EXHIBIT 4.1
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NATIONWIDE FINANCIAL SERVICES, INC.
____________
Form of
INDENTURE
Dated as of _______, 1997
___________
WILMINGTON TRUST COMPANY
Trustee
____________
__% Junior Subordinated Deferrable
Interest Debentures Due 2037
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TABLE OF CONTENTS
Page
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ARTICLE I Definitions and Other Provisions of General Application.. 2
SECTION 1.01. Definitions........................................... 2
SECTION 1.02. Compliance Certificates and Opinions.................. 10
SECTION 1.03. Form of Documents Delivered to Trustee................ 11
SECTION 1.04. Acts of Holders; Record Dates......................... 12
SECTION 1.05. Notices, Etc., to the Trustee and the Company...... 14
SECTION 1.06. Notice to Holders; Waiver............................. 14
SECTION 1.07. Conflict with Trust Indenture Act..................... 15
SECTION 1.08. Effect of Headings and Table of Contents........... 15
SECTION 1.09. Successors and Assigns................................ 15
SECTION 1.10. Separability Clause................................... 15
SECTION 1.11. Benefits of Indenture................................. 15
SECTION 1.12. Governing Law......................................... 15
SECTION 1.13. Legal Holidays........................................ 15
ARTICLE II Security Forms........................................... 16
SECTION 2.01. Forms Generally....................................... 16
ARTICLE III The Securities........................................... 16
SECTION 3.01. Title and Terms....................................... 16
SECTION 3.02. Denominations......................................... 18
SECTION 3.03. Execution, Authentication, Delivery and Dating........ 18
SECTION 3.04. Temporary Securities.................................. 18
SECTION 3.05. Registration, Registration of Transfer and Exchange... 19
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities...... 20
SECTION 3.07. Payment of Interest; Interest Rights Preserved........ 21
SECTION 3.08. Persons Deemed Owners................................. 23
SECTION 3.09. Cancellation.......................................... 23
SECTION 3.10. Right of Set Off...................................... 23
SECTION 3.11. CUSIP Numbers......................................... 23
SECTION 3.12. Extension of Interest Payment Period; Notice of
Extension............................................. 23
SECTION 3.13. Paying Agent and Security Registrar................... 25
SECTION 3.14. Global Debenture...................................... 25
SECTION 3.15. Agreed Tax Treatment.................................. 27
ARTICLE IV Satisfaction and Discharge............................... 27
SECTION 4.01. Satisfaction and Discharge of Indenture............ 27
SECTION 4.02. Applications of Trust Money........................ 28
ARTICLE V Remedies................................................. 29
SECTION 5.01. Events of Default.................................. 29
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment. 30
SECTION 5.03. Collection of Indebtedness and Suits for Enforcement by
Trustee............................................ 32
SECTION 5.04. Trustee May File Proofs of Claim................... 32
SECTION 5.05. Trustee May Enforce Claims Without Possession of
Securities......................................... 33
SECTION 5.06. Application of Money Collected..................... 33
SECTION 5.07. Limitation on Suits................................ 34
SECTION 5.08. Unconditional Right of Holders to Receive Principal
and Interest...................................... 34
SECTION 5.09. Restoration of Rights and Remedies................. 35
SECTION 5.10. Rights and Remedies Cumulative..................... 35
SECTION 5.11. Delay or Omission Not Waiver....................... 35
SECTION 5.12. Control by Holders................................. 35
SECTION 5.13. Waiver of Past Defaults............................ 36
SECTION 5.14. Undertaking for Costs.............................. 36
SECTION 5.15. Waiver of Stay or Extension Laws................... 36
SECTION 5.16. Enforcement by Holders of Capital Securities....... 37
ARTICLE VI The Trustee.............................................. 37
SECTION 6.01. Certain Duties and Responsibilities................... 37
SECTION 6.02. Notice of Defaults.................................... 37
SECTION 6.03. Certain Rights of Trustee............................. 38
SECTION 6.04. Not Responsible for Recitals or Issuance of
Securities......................................... 39
SECTION 6.05. May Hold Securities................................... 39
SECTION 6.06. Money Held in Trust................................... 39
SECTION 6.07. Compensation and Reimbursement........................ 39
SECTION 6.08. Disqualification; Conflicting Interests............... 40
SECTION 6.09. Corporate Trustee Required; Eligibility............... 40
SECTION 6.10. Resignation and Removal; Appointment of Successor..... 40
SECTION 6.11. Acceptance of Appointment by Successor................ 42
SECTION 6.12. Merger, Conversion, Consolidation or Succession to
Business........................................... 42
SECTION 6.13. Preferential Collection of Claims Against Company..... 43
ii
ARTICLE VII Holders' Lists and Reports by Trustee and Company........ 43
SECTION 7.01. Company to Furnish Trustee Names and Addresses of
Holders............................................. 43
SECTION 7.02. Preservation of Information; Communications to Holders 43
SECTION 7.03. Reports by Trustee.................................... 44
SECTION 7.04. Reports by Company.................................... 44
SECTION 7.05. Tax Reporting......................................... 44
ARTICLE VIII Consolidation, Merger, Conveyance, Transfer or Lease..... 45
SECTION 8.01. Company May Consolidate, Etc., Only on Certain Terms.. 45
SECTION 8.02. Successor Substituted................................. 46
ARTICLE IX Supplemental Indentures.................................. 46
SECTION 9.01. Supplemental Indentures Without Consent of Holders.... 46
SECTION 9.02. Supplemental Indentures with Consent of Holders....... 47
SECTION 9.03. Execution of Supplemental Indentures.................. 48
SECTION 9.04. Effect of Supplemental Indentures..................... 49
SECTION 9.05. Conformity with Trust Indenture Act................... 49
SECTION 9.06. Reference in Securities to Supplemental Indentures.... 49
ARTICLE X Covenants; Representations and Warranties................ 49
SECTION 10.01. Payment of Principal and Interest.................... 49
SECTION 10.02. Maintenance of Office or Agency...................... 49
SECTION 10.03. Money for Security Payments to Be
Held in Trust...................................... 50
SECTION 10.04. Statement by Officers as to Default.................. 51
SECTION 10.05. Limitation on Dividends; Transactions
with Affiliates; Covenants as to
the Trust......................................... 51
SECTION 10.06. Payment of Expenses of the Trust..................... 52
ARTICLE XI Redemption of Securities................................. 53
SECTION 11.01. Right of Redemption.................................. 53
SECTION 11.02. Applicability of Article............................. 53
SECTION 11.03. Election to Redeem; Notice to Trustee................ 53
SECTION 11.04. Selection by Trustee of Securities to
Be Redeemed....................................... 53
SECTION 11.05. Notice of Redemption................................. 54
SECTION 11.06. Deposit of Redemption Price.......................... 54
SECTION 11.07. Securities Payable on Redemption Date................ 55
SECTION 11.08. Securities Redeemed in Part.......................... 55
iii
SECTION 11.09. Optional Redemption.................................. 56
SECTION 11.10. Tax Event Redemption................................. 56
ARTICLE XII Subordination of Securities.............................. 57
SECTION 12.01. Agreement to Subordinate............................. 57
SECTION 12.02. Default on Senior Indebtedness....................... 58
SECTION 12.03. Liquidation; Dissolution; Bankruptcy................. 58
SECTION 12.04. Subrogation.......................................... 60
SECTION 12.05. Trustee to Effectuate Subordination.................. 61
SECTION 12.06. Notice by the Company................................ 61
SECTION 12.07. Rights of the Trustee: Holders of
Senior Indebtedness............................... 62
SECTION 12.08. Subordination May Not Be Impaired.................... 63
iv
Nationwide Financial Services, Inc.
Certain Sections of this Indenture relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939
Trust Indenture Indenture
Act Section Section
S 310(a)(1)............................................................ 609
(a)(2)............................................................ 609
(a)(3)................................................. Not Applicable
(a)(4)................................................. Not Applicable
(b) ....................................................... 608, ▇▇▇
▇ ▇▇▇(▇) ............................................................. 613
(b) ............................................................ 613
S 312(a) ............................................................ 701
702(a)
(b) .............................................................702(b)
(c) .............................................................702(c)
S 313(a) ......................................................... 703(a)
(a)(4) ..................................................... 101, 1004
(b) ......................................................... 703(a)
(c) ......................................................... 703(a)
(d) ......................................................... 703(b)
S 314(a) ............................................................ 704
(b) .................................................. Not Applicable
(c)(1) ........................................................... 102
(c)(2) ........................................................... 102
(c)(3) ................................................ Not Applicable
(d) .................................................. Not Applicable
(e) ............................................................ 102
S 315(a) ............................................................ 601
(b) ............................................................ 602
(c) ............................................................ 601
(d) ............................................................ 601
(e) ............................................................ 514
S 316(a) ............................................................ 101
(a)(1)(A) ........................................................ 502
(a)(1)(B) ........................................................ 513
(a)(2) ................................................ Not Applicable
(b) .............................................................. 508
(c) ........................................................... 104(c)
S 317(a)(1) ........................................................... 503
(a)(2) ........................................................... 504
(b) ............................................................. 1003
S 318(a) .............................................................. 107
____________________
Note: This reconciliation and tie shall not, for any purpose be deemed
to be a part of the Indenture.
v
INDENTURE, dated as of ___________, 1997, between NATIONWIDE FINANCIAL
SERVICES, INC., a corporation duly organized and existing under the laws of
the State of Delaware (herein called the "Company"), and Wilmington Trust
Company, a Delaware banking corporation, as Trustee (herein called the
"Trustee").
