) and (i) there shall have occurred and be continuing any event
that would constitute an Event of Default, (ii) the Company shall be in default
with respect to its payment of any obligations under a Capital Securities
Guarantee or a Common Securities Guarantee with respect to securities issued by
such trust, or (iii) the Company shall have given notice of its election to
defer payments of interest on the Debt Securities of such series by extending
the interest payment period as provided herein and such period, or any extension
thereof, shall be continuing, then (a) the Company shall not declare or pay any
dividend on, make a distribution with respect to, or redeem, purchase, acquire,
or make a liquidation payment with respect to, any of its capital stock or
rights to acquire such capital stock (other than (i) purchases or acquisitions
of shares of any such capital stock or rights to acquire such capital stock in
connection with the satisfaction by the Company of its obligations under any
employee benefit plans, (ii) as a result of a reclassification of the Company's
capital stock or rights to acquire such capital stock or the exchange or
conversion of one class or series of the Company's capital stock or rights to
acquire such capital stock for another class or series of the Company's capital
stock or rights to acquire such capital stock, (iii) 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, (iv) dividends and distributions made on the Company's capital stock
or rights to acquire such capital stock with the Company's capital stock or
rights to acquire such capital stock, or (v) any declaration of a dividend in
connection with the implementation of a shareholder rights plan, or the issuance
of stock under any such plan in the future, or the redemption or repurchase of
any such rights pursuant thereto), or make any guarantee payments (other than
payments under a Capital Securities Guarantee or a Common Securities Guarantee)
with respect to the foregoing and (b) the Company shall not make any payment of
interest, principal or premium, if any, on or repay, repurchase or redeem any
debt securities issued by the Company that rank pari passu with or junior to the
Debt Securities of such series.
SECTION 3.08. Covenants as to Summit Trusts.
In the event Debt Securities of a series are initially issued to a
Summit Trust or the Institutional Trustee of such Summit Trust in connection
with the issuance of Trust Securities by such Summit Trust, for so long as such
Trust Securities remain outstanding, the Company shall maintain 100% ownership
of the Common Securities of such Summit Trust; provided, however, that any
permitted successor of the Company under this Indenture may succeed to the
Company's ownership of such Common Securities. The Company, as owner of the
Common
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Securities of such Summit Trust, shall use its reasonable efforts to cause such
Summit Trust (a) to remain a statutory business trust, except in connection with
a distribution of Debt Securities of such series to the holders of such Trust
Securities in liquidation of such Summit Trust, the redemption of all of the
Trust Securities of such Summit Trust or certain mergers, consolidations or
amalgamations, each as permitted by the Declaration of such Summit Trust, and
(b) to otherwise continue to be classified as a grantor trust for United States
federal income tax purposes and (c) to use its reasonable efforts to cause each
holder of Trust Securities issued by such Summit Trust to be treated as owning
an undivided beneficial interest in the Debt Securities of such series issued to
such Summit Trust.
SECTION 3.09. Calculation of Original Issue Discount.
If original issue discount has accrued on the Debt Security during a
calendar year, the Company shall file with the Trustee promptly after the end of
each calendar year a written notice specifying the amount of original issue
discount (including daily rates and accrual periods), if any, accrued on
outstanding Debt Securities as of the end of such year.
ARTICLE IV
SECURITYHOLDERS' LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
SECTION 4.01. Securityholders' Lists.
The Company covenants and agrees that it will furnish or caused to be
furnished to the Trustee:
(a) on each regular record date for each series of Debt Securities, a
list, in such form as the Trustee may reasonably require, of the names and
addresses of the Securityholders of such series of Debt Securities as of such
record date (and on dates to be determined pursuant to Section 2.03 for
non-interest bearing securities in each year); 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 under this Section 4.01 so long as
the Trustee is in possession thereof by reason of its acting as Debt Security
registrar for such series.
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 Debt Securities (1) contained in the most recent list furnished
to it as provided in Section 4.01 or (2) received by it in the capacity of Debt
Securities 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.
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(b) In case three or more holders of Debt Securities of any series
(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
Debt Security of such series 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 Debt Securities of such series or with
holders of all Debt Securities with respect to their rights under this Indenture
or under such Debt Securities and is accompanied by a copy of the form of proxy
or other communication which such applicants propose to transmit, then the
Trustee shall within five Business Days after the receipt of such application,
at its election, either:
(1) afford such applicants access to the information preserved at
the time by the Trustee in accordance with the provisions of subsection (a)
of this Section 4.02, or
(2) inform such applicants as to the approximate number of holders
of such series or all Debt Securities, as the case may be, whose names and
addresses appear in the information preserved at the time by the Trustee in
accordance with the provisions of subsection (a) of this Section 4.02, and
as to the approximate cost of mailing to such Securityholders 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 Securityholder of such series or all Debt Securities, as the case
may be, whose name and address appear in the information preserved at the time
by the Trustee in accordance with the provisions of subsection (a) of this
Section 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 days after
such tender, the Trustee shall mail to such applicants and file with the
Securities and Exchange Commission, if permitted or required by applicable law,
together with a copy of the material to be mailed, a written statement to the
effect that, in the opinion of the Trustee, such mailing would be contrary to
the best interests of the holders of Debt Securities of such series or all Debt
Securities, as the case may be, or would be in violation of applicable law. Such
written statement shall specify the basis of such opinion. If said Commission,
as permitted or required by applicable law, 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, said 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 Securityholders with reasonable promptness after the
entry of such order and the renewal of such tender; otherwise the Trustee shall
be relieved of any obligation or duty to such applicants respecting their
application.
(c) Each and every holder of Debt Securities, by receiving and holding
the same, agrees with Company and the Trustee that neither the Company nor the
Trustee nor any
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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 Debt Securities 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. [Reserved]
SECTION 4.04. Reports by the Trustee.
(a) The Trustee shall transmit to Securityholders 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 each May 15 following the date of this
Indenture deliver to Securityholders a brief report, dated as of such May 15,
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 Securityholders, be filed by the Trustee with each stock exchange, if any,
upon which the Securities are listed, with the Commission, if required by
applicable law, and with the Company. The Company will promptly notify the
Trustee when the Debt Securities are listed on any stock exchange.
ARTICLE V
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
UPON AN EVENT OF DEFAULT
SECTION 5.01. Events of Default.
The following Events of Default with respect to Debt Securities of any
series or such other events as may be established with respect to the Debt
Securities of that series as contemplated by Section 2.03 hereof shall be
"Events of Default" with respect to Debt Securities of that series:
(a) the Company defaults in the payment of any interest upon any Debt
Securities of that series when it becomes due and payable, and continuance of
such default for a period of 30 days; provided, however, that a valid extension
of an interest payment period by the Company in accordance with the terms of
such Debt Securities shall not constitute a default in the payment of interest
for this purpose; or
(b) the Company defaults in the payment of all or any part of the
principal of (or premium, if any, on) any Debt Securities of that series as and
when the same shall become due and payable either at maturity, upon redemption
(including redemption for any sinking
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fund), by declaration of acceleration or otherwise; provided, however, that a
valid extension of the maturity of such Debt Securities shall not constitute a
default for this purpose; or
(c) the Company defaults with respect to indebtedness for money
borrowed resulting in acceleration of such indebtedness having an aggregate
principal amount in excess of $50 million and such acceleration is not rescinded
or annulled within 30 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
Debt Securities of that series, a written notice specifying such acceleration
and stating that such Notice is a "Notice of Default" hereunder; or
(d) the Company defaults in the performance of, or breaches, any of its
covenants or agreements in this Indenture or in the terms of that series of Debt
Securities established as contemplated in this Indenture (other than a covenant
or agreement 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 Debt Securities
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
(e) 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
(f) 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 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; or
(g) as to Debt Securities of any series issued to a Summit Trust, such
Summit Trust shall have voluntarily or involuntarily liquidated, dissolved,
wound-up its business or otherwise terminated its existence except in connection
with (i) the distribution of the Debt Securities of such series to holders of
such Trust Securities in liquidation of their interests in such Summit Trust,
(ii) the redemption of all of the outstanding Trust Securities of such Summit
Trust or (iii) certain mergers, consolidations or amalgamations, each as
permitted by the Declaration of such Summit Trust.
If an Event of Default occurs and is continuing with respect to any
series of Debt Securities, then, and in each and every such case, unless the
principal of all of the Debt Securities
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of that series shall have already become due and payable, either the Trustee or
the holders of not less than 25% in aggregate principal amount of the Debt
Securities of that series then outstanding hereunder, by notice in writing to
the Company (and to the Trustee if given by Securityholders), may declare the
entire principal (or, if the Debt Securities of that series are Original Issue
Discount Securities, such portion of the principal amount as may be specified in
the terms of that series) of all Debt Securities of that series and the interest
accrued thereon, if any, to be due and payable immediately, and upon any such
declaration the same shall become immediately due and payable.