RECITALS OF THE COMPANY
WHEREAS Nationwide Financial Services Capital Trust, a Delaware
business trust (the "Trust"), formed under the Amended and Restated Declaration
of Trust among the Company, as Sponsor, Wilmington Trust Company, as property
trustee (the "Property Trustee"), and as Delaware trustee (the "Delaware
Trustee"), and ______________, _____________________ and _________________, as
trustees, dated as of _____________, 1997 (the "Declaration"), pursuant to the
Underwriting Agreement (the "Underwriting Agreement") dated _______________,
1997, among the Company, the Trust and the Underwriters named therein, will
issue and sell up to $100 million aggregate liquidation amount of its __%
Capital Securities (the "Capital Securities") with a liquidation preference of
$1,000 per Capital Security, having an aggregate liquidation amount with respect
to the assets of the Trust of up to $100 million;
WHEREAS the trustees of the Trust, on behalf of the Trust, will
execute and deliver to the Company Common Securities evidencing an ownership
interest in the Trust, registered in the name of the Company, in an aggregate
amount equal to three percent of the capitalization of the Trust, equivalent to
up to ______ Common Securities, with a liquidation preference of $__ per Common
Security, having an aggregate liquidation amount with respect to the assets of
the Trust of up to $_________ (the "Common Securities");
WHEREAS the Trust will use the proceeds from the sale of the Capital
Securities and the Common Securities to purchase from the Company, Securities
(as defined below) in an aggregate principal amount of up to $___________;
WHEREAS the Company is guaranteeing the payment of distributions on
the Capital Securities, and payment of the Redemption Price or Tax Event
Redemption Price, as applicable (each as defined herein) and payments on
liquidation with respect to the Capital Securities, to the extent provided in
the Capital Securities Guarantee Agreement (the "Guarantee") between the Company
and Wilmington Trust Company, as Capital Securities Guarantee
Trustee, for the benefit of the holders of the Capital Securities from time to
time;
WHEREAS the Company has duly authorized the creation of an issue of
its __% Junior Subordinated Deferrable Interest Debentures Due 2037 (the
"Securities"), of substantially the tenor and amount hereinafter set forth and
to provide therefor the Company has duly authorized the execution and delivery
of this Indenture; and
WHEREAS all things necessary to make the Securities, when executed by
the Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company, and to make this Indenture a
valid agreement of the Company, in accordance with their and its terms, have
been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders (as defined herein) thereof, it is mutually agreed,
for the equal and proportionate benefit of all Holders of the Securities, as
follows:
ARTICLE I
Definitions and Other
Provisions of General Application
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SECTION 1.01. Definitions. For all purposes of this Indenture,
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except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles; and
(4) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
article, section or other subdivision.
2
"Act", when used with respect to any Holder, has the meaning specified
in Section 1.04.
"Additional Payments" means Compounded Interest and Additional Sums,
if any.
"Additional Sums" has the meaning specified in Section 3.01.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agent" means any Registrar, Paying Agent, Conversion Agent or co-
registrar.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means any day other than a Saturday or a Sunday or a
day on which banking institutions in The City of New York are authorized or
required by law or executive order to remain closed.
"Capital Securities" has the meaning specified in the Recitals to this
instrument.
"Commission" means the Securities and Exchange Commission, as form
time to time constituted, created under the Securities Exchange Act of 1934, or,
if at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Common Securities" has the meaning specified in the Recitals to this
instrument.
3
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its Vice
Chairman of the Board, its President or a Vice President, and by its Treasurer,
an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered
to the Trustee.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable to
the remaining term of the Securities to be redeemed that would be utilized, at
the time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity to the
remaining term of such Securities.
"Comparable Treasury Price" means, with respect to any redemption
date, (i) the average of the bid and asked prices for the Comparable Treasury
Issue (expressed in each case as a percentage of its principal amount) on the
third business day preceding such redemption date, as set forth in the daily
statistical release (or any successor release) published by the Federal Reserve
Bank of New York and designated "Composite 3:30 p.m. Quotations for U.S.
Government Securities" or (ii) if such release (or any successor release) is not
published or does not contain such prices on such business day, (A) the average
of the Reference Treasury Dealer Quotations for such redemption date, after
excluding the highest and lowest such Reference Treasury Dealer quotations, or
(B) if the Trustee obtains fewer than three such Reference Treasury Dealer
Quotations, the average of all such Quotations.
"Compounded Interest" has the meaning specified in Section 3.12.
"Corporate Trust Office" means the principal office of the Trustee in
Wilmington, Delaware, at which at any particular time its corporate trust
business shall be administered and which at the date of this Indenture is ▇▇▇▇▇▇
Square North, ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ Attn: Corporate Trust
Administration.
"Declaration" has the meaning specified in the Recitals of this
instrument.
4
"Defaulted Interest" has the meaning specified in Section 3.07.
"Delaware Trustee" has the meaning given it in the Recitals of this
instrument.
"Depository" has the meaning specified in the Declaration.
"Event of Default" has the meaning specified in Section 5.01.
"Expiration Date" has the meaning specified in Section 1.04(d).
"Extended Interest Payment Period" has the meaning specified in
Section 3.12.
"Global Debenture" has the meaning specified in Section 3.14.
"Guarantee" has the meaning specified in the Recitals to this
instrument.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively.
"Independent Investment Banker" means one of the Reference Treasury
Dealers appointed by the Trustee after consultation with the Company.
"Interest Payment Date" has the meaning specified in Section 3.01.
"Make-Whole Premium" has the meaning specified in Section 11.09.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
5
"Ministerial Action" has the meaning specified in Section 11.10.
"90 Day Period" has the meaning specified in Section 11.10.
"Non Book-Entry Capital Securities" has the meaning specified in
Section 3.14.
"No Recognition Opinion" has the meaning specified in Annex I to the
Declaration.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the Vice Chairman of the Board, the President or a Vice President,
and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary of the Company, and delivered to the Trustee. One of the officers
signing an Officers' Certificate given pursuant to Section 10.04 shall be the
principal executive, financial or accounting officer of the Company.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be reasonably acceptable to the Trustee.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except: (i) Securities theretofore cancelled by the
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Trustee or delivered to the Trustee for cancellation; (ii) Securities for whose
payment or redemption money in the necessary amount has been theretofore
deposited with the Trustee or any Paying Agent (other than the Company) in trust
or set aside and segregated in trust by the Company (if the Company shall act as
its own Paying Agent) for the Holders of such Securities; provided, that if such
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Securities are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory to the Trustee has
been made; and (iii) Securities which have been paid pursuant to Section 3.06,
converted into Common Stock pursuant to Section 13.01, or in exchange for or in
lieu of which other Securities have been authenticated and delivered pursuant to
this Indenture, other than any such Securities in respect of which there shall
have been presented to the Trustee proof satisfactory to it that such Securities
are held by a bona fide purchaser in whose hands such Securities are valid
obligations of the Company; provided, further, that in determining whether the
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Holders of the requisite aggregate liquidation amount of the Securities then
Outstanding have given any request, demand, authorization, direction, notice,
consent or waiver hereunder, Securities
6
owned by the Sponsor, any Trustee or any Affiliate of the Sponsor or any Trustee
shall be disregarded and deemed not to be Outstanding, except that (a) in
determining whether any Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities which such Trustee knows to be so owned shall be so disregarded and
(b) the foregoing shall not apply at any time when all of the outstanding
Securities are owned by the Sponsor, one or more of the Trustees and/or any such
Affiliate. Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Regular Trustees the pledgee's right so to act with respect to such Securities
and that the pledgee is not the Sponsor or any Affiliate of the Sponsor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or interest on any Securities on behalf of the Company.
"Person" means any individual, corporation, 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 Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.06 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Property Trustee" has the meaning specified in the Recitals to this
instrument.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price" has the meaning specified in Section 11.09.
"Redemption Tax Opinion" has the meaning set forth in Annex I to the
Declaration.
"Reference Treasury Dealer" means each of Credit Suisse First Boston
Corporation, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated and ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇
& ▇▇▇▇▇ Incorporated and their respective successors; provided, however, that if
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any of the foregoing shall cease to be a primary U.S. Government Securities
dealer in New York City
7
(a "Primary Treasury Dealer"), the Company shall substitute therefor another
Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined by
the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m. on the
third business day preceding such redemption date.
"Regular Record Date" has the meaning specified in Section 3.01.
"Responsible Officer", when used with respect to the Trustee, means
the chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president, any assistant vice
president, the treasurer, any assistant treasurer, any trust officer or
assistant trust officer, the controller or any assistant controller or any other
officer of the Trustee customarily performing functions similar to those
performed by any of the above-designated officers and also means, with respect
to an particular corporate trust matter, any other officer to whom such matter
is referred because of his knowledge of and familiarity with the particular
subject.
"Securities" has the meaning specified in the Recitals to this
instrument.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.05.
"Senior Indebtedness" means, in respect of the Company, (i) the
principal, premium, if any, and interest in respect of (A) indebtedness of such
obligor for money borrowed and (B) indebtedness evidenced by securities,
debentures, bonds or other similar instruments issued by such obligor, (ii) all
capital lease obligations of such obligor, (iii) all obligations of such obligor
issued or assumed as the deferred purchase price of property, all conditional
sale obligations of such obligor and all obligations of such obligor under any
title retention agreement (but excluding trade accounts payable arising in the
ordinary course of business), (iv) all obligations of such obligor for the
reimbursement of any letter of credit, banker's acceptance, security purchase
facility or similar credit transaction, (v) all obligations of the type referred
to in clauses (i) through (iv) above of other persons for the payment of which
such obligor is responsible or liable
8
as obligor, guarantor or otherwise, (vi) all obligations of the type referred to
in clauses (i) though (v) above of other persons secured by any lien on any
property or asset of such obligor (whether or not such obligation is assumed by
such obligor), except for (1) any such indebtedness that is by its terms
subordinated to or pari passu with the Securities and (2) any indebtedness
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(including all other debt securities) initially issued to any other trust, or a
trustee of such trust, partnership or other entity affiliated with the Company
that is, directly or indirectly, a financing vehicle of the Company (a
"Financing Entity") in connection with the issuance by such Financing Entity of
preferred securities or other similar securities and (vii) interest accruing
subsequent to events of bankruptcy of the Company and its subsidiaries at the
rate provided for in the documentation governing such Senior Indebtedness,
whether or not such interest is an allowed claim enforceable against the debtor
in a bankruptcy case under relevant bankruptcy law.
"Significant Subsidiary" means a Subsidiary, including its
Subsidiaries, which meets any of the following conditions (in each case
determined in accordance with generally accepted accounting principles): (i)
the Company's and its other Subsidiaries' investment in and advances to the
Subsidiary exceed ten percent of the total assets of the Company and its
Subsidiaries consolidated as of the end of the most recently completed fiscal
year; (ii) the Company's and its other Subsidiaries' proportionate share of the
total assets (after inter-company eliminations) of the Subsidiary exceeds 10
percent of the total assets of the Company and its Subsidiaries consolidated as
of the end of the most recently completed fiscal year; or (iii) the Company's
and its other Subsidiaries' equity interest in the income from continuing
operations before income taxes, extraordinary items and cumulative effect of a
change in accounting principles of the Subsidiary exceed ten percent of such
income of the Company and its Subsidiaries consolidated for the most recently
completed fiscal year.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 3.07.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal, together with any
accrued and unpaid interest (including Compounded Interest), of such Security or
such installment of interest is due and payable (whether the initial such date
or if pursuant to Section 3.01 the Company elects to change or extend the Stated
9
Maturity, such later date as is chosen by the Company pursuant to Section 3.01).
"Subsidiary" of any Person means (i) a corporation more than 50% of
the outstanding Voting Stock of which is owned, directly or indirectly, by such
Person or by such Person and one or more Subsidiaries thereof or (ii) any other
Person (other than a corporation) in which such Person, or one or more other
Subsidiaries of such Person or such Person and one or more other Subsidiaries
thereof, directly or indirectly, has at least a majority ownership and power to
direct the policies, management and affairs thereof.
"Tax Event" has the meaning specified in Annex I to the Declaration.
"Tax Event Redemption Price" has the meaning specified in Section
11.10.
"Treasury Rate" means, with respect to any redemption date, the rate
per annum equal to the semiannual equivalent yield to maturity of the Comparable
Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as
a percentage of its principal amount) equal to the Comparable Treasury Price for
such redemption date.
"Trust" has the meaning specified in the Recitals to this instrument.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed; provided, however,
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that in the event the Trust Indenture Act of 1939 is amended after such date,
"Trust Indenture Act" means, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
"Trust Securities" means Common Securities and Capital Securities.
"Underwriters" with respect to the Capital Securities means Credit
Suisse First Boston Corporation, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Co. Incorporated and ▇▇▇▇▇▇▇
Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated.
10
"Underwriting Agreement" has the meaning specified in the Recitals to
this instrument.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
SECTION 1.02. Compliance Certificates and Opinions. Upon any
------------------------------------
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee such
certificates and opinions as may be required under the Trust Indenture Act or
reasonably requested by the Trustee in connection with such application or
request. Each such certificate or opinion shall be given in the form of an
Officers' Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
applicable requirements of the Trust Indenture Act and any other applicable
requirement set forth in this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made or caused to be made such examination or investigation as is necessary
to enable him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 1.03. Form of Documents Delivered to Trustee. In any case
--------------------------------------
where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified
by, or covered by the opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such Person may certify or
give an opinion with respect to some matters and one or more other such
11
Persons as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.04. Acts of Holders; Record Dates. (a) Any request,
-----------------------------
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given to or taken by Holders may be embodied in
and evidenced by one or more instruments of substantially similar tenor signed
by such Holders in person or by an agent duly appointed in writing; and, except
as herein otherwise expressly provided, such action shall become effective when
such instrument or instruments is or are delivered to the Trustee and, where it
is hereby expressly required, to the Company. Such instrument or instruments
(and the action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing such instrument or instruments.
---
Proof of execution of any such instrument or of a writing appointing any such
agent shall be sufficient for any purpose of this Indenture and (subject to
Section 6.01) conclusive in favor of the Trustee and the Company, if made in the
manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgements of deeds, certifying that the individual signing
such instrument or writing
12
acknowledged to him the execution thereof. Where such execution is by a signer
acting in a capacity other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his authority. The fact and
date of the execution of any such instrument or writing, or the authority of the
Person executing the same, may also be proved in any other manner which the
Trustee or the Company, as the case may be, deems sufficient.
(c) The Company may, in the circumstances permitted by the Trust
Indenture Act, fix any day as the record date for the purpose of determining the
Holders of Outstanding Securities entitled to give, make or take any request,
demand, authorization, direction, notice, consent, waiver or other action, or to
vote on any action, authorized or permitted to be given or taken by Holders. If
not set by the Company prior to the first solicitation of a Holder made by any
Person in respect of any such action, or, in the case of any such vote, prior to
such vote, the record date for any such action or vote shall be the 30th day
(or, if later, the date of the most recent list of Holders required to be
provided pursuant to Section 7.01) prior to such first solicitation or vote, as
the case may be. With regard to any record date, only the Holders on such date
(or their duly designated proxies) shall be entitled to give or take, or vote
on, the relevant action.
(d) The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities entitled to join in the giving
or making of (i) any notice of default, (ii) any declaration of acceleration
referred to in Section 5.02, (iii) any request to institute proceedings referred
to in Section 5.07(2) or (iv) any direction referred to in Section 5.12. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities on such record date, and no other Holders, shall be entitled to join
in such notice, declaration, request or direction, whether or not such Holders
remain Holders after such record date; provided, that no such action shall be
--------
effective hereunder unless taken on or prior to the date set by the Trustee by
which any such determination shall be made (the "Expiration Date") by Holders of
the requisite principal amount of Outstanding Securities on such record date.
Nothing in this paragraph shall be construed to prevent the Trustee from setting
a new record date for any action for which a record date has previously been set
pursuant to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be cancelled and of no effect),
and nothing in this paragraph shall be construed to render ineffective any
action taken by Holders of the requisite principal amount of Outstanding
Securities of the date such action is taken. Promptly after any record date is
set
13
pursuant to this paragraph, the Trustee, at the Company's expense, shall cause
notice of such record date, the proposed action by Holders and the applicable
Expiration Date to be given to the Company in writing and to each Holder of
Securities in the manner set forth in Section 1.06.
(e) The ownership of Securities shall be proved by the Security
Register.
(f) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
(g) Without limiting the foregoing, a Holder entitled hereunder to
give or take any such action with regard to any particular Security may do so
with regard to all or any part of the principal amount of such Security or by
one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any different part of such principal amount.
SECTION 1.05. Notices, Etc., to the Trustee and the Company. Any
---------------------------------------------
request, demand, authorization, direction, notice, consent, waiver or Act of
Holders or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, Attention: Corporate
Trust Trustee Administration, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the
first paragraph of this instrument or at any other address previously
furnished in writing to the Trustee by the Company.
SECTION 1.06. Notice to Holders; Waiver. Where this Indenture
-------------------------
provides for notice to Holders of any event, such notice shall be sufficiently
given (unless otherwise herein expressly provided) if in writing and mailed,
first-
14
class postage prepaid, to each Holder affected by such event, at such Holder's
address as it appears in the Security Register, not later than the latest date
(if any), and not earlier than the earliest date (if any), prescribed for the
giving of such notice. In any case where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed,
to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders. Any notice when mailed to a Holder in the aforesaid
manner shall be conclusively deemed to have been received by such Holder whether
or not actually received by such Holder. Where this Indenture provides for
notice in any manner, such notice may be waived in writing by the Person
entitled to receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute sufficient notification for every purpose hereunder.
SECTION 1.07. Conflict with Trust Indenture Act. If any provision
---------------------------------
hereof limits, qualifies or conflicts with a provision of the Trust Indenture
Act that is required under such Act to be a part of and govern this Indenture,
the latter provision shall control. If any provision of this Indenture modifies
or excludes any provision of the Trust Indenture Act that may be so modified or
excluded, the latter provision shall be deemed to apply to this Indenture as so
modified or to be excluded, as the case may be.
SECTION 1.08. Effect of Headings and Table of Contents. The article
----------------------------------------
and section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
SECTION 1.09. Successors and Assigns. All covenants and agreements
----------------------
in this Indenture by the Company shall bind its successors and assigns, whether
so expressed or not.
SECTION 1.10. Separability Clause. In case any provision in this
-------------------
Indenture or in the Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
15
SECTION 1.11. Benefits of Indenture. Nothing in this Indenture or in
---------------------
the Securities, express or implied, shall give to any Person, other than the
parties hereto and their successors hereunder, the holders of Senior
Indebtedness, the holders of Capital Securities (to the extent provided herein)
and the Holders of Securities, any benefit or any legal or equitable right,
remedy or claim under this Indenture.
SECTION 1.12. Governing Law. THIS INDENTURE AND THE SECURITIES SHALL
-------------
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
SECTION 1.13. Legal Holidays. In any case where any Interest Payment
--------------
Date, Redemption Date or Stated Maturity of any Security shall not be a Business
Day, then (notwithstanding any other provision of this Indenture or of the
Securities) payment of interest or principal or conversion of the Securities
need not be made on such date, but may be made on the next succeeding Business
Day (except that, if such Business Day is in the next succeeding calendar year,
such Interest Payment Date, Redemption Date or Stated Maturity, as the case may
be, shall be the immediately preceding Business Day) with the same force and
effect as if made on the Interest Payment Date or Redemption Date, or at the
Stated Maturity or on such last day for conversion; provided, that no interest
--------
shall accrue for the period from and after such Interest Payment Date,
Redemption Date or Stated Maturity, as the case may be.
ARTICLE II
Security Forms
--------------
SECTION 2.01. Forms Generally. The Securities and the Trustee's
---------------
certificates of authentication shall be substantially in the form of Exhibit A-1
which is hereby incorporated in and expressly made a part of this Indenture.
The Securities may have notations, legends or endorsements required by law,
stock exchange rule, agreements to which the Company is subject, if any, or
usage (provided that any such notation, legend or endorsement is in a form
acceptable to the Company). The Company shall furnish any such legend not
contained in Exhibit A-1 to the Trustee in writing. Each Security shall be
dated the date of its authentication. The terms and provisions of the
Securities set forth in Exhibit A-1 are part of the terms of this Indenture and
to the extent applicable, the Company and the Trustee, by their execution and
delivery of this Indenture, expressly agree to such terms and provisions and to
be bound thereby.
16
The definitive Securities shall be typewritten or printed,
lithographed or engraved or produced by any combination of these methods on
steel engraved borders or may be produced in any other manner permitted by the
rules of any securities exchange on which the Securities may be listed, all as
determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
ARTICLE III
The Securities
--------------
SECTION 3.01. Title and Terms. The aggregate principal amount of
---------------
Securities that may be authenticated and delivered under this Indenture is
limited to $___________, except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other Securities
pursuant to Section 3.04, 3.05, 3.06, 9.06, 11.08 or 13.01.
The Securities shall be known and designated as the "__% Junior
Subordinated Deferrable Interest Debentures Due 2037" of the Company. Their
initial Stated Maturity shall be ________, 2037. They shall bear interest at
the rate of __% per annum, from ___________, 1997 or from the most recent
Interest Payment Date (as defined below) to which interest has been paid or duly
provided for, as the case may be, payable semi-annually (subject to deferral as
set forth herein), in arrears, on ___________________ and ______________________
(each an "Interest Payment Date") of each year, commencing ________, 1997 until
the principal thereof is paid or made available for payment, and they shall be
paid to the Person in whose name the Security is registered at the close of
business on the regular record date for such interest installment, which shall
be the close of business on the date which is the first day of the month in
which the Interest Payment Date occurs (the "Regular Record Date"). Interest
will compound semi-annually and will accrue to the extent permitted by law at
the rate of __% per annum on any interest installment not paid when due or
during an extension of an interest payment period as set forth in Section 3.12
hereof.
The amount of interest payable for any period will be computed on the
basis of a 360-day year of twelve 30-day months, and for any period of less than
a full calendar month the number of days elapsed in such month. In the event
that any date on which interest is payable on the Securities is not a Business
Day, then payment of interest payable on such date will be made on the next
succeeding day which is a Business Day (and without any interest or other
payment in respect of any such delay), except that, if such
17
Business Day is in the next succeeding calendar year, such payment shall be made
on the immediately preceding Business Day, in each case with the same force and
effect as if made on such date.
If the Trust is required to pay any additional taxes, duties or other
governmental charges as a result of a Tax Event, then, in any case, the Company
will pay as additional amounts ("Additional Sums") on the Securities, such
additional amounts as may be necessary in order that the amount of distributions
then due and payable by the Trust on the outstanding Capital Securities and
Common Securities shall not be reduced as a result of any additional taxes,
duties or other governmental charges to which the Trust has become subject as a
result of a Tax Event.