The foregoing provisions, however, are subject to the condition that
if, at any time after the principal (or, if the Debt Securities are Original
Issue Discount Securities, such portion of the principal as may be specified in
the terms thereof) of the Debt Securities of any series (or of all the Debt
Securities, as the case may be) 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, the Company shall pay or shall
deposit with the Trustee a sum sufficient to pay all matured installments of
interest upon all the Debt Securities of such series (or of all the Debt
Securities, as the case may be) and the principal of and premium, if any, on any
and all Debt Securities of such series (or of all the Debt Securities, as the
case may be) which shall have become due otherwise than by acceleration (with
interest upon such principal and premium, if any, 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 or Yield to
Maturity (in the case of Original Issue Discount Securities) specified in the
Debt Securities of such series (or at the respective rates of interest or Yields
to Maturity of all the Debt Securities, as the case may be) to the date of such
payment or deposit) and such amount as shall be sufficient to cover reasonable
compensation to the Trustee and each predecessor Trustee, their respective
agents, attorneys and counsel, and all other amounts due to the Trustee pursuant
to Section 6.06, and if any and all Events of Default under this Indenture,
other than the non-payment of the principal of or premium, if any, on Debt
Securities which shall have become due by acceleration, shall have been cured,
waived or otherwise remedied as provided herein -- then and in every such case
the holders of a majority in aggregate principal amount of the Debt Securities
of such series (or of all the Debt Securities, as the case may be) then
outstanding, by written notice to the Company and to the Trustee, may waive all
defaults with respect to that series (or with respect to all Debt Securities, as
the case may be, in such case, treated as a single class) and rescind and annul
such declaration and its consequences, but no such waiver or 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 Debt Securities 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 Debt
Securities shall continue as though no such proceeding had been taken.
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SECTION 5.02. Payment of Debt Securities on Default; Suit Therefor.
The Company covenants that (a) in case default shall be made in the
payment of any installment of interest upon any of the Debt Securities of any
series as and when the same shall become due and payable, and such default shall
have continued for a period of 30 days, or (b) in case default shall be made in
the payment of the principal of or premium, if any, on any of the Debt
Securities of any series as and when the same shall have become due and payable,
whether at maturity of the Debt Securities of that series or upon redemption or
by declaration of acceleration or otherwise -- then, upon demand of the Trustee,
the Company will pay to the Trustee, for the benefit of the holders of the Debt
Securities of that series the whole amount that then shall have become due and
payable on all such Debt Securities of that series for principal and premium, if
any, or interest, or both, as the case may be, with interest upon the overdue
principal and premium, if any, and (to the extent that payment of such interest
is enforceable under applicable law) upon the overdue installments of interest
at the rate or Yield to Maturity (in the case of Original Issue Discount
Securities) borne by the Debt Securities of that series; and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including a reasonable compensation to the Trustee, its
agents, attorneys and counsel, and any other amounts due to the Trustee under
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
Debt Securities and collect in the manner provided by law out of the property of
the Company or any other obligor on such Debt Securities 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 Debt Securities of
any series under ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ 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, or in the case of any other similar judicial
proceedings relative to the Company or other obligor upon the Debt Securities of
any series, or to the creditors or property of the Company or such other
obligor, the Trustee, irrespective of whether the principal of the Debt
Securities of any series shall then be due and payable as therein expressed or
by declaration of acceleration 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 (or, if the Debt Securities of that series are Original Issue
Discount Securities such portion of the principal amount as may be specified in
the terms of that series) owing and unpaid in respect of the Debt Securities of
such 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 reasonable compensation
to the Trustee and each predecessor Trustee, and their respective agents,
attorneys and counsel, and for reimbursement of all other amounts due to the
Trustee under Section 6.06 and of the Securityholders allowed in such judicial
proceedings relative to the Company or any other obligor on the Debt Securities
of
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any 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 Debt Securities or any 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 Securityholders
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 Securityholders, to pay
to the Trustee such amounts as shall be sufficient to cover reasonable
compensation to the Trustee, each predecessor Trustee and their respective
agents, attorneys and counsel, and all other amounts due to the Trustee under
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 Securityholder any
plan of reorganization, arrangement, adjustment or composition affecting the
Debt Securities of any series or the rights of any holder thereof or to
authorize the Trustee to vote in respect of the claim of any Securityholder in
any such proceeding.
All rights of action and of asserting claims under this Indenture, or
under any of the Debt Securities, may be enforced by the Trustee without the
possession of any of the Debt Securities, or the production thereof at any trial
or other proceeding relative thereto, and any such suit or proceeding instituted
by the Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall be for the ratable benefit of the holders of
the Debt Securities.
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 Debt Securities, and it shall not be necessary to make any holders of the
Debt Securities parties to any such proceedings.
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 several Debt Securities in respect of which
moneys have been collected, and stamping thereon the payment, if only partially
paid, and upon surrender thereof if fully paid:
First: To the payment of costs and expenses of collection applicable to
such series and reasonable compensation to the Trustee, its agents, attorneys
and counsel, and of all other amounts due to the Trustee under Section 6.06;
Second: To the payment of all Allocable Amounts in respect of Senior
Indebtedness of the Company if and to the extent required by Article XV;
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Third: To the payment of the amounts then due and unpaid upon Debt
Securities of such series for principal (and premium, if any), and interest on
the Debt Securities of such series, in respect of which or for the benefit of
which money has been collected, ratably, without preference or priority of any
kind, according to the amounts due on such Debt Securities for principal (and
premium, if any) and interest, respectively; and
Fourth: The balance, if any, to the Company.
SECTION 5.04. Proceedings by Securityholders.
No holder of any Debt Security of any series shall have any right to
institute any suit, action or proceeding for any remedy hereunder, unless such
holder previously shall have given to the Trustee written notice of an Event of
Default with respect to the Debt Securities of such series and unless the
holders of not less than 25% in aggregate principal amount of the Debt
Securities of that series then outstanding shall have given the Trustee a
written request to institute such action, suit or proceeding and shall have
offered to the Trustee such reasonable indemnity as it may require against the
costs, expenses and liabilities to be incurred 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; provided that no holder
of Debt Securities of any series shall have any right to prejudice the rights of
any other holder of Debt Securities of such series, obtain priority or
preference over any other such holder or enforce any right under this Indenture
except in the manner herein provided and for the equal, ratable and common
benefit of all holders of Debt Securities of the applicable series.
Notwithstanding any other provisions in this Indenture, however, the
right of any holder of any Debt Security to receive payment of the principal of,
premium, if any, and interest, on such Debt Security when due, or to institute
suit for the enforcement of any such payment, shall not be impaired or affected
without the consent of such holder. For the protection and enforcement of the
provisions of this Section, each and every Securityholder and the Trustee shall
be entitled to such relief as can be given either at law or in equity.
SECTION 5.05. Proceedings by Trustee.
In case of an Event of Default hereunder the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either 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.
SECTION 5.06. Remedies Cumulative and Continuing.
Except as otherwise provided in Section 2.08, all powers and remedies
given by this Article V to the Trustee or to the Securityholders shall, to the
extent permitted by law, be deemed cumulative and not exclusive of any other
powers and remedies available to the Trustee
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or the holders of the Debt Securities, by judicial proceedings or otherwise, to
enforce the performance or observance of the covenants and agreements contained
in this Indenture or otherwise established with respect to such series, and no
delay or omission of the Trustee or of any holder of any of the Debt Securities
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 Securityholders may be exercised
from time to time, and as often as shall be deemed expedient, by the Trustee or
by the Securityholders.
SECTION 5.07. Direction of Proceedings and Waiver of Defaults
by Majority of Securityholders.
The holders of a majority in aggregate principal amount of the
Debt Securities of any or 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 with respect to such series;
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 a Responsible Officer of the Trustee shall determine that the action
or proceedings so directed would involve the Trustee in personal liability.
Prior to any declaration accelerating the maturity of any series of the Debt
Securities, or of all the Debt Securities, as the case may be, the holders of a
majority in aggregate principal amount of the Debt Securities of that series at
the time outstanding may on behalf of the holders of all of the Debt Securities
of such series waive (or modify any previously granted waiver of) any past
default or Event of Default, including any default or Event of Default the
conditions for the occurrence of which are established pursuant to Section 2.03,
and its consequences, except a default (a) in the payment of principal of,
premium, if any, or interest on any of the Debt Securities, (b) in respect of
covenants or provisions hereof which cannot be modified or amended without the
consent of the holder of each Debt Security affected, or (c) in respect of the
covenants contained in Section 3.08; provided, however, that if the Debt
Securities of such series are held by a Summit Trust or a trustee of such trust,
such waiver or modification to such waiver shall not be effective until the
holders of a majority in liquidation preference of Trust Securities of the
applicable Summit Trust shall have consented to such waiver or modification to
such waiver; provided, further, that if the consent of the holder of each
outstanding Debt Security is required, such waiver shall not be effective until
each holder of the Trust Securities of the applicable Summit 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 Debt Securities of such 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 Event of Default
or impair any right consequent thereon. Whenever any default or Event of Default
hereunder shall have been waived as permitted by this Section 5.07, said default
or Event of
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Default shall for all purposes of the Debt Securities of that series (or of all
Securities, as the case may be) and this Indenture be deemed to have been cured
and to be not continuing.
SECTION 5.08. Notice of Defaults.
The Trustee shall, within 90 days after the occurrence of a
default with respect to the Debt Securities of any series, mail to all
Securityholders of that series, as the names and addresses of such holders
appear upon the Debt Security Register, notice of all defaults with respect to
that series known to the Trustee, unless such defaults shall have been cured
before the giving of such notice (the term "defaults" for the purpose of this
Section 5.08 being hereby defined to be the events specified in clauses (a),
(b), (c), (d), (e) and (f) 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); and provided that, except in the case
of default in the payment of the principal of, premium, if any, or interest on
any of the Debt Securities of such series, the Trustee shall be protected in
withholding such notice if and so long as a Responsible Officer of the Trustee
in good faith determines that the withholding of such notice is in the interests
of the Securityholders of such series; and provided further, that in the case of
any default of the character specified in Section 5.01(c) no such notice to
Securityholders of such series shall be given until at least 60 days after the
occurrence thereof but shall be given within 90 days after such occurrence.