The principal of and interest on the Securities shall be payable at
the office or agency of the Company in the United States maintained for such
purpose and at any other office or agency maintained by the Company for such
purpose in such coin or currency of the United States of America as at the time
of payment is legal tender for payment of public and private debts; provided,
--------
however, that at the option of the Company, payment of interest may be made by
-------
check mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register.
The Securities shall be redeemable as provided in Article XI hereof.
The Securities shall be subordinated in right of payment to Senior
Indebtedness as provided in Article XII hereof.
SECTION 3.02. Denominations. The Securities shall be issuable only
-------------
in registered form without coupons and only in denominations of $1,000 and
integral multiples thereof.
SECTION 3.03. Execution, Authentication, Delivery and Dating. The
----------------------------------------------
Securities shall be executed on behalf of
the Company by its Chairman of the Board, its Vice Chairman of the Board, its
President or one of its Vice Presidents, under its corporate seal reproduced
thereon attested by its Secretary or one of its Assistant Secretaries. The
signature of any of these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
18
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities executed by the Company to
the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities; and the Trustee in accordance
with such Company Order shall authenticate and make available for delivery such
Securities as in this Indenture provided and not otherwise.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder.
SECTION 3.04. Temporary Securities. Pending the preparation of
--------------------
definitive Securities, the Company may execute, and upon Company Order the
Trustee shall authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu of
which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities may
determine, as evidenced by their execution of such Securities.
Except in the case of temporary Securities in global form, each of
which shall be exchanged in accordance with the provisions thereof, if temporary
Securities are issued, the Company will cause definitive Securities to be
prepared without unreasonable delay. After the preparation of definitive
Securities, the temporary Securities shall be exchangeable for definitive
Securities upon surrender of the temporary Securities at any office or agency of
the Company designated pursuant to Section 10.02, without charge to the Holder.
Upon surrender for cancellation of any one or more temporary Securities, the
Company shall execute and the Trustee shall authenticate and make available for
delivery in exchange therefor a like principal amount of definitive Securities
of authorized denominations. Until so exchanged the temporary Securities shall
in all respects be entitled to the same benefits under this Indenture as
definitive Securities.
19
SECTION 3.05. Registration, Registration of Transfer and Exchange.
---------------------------------------------------
(a) General. The Company shall cause to be kept at the Corporate Trust Office
-------
of the Trustee a register (the register maintained in such office and in any
other office or agency designated pursuant to Section 10.02 being herein
sometimes collectively referred to as the "Security Register") in which, subject
to such reasonable regulations as it may prescribe, the Company shall provide
for the registration of Securities and of transfers of Securities. The Trustee
is hereby appointed "Security Registrar" for the purpose of registering
Securities and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security (except a
Security in global form) at an office or agency of the Company designated
pursuant to Section 10.02 for such purpose, the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the designated transferee
or transferees, one or more new Securities of any authorized denominations and
of a like aggregate principal amount.
At the option of the Holder, Securities (except a Security in global
form) may be exchanged for other Securities of any authorized denominations and
of a like aggregate principal amount, upon surrender of the Securities to be
exchanged at such office or agency. Whenever any Securities are so surrendered
for exchange, the Company shall execute, and the Trustee shall authenticate and
make available for delivery, the Securities which the Holder making the exchange
is entitled to receive.
All Securities issued upon registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of
20
Securities, other than exchanges pursuant to Section 3.04, 9.06 or 11.08 not
involving any transfer.
Neither the Company nor the Trustee shall be required (i) in the case
of a partial redemption of the Securities, to issue, register the transfer of or
exchange any Security during a period beginning at the opening of business 15
days before the day of the mailing of a notice of redemption of Securities
selected for redemption under Section 11.04 and ending at the close of business
on the day of such mailing and (ii) to register the transfer of or exchange any
Security so selected for redemption in whole or in part, except the unredeemed
portion of any Security being redeemed in part.
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities. If
------------------------------------------------
any mutilated Security is surrendered to the Trustee, the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor a new
Security of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of the
notice to the Company or the Trustee that such Security has been acquired by a
bona fide purchaser, the Company shall execute and the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustees) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
mutilated, destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the mutilated,
destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all the
21
benefits of this Indenture equally and proportionately with any and all other
Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 3.07. Payment of Interest; Interest Rights Preserved.
----------------------------------------------
Interest on any Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name that Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date.
Any interest on any Security which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Holder on the
relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities (or their respective Predecessor
Securities) are registered at the close of business on a Special Record
Date for the payment of such Defaulted Interest, which shall be fixed in
the following manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each Security and
the date of the proposed payment, and at the same time the Company shall
deposit with the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit of
the Persons entitled to such Defaulted Interest as in this Clause provided.
Thereupon the Trustee shall fix a Special Record Date for the payment of
such Defaulted Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such Special
Record Date and, in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be mailed, first-class postage prepaid, to each
Holder at his address as it appears in the Security Register, not less than
10 days prior to such Security Record Date. Notice of the proposed payment
of such
22
Defaulted Interest and the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons in whose names
the Securities (or their respective Predecessor Securities) are registered
at the close of business on such Special Record Date and shall no longer be
payable pursuant to the following Clause (2).
(2) The Company may take payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and, if so
listed, upon such notice as may be required by such exchange (or by the
Trustee if the Securities are not listed), if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this Clause,
such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue (including, in each such case, Compounded Interest),
which were carried by such other Security.
SECTION 3.08. Persons Deemed Owners. Prior to due presentment of a
---------------------
Security for registration of transfer, the Company, the Trustee and any agent of
the Company or the Trustee may treat the Person in whose name such Security is
registered as the owner of such Security for the purpose of receiving payment of
principal of and (subject to Section 3.07) interest (including Compounded
Interest) on such Security and for all other purposes whatsoever, whether or not
such Security be overdue, and neither the Company, the Trustee nor any agent of
the Company or the Trustee shall be affected by notice to the contrary.
SECTION 3.09. Cancellation. All Securities surrendered for payment,
------------
redemption, registration of transfer or exchange or conversion shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it. The Company may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly cancelled by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this Section, except as expressly permitted
by this Indenture. All cancelled Securities held by the Trustee shall be
disposed of as directed by a Company
23
Order; provided, however, that the Trustee shall not be required to destroy the
-------- -------
certificates representing such cancelled Securities.
SECTION 3.10. Right of Set Off. Notwithstanding anything to the
----------------
contrary in this Indenture, the Company shall have the right to set off any
payment it is otherwise required to make hereunder to the extent the Company has
theretofore made, or is concurrently on the date of such payment making, a
payment under the Guarantee.
SECTION 3.11. CUSIP Numbers. The Company in issuing the Securities
-------------
may use "CUSIP" numbers (if then generally in use), and, if so, the Trustee
shall use "CUSIP" numbers in notices of redemption as a convenience to Holders;
provided, that any such notice may state that no representation is made as to
--------
the correctness of such numbers either as printed on the Securities or as
contained in any notice of a redemption and that reliance may be placed only on
the other identification numbers printed on the Securities, and any such
redemption shall not be affected by any defect in or omission of such numbers.
SECTION 3.12. Extension of Interest Payment Period; Notice of
-----------------------------------------------
Extension. (a) So long as no Event of Default (or an event which would be an
---------
Event of Default with the giving of required notice or the passage of time) has
occurred and is continuing, the Company shall have the right, at any time during
the term of the Securities, from time to time to defer payments of interest by
extending for successive periods not exceeding 10 consecutive semi-annual
periods for each such period (an "Extended Interest Payment Period"). To the
extent permitted by applicable law, interest, the payment of which has been
deferred because of the extension of the interest payment period pursuant to
this Section 3.12, will bear interest thereon at __% compounded semi-annually
for each semi-annual period of the Extended Interest Payment Period ("Compounded
Interest"). At the end of the Extended Interest Payment Period, the Company
shall pay all interest and Additional Payments then accrued and unpaid on the
Securities, including any Compounded Interest that shall be payable to the
Holders of the Securities in whose names the Securities are registered in the
Security Register on the first Regular Record Date after the end of the Extended
Interest Payment Period. Before the termination of any Extended Interest
Payment Period, the Company may further extend such period, so long as no Event
of Default (or an event which would be an Event of Default with the giving of
required notice or the passage of time) has occurred and is continuing provided
that such period together with all such further extensions thereof shall not
exceed 10 consecutive semi-annual periods or extend beyond the Maturity of the
Securities. Upon the
24
termination of any Extended Interest Payment Period and upon the payment of all
interest and Additional Payments then due, the Company may commence a new
Extended Payment Period, subject to the foregoing requirements. No interest
shall be due and payable during an Extended Period except at the end thereof.
(b) If the Property Trustee is the sole holder of the Securities, the
Company shall give the Holder of the Securities and the Trustee notice of its
selection of an Extended Interest Payment Period at least one Business Day prior
to the earlier of (i) the Interest Payment Date or (ii) if the Capital
Securities are listed on the New York Stock Exchange or other stock exchange or
quotation system, the date the Trust is required to give notice to the New York
Stock Exchange or other applicable self-regulatory organization or to holders of
the Capital Securities of the record date or the date such distributions are
payable, but in any event not less than ten Business Days prior to such record
date.
(c) If the Property Trustee is not the sole holder of the Securities,
the Company shall give the Holders of the Securities and the Trustee notice of
its selection of an Extended Interest Payment Period at least ten Business Days
prior to the earlier of (i) the Interest Payment Date or (ii) if the Capital
Securities are listed on the New York Stock Exchange or other stock exchange or
quotation system, the date the Trust is required to give notice to the New York
Stock Exchange or other applicable self-regulatory organization or to holders of
the Securities of the record date or the date such distributions are payable,
but in any event not less than two Business Days prior to such record date.
(d) The quarter in which any notice is given pursuant to paragraphs
(b) and (c) hereof shall be counted as one of the 10 semi-annual periods
permitted in the maximum Extended Interest Payment Period permitted under
paragraph (a) hereof.
SECTION 3.13. Paying Agent and Security Registrar. The Trustee will
-----------------------------------
initially act as Paying Agent and Security Registrar. The Company may change
any Paying Agent, Security Registrar or co-registrar without prior notice. The
Company or any of its Affiliates may act in any such capacity.
SECTION 3.14. Global Debenture.
----------------
(a) In connection with a distribution of the Securities to holders of
the Trust Securities pursuant to the Declaration:
25
(i) The Securities in certificated form to be distributed to the
holders of Capital Securities may be presented to the Trustee by the Property
Trustee in exchange for a global Security in an aggregate principal amount equal
to the aggregate principal amount of all Outstanding Securities (a "Global
Debenture"), to be registered in the name of the Depository, or its nominee, and
delivered by the Trustee to the Depositary for crediting to the accounts of its
participants pursuant to the instructions of the Regular Trustees (as defined in
the Declaration). The Company upon any such presentation shall execute a Global
Debenture in such aggregate principal amount and deliver the same to the Trustee
for authentication and delivery in accordance with this Indenture. Payments on
the Securities issued as a Global Debenture will be made to the Depository.
(ii) If any Capital Securities are held in non book-entry certificated
form, the Securities in certificated form may be presented to the Trustee by the
Property Trustee and any Capital Security certificate which represents Capital
Securities other than Capital Securities held by the Depository or its nominee
("Non Book-Entry Capital Securities") will be deemed to represent beneficial
interests in Securities presented to the Trustee by the Property Trustee having
an aggregate principal amount equal to the aggregate principal amount of the Non
Book-Entry Capital Securities until such Capital Security certificates are
presented to the Security Registrar for transfer or reissuance at which time
such Capital Security certificates will be canceled and a Debenture, registered
in the name of the holder of the Capital Security certificate or the transferee
of the holder of such Capital Security certificates, as the case may be, with an
aggregate principal amount of, with an interest rate identical to the
distribution rate of, and accrued and unpaid interest equal to accrued and
unpaid distributions, on the Capital Security certificate canceled, will be
executed by the Company and delivered to the Trustee for authentication and
delivery in accordance with this Indenture. On issue of such Securities,
Securities with an equivalent aggregate principal amount that were presented by
the Property Trustee to the Trustee will be deemed to have been canceled.
(b) Unless and until it is exchanged for Debentures in registered
certificate form, a Global Debenture may be transferred, in whole but not in
part, only by the Depository to a nominee of the Depository or by a nominee of
the Depository to the Depository or another nominee of the Depository or by the
Depository or any such nominee to a successor Depository selected or approved by
the Company or a nominee of such successor Depository.
26
(c) If at any time the Depository for the Debentures notifies the
Company that it is unwilling or unable to continue as Depository for the
Debentures or if at any time the Depository for the Debentures shall no longer
be registered or in good standing as a clearing agency under the Securities
Exchange Act of 1934, as amended, or other applicable statute or regulation, at
a time at which the Depository is required to be so registered to act as
Depository for the Debentures, and a successor Depository is not appointed by
the Company within 90 days after the Company receives such notice or becomes
aware of such condition, as the case may be, the Company will execute, and,
subject to this Indenture, the Trustee, upon written notice from the Company,
will authenticate and deliver the Debentures in definitive registered form
without coupons, in authorized denominations, and in the aggregate principal
amount equal to the principal amount of the Global Debenture in exchange for
such Global Debenture. In addition, the Company, in its sole discretion, may at
any time determine that the Debentures shall no longer be represented by a
Global Debenture. In such event the Company will execute, and subject to this
Indenture, the Trustee, upon receipt of an Officers' Certificate evidencing such
determination by the Company, will authenticate and deliver the Debentures in
definitive registered form without coupons, in authorized denominations, and in
aggregate principal amount equal to the principal amount of the Global Debenture
in exchange for such Global Debenture. Upon the exchange of the Global
Debenture for such Debentures in definitive registered form without coupons, in
authorized denominations, the Global Debenture shall be canceled by the Trustee.
Such Debentures in definitive registered form issued in exchange for the Global
Debenture shall be registered in such names and in such authorized denominations
as the Depository, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee in writing. The Trustee
shall deliver such registered certificated Debentures in definitive form in
exchange for the Global Debenture to the Depository for delivery to the Persons
in whose names such Debentures are so registered.
SECTION 3.15. Agreed Tax Treatment. Each Security issued hereunder
--------------------
shall provide that the Company and, by its acceptance of a Security or a
beneficial interest therein, the Holder of, and any Person that acquires a
beneficial interest in, such Security agree that for United States federal,
state and local tax purposes it is intended that such Security constitute
indebtedness.
ARTICLE IV
Satisfaction and Discharge
--------------------------
27
SECTION 4.01. Satisfaction and Discharge of Indenture. This
---------------------------------------
Indenture shall cease to be of further effect (except as to any surviving rights
of registration of transfer or exchange of Securities herein expressly provided
for), and the Trustee, on demand of and at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other
than (i) Securities which have been mutilated, destroyed, lost or
stolen and which have been replaced or paid as provided in Section
3.06 and (ii) Securities for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such trust, as
provided in Section 10.03) have been delivered to the Trustee for
cancellation; or
(B) all such Securities not theretofore delivered to the Trustee
for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one
year under arrangements satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the name, and at
the expense, of the Company
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds in
trust for the purpose an amount sufficient to pay and discharge the
entire indebtedness on such Securities not theretofore delivered to
the Trustee for cancellation, for principal and interest (including
Compounded Interest) to the date of such deposit (in the case of
Securities which have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officer's Certificate
and an Opinion of Counsel, each
28
stating that all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.07 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of
this Section, the obligations of the Trustee under Section 4.02 and the last
paragraph of Section 10.03 shall survive.
SECTION 4.02. Applications of Trust Money. Subject to the provisions
---------------------------
of the last paragraph of Section 10.03, all money deposited with the Trustee
pursuant to Section 4.01 shall be held in trust and applied by it, in accordance
with the provisions of the Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of
the principal and interest for whose payment such money has been deposited with
the Trustee. All moneys deposited with the Trustee pursuant to Section 4.01
(and held by it or any Paying Agent) for the payment of Securities subsequently
converted shall be returned to the Company upon Company request.
ARTICLE V
Remedies
--------
SECTION 5.01. Events of Default. "Event of Default," wherever used
-----------------
herein, means any one of the following events that has occurred and is
continuing (whatever the reason for such Event of Default and whether it shall
be occasioned by the provisions of Article XII or be voluntary or involuntary or
be effected by operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative or governmental
body):
(1) default in the payment of the principal of (or premium, if any,
on) any Security when due whether at Maturity, upon redemption, by
declaration or otherwise; or
(2) default in the payment of any interest upon any Security,
including any Compounded Interest in respect thereof, when it becomes due
and payable, and continuance of such default for a period of 30 days;
provided, that a valid extension of the interest payment period by the
--------
Company pursuant to this
29
Indenture shall not constitute a default in the payment of interest for
this purpose; or
(3) default in the performance, or breach, of any covenant or warranty
of the Company in this Indenture (other than 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
principal amount of the Outstanding Securities, 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
(4) entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company or any Significant
Subsidiary in an involuntary case or proceeding under any applicable
Federal or state bankruptcy, insolvency, reorganization or other similar
law or (B) a decree or order adjudging the Company or any Significant
Subsidiary a bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement, adjustment or composition of
or in respect of the Company or any Significant Subsidiary under any
applicable Federal or state law, or appointing a custodian, receiver,
liquidator, assignee, trustee, rehabilitator, sequestrator or other similar
official of the Company, or any Significant Subsidiary or ordering the
winding up or liquidation of the Company's or any Significant Subsidiary's
affairs, and the continuance of any such decree or order for relief or any
such other decree or order unstayed and in effect for a period of 60
consecutive days; or
(5) the commencement by the Company or any Significant Subsidiary of a
voluntary case or proceeding under any applicable Federal or state
bankruptcy, insolvency, reorganization or other similar law or of any other
case or proceeding to be adjudicated as bankrupt or insolvent, or the
consent by the Company or any Significant Subsidiary or to the entry of a
decree or order for relief in respect of itself in an involuntary case or
proceeding under any applicable Federal or state bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any
bankruptcy or insolvency case or proceeding against the Company or any
Significant Subsidiary, or the filing by the Company or any Significant
Subsidiary of a petition or answer or
30
consent seeking reorganization or relief under any applicable Federal or
state law, or the consent by the Company or any Significant Subsidiary to
the filing of such petition or to the appointment of or taking possession
by a custodian, receiver, liquidator, assignee, trustee, rehabilitator,
sequestrator or other similar official of the Company or any Significant
Subsidiary or of substantially all of the property of the Company or any
Significant Subsidiary, or the making by the Company or any Significant
Subsidiary of an assignment for the benefit of creditors, or the admission
by the Company or any Significant Subsidiary in writing of its inability to
pay its debts generally as they become due, or the taking of corporate
action by the Company or any Significant Subsidiary in furtherance of any
such action; or
(6) the voluntary or involuntary dissolution, winding up or
termination of the Trust, except in connection with (i) the distribution of
Securities to holders of Capital Securities in liquidation or redemption of
their interests in the Trust, (ii) the redemption of all of the outstanding
Capital Securities of the Trust or (iii) certain mergers, consolidations or
amalgamations, each as permitted by the Declaration.
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment. If
--------------------------------------------------
an Event of Default occurs and is continuing, then and in every such case, the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities may declare the principal of all the Securities and any
other amounts payable hereunder (including any Additional Sums) to be due and
payable immediately, by a notice in writing to the Company (and to the Trustee
if given by Holders); provided, that, if the Property Trustee is the sole Holder
--------
of the Securities and if upon an Event of Default, the Trustee or the Holders of
not less than 25% in principal amount of the Outstanding Securities fail to
declare the principal of all the Securities to be due and payable, the holders
of at least 25% in aggregate liquidation amount of Capital Securities then
outstanding shall have such right by a notice in writing to the Company and the
Trustee; and upon any such declaration such principal and all accrued interest
shall become due and payable; provided, that the payment of principal, premium,
--------
if any, and interest on such Securities shall remain subordinated to the extent
provided in Article XII. If an Event of Default specified in any one of
Sections 5.01(5)-(7) occurs, all unpaid principal and accrued interest on the
Outstanding Securities shall become and be immediately due and payable without
any declaration or other act on the part of the Trustee, the Property Trustee,
any Holder or any holder of Capital Securities.
31
At any time after such a declaration of acceleration has been made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as provided in this Article hereinafter, the Holders of a majority
in aggregate principal amount of the Outstanding Securities, by written notice
to the Company and the Trustee, may rescind and annul such declaration and its
consequences if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all over due interest (including all Additional Payments) on
all Securities,
(B) the principal of any Securities which have become due
otherwise than by such declaration of acceleration and interest
thereon at the rate borne by the Securities, and applicable premium,
if any, and
(C) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default, other than the non-payment of the principal
of Securities which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
SECTION 5.03. Collection of Indebtedness and Suits for Enforcement by
-------------------------------------------------------
Trustee. The Company covenants that if
-------
(1) default is made in the payment of any interest (including any
Additional Payments) on any Security when such interest becomes due and
payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal or premium, if
any, of any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal, premium, if any, and interest (including any
32
Additional Payments) and, to the extent that payment thereof shall be legally
enforceable, interest on any overdue principal or premium, if any, and on any
overdue interest (including any Additional Payments), at the rate borne by the
Securities, and, in addition thereto, all amounts owing to the Trustee under
Section 6.07.