SECTION 5.09. Undertaking to Pay Costs.
All parties to this Indenture agree, and each holder of any
Debt Security by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for any
action taken or omitted by it as Trustee, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and that such court
may in its discretion assess reasonable costs, including reasonable attorneys'
fees 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 5.09 shall not apply to any suit instituted
by the Trustee, to any suit instituted by any Securityholder, or group of
Securityholders of any series, holding in the aggregate more than 10% in
principal amount of the Debt Securities of that series outstanding, or to any
suit instituted by any Securityholder for the enforcement of the payment of the
principal of (or premium, if any) or interest on any Debt Security 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 Debt Securities
issued hereunder, the Trustee, prior to the occurrence of an Event of Default
with respect to Debt Securities of that series and after the curing or waiving
of all Events of Default which may have occurred, with
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respect to Debt Securities 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 with respect to the Debt Securities of a series 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 man would exercise or use under
the circumstances in the conduct of his 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 with
respect to Debt Securities of a series and after the curing or waiving of all
Events of Default with respect to that series which may have occurred
(1) the duties and obligations of the Trustee with respect
to Debt Securities of such series shall be determined solely by the
express provisions of this Indenture, and the Trustee shall not be
liable except for the performance of such duties and obligations with
respect to such series 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 certificates or opinions furnished to the Trustee and conforming to
the requirements of this Indenture; but, in the case of any such
certificates or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be under a
duty to examine the same to determine whether or not they conform 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 Officers of the Trustee, unless
it shall be proved that the Trustee was negligent in ascertaining the pertinent
facts; and
(c) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith, in accordance with the
direction of the Securityholders pursuant to Section 5.07, 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 there is ground for believing that the
repayment of such funds or liability is not assured to it under the terms of
this Indenture or indemnity satisfactory to the Trustee against such risk is not
reasonably assured to it.
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SECTION 6.02. Reliance on Documents, Opinions, etc.
Except as otherwise provided in Section 6.01:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, 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 shall 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, suffered or omitted by it hereunder
in good faith and in accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders, pursuant to the provisions of this
Indenture, unless such Securityholders shall have offered to the Trustee
reasonable 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 with respect to a series of the Debt
Securities (that has not been cured or waived) to exercise with respect to Debt
Securities of that series such of the rights and powers vested in it by this
Indenture, and to use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs;
(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 not less than a majority in principal amount of the
outstanding Debt Securities of the series affected thereby; 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)
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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; and
(h) the Trustee shall not be charged with knowledge of any
Default or Event of Default with respect to the Debt Securities unless either
(1) a Responsible Officer shall have actual knowledge of such Default or Event
of Default or (2) 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 Debt
Securities or by any holder of the Debt Securities.
SECTION 6.03. No Responsibility for Recitals, etc.
The recitals contained herein and in the Debt Securities
(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
Debt Securities. The Trustee and the Authenticating Agent shall not be
accountable for the use or application by the Company of any Debt Securities or
the proceeds of any Debt Securities 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 or Registrar May Own Debt Securities.
The Trustee or any Authenticating Agent or any paying agent or
any transfer agent or any Debt Security registrar, in its individual or any
other capacity, may become the owner or pledgee of Debt Securities with the same
rights it would have if it were not Trustee, Authenticating Agent, paying agent,
transfer agent or Debt Security registrar.
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 the Chairman of the Board
of Directors, the President, a Managing Director, a Vice President, the
Treasurer or an Assistant Treasurer of the Company.
SECTION 6.06. Compensation and Expenses of Trustee.
The Company covenants and agrees to pay to the Trustee from
time to time, and the Trustee shall be entitled to, such reasonable 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
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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 or any predecessor Trustee (and its officers, agents,
directors and employees) for, and to hold it harmless against, any and all loss,
damage, claim, 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 in the premises. 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 Debt Securities 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 Debt Securities.
Without prejudice to any other rights available to the Trustee
under applicable law, when the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 5.01(d), Section
5.01(e) or Section 5.01(f), the expenses (including the reasonable charges and
expenses of its counsel) and the compensation for the 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 be herein specifically prescribed) may, in the
absence of negligence or bad faith on the part of the Trustee, be deemed to be
conclusively proved and established by an Officers' Certificate delivered to the
Trustee, and such certificate, in the absence of negligence or bad faith on the
part of the Trustee, shall be full warrant to the Trustee for any action taken
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, subject to the penultimate paragraph of such
section.
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SECTION 6.09. Eligibility of Trustee.
The Trustee hereunder shall at all times be a corporation
organized and doing business under the laws of the United States of America or
any state or territory thereof or of the District of Columbia or a corporation
or other Person permitted to act as trustee by the Securities and Exchange
Commission authorized under such laws to exercise corporate trust powers, having
a combined capital and surplus of at least 50 million U.S. dollars ($50,000,000)
and subject to supervision or examination by federal, state, territorial, or
District of Columbia authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section 6.09 the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
records 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; provided such corporation shall be otherwise eligible and qualified
under this Article.
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 with respect to one or more or all series of
Debt Securities by giving written notice of such resignation to the Company and
by mailing notice thereof, at the Company's expense, to the holders of the
applicable series of Debt Securities at their addresses as they shall appear on
the Debt Security Register. Upon receiving such notice of resignation, the
Company shall promptly appoint a successor trustee or trustees with respect to
the applicable series by written instrument, in duplicate, executed by order of
its Board of Directors, one copy of which instrument shall be delivered to the
resigning Trustee and one copy to the successor Trustee. If no successor Trustee
shall have been so appointed with respect to any series of Debt Securities and
have accepted appointment within 30 days after the mailing of such notice of
resignation to the affected Securityholders, the resigning Trustee may petition
any court of competent jurisdiction for the appointment of a successor Trustee,
or any Securityholder who has been a bona fide holder of a Debt Security or Debt
Securities of the applicable series for at least six months may, subject to the
provisions of Section 5.09, on behalf of himself and all others similarly
situated, petition any such court for the appointment of a successor Trustee.
Such court may thereupon, after such notice, if any, as it may deem proper and
prescribe, appoint a successor Trustee.
(b) In case at any time any 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
Securityholder who has been a bona fide holder of a Debt Security or
Debt Securities for at least six months, or
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(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 Securityholder,
or
(3) the Trustee shall become incapable of acting, or shall
be adjudged a bankrupt or insolvent, or a receiver of the Trustee or of
its property shall be appointed, or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation, then, in any
such case, the Company may remove the Trustee and appoint a successor
Trustee by written instrument, in duplicate, executed by order of the
Board of Directors, one copy of which instrument shall be delivered to
the Trustee so removed and one copy to the successor Trustee, or,
subject to the provisions of Section 5.09, any Securityholder who has
been a bona fide holder of a Debt Security or Debt Securities 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
successor Trustee.
(c) Upon prior written notice to the Company and the Trustee,
the holders of a majority in aggregate principal amount of the Debt Securities
of any series at the time outstanding may at any time remove the Trustee with
respect to such series and nominate a successor Trustee with respect to the
applicable series of Debt Securities, which shall be deemed appointed as
successor Trustee with respect to the applicable series unless within ten
Business Days after such nomination the Company objects thereto, in which case
the Trustee so removed or any Securityholder of the applicable series, 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 with respect to such series.
(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 with respect to all or any
applicable series shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, duties and obligations with respect to such series of its predecessor
hereunder, with like effect as if originally named as Trustee herein; but,
nevertheless, on the written request of the Company or of the successor Trustee,
the Trustee ceasing to act shall, upon payment of any amounts then due it
pursuant to the provisions of Section 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
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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.
If a successor Trustee is appointed with respect to the Debt
Securities of one or more (but not all) series, the Company, the retiring
Trustee and each successor Trustee with respect to the Debt Securities of any
applicable series shall execute and deliver an indenture supplemental hereto
which shall contain such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Debt Securities of any series as to which the predecessor
Trustee is not retiring shall continue to be vested in the predecessor Trustee,
and shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the Trust hereunder
by more than one Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees co-trustees of the same
trust and that each such Trustee shall be Trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered by any other
such Trustee.
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.
In no event shall a retiring Trustee be liable for the acts
or omissions of any successor Trustee hereunder.
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 Debt Securities of any applicable
series at their addresses as they shall appear on the Debt Security Register. If
the Company fails to mail such notice within ten Business 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 corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder without the execution or filing of any paper or any further act on the
part of any of the parties hereto; provided such corporation shall be otherwise
eligible and qualified under this Article.
In case at the time such successor to the Trustee shall
succeed to the trusts created by this Indenture any of the Debt Securities of
any series shall have been authenticated but not delivered, any such successor
to the Trustee may adopt the certificate of authentication of any
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predecessor Trustee, and deliver such Debt Securities so authenticated; and in
case at that time any of the Debt Securities of any series shall not have been
authenticated, any successor to the Trustee may authenticate such Debt
Securities either in the name of any predecessor hereunder or in the name of the
successor Trustee; and in all such cases such certificates shall have the full
force which it is anywhere in the Debt Securities of such series or in this
Indenture provided that the certificate of the Trustee shall have; provided,
however, that the right to adopt the certificate of authentication of any
predecessor Trustee or authenticate Debt Securities of any series 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.
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 its behalf and
subject to its direction in the authentication and delivery of Debt Securities
of any series issued upon exchange or registration of transfer thereof as fully
to all intents and purposes as though any such Authenticating Agent had been
expressly authorized to authenticate and deliver Debt Securities of such series;
provided 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 Debt Securities of any series. Any such Authenticating Agent shall
at all times be a corporation 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 corporation 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
corporation 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 corporation into which any Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, consolidation or conversion to which any
Authenticating Agent shall be a party, or any corporation succeeding to all or
substantially all of the corporate trust business of any Authenticating Agent,
shall be the successor of such Authenticating Agent hereunder, if such successor
corporation 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.
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Any Authenticating Agent may at any time resign with respect
to one or more or all series of Debt Securities 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 with respect to one or more or
all series of Debt Securities 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 with respect to the applicable series 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 holders of the
applicable series of Debt Securities as the names and addresses of such holders
appear on the Debt Security Register. Any successor Authenticating Agent with
respect to all or any series upon acceptance of its appointment hereunder shall
become vested with all rights, powers, duties and responsibilities with respect
to such series of its predecessor hereunder, with like effect as if originally
named as Authenticating Agent herein.
The Company 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 SECURITYHOLDERS
SECTION 7.01. Action by Securityholders.
Whenever in this Indenture it is provided that the holders of
a specified percentage in aggregate principal amount of the Debt Securities of
any or all series may take any action (including the making of any demand or
request, the giving of any notice, consent or waiver or the taking of any other
action) the fact that at the time of taking any such action the holders of such
specified percentage have joined therein may be evidenced (a) by any instrument
or any number of instruments of similar tenor executed by such Securityholders
in person or by agent or proxy appointed in writing, or (b) by the record of
such holders of Debt Securities voting in favor thereof at any meeting of such
Securityholders duly called and held in accordance with the provisions of
Article Eight, or (c) by a combination of such instrument or instruments and any
such record of such a meeting of such Securityholders or (d) by any other method
the Trustee deems satisfactory.
If the Company shall solicit from the Securityholders of any
series any request, demand, authorization, direction, notice, consent, waiver or
other action or revocation of the same, the Company may, at its option, as
evidenced by an Officers' Certificate, fix in advance a record date for such
series for the determination of Securityholders entitled to give such request,
demand, authorization, direction, notice, consent, waiver or other action or
revocation of the same, 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 or revocation of the same may be given
before or after the record date, but only the Securityholders of record at
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the close of business on the record date shall be deemed to be Securityholders
for the purposes of determining whether Securityholders of the requisite
proportion of outstanding Debt Securities of that series have authorized or
agreed or consented to such request, demand, authorization, direction, notice,
consent, waiver or other action or revocation of the same, and for that purpose
the outstanding Debt Securities of that series shall be computed as of the
record date; provided, however, that no such authorization, agreement or consent
by such Securityholders on the record date shall be deemed effective unless it
shall become effective pursuant to the provisions of this Indenture not later
than six months after the record date.
SECTION 7.02. Proof of Execution by Securityholders.
Subject to the provisions of Section 6.01, 6.02 and 8.05,
proof of the execution of any instrument by a Securityholder 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 Debt Securities shall be proved by
the Debt Security Register or by a certificate of the Debt Security registrar.
The Trustee may require such additional proof of any matter referred to in this
Section as it shall deem necessary.
The record of any Securityholders' 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
Debt Security, the Company, the Trustee, any Authenticating Agent, any paying
agent, any transfer agent and any Debt Security registrar may deem the Person in
whose name such Debt Security shall be registered upon the Debt Security
Register to be, and may treat him as, the absolute owner of such Debt Security
(whether or not such Debt Security shall be overdue) for the purpose of
receiving payment of or on account of the principal of, premium, if any, and
(subject to Section 2.05) interest on such Debt Security 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 Debt Security registrar
shall be affected by any notice to the contrary. All such payments so made to
any holder for the time being or upon his 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 Debt Security.
SECTION 7.04. Debt Securities Owned by Company Deemed Not
Outstanding.
In determining whether the holders of the requisite aggregate
principal amount of Debt Securities have concurred in any direction, consent or
waiver under this Indenture, Debt Securities which are owned by the Company or
any other obligor on the Debt Securities 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 Debt Securities shall be disregarded and
deemed not to be outstanding for the purpose of any such determination; provided
that for the purposes of determining whether the Trustee shall be protected in
relying on any such direction, consent or waiver, only Debt Securities which a
Responsible Officer of the Trustee actually
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knows are so owned shall be so disregarded. Debt Securities 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 to the satisfaction of the
Trustee the pledgee's right to vote such Debt Securities 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 Debt Securities specified
in this Indenture in connection with such action, any holder (in cases where no
record date has been set pursuant to Section 7.01) or any holder as of an
applicable record date (in cases where a record date has been set pursuant to
Section 7.01) of a Debt Security (or any Debt Security issued in whole or in
part in exchange or substitution therefor) the serial number of which is shown
by the evidence to be included in the Debt Securities the holders of which have
consented to such action may, by filing written notice with the Trustee at the
Principal Office of the Trustee and upon proof of holding as provided in Section
7.02, revoke such action so far as concerns such Debt Security (or so far as
concerns the principal amount represented by any exchanged or substituted Debt
Security). Except as aforesaid any such action taken by the holder of any Debt
Security shall be conclusive and binding upon such holder and upon all future
holders and owners of such Debt Security, and of any Debt Security issued in
exchange or substitution therefor or on registration of transfer thereof,
irrespective of whether or not any notation in regard thereto is made upon such
Debt Security or any Debt Security issued in exchange or substitution therefor.
ARTICLE VIII
SECURITYHOLDERS' MEETINGS
SECTION 8.01. Purposes of Meetings.
A meeting of Securityholders of any or all series may be
called at any time and from time to time pursuant to the provisions of this
Article Eight 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 Securityholders 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;
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(c) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 9.02; or
(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 Debt
Securities 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 Securityholders of any or all series to take any action specified in
Section 8.01, to be held at such time and at such place in the Borough of
Manhattan, The City of New York, as the Trustee shall determine. Notice of every
meeting of the Securityholders of any or all series, setting forth the time and
the place of such meeting and in general terms the action proposed to be taken
at such meeting, shall be mailed to holders of Debt Securities of each series
affected at their addresses as they shall appear on the Debt Securities Register
for each series affected. Such notice shall be mailed not less than 20 nor more
than 180 days prior to the date fixed for the meeting.
SECTION 8.03. Call of Meetings by Company or Securityholders.
In case at any time the Company pursuant to a Board
Resolution, or the holders of at least 10% in aggregate principal amount of the
Debt Securities of any or all series, as the case may be, then outstanding,
shall have requested the Trustee to call a meeting of Securityholders of any or
all series, as the case may be, 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 20 days after receipt of such
request, then the Company or such Securityholders may determine the time and the
place in said Borough of Manhattan 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.
SECTION 8.04. Qualifications for Voting.
To be entitled to vote at any meeting of Securityholders a
Person shall (a) be a holder of one or more Debt Securities with respect to
which the meeting is being held or (b) a Person appointed by an instrument in
writing as proxy by a holder of one or more such Debt Securities. The only
Persons who shall be entitled to be present or to speak at any meeting of
Securityholders shall be the Persons entitled to vote at such meeting and their
counsel and any representatives of the Trustee and its counsel and any
representatives of the 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 Securityholders, in regard to proof of the holding of Debt Securities
and of the appointment of proxies, and in regard to the appointment and duties
of inspectors of votes, the submission and examination of proxies,
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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 Securityholders as provided in Section 8.03, in which case the
Company or the Securityholders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by majority vote of the meeting.
Subject to the provisions of Section 7.04, at any meeting each
holder of Debt Securities with respect to which such meeting is being held or
proxy therefor shall be entitled to one vote for each $1,000 principal amount
(in the case of Original Issue Discount Securities, such principal amount to be
determined as provided in the definition "outstanding") of Debt Securities held
or represented by him; provided, however, that no vote shall be cast or counted
at any meeting in respect of any Debt Security challenged as not outstanding and
ruled by the chairman of the meeting to be not outstanding. The chairman of the
meeting shall have no right to vote other than by virtue of Debt Securities held
by him or instruments in writing as aforesaid duly designating him as the Person
to vote on behalf of other Securityholders. Any meeting of Securityholders duly
called pursuant to the provisions of Section 8.02 or 8.03 may be adjourned from
time to time by a majority of those present, whether or not constituting a
quorum, 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 Debt Securities with respect to which such meeting is being held
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 Debt Securities held or represented by them. The permanent chairman of the
meeting shall appoint two inspectors of votes who shall count all votes cast at
the meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in triplicate of all
votes cast at the meeting. A record in duplicate of the proceedings of each
meeting of Securityholders shall be prepared by the secretary of the meeting and
there shall be attached to said record the original reports of the inspectors of
votes on any vote by ballot taken thereat and affidavits by one or more Persons
having knowledge of the facts setting forth a copy of the notice of the meeting
and showing that said notice was mailed as provided in Section 8.02. The record
shall show the serial numbers of the Debt Securities voting in favor of or
against any resolution. The record shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one 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.
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SECTION 8.07. Quorum; Actions.
The Persons entitled to vote a majority in principal amount of
the Debt Securities of a series shall constitute a quorum for a meeting of
Securityholders of such series; provided, however, that if any action is to be
taken at such meeting with respect to a consent, waiver, request, demand,
notice, authorization, direction or other action which may be given by the
holders of not less than a specified percentage in principal amount of the Debt
Securities of a series, the Persons holding or representing such specified
percentage in principal amount of the Debt Securities of such series will
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
Securityholders of such series, be dissolved. In any other case the meeting may
be adjourned for a period of not less than 10 days as determined by the
permanent 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 permanent 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 in Section 8.02, except that such notice need be given only once not
less than five days prior to the date on which the meeting is scheduled to be
reconvened. Notice of the reconvening of an adjourned meeting shall state
expressly the percentage, as provided above, of the principal amount of the Debt
Securities of such series which shall constitute a quorum.