If an Event of Default occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 5.04. Trustee May File Proofs of Claim. In case of any
--------------------------------
judicial proceeding relative to the Company (or any other obligor upon the
Securities), its property or its creditors, the Trustee shall be entitled and
empowered, by intervention in such proceeding or otherwise, to take any and all
actions authorized under the Trust Indenture Act in order to have claims of the
Holders and the Trustee allowed in any such proceeding. In particular, the
Trustee shall be authorized to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay to
the Trustee any amount due it, and any predecessor Trustee, under Section 6.07.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt an behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
SECTION 5.05. Trustee May Enforce Claims Without Possession of
------------------------------------------------
Securities. All rights of action and claims under this Indenture or the
----------
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of all the amounts owing to the Trustee and any
predecessor Trustee under Section 6.07 the
33
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders of the
Securities in respect of which such judgment has been recovered.
SECTION 5.06. Application of Money Collected. Subject to Article XII,
------------------------------
any money collected by the Trustee pursuant to this article shall be applied in
the following order, at the date or dates fixed by the Trustee and, in case of
the distribution of such money on account of principal or interest (including
any Additional Payments), upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 6.07;
SECOND: To the payment of the amounts then due and unpaid for
principal and premium, if any, (including any Additional Payments) on the
Securities in respect of which or for the benefit of which such money has
been collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for principal
and premium, if any, and interest (including any Additional Payments)
respectively; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
SECTION 5.07. Limitation on Suits. Subject to Section 5.08, no
-------------------
Holder of any Security shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the appointment of
a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default;
(2) the Holders of not less than 25% in aggregate principal amount of
the Outstanding Securities shall have made written request to the Trustee
to institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
34
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
SECTION 5.08. Unconditional Right of Holders to Receive Principal and
-------------------------------------------------------
Interest. Notwithstanding any other provision in this Indenture, the Holder of
--------
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of and (subject to Section 3.07) interest
(including any Additional Payments) and premium, if any, on such Security on the
respective Stated Maturities expressed in such Security (or, in the case of
redemption, on the Redemption Date) and to institute suit for the enforcement of
any such payment, and such rights shall not be impaired without the consent of
such Holder. If the Property Trustee is the sole Holder of the Securities, any
holder of the Capital Securities shall have the right to institute suit on
behalf of the Trust for the enforcement of any such payment.
SECTION 5.09. Restoration of Rights and Remedies. If the Trustee or
----------------------------------
any Holder has instituted any proceeding to enforce any right or remedy under
this Indenture and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to such Holder, then
and in every such case, subject to any determination in such proceeding, the
Company, the Trustee and the Holders shall be restored severally and
respectively to their former positions hereunder and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
SECTION 5.10. Rights and Remedies Cumulative. Except as otherwise
------------------------------
provided with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities in the last paragraph of Section 3.06, no right or
remedy herein conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the
35
extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 5.11. Delay or Omission Not Waiver. No delay or omission of
----------------------------
the Trustee or of any Holder of any Security to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
SECTION 5.12. Control by Holders. The Holders of a majority in
------------------
principal amount of the Outstanding Securities shall have the right to direct
the time, method and place of conducting any proceeding for any remedy available
to the Trustee or exercising any trust or power conferred on the Trustee;
provided, that
--------
(1) such direction shall not be in conflict with any rule of law or
with this Indenture; and
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
SECTION 5.13. Waiver of Past Defaults. Subject to Section 9.02
-----------------------
hereof, the Holders of not less than a majority in principal amount of the
Outstanding Securities may on behalf of the Holders of all the Securities waive
any past default hereunder and its consequences, except a default
(1) in the payment of the principal of, premium, if any, or interest
(including any Additional Payments) on any Security (unless such default
has been cured and a sum sufficient to make all such payments due otherwise
than by acceleration has been deposited with the Trustee); or
(2) in respect of a covenant or provision hereof which under Article
IX cannot be modified or amended without the consent of the Holder of each
Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be
36
deemed to have been cured, for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other default or impair any right
consequent thereon.
SECTION 5.14. Undertaking for Costs. In any suit for the enforcement
---------------------
of any right or remedy under this Indenture, or in any suit against the Trustee
for any action taken, suffered or omitted by it as Trustee, a court may require
any party litigant in such suit to file an undertaking to pay the costs of such
suit, and may assess costs against any such party litigant, in the manner and to
the extent provided in the Trust Indenture Act; provided, that neither this
--------
Section nor the Trust Indenture Act shall be deemed to authorize any court to
require such an undertaking or to make such an assessment in any suit instituted
by the Company or the Trustee or in any suit for the enforcement of the right to
receive the principal of and interest (including any Additional Payments) and
premium, if any, on any Security.
SECTION 5.15. Waiver of Stay or Extension Laws. The Company covenants
--------------------------------
(to the extent that it may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the performance of this
Indenture; and the Company (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
SECTION 5.16. Enforcement by Holders of Capital Securities.
--------------------------------------------
Notwithstanding anything to the contrary contained herein and in addition to any
other rights of the holders of the Capital Securities provided herein or in the
Declaration, if the Property Trustee fails to enforce its rights under the
Securities, any holder may institute any legal proceeding directly against the
Company to enforce the Property Trustee's rights, as Holder of the Securities,
without first instituting any legal proceeding against the Property Trustee or
any other Person.
37
ARTICLE VI
The Trustee
-----------
SECTION 6.01. Certain Duties and Responsibilities. (a) Except
-----------------------------------
during the continuance of an Event of Default, the Trustee undertakes to perform
such duties and only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read into this
Indenture against the Trustee.
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
his own affairs.
(c) Notwithstanding the foregoing, (i) the duties and
responsibilities of the Trustee shall be as provided by the Trust Indenture Act
and (ii) no provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur any financial liability in the performance
of any of its duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not reasonably
assured to it. Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
SECTION 6.02. Notice of Defaults. The Trustee shall give the Holders
------------------
notice of any default hereunder as and to the extent provided by the Trust
Indenture Act. For the purpose of this Section, the term "default" means any
event which is, or after notice or lapse of time or both would become, an Event
of Default.
SECTION 6.03. Certain Rights of Trustee. Subject to the provisions
-------------------------
of 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, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
38
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel of its choice and the advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may take such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to reasonable examination of the books, records and
premises of the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with the due care
by it hereunder; and
(h) the Trustee shall not be liable for any action taken, suffered,
or omitted to be taken by it in
39
good faith, without negligence or willful misconduct, and reasonably
believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Indenture.
SECTION 6.04. Not Responsible for Recitals or Issuance of Securities.
------------------------------------------------------
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and the Trustee assumes no responsibility for their correctness. The Trustee
makes no representations as to the validity or sufficiency of this Indenture or
of the Securities. The Trustee shall not be accountable for the use or
application by the Company of the Securities or the proceeds thereof.
SECTION 6.05. May Hold Securities. The Trustee, any Paying Agent,
-------------------
any Security Registrar or any other agent of the Company, in its individual or
any other capacity, may become the owner or pledgee of Securities and, subject
to Sections 6.08 and 6.13, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Paying Agent, Security Registrar,
or such other agent.
SECTION 6.06. Money Held in Trust. Money held by the Trustee in
-------------------
trust hereunder need not be segregated from other funds except to the extent
required by law. The Trustee shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed with the Company.
SECTION 6.07. Compensation and Reimbursement. The Company agrees:
------------------------------
(1) to pay to the Trustee from time to time such reasonable
compensation as the Company and the Trustee shall from time to time agree
in writing for all services rendered by it hereunder (which compensation
shall not be limited by any provision of law in regard to the compensation
of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, fees, disbursements
and advances incurred or made by the Trustee in accordance with any
provision of this Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its negligence
or bad faith; and
(3) to indemnify the Trustee and any predecessor Trustee for, and to
hold it harmless against, any loss,
40
liability or expense incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration of
this trust, including the costs and expenses of defending itself against
any claim or liability in connection with the exercise or performance of
any of its powers or duties hereunder.
SECTION 6.08. Disqualification; Conflicting Interests. If the
---------------------------------------
Trustee has or shall acquire a conflicting interest within the meaning of the
Trust Indenture Act, the Trustee shall either eliminate such interest or resign,
to the extent and in the manner provided by, and subject to the provisions of,
the Trust Indenture Act and this Indenture.
SECTION 6.09. Corporate Trustee Required; Eligibility. There shall
---------------------------------------
at all times be a Trustee hereunder which shall be a Person that is eligible
pursuant to the Trust Indenture Act to act as such and has a combined capital
and surplus of at least $50,000,000 and has its Corporate Trust Office in New
York, New York. If such Person publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purpose of this Section, the combined capital
and surplus of such Person shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
SECTION 6.10. Resignation and Removal; Appointment of Successor. (a)
-------------------------------------------------
No resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this Article shall become effect until the acceptance of
appointment by the successor Trustee under Section 6.11.
(b) The Trustee may resign at any time by giving written notice
thereof to the Company. If an instrument of acceptance by a successor Trustee
shall not have been delivered to the Trustee within 30 days after the giving of
such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the Holders of a
majority in principal amount of the Outstanding Securities, delivered to the
Trustee and to the Company. If an instrument of acceptance by a successor
Trustee shall not have been delivered to the Trustee within
41
30 days after the giving of such notice of resignation, the resigning Trustee
may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 6.08 after written
request therefor by the Company or by any Holder who has been a bona fide
Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 6.09 and
shall fail to resign after written request therefor by the Company or by
any such Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or if its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company may remove the Trustee, or (ii) subject
to Section 5.14, any Holder who has been a bona fide Holder of a Security for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment, become the
successor Trustee and supersede the successor Trustee appointed by the Company.
If no successor Trustee shall have been so appointed by the Company or the
Holders and accepted appointment in the manner hereinafter provided, any Holder
who has been a bona fide Holder of a Security for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee.
42
(f) The Company shall give written notice of each resignation and
each removal of the Trustee and each appointment of a successor Trustee to all
Holders in the manner provided in Section 1.06. Each notice shall include the
name of the successor Trustee and the address of its Corporate Trust Office.
SECTION 6.11. Acceptance of Appointment by Successor. Every
--------------------------------------
successor Trustee appointed hereunder shall execute, acknowledge and deliver to
the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; provided, that on request of the Company or the
--------
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder. Upon request of any such successor Trustee,
the Company shall execute any and all instruments required to more fully and
certainly vest in and confirm to such successor Trustee all such rights, powers
and trusts.
No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 6.12. Merger, Conversion, Consolidation or Succession to
--------------------------------------------------
Business. Any corporation into which the Trustee may be merged or converted or
--------
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In the case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 6.13. Preferential Collection of Claims Against Company. If
-------------------------------------------------
and when the Trustee shall be or become a creditor of the Company (or any other
obligor upon the
43
Securities), the Trustee shall be subject to the provisions of the Trust
Indenture Act regarding the collection of claims against the Company (or any
such other obligor).