Except as limited by the proviso in the first paragraph of
Section 9.02, any resolution presented to a meeting or adjourned meeting duly
reconvened at which a quorum is present as aforesaid may be adopted by the
affirmative vote of the Holders of a majority in principal amount of the Debt
Securities of that series; provided, however, that, except as limited by the
proviso in the first paragraph of Section 9.02, any resolution with respect to
any consent, waiver, request, demand, notice, authorization, direction or other
action which this Indenture expressly provides may be given by the holders of
not less than a specified percentage in principal amount of the Debt Securities
of a series may be adopted at a meeting or an adjourned meeting duly reconvened
and at which a quorum is present as aforesaid only by the affirmative vote of
the holders of a not less than such specified percentage in principal amount of
the Debt Securities of that series.
Any resolution passed or decision taken at any meeting of
holders of Debt Securities of any series duly held in accordance with this
Section shall be binding on all the Securityholders of such series, whether or
not present or represented at the meeting.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures without Consent of
Securityholders.
The Company, when authorized by a Board Resolution, and the
Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto (which
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shall conform to the provisions of the Trust Indenture Act as then in effect),
without the consent of the Securityholders, for one or more of the following
purposes:
(a) to evidence the succession of another corporation to the
Company, or successive successions, and the assumption by the successor
corporation 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 holders of all
or any series of Debt Securities (and if such covenants are to be for the
benefit of less than all series of Debt Securities stating that such covenants
are expressly being included for the benefit of such series) as the Board of
Directors shall consider to be for the protection of the holders of such Debt
Securities, 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
several remedies provided in this Indenture as herein set forth; provided,
however, that in respect of any such additional covenant, restriction or
condition such supplemental indenture may provide for a particular period of
grace after default (which period may be shorter or longer than that allowed in
the case of other defaults) or may provide for an immediate enforcement upon
such default or may limit the remedies available to the Trustee upon such
default;
(c) to cure any ambiguity 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 to make such other provisions in regard to matters or
questions arising under this Indenture; provided that any such action shall not
adversely affect the interests of the holders of the Debt Securities of any
series;
(d) to modify, eliminate or add to any provision of the
Indenture to such an extent as may be necessary to ensure that the Indenture
will be qualified under the Trust Indenture Act upon the effectiveness of the
Exchange Offer Registration Statement with respect to the Debt Securities;
(e) to add to, delete from, or revise the terms of Debt
Securities of any series, including, without limitation, any terms relating to
the issuance, exchange, registration or transfer of Debt Securities, including
to provide for transfer procedures and restrictions substantially similar to
those applicable to the Capital Securities relating to such series as required
by Section 2.07 (for purposes of assuring that no registration of Debt
Securities of a series subject to transfer restrictions is required under the
Securities Act of 1933, as amended); provided that any such action shall not
adversely affect the interests of the holders of the Debt Securities of any
series then outstanding (it being understood, for purposes of this proviso, that
transfer restrictions on Debt Securities of a series substantially similar to
those that were applicable to Capital Securities of the related series shall not
be deemed to adversely affect the holders of the Debt Securities);
(f) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Debt Securities of one or
more series and to add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the
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administration of the trusts hereunder by more than one Trustee, pursuant to the
requirements of Section 6.11;
(g) to make any change (other than as elsewhere provided in
this paragraph) that does not adversely affect the rights of any Securityholder
in any material respect; or
(h) to provide for the issuance of and establish the form and
terms and conditions of the Debt Securities of any series, to establish the form
of any certifications required to be furnished pursuant to the terms of this
Indenture or any series of Debt Securities, or to add to the rights of the
holders of any series of Debt Securities.
The Trustee is hereby authorized to join with the Company in
the execution of any such supplemental indenture, 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 supplemental 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 Debt Securities at the time outstanding,
notwithstanding any of the provisions of
SECTION 9.02. SECTION 9.02. Supplemental Indentures with
Consent of Securityholders.
With the consent (evidenced as provided in Section 7.01) of
the holders of not less than a majority in aggregate principal amount of the
Debt Securities at the time outstanding of all series affected by such
supplemental indenture (voting as a class), the Company, when authorized by a
Board Resolution, and the Trustee may from time to time and at any time enter
into an indenture or indentures supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act, then in effect, applicable to indentures
qualified thereunder) for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of any
supplemental indenture or of modifying in any manner the rights of the holders
of the Debt Securities of each series so affected; provided, however, that no
such supplemental indenture shall without the consent of the holders of each
Debt Security then outstanding and affected thereby (i) extend the fixed
maturity of any Debt Security of any series, or reduce the principal amount
thereof or any premium thereon, or reduce the rate or extend the time of payment
of interest thereon, or reduce any amount payable on redemption thereof or make
the principal thereof or any interest or premium thereon payable in any coin or
currency other than that provided in the Debt Securities, or reduce the amount
of the principal of an Original Issue Discount Security that would be due and
payable upon an acceleration of the maturity thereof pursuant to Section 5.01 or
the amount thereof provable in bankruptcy pursuant to Section 5.02, or impair or
affect the right of any Securityholder to institute suit for payment thereof or
impair the right of repayment, if any, at the option of the holder, or (ii)
reduce the aforesaid percentage of Debt Securities the holders of which are
required to consent to any such supplemental indenture; provided, further, that
if the Debt Securities of such series are held by a Summit Trust or a trustee of
such trust, such supplemental indenture shall not be effective until
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the holders of a majority in liquidation preference of Trust Securities of the
applicable Trust shall have consented to such supplemental indenture; provided
further, that if the consent of the Securityholder of each outstanding Debt
Security is required, such supplemental indenture shall not be effective until
each holder of the Trust Securities of the applicable Summit Trust shall have
consented to such supplemental indenture.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Debt Securities, or
which modifies the rights of Securityholders of such series with respect to such
covenant or provision, shall be deemed not to affect the rights under this
Indenture or the Securityholders of any other series.
Upon the request of the Company accompanied by a Board
Resolution authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee of evidence of the consent of Securityholders
as aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion, but shall not be obligated to, enter
into such supplemental indenture.
Promptly after the execution by the Company and the Trustee of
any supplemental indenture pursuant to the provisions of this Section, the
Trustee shall transmit by mail, first class postage prepaid, a notice, prepared
by the Company, setting forth in general terms the substance of such
supplemental indenture, to the Securityholders of all series affected thereby as
their names and addresses appear upon the Debt Security Register. Any failure of
the Trustee to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such supplemental indenture.
It shall not be necessary for the consent of the
Securityholders under this Section 9.02 to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient if such consent
shall approve the substance thereof.
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, as then in effect
to the extent applicable to indentures qualified under 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 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 Debt Securities of each series affected thereby
shall thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments and all the terms and conditions
of any such supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
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SECTION 9.04. Notation on Debt Securities.
Debt Securities of any series authenticated and delivered
after the execution of any supplemental indenture affecting such series pursuant
to the provisions of this Article IX may bear a notation as to any matter
provided for in such supplemental indenture. If the Company or the Trustee shall
so determine, new Debt Securities of any series so modified as to conform, in
the opinion of the Board of Directors of the Company, to any modification of
this Indenture contained in any such supplemental indenture may be prepared and
executed by the Company, authenticated by the Trustee or the Authenticating
Agent and delivered in exchange for the Debt Securities of any series 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, shall, in addition to the documents required by Section 13.06, 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. The Trustee shall receive an Opinion of Counsel as
conclusive evidence that any supplemental indenture executed pursuant to this
Article IX is authorized or permitted by, and conforms to, the terms of this
Article IX and that it is proper for the Trustee under the provisions of this
Article IX to join in the execution thereof.
ARTICLE X
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
SECTION 10.01. Company May Consolidate, etc., on Certain
Terms.
Nothing contained in this Indenture or in the Debt Securities
of any series shall prevent any consolidation or merger of the Company with or
into any other corporation or corporations (whether or not affiliated with the
Company) or successive consolidations or mergers in which the Company or its
successor or successors shall be a party or parties, or shall prevent any sale,
conveyance, transfer or other disposition of the property of the Company or its
successor or successors as an entirety, or substantially as an entirety, to any
other corporation (whether or not affiliated with the Company, or its successor
or successors) authorized to acquire and operate the same; provided, however,
that the Company hereby covenants and agrees that, upon any such consolidation,
merger (where the Company is not the surviving corporation), sale, conveyance,
transfer or other disposition, the due and punctual payment of the principal of
(and premium, if any) and interest on all of the Debt Securities of all series
in accordance with the terms of each series, according to their tenor, and the
due and punctual performance and observance of all the covenants and conditions
of this Indenture with respect to each series or established with respect to
such series to be kept or performed by the Company, shall be expressly assumed
by supplemental indenture (which shall conform to the provisions of the Trust
Indenture Act, as then in effect, applicable to indentures qualified thereunder)
satisfactory in form to the Trustee executed and delivered to the Trustee by the
entity formed by such
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consolidation, or into which the Company shall have been merged, or by the
entity which shall have acquired such property.
SECTION 10.02. Successor Entity to be Substituted.
In case of any such consolidation, merger, sale, conveyance,
transfer or other disposition and upon the assumption by the successor entity,
by supplemental indenture, executed and delivered to the Trustee and
satisfactory in form to the Trustee, of the due and punctual payment of the
principal of and premium, if any, and interest on all of the Debt Securities 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 entity shall succeed to and be substituted for the Company, with the
same effect as if it had been named herein as the Company, and thereupon the
predecessor entity shall be relieved of any further liability or obligation
hereunder or upon the Debt Securities. Such successor entity thereupon may cause
to be signed, and may issue either in its own name or in the name of Summit
Bancorp., any or all of the Debt Securities 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 entity 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 Debt Securities which previously shall have been signed and
delivered by the officers of the Company, to the Trustee or the Authenticating
Agent for authentication, and any Debt Securities which such successor entity
thereafter shall cause to be signed and delivered to the Trustee or the
Authenticating Agent for that purpose. All the Debt Securities so issued shall
in all respects have the same legal rank and benefit under this Indenture as the
Debt Securities theretofore or thereafter issued in accordance with the terms of
this Indenture as though all of such Debt Securities had been issued at the date
of the execution hereof.
SECTION 10.03. Opinion of Counsel to be Given to Trustee.
The Trustee, subject to the provisions of Sections 6.01 and
6.02, shall receive, in addition to the Opinion of Counsel required by Section
9.05, an Opinion of Counsel as conclusive evidence that any consolidation,
merger, sale, conveyance, transfer or other disposition, 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.
When (a) the Company shall deliver to the Trustee for
cancellation all Debt Securities theretofore authenticated (other than any Debt
Securities which shall have been destroyed, lost or stolen and which shall have
been replaced or paid as provided in Section 2.08) and not theretofore canceled,
or (b) all the Debt Securities not theretofore canceled or delivered
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to the Trustee for cancellation shall have become due and payable, or are by
their terms to become due and payable within one year or are to be called for
redemption within one year under arrangements satisfactory to the Trustee for
the giving of notice of redemption, and the Company shall deposit with the
Trustee, in trust, funds, which shall be immediately due and payable, sufficient
to pay at maturity or upon redemption all of the Debt Securities (other than any
Debt Securities which shall have been destroyed, lost or stolen and which shall
have been replaced or paid as provided in Section 2.08) not theretofore canceled
or delivered to the Trustee for cancellation, including principal and premium,
if any, and interest due or to become due to such date of maturity or redemption
date, as the case may be, but excluding, however, the amount of any moneys for
the payment of principal of, and premium, if any, or interest on the Debt
Securities (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 the case
of either clause (a) or clause (b) 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 except for the provisions of Sections 2.05, 2.07,
2.08, 3.01, 3.02, 3.04, 6.06, 6.10 and 11.04 hereof shall survive until such
Debt Securities shall mature and be paid. Thereafter, Sections 6.10 and 11.04
shall survive, and the Trustee, on demand of the Company accompanied by an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with, and at the cost and expense
of the Company, shall execute proper instruments acknowledging satisfaction of
and discharging this Indenture, the Company, however, hereby agreeing to
reimburse the Trustee for any costs or expenses thereafter reasonably and
properly incurred by the Trustee in connection with this Indenture or the Debt
Securities.
SECTION 11.02. Deposited Moneys to be Held in Trust by
Trustee.
Subject to the provisions of Section 11.04, all moneys
deposited with the Trustee pursuant to Section 11.01 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 the
particular Debt Securities for the payment of which such moneys have been
deposited with the Trustee, of all sums due and to become due thereon for
principal, and premium, if any, and interest.
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 Debt Securities (other than the
Trustee) shall, upon 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, and premium, if any, or interest on Debt
Securities and not applied but remaining unclaimed by the holders of Debt
Securities for two years after the date upon
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which the principal of, and premium, if any, or interest on such Debt
Securities, as the case may be, shall have become due and payable, shall be
repaid to the Company by the Trustee or such paying agent on written demand; and
the holder of any of the Debt Securities 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.
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.01. Indenture and Debt Securities Solely Corporate
Obligations.
No recourse for the payment of the principal of or premium, if
any, or interest on any Debt Security, 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 supplemental
indenture, or in any such Debt Security, or because of the creation of any
indebtedness represented thereby, shall be had against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company or of any successor corporation of the Company, either directly or
through the Company or any successor corporation of 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 issue of the Debt
Securities.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01. Successors.
All the covenants, stipulations, promises and agreements in
this Indenture contained by the Company shall bind its successors and assigns
whether so expressed or not.
SECTION 13.02. Official Acts by Successor Entity.
Any act or proceeding by any provision of this Indenture
authorized or required to be done or performed by any board, committee or
officer of the Company shall and may be done and performed with like force and
effect by the like board, committee, officer or other authorized Person of any
entity that shall at the time be the lawful 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 and thereupon such power so
surrendered shall terminate both as to the Company, and as to any permitted
successor.
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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 Debt Securities on the Company may be given or served in writing by being
deposited postage prepaid by registered or certified mail in a post office
letter box addressed (until another address is filed by the Company, with the
Trustee for the purpose) to the Company, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇., Esq., General
Counsel. Any notice, direction, request or demand by any Securityholder or the
Company 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 the
Trustee, addressed to the Trustee, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Corporate Trust Services Division.
SECTION 13.05. Governing Law.
This Indenture and each Debt Security 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 laws 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 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 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. Non-Business Days.
Subject to Section 2.03, in any case where the date of payment
of interest on or principal of the Debt Securities will be a Saturday, Sunday or
a day on which banking institutions in ▇▇▇ ▇▇▇▇ ▇▇▇▇ (▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇)
and Princeton (in the State of New Jersey) are permitted or required by any
applicable law to close, the payment of such interest on or principal of the
Debt Securities need not be made on such date but may be made on the next
succeeding day not a Saturday, Sunday or a day on which banking institutions in
such cities are
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permitted or required by any applicable law to close, with the same force and
effect as if made on the 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 317,
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 Debt Securities of any series 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 such Debt Securities, but this Indenture and such Debt
Securities 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 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 hereto 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 Debt
Securities held by any Summit Trust or the Institutional Trustee of such Summit
Trust, if the Institutional Trustee of such Summit Trust fails to enforce its
rights under this Indenture as the holder of the series of Debt Securities held
as the assets of such Summit Trust after the holders of a majority in
liquidation amount of the Capital Securities of such Summit Trust have so
directed such Institutional Trustee, a holder of record of such Capital
Securities may to the fullest extent
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permitted by law institute legal proceedings directly against the Company to
enforce such Institutional Trustee's rights under this Indenture without first
instituting any legal proceedings against such Institutional Trustee or any
other Person. Notwithstanding the foregoing, if an Event of Default has occurred
and is continuing and such event is attributable to the failure of the Company
to pay interest (or premium, if any) or principal on the applicable series of
Debt Securities on the date such interest (or premium, if any) or principal is
otherwise payable (or in the case of redemption, on the redemption date), the
Company acknowledges that a holder of record of Capital Securities of the Summit
Trust that purchased the applicable series of Debt Securities may directly
institute a proceeding against the Company for enforcement of payment to such
holder directly of the principal of (or premium, if any) or interest on the
applicable series of Debt Securities having an aggregate principal amount equal
to the aggregate liquidation amount of the Capital Securities of such holder on
or after the respective due date specified in the applicable series of Debt
Securities.
ARTICLE XIV
REDEMPTION OF SECURITIES -- MANDATORY AND
OPTIONAL SINKING FUND
SECTION 14.01. Applicability of Article.
The provisions of this Article shall be applicable to the Debt
Securities of any series which are redeemable before their maturity or to any
sinking fund for the retirement of Debt Securities of a series except as
otherwise specified as contemplated by Section 2.03 for Debt Securities of such
series.
SECTION 14.02. Notice of Redemption; Selection of Debt
Securities.
In case the Company shall exercise the right to redeem all,
or, as the case may be, any part of the Debt Securities of any series in
accordance with their terms, it shall fix a date for redemption and shall mail a
notice of such redemption at least 30 and not more than 60 days prior to the
date fixed for redemption to the holders of Debt Securities of such series so to
be redeemed as a whole or in part at their last addresses as the same appear on
the Debt Security 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 Debt Security of a series designated for redemption as a whole or
in part shall not affect the validity of the proceedings for the redemption of
any other Debt Security of such series.
Each such notice of redemption shall specify the CUSIP number
of the Debt Securities to be redeemed, the date fixed for redemption, the
redemption price at which Debt Securities of such series are to be redeemed, the
place or places of payment, that payment will be made upon presentation and
surrender of such Debt Securities, that interest accrued to the date fixed for
redemption will be paid as specified in said notice, and that on and after said
date interest thereon or on the portions thereof to be redeemed will cease to
accrue. If less than all the
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Debt Securities of such series are to be redeemed the notice of redemption shall
specify the numbers of the Debt Securities of that series to be redeemed. In
case any Debt Security of a series is to be redeemed in part only, the notice of
redemption shall state the portion of the principal amount thereof to be
redeemed and shall state that on and after the date fixed for redemption, upon
surrender of such Debt Security, a new Debt Security or Debt Securities of that
series in principal amount equal to the unredeemed portion thereof will be
issued.
On or prior to the redemption date specified in the notice of
redemption 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
redeem on the redemption date all the Debt Securities so called for redemption
at the appropriate redemption price, together with accrued interest to the date
fixed for redemption.