ARTICLE VII
Holders' Lists and Reports by Trustee and Company
-------------------------------------------------
SECTION 7.01. Company to Furnish Trustee Names and Addresses of
-------------------------------------------------
Holders. The Company will furnish or cause to be furnished to the Trustee
-------
(a) semiannually, not later than February 15 and August 15 in each
year, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders as of the date not more than 15 days
prior to the delivery thereof, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
---------
capacity as Security Registrar.
SECTION 7.02. Preservation of Information; Communications to Holders.
------------------------------------------------------
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 7.01 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 7.01 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and duties of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
SECTION 7.03. Reports by Trustee. (a) Within 60 days after May 15
------------------
of each year, commencing May 15, 1997,
44
the Trustee shall transmit by first-class mail to Holders such reports
concerning the Trustee and its actions under this Indenture as may be required
pursuant to the Trust Indenture Act in the manner provided pursuant thereto.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which the Securities are listed, with the Commission and with the Company. The
Company will notify the Trustee when the Securities are listed on any stock
exchange.
SECTION 7.04. Reports by Company. The Company shall file with the
------------------
Trustee and the Commission, and transmit to Holders, such information, documents
and other reports, and such summaries thereof, as may be required pursuant to
the Trust Indenture Act at the times and in the manner provided pursuant to such
Act; provided, that any such information, documents or reports required to be
--------
filed with the Commission pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 shall be filed with the Trustee within 15 days after the
same is so required to be filed with the Commission.
Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
SECTION 7.05. Tax Reporting. The Company shall provide to the
-------------
Trustee on a timely basis such information as the Trustee requires to enable the
Trustee to prepare and file any form required to be submitted by the Company
with the Internal Revenue Service and the Holders relating to original issue
discount, including, without limitation, Form 1099-OID or any successor form.
ARTICLE VIII
Consolidation, Merger, Conveyance, Transfer or Lease
----------------------------------------------------
SECTION 8.01. Company May Consolidate, Etc., Only on Certain Terms.
----------------------------------------------------
The Company shall not consolidate with or merge with or into any other Person
or, directly or indirectly, convey, transfer or lease all or substantially all
of its properties and assets on a consolidated basis to any Person, unless:
45
(1) in case the Company shall consolidate with or merge with or into
another Person or convey, transfer or lease all or substantially all of its
properties and assets on a consolidated basis to any Person, the Person
formed by such consolidation or into which the Company is merged or the
Person which acquires by conveyance, transfer or lease all or substantially
all of the properties and assets of the Company on a consolidated basis
shall be a corporation, partnership or trust, shall be organized and
validly existing under the laws of the United States of America, any State
thereof or the District of Columbia and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, in
form reasonably satisfactory to the Trustee, the due and punctual payment
of the principal of and interest (including any Additional Payments) on all
the Securities and the performance or observance of every covenant of this
Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction and treating
any indebtedness which becomes an obligation of the Company or a Subsidiary
as a result of such transaction as having been incurred by the Company or
such Subsidiary at the time of such transaction, no Event of Default, and
no event which, after notice or lapse of time or both, would become an
Event of Default, shall have happened and be continuing;
(3) such consolidation or merger or conveyance, transfer or lease of
assets of the Company is permitted under, and does not give rise to any
breach or violation of, the Declaration or the Guarantee; and
(4) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and, if a supplemental indenture is required
in connection with such transaction, such supplemental indenture, comply
with this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with.
SECTION 8.02. Successor Substituted. Upon any consolidation of the
---------------------
Company with, or merger of the Company into, any other Person or any conveyance,
transfer or lease of all or substantially all the properties and assets of the
Company on a consolidated basis in accordance with Section 8.01, the successor
Person formed by such consolidation or into which the Company is merged or to
which such conveyance, transfer or lease is made shall succeed to, and
46
be substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor Person had been named
as the Company herein, and thereafter, except in the case of a lease, the
predecessor Person shall be relieved of al obligations and covenants under this
Indenture and the Securities.
ARTICLE IX
Supplemental Indentures
-----------------------
SECTION 9.01. Supplemental Indentures Without Consent of Holders.
--------------------------------------------------
Without the consent of any Holders, the Company, when authorized by a Board
Resolution, and the Trustee, at any time and from time to time, may enter into
one or more indentures supplemental hereto, in form satisfactory to the Trustee
for any of the following purposes:
(1) to evidence the succession or another Person to the Company and
the assumption by any such successor of the covenants of the Company herein
and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders, or to surrender any right or power herein conferred upon the
Company; or
(3) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture which shall not be inconsistent with the provisions of
this Indenture; provided, that such action pursuant to this clause (3)
--------
shall not adversely affect the interest of the Holders of the Securities
or, so long as any of the Capital Securities shall remain outstanding, the
holders of the Capital Securities; or
(4) to comply with the requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the Trust
Indenture Act; or
(5) to make any other change that does not adversely affect the
rights of any Holder or any holder of Capital Securities (so long as any
are outstanding).
SECTION 9.02. Supplemental Indentures with Consent of Holders. With
-----------------------------------------------
the consent of the Holders of not less than a majority in principal amount of
the Outstanding
47
Securities, by Act of said Holders delivered to the Company and the Trustee, the
Company, when authorized by a Board Resolution, and the Trustee may enter into
an indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders under
this Indenture; provided, however, that no such supplemental indenture shall,
-------- -------
without the consent of the Holder of each Outstanding Security affected thereby,
(1) extend the Stated Maturity of the principal of, or any
installment of interest (including any Additional Payments) or premium, if
any, on, any Security, or reduce the principal amount thereof, or reduce
the rate or extend the time for payment of interest thereon, or reduce any
premium payable upon the redemption thereof, or change the place of payment
where, or the coin or currency in which, any Security or interest or
premium, if any, thereon is payable, or impair the right to institute suit
for the enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption, on or after the Redemption Date),
or modify the provisions of this Indenture with respect to the
subordination of the Securities in a manner adverse to the Holders,
(2) reduce the percentage in principal amount of the Outstanding
Securities, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences provided for in this Indenture,
or
(3) modify any of the provisions of this Section or Section 5.13,
except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected thereby.
Notwithstanding anything to the contrary in this Indenture or the
Declaration, if the Property Trustee is the sole holder of the Securities, so
long as any of the Capital Securities remains outstanding, no amendment shall be
made that adversely affects the holders of such Capital Securities, and no
termination of this Indenture shall occur, and no waiver of any Event of Default
or compliance with any covenant under this Indenture shall be effective, without
the prior consent of the holders of the percentage of the aggregate liquidation
amount of such Capital Securities then outstanding which is at least equal to
the
48
percentage of aggregate stated liquidation preference of the Outstanding
Securities as shall be required under this Indenture to effect any such
amendment, termination or waiver.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Persons entitled to consent to any indenture
supplemental hereto. If a record date is fixed, the Holders on such record
date, or their duly designated proxies, and only such Persons, shall be entitled
to consent to such supplemental indenture, whether or not such Holders remain
Holders after such record date; provided, that unless such consent shall have
--------
become effective by virtue of the requisite percentage having been obtained
prior to the date which is 90 day after such record date, any such consent
previously given shall automatically and without further action by any Holder be
canceled and of no further effect.
SECTION 9.03. Execution of Supplemental Indentures. In executing, or
------------------------------------
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and (subject to Section
6.01) shall be fully protected in relying upon, an Opinion of Counsel stating
that the execution of such supplemental indenture is authorized or permitted by
this Indenture. The Trustee may, but shall not be obligated to, enter into any
such supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
SECTION 9.04. Effect of Supplemental Indentures. Upon the execution
---------------------------------
of any supplemental indenture under this Article, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall form a
part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder shall be bound
thereby. No such supplemental indenture shall directly or indirectly modify the
provisions of Article XII in any manner which might terminate or impair the
rights of the Senior Indebtedness pursuant to such subordination provisions.
SECTION 9.05. Conformity with Trust Indenture Act. Every
-----------------------------------
supplemental indenture executed pursuant to this
49
Article shall conform to the requirements of the Trust Indenture Act.
SECTION 9.06. Reference in Securities to Supplemental Indentures.
--------------------------------------------------
Securities authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall if required by the Trustee,
bear a notation in form approved by the Trustee as to any matter provided for in
such supplemental indenture. If the Company shall so determine, new Securities
so modified as to conform, in the opinion of the Trustee and the Company, to any
such supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities.
ARTICLE X
Covenants; Representations and Warranties
-----------------------------------------
SECTION 10.01. Payment of Principal and Interest. The Company will
---------------------------------
duly and punctually pay the principal of and interest on the Securities in
accordance with the terms of the Securities and this Indenture.
SECTION 10.02. Maintenance of Office or Agency. The Company will
-------------------------------
maintain in the United States an office or agency where Securities may be
presented or surrendered for payment, where Securities may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company in respect of the Securities and this Indenture may be served. The
Company will give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee, and the Company hereby appoints the Trustee as its agent to receive all
such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies (in the United States) where the Securities may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
-------- -------
shall in any manner relieve the Company of its obligation to maintain an office
or agency in the United States for such purposes. The Company will give prompt
written notice to the Trustee of any such designation or
50
rescission and of any change in the location of any such other office or agency.
SECTION 10.03. Money for Security Payments to Be Held in Trust. If
-----------------------------------------------
the Company shall at any time act as its own Paying Agent, it will, on or before
each due date of the principal of or interest on any of the Securities,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal or interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein provided and
will promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents, it will,
prior to each due date of the principal or interest on any Securities, deposit
with a Paying Agent a sum sufficient to pay the principal, premium, if any, or
interest so becoming due, such sum to be held as provided by the Trust Indenture
Act, and (unless such Paying Agent is the Trustee) the Company will promptly
notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will (i) comply with the provisions of the Trust Indenture Act
applicable to it as a Paying Agent and (ii) during the continuance of any
default by the Company (or any other obligor upon the Securities) in the making
of any payment in respect of the Securities, upon the written request of the
Trustee, forthwith pay to the Trustee all sums held in trust by such Paying
Agent as such.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of or interest or
premium, if any, on any Security and remaining unclaimed for two years after
such principal or interest or premium, if any, has become due and payable shall
be paid to the Company on Company Request, or (if then held by the Company)
shall be discharged from such
51
trust; and the Holder of any such Security shall thereafter, as an unsecured
general creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, shall thereupon cease.
SECTION 10.04. Statement by Officers as to Default. The Company will
-----------------------------------
deliver to the Trustee and the Property Trustee, within 120 days after the end
of each fiscal year of the Company ending after the date hereof, an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of the
material terms, provisions and conditions of this Indenture (without regard to
any period of grace or requirement of notice provided hereunder) and, if the
Company shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge.
SECTION 10.05. Limitation on Dividends; Transactions with Affiliates;
------------------------------------------------------
Covenants as to the Trust. (a) The Company covenants that the Company (i)
-------------------------
shall not declare or pay dividends on, make distributions with respect to, or
redeem, purchase or acquire, or make a liquidation payment with respect to, any
of its capital stock (other than stock dividends paid by the Company which
consist of stock of the same class as that on which the dividend is being paid),
(ii) 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 Securities, and (iii) shall not make any
guarantee payments with respect to the foregoing (other than pursuant to the
Guarantee), in each case if at such time (i) there shall have occurred any event
that with the giving of notice or the lapse of time or both, would constitute an
Event of Default hereunder, (ii) the Company shall be in default with respect to
its payment of any obligations under the Guarantee or (iii) the Company shall
have given notice of its selection of an Extended Interest Payment Period as
provided herein and such period, or any extension thereof, shall be continuing.
(b) The Company also covenants and agrees (i) that it shall directly
maintain 100% ownership of the Common Securities of the Trust; provided,
--------
however, that any permitted successor of the Company hereunder may succeed to
-------
the Company's ownership of such Common Securities and (ii) that it shall use its
reasonable efforts, consistent with the terms and provisions of the Declaration,
to cause the Trust (x) to remain a statutory business trust, except in
connection with the distribution of the Securities to the holders of the Trust
Securities in liquidation of the Trust,
52
the redemption of all of the Trust Securities of the Trust, or certain mergers,
consolidations or amalgamations, each as permitted by the Declaration, and (y)
to otherwise continue to be classified as a grantor trust for United States
Federal income tax purposes.
SECTION 10.06. Payment of Expenses of the Trust. In connection with
--------------------------------
the offering, sale and issuance of the Securities to the Property Trustee in
connection with the sale of the Trust Securities by the Trust, the Company
shall:
(a) pay for all costs, fees and expenses relating to the offering,
sale and issuance of the Securities, including commissions or other
compensation to the Underwriters payable pursuant to the Underwriting
Agreement and compensation of the Trustee under this Indenture in
accordance with the provisions of Section 6.07 of this Indenture;
(b) be responsible for and pay for all debts and obligations (other
than with respect to the Trust Securities) of the Trust, pay for all costs
and expenses of the Trust (including, but not limited to, costs and
expenses relating to the organization of the Trust, the offering, sale and
issuance of the Trust Securities (including commissions or other
compensation to, and indemnification of, the Underwriters in connection
therewith), the fees and expenses of the Property Trustee and the Delaware
Trustee, the costs and expenses relating to the operation of the Trust,
including without limitation, costs and expenses of accountants, attorneys,
statistical or bookkeeping services, expenses for printing and engraving
and computing or accounting equipment, paying agent(s), registrar(s),
transfer agent(s), duplicating, travel and telephone and other
telecommunications expenses and costs and expenses incurred in connection
with the acquisition, financing, and disposition of Trust assets);
(c) be primarily liable for any indemnification obligations arising
with respect to the Declaration; and
(d) pay any and all taxes (other than United States withholding taxes
attributable to the Trust or its assets) and all liabilities, costs and
expenses with respect to such taxes of the Trust.
53
ARTICLE XI
Redemption of Securities
------------------------
SECTION 11.01. Right of Redemption. The Securities may be redeemed
-------------------
at the election of the Company, (a) as a whole or in part, at any time or from
time to time, at the Redemption Prices set forth in Section 11.09 below and (b)
in certain circumstances upon the occurrence of a Tax Event at the Tax Event
Redemption Price set forth in Section 11.10 below.
SECTION 11.02. Applicability of Article. Redemption of Securities at
------------------------
the election of the Company, as permitted by Section 11.01, shall be made in
accordance with such provision and this Article.
SECTION 11.03. Election to Redeem; Notice to Trustee. The election
-------------------------------------
of the Company to redeem Securities pursuant to Section 11.01 shall be evidenced
by a Board Resolution. In case of any redemption at the election of the
Company, the Company shall, at least 60 days and no more than 90 days prior to
the Redemption Date fixed by the Company, notify the Trustee in writing of such
Redemption Date and of the principal amount of Securities to be redeemed and
provide a copy of the notice of redemption given to Holders of Securities to be
redeemed pursuant to Section 11.05.
SECTION 11.04. Selection by Trustee of Securities to Be Redeemed. If
-------------------------------------------------
less than all the Securities are to be redeemed (unless such redemption affects
only a single Security), the particular Securities to be redeemed shall be
selected not more than 60 days prior to the Redemption Date by the Trustee, from
the Outstanding Securities not previously called for redemption, by such method
(including, without limitation, pro rata or by lot) as the Trustee shall deem
fair and appropriate.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption as aforesaid and, in case of any Securities
selected for partial redemption as aforesaid, the principal amount thereof to be
redeemed.
The provisions of the two preceding paragraphs shall not apply with
respect to any redemption affecting only a single Security, whether such
Security is to be redeemed in whole or in part. In the case of any such
redemption in part, the unredeemed portion of the principal amount of the
Security shall be in an authorized denomination (which shall not be less than
the minimum authorized denomination) for such Security.
54
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 11.05. Notice of Redemption. Notice of redemption shall be
--------------------
given by first-class mail, postage prepaid, mailed not less than 30 nor more
than 60 days prior to the Redemption Date, to each Holder of Securities to be
redeemed, at such Holder's address appearing in the Security Register.
All notices of redemption shall identify the Securities to be redeemed
(including, if relevant, CUSIP or ISIN number) and shall state:
(1) the Redemption Date,
(2) the Redemption Price (or Tax Event Redemption Price in the case
of a redemption pursuant to a Tax Event),
(3) that on the Redemption Date the Redemption Price (or Tax Event
Redemption Price in the case of a redemption pursuant to a Tax Event) will
become due and payable upon each such Security to be redeemed and that
interest thereon will cease to accrue on and after said date, and
(4) the place or places where such Securities are to be surrendered
for payment of the Redemption Price.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 11.06. Deposit of Redemption Price. Prior to any Redemption
---------------------------
Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if
the Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 10.03) an amount of money sufficient to pay the Redemption
Price (or Tax Event Redemption Price in the case of a redemption pursuant to a
Tax Event) of, and (except if the Redemption Date shall be an Interest Payment
Date) accrued interest on, all the Securities which are to be redeemed on that
date.
SECTION 11.07. Securities Payable on Redemption Date. Notice of
-------------------------------------
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption
55
Date, become due and payable at the Redemption Price (or Tax Event Redemption
Price in the case of a redemption pursuant to a Tax Event) therein specified,
and from and after such date (unless the Company shall default in the payment of
the Redemption Price (or Tax Event Redemption Price in the case of a redemption
pursuant to a Tax Event) and accrued interest) such Securities shall cease to
bear interest. Upon surrender of any such Security for redemption in accordance
with said notice, such Security shall be paid by the Company at the Redemption
Price (or Tax Event Redemption Price in the case of a redemption pursuant to a
Tax Event), together with accrued interest (including Additional Payments, if
any) to the Redemption Date; provided, however, that installments of interest
-------- -------
whose Stated Maturity is on or prior to the Redemption Date shall be payable to
the Holders of such securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Record Dates
according to the terms and the provisions of Section 3.07.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid, bear interest
from the Redemption Date at the rate borne by the Security.
SECTION 11.08. Securities Redeemed in Part. In the event of any
---------------------------
redemption in part, the Company shall not be required to (i) issue, register the
transfer of or exchange any Security during a period beginning at the opening of
business 15 days before any selection for redemption of Securities and ending at
the close of business on the earliest date in which the relevant notice of
redemption is deemed to have been given to all Holders of Securities to be so
redeemed and (ii) register the transfer of or exchange any Securities so
selected for redemption, in whole or in part, except for the unredeemed portion
of any Securities being redeemed in part.
Any Security which is to be redeemed only in part shall be surrendered
at a place of payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and make available for delivery to the Holder of such
Security without service charge, a new Security or Securities, of any authorized
denomination as requested by such Holder, in aggregate principal amount equal to
and in exchange for the unredeemed portion of the principal of the Security so
surrendered.
56
SECTION 11.09. Optional Redemption. (a) Subject to the provisions
-------------------
of this Article XI, the Company shall have the right to redeem the Securities,
in whole or in part, at any time or from time to time, after the issuance of the
Capital Securities, at a redemption price equal to 100% of the principal amount
to be redeemed plus the Make-Whole Premium, if any, plus any accrued and unpaid
interest thereon, (including Compounded Interest, if any), to the date of such
redemption (collectively, the "Redemption Price"). The Make-Whole Premium means
the excess, if any of (i) the sum of the present values of the remaining
scheduled payments of principal and interest thereon discounted to the
redemption date on a semiannual basis at the Treasury Rate plus __ basis points
over (ii) 100% of the principal amount of Securities to be redeemed. Any
redemption pursuant to this paragraph will be made upon not less than 30 days
nor more than 60 days notice to the Holder of the Securities, at the Redemption
Price. The Redemption Price shall be paid prior to 12:00 noon, New York time,
on the date of such redemption or at such earlier time as the Company determines
and specifies in the notice of redemption; provided, that, the Company shall
--------
deposit with the Trustee an amount sufficient to pay the Redemption Price by
10:00 a.m., New York time, on the date such Redemption Price is to be paid.
(b) If a partial redemption of the Securities would result in the
delisting of the Capital Securities issued by the Trust from any national
securities exchange or other organization on which the Capital Securities are
listed, the Company shall not be permitted to effect such partial redemption and
may only redeem the Securities in whole.
(c) The Company may not redeem fewer than all of the Outstanding
Securities unless all accrued and unpaid interest (including Additional
Payments) on the Securities has been paid as of the Interest Payment Date next
preceding the Redemption Date.
SECTION 11.10. Tax Event Redemption. If a Tax Event has occurred and
--------------------
is continuing and:
(a) the Company has received a Redemption Tax Option; or
(b) the Trustee shall have been informed by tax counsel that a No
Recognition Opinion cannot be delivered to the Trust, then, notwithstanding
Section 11.09(a) but subject to Section 11.09(b), the Company shall have
the right upon not less than 30 days nor more than 60 days notice to the
Holders of the Securities to redeem the Securities in whole or in part for
cash, within 90 days following the occurrence of
57
such Tax Event (the "90 Day Period"), at a redemption price equal to 100%
of the principal amount to be redeemed plus any accrued and unpaid interest
thereon (including Compounded Interest, if any) to the date of such
redemption (the "Tax Event Redemption Price"); provided, that if at the
--------
time there is available to the Company the opportunity to eliminate, within
the 90 Day Period, the Tax Event by taking some ministerial action
("Ministerial Action"), such as filing a form or making an election, or
pursuing some other similar reasonable measure which has no adverse effect
on the Company, the