If all, or less than all, the Debt Securities of a series are
to be redeemed, the Company will give the Trustee notice not less than 45 nor
more than 60 days, respectively, prior to the redemption date as to the
aggregate principal amount of Debt Securities of that series to be redeemed and
the Trustee shall select, in such manner as in its sole discretion it shall deem
appropriate and fair, the Debt Securities of that series or portions thereof (in
integral multiples of $1,000, except as otherwise set forth in the applicable
form of Debt Security) to be redeemed.
SECTION 14.03. Payment of Debt Securities Called for
Redemption.
If notice of redemption has been given as provided in Section
14.02 or Section 14.04, the Debt Securities or portions of Debt Securities of
the 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
applicable redemption price, together with interest accrued to the date fixed
for redemption, and on and after said date (unless the Company shall default in
the payment of such Debt Securities at the redemption price, together with
interest accrued to said date) interest on the Debt Securities or portions of
Debt Securities of any series so called for redemption shall cease to accrue. On
presentation and surrender of such Debt Securities at a place of payment
specified in said notice, the said Debt Securities or the specified portions
thereof shall be paid and redeemed by the Company at the applicable redemption
price, together with interest accrued thereon to the date fixed for redemption.
Upon presentation of any Debt Security of any series redeemed
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 Debt Security or Debt Securities of such series of authorized
denominations, in principal amount equal to the unredeemed portion of the Debt
Security so presented.
SECTION 14.04. Mandatory and Optional Sinking Fund.
The minimum amount of any sinking fund payment provided for by
the terms of Debt Securities of any series is herein referred to as a "mandatory
sinking fund payment," and any payment in excess of such minimum amount provided
for by the terms of Debt Securities of
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any series is herein referred to as an "optional sinking fund payment." The last
date on which any such payment may be made is herein referred to as a "sinking
fund payment date."
In lieu of making all or any part of any mandatory sinking
fund payment with respect to any Debt Securities of a series in cash, the
Company may at its option (a) deliver to the Trustee Debt Securities of that
series theretofore purchased by the Company and (b) may apply as a credit Debt
Securities of that series which have been redeemed either at the election of the
Company pursuant to the terms of such Debt Securities or through the application
of optional sinking fund payments pursuant to the next succeeding paragraph, in
each case in satisfaction of all or any part of any mandatory sinking fund
payment, provided that such Debt Securities have not been previously so
credited. Each such Debt Security so delivered or applied as a credit shall be
credited at the sinking fund redemption price for such Debt Securities and the
amount of any mandatory sinking fund shall be reduced accordingly. If the
Company intends so to deliver or credit such Debt Securities with respect to any
mandatory sinking fund payment it shall deliver to the Trustee at least 60 days
prior to the next succeeding sinking fund payment date for such series (a) a
certificate signed by the Secretary, an Assistant Secretary, the Treasurer or an
Assistant Treasurer of the Company specifying the portion of such sinking fund
payment, if any, to be satisfied by payment of cash and the portion of such
sinking fund payment, if any, which is to be satisfied by delivering and
crediting such Debt Securities and the basis for such credit and stating that
such Debt Securities have not been previously so credited and (b) any Debt
Securities to be so delivered. All Debt Securities so delivered to the Trustee
shall be canceled by the Trustee and no Debt Securities shall be authenticated
in lieu thereof. If the Company fails to deliver such certificate and Debt
Securities at or before the time provided above, the Company shall not be
permitted to satisfy any portion of such mandatory sinking fund payment by
delivery or credit of Debt Securities.
At its option the Company may pay into the sinking fund for
the retirement of Debt Securities of any particular series, on or before each
sinking fund payment date for such series, any additional sum in cash as
specified by the terms of such series of Debt Securities. If the Company intends
to exercise its right to make any such optional sinking fund payment, it shall
deliver to the Trustee at least 60 days prior to the next succeeding sinking
fund payment date for such series a certificate signed by the Secretary, an
Assistant Secretary, the Treasurer or an Assistant Treasurer of the Company
stating that the Company intends to exercise such optional right and specifying
the amount which the Company intends to pay on such sinking fund payment date.
If the Company fails to deliver such certificate at or before the time provided
above, the Company shall not be permitted to make any optional sinking fund
payment with respect to such sinking fund payment date. To the extent that such
right is not exercised in any year it shall not be cumulative or carried forward
to any subsequent year.
If the sinking fund payment or payments (mandatory or
optional) made in cash plus any unused balance of any preceding sinking fund
payments made in cash shall exceed $100,000 (or a lesser sum if the Company
shall so request) with respect to the Debt Securities of any particular series,
it shall be applied by the Trustee or one or more paying agents on the next
succeeding sinking fund payment date to the redemption of Debt Securities of
such series at the sinking fund redemption price together with accrued interest
to the date fixed for redemption.
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The Trustee shall select, in the manner provided in Section 14.02, for
redemption on such sinking fund payment date a sufficient principal amount of
Debt Securities of such series to absorb said cash, as nearly as may be, and the
Trustee shall, at the expense and in the name of the Company, thereupon cause
notice of redemption of Debt Securities of such series to be given in
substantially the manner and with the effect provided in Sections 14.02 and
14.03 for the redemption of Debt Securities of that series in part at the option
of the Company, except that the notice of redemption shall also state that the
Debt Securities of such series are being redeemed for the sinking fund. Any
sinking fund moneys not so applied or allocated by the Trustee or any paying
agent to the redemption of Debt Securities of that series shall be added to the
next cash sinking fund payment received by the Trustee or such paying agent and,
together with such payment, shall be applied in accordance with the provisions
of this Section 14.04. Any and all sinking fund moneys held by the Trustee or
any paying agent on the maturity date of the Debt Securities of any particular
series, and not held for the payment or redemption of particular Debt Securities
of such series, shall be applied by the Trustee or such paying agent, together
with other moneys, if necessary, to be deposited sufficient for the purpose, to
the payment of the principal of the Debt Securities of that series at maturity.
On or before 10:00 a.m. on each sinking fund payment date, the
Company shall pay to the Trustee or to one or more paying agents in cash a sum
equal to all interest accrued to the date fixed for redemption on Debt
Securities to be redeemed on the next following sinking fund payment date
pursuant to this Section.
Neither the Trustee nor any paying agent shall redeem any Debt
Securities of a series with sinking fund moneys, and the Trustee shall not mail
any notice of redemption of Debt Securities for such series by operation of the
sinking fund, during the continuance of a default in payment of interest on such
Debt Securities or of any Event of Default (other than an Event of Default
occurring as a consequence of this paragraph), except that if the notice of
redemption of any Debt Securities shall theretofore have been mailed in
accordance with the provisions hereof, the Trustee or any paying agent shall
redeem such Debt Securities if cash sufficient for that purpose shall be
deposited with the Trustee or such paying agent for that purpose in accordance
with the terms of this Article XIV. Except as aforesaid, any moneys in the
sinking fund for such series at the time when any such default or Event of
Default shall occur and any moneys thereafter paid into the sinking fund shall,
during the continuance of such default or Event of Default, be held as security
for the payment of all such Debt Securities; provided, however, that in case
such Event of Default or default, shall have been cured or waived as provided
herein, such moneys shall thereafter be applied on the next succeeding sinking
fund payment date on which such moneys may be applied pursuant to the provisions
of this Section 14.04.
ARTICLE XV
SUBORDINATION OF DEBT SECURITIES
SECTION 15.01. Agreement to Subordinate.
The Company covenants and agrees, and each holder of Debt
Securities issued hereunder and under any supplemental indenture or by any Board
Resolution ("Additional
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Provisions") by such Securityholder's acceptance thereof likewise covenants and
agrees, that all Debt Securities shall be issued subject to the provisions of
this Article XV; and each holder of a Debt Security, 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 premium,
if any, and interest on all Debt Securities issued hereunder and under any
Additional Provisions shall, to the extent and in the manner hereinafter set
forth, be subordinated and junior in right of payment to the prior payment in
full of the Allocable Amounts in respect of all Senior Indebtedness of the
Company, whether outstanding at the date of this Indenture or thereafter
incurred.
In the event of the acceleration of the maturity of Debt
Securities, the holders of all Senior Indebtedness outstanding at the time of
such acceleration will first be entitled to receive payment in full of all
Allocable Amounts in respect of such Senior Indebtedness before the holders of
Debt Securities will be entitled to receive or retain any payment in respect of
the Debt Securities.
"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 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.
"Indebtedness for Money Borrowed" shall mean any obligation
of, or any obligation guaranteed by, the Company for the repayment of borrowed
money, whether or not evidenced by bonds, debentures, notes or other written
instruments.
"Indebtedness Ranking on a Parity with the Debt Securities"
shall mean (i) Indebtedness for Money Borrowed, whether outstanding on the date
of execution of the Indenture or thereafter created, assumed or incurred, which
specifically by its terms ranks equally with and not prior to the Debt
Securities in the right of payment upon the happening of the dissolution or
winding-up or liquidation or reorganization of the Company and (ii) all other
debt securities, and guarantees in respect of those debt securities, issued to
any other 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
equity securities or other securities guaranteed by the Company pursuant to an
instrument that ranks pari passu with or junior in right of payment to the
Guarantee.
"Indebtedness Ranking Junior to the Debt Securities" shall
mean any Indebtedness for Money Borrowed, whether outstanding on the date of
execution of the
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Indenture or thereafter created, assumed or incurred, other than the Company's
8.625% Subordinated Notes due December 10, 2002, which specifically by its terms
ranks junior to and not equally with or prior to the Debt Securities (and any
other Indebtedness Ranking on a Parity with the Debt Securities) 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 for Money
Borrowed, otherwise constituting Indebtedness Ranking on a Parity with the Debt
Securities or Indebtedness Ranking Junior to the Debt Securities, as the case
may be, shall not be deemed to prevent such Indebtedness for Money Borrowed from
constituting Indebtedness Ranking on a Parity with the Debt Securities or
Indebtedness Ranking Junior to the Debt Securities, as the case may be.
"Senior Indebtedness" shall mean all Indebtedness for Money
Borrowed, whether outstanding on the date of execution of the Indenture or
thereafter created, assumed or incurred, except Indebtedness Ranking on a Parity
with the Debt Securities or Indebtedness Ranking Junior to the Debt Securities,
and all deferrals, renewals or extensions of such Senior Indebtedness,
including, without limitation, the Allocable Amounts in respect of the Company's
8.625% Subordinated Notes due December 10, 2002 and any deferrals, renewals or
extensions thereof.
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 of the Company following any grace period, or in the
event that the maturity of any Senior Indebtedness of the Company has been
accelerated because of a default, then, in either case, no payment shall be made
by the Company with respect to the principal (including redemption and sinking
fund payments) of, or premium, if any, or interest on the Debt Securities.
In the event that, notwithstanding the foregoing, any payment
shall be received by the Trustee when such payment is prohibited by the
preceding paragraph of this Section 15.02, such payment shall, subject to
Section 15.06, be held in trust for the benefit of, and shall be paid over or
delivered to, the holders of Senior Indebtedness or their respective
representatives, or to the trustee or trustees under any indenture pursuant to
which any of such Senior Indebtedness may have been issued, as their respective
interests may appear, but only to the extent that the holders of the Senior
Indebtedness (or their representative or representatives or a trustee) notify
the Trustee in writing within 90 days of such payment of the amounts then due
and owing on the Senior Indebtedness and only the amounts specified in such
notice to the Trustee shall be paid to the holders of Senior Indebtedness.
SECTION 15.03. Liquidation; Dissolution; Bankruptcy.
Upon any payment or distribution of assets to creditors upon
any liquidation, dissolution, winding-up, reorganization, assignment for the
benefit of creditors, marshaling of
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assets or any bankruptcy, insolvency, debt restructuring or similar proceedings
in connection with any insolvency or bankruptcy proceeding of the Company, the
holders of Senior Indebtedness will first be entitled to receive payment in full
of all Allocable Amounts in respect of such Senior Indebtedness before the
holders of Debt Securities will be entitled to receive or retain any payment in
respect thereof; and upon any such dissolution or winding-up or liquidation or
reorganization, any payment by the Company, or distribution of assets of the
Company of any kind or character, whether in cash, property or securities, to
which the Securityholders 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 Securityholders
or by the Trustee under this Indenture if received by them or it, directly to
the holders of Senior Indebtedness of the Company (pro rata to such holders on
the basis of the respective Allocable Amounts in respect of Senior Indebtedness
held by such holders, as calculated by the Company) or their representative or
representatives, or to the trustee or trustees under any indenture pursuant to
which any instruments evidencing such Senior Indebtedness may have been issued,
as their respective interests may appear, to the extent necessary to pay such
Allocable Amounts in respect of Senior Indebtedness in full, in money or money's
worth, after giving effect to any concurrent payment or distribution to or for
the holders of such Senior Indebtedness, before any payment or distribution is
made to the Securityholders 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, whether in
cash, property or securities, prohibited by the foregoing, shall be received by
the Trustee before all Allocable Amounts in respect of Senior Indebtedness of
the Company is paid in full, or provision is made for such payment in money in
accordance with its terms, such payment or distribution shall be held in trust
for the benefit of and shall be paid over or delivered to the holders of such
Senior Indebtedness or their representative or representatives, or to the
trustee or trustees under any indenture pursuant to which any instruments
evidencing such Senior Indebtedness may have been issued, as their respective
interests may appear, as calculated by the Company, for application to the
payment of all Senior Indebtedness of the Company, remaining unpaid to the
extent necessary to pay such Allocable Amounts in respect of 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 securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment, the payment of which
is subordinated at least to the extent provided in this Article XV with respect
to the Debt Securities to the payment of all Allocable Amounts in respect of
Senior Indebtedness of the Company, that may at the time be outstanding,
provided that (i) such Senior Indebtedness is assumed by the new corporation, if
any, resulting from any such reorganization or readjustment, and (ii) the rights
of the holders of such Senior Indebtedness are not, without the consent of such
holders, altered by such reorganization or readjustment. The consolidation of
the Company with, or the merger of the Company into, another corporation or the
liquidation or dissolution of the Company following the conveyance or transfer
of its
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property as an entirety, or substantially as an entirety, to another corporation
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 corporation shall, as a part of
such consolidation, merger, conveyance or transfer, 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.
SECTION 15.04. Subrogation.
Subject to the payment in full of all Allocable Amounts in
respect of Senior Indebtedness of the Company, the Securityholders shall be
subrogated to the rights of the holders of such Senior Indebtedness to receive
payments or distributions of cash, property or securities of the Company,
applicable to such Senior Indebtedness until the principal of (and premium, if
any) and interest on the Debt Securities shall be paid in full; and, for the
purposes of such subrogation, no payments or distributions to the holders of
such Senior Indebtedness of any cash, property or securities to which the
Securityholders 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
Securityholders or the Trustee, shall, as between the Company, its creditors
other than holders of Senior Indebtedness of the Company, and the holders of the
Debt Securities be deemed to be a payment or distribution 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 Securities, 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, any Additional Provisions or in the Debt Securities 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 Debt Securities, the
obligation of the Company, which is absolute and unconditional, to pay to the
holders of the Debt Securities the principal of (and premium, if any) and
interest on the Debt Securities as and when the same shall become due and
payable in accordance with their terms, or is intended to or shall affect the
relative rights of the holders of the Debt Securities and creditors of the
Company, other than the holders of Senior Indebtedness of the Company, nor shall
anything herein or therein prevent the Trustee or the holder of any Debt
Security 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, received upon the exercise of any such remedy.
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 Securityholders shall be entitled to
conclusively rely upon any order or decree made by any court of competent
jurisdiction in which such dissolution, winding-up, liquidation or
reorganization proceedings are pending, or a certificate of the receiver,
trustee in bankruptcy, liquidation trustee,
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agent or other Person making such payment or distribution, delivered to the
Trustee or to the Securityholders, for the purposes of ascertaining the Persons
entitled to participate in such distribution, the holders of Senior Indebtedness
and other indebtedness of the Company, the amount thereof or payable thereon,
the amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article XV.
SECTION 15.05. Trustee to Effectuate Subordination.
Each Securityholder by such Securityholder's acceptance
thereof authorizes and directs the Trustee on such Securityholder's behalf to
take such action as may be necessary or appropriate to effectuate the
subordination provided in this Article XV and appoints the Trustee such
Securityholder'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 at the Principal Office 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 Debt Securities pursuant to the provisions of this
Article XV. Notwithstanding the provisions of this Article XV or any other
provision of this Indenture or any Additional Provisions, the Trustee shall not
be charged with knowledge of the existence of any facts that would prohibit the
making of any payment of monies to or by the Trustee in respect of the Debt
Securities pursuant to the provisions of this Article XV, unless and until a
Responsible Officer of the Trustee at the Principal Office 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 premium, if
any) or interest on any Debt Security), then, anything herein contained to the
contrary notwithstanding, the Trustee shall have full power and authority to
receive such money and to apply the same to the purposes for which they were
received, and shall not be affected by any notice to the contrary that may be
received by it within two Business Days prior to such date.
The Trustee, subject to the provisions of Article VI of this
Indenture, shall be entitled to conclusively rely on the delivery to it of a
written notice by a Person representing himself to be a holder of Senior
Indebtedness of the Company (or a trustee or representative on behalf of such
holder), to establish that such notice has been given by a holder of such Senior
Indebtedness or a trustee or representative 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
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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.
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 other holder of
Senior Indebtedness, and nothing in this Indenture or any Additional Provisions
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 or any Additional Provisions
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 Securityholders, 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, or by any act or failure to act, in good faith, by any
such holder, or by any noncompliance by the Company, with the terms, provisions
and covenants of this Indenture, regardless of any knowledge thereof that any
such holder may have or otherwise be charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Indebtedness of the Company may, at any time
and from time to time, without the consent of or notice to the Trustee or the
Securityholders, without incurring responsibility to the Securityholders and
without impairing or releasing the subordination provided in this Article XV or
the obligations hereunder of the holders of the Debt Securities to the holders
of such Senior Indebtedness, do any one or more of the following: (i) change the
manner, place or terms of payment or extend the time of payment of, or renew or
alter, such Senior Indebtedness, or otherwise amend or supplement in any manner
such Senior Indebtedness or any instrument evidencing the same or any agreement
under which such Senior Indebtedness is outstanding; (ii) sell, exchange,
release or otherwise deal with any property pledged, mortgaged or otherwise
securing such Senior Indebtedness; (iii) release any Person liable in any manner
for the collection of such Senior Indebtedness; and (iv) exercise or refrain
from exercising any rights against the Company, and any other Person.
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The First National Bank of Chicago hereby accepts the trusts
in this Indenture declared and provided, upon the terms and conditions herein
above 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.
SUMMIT BANCORP.
By______________________________________
Name:
Title:
THE FIRST NATIONAL BANK OF
CHICAGO, as Trustee
By______________________________________
Name:
Title:
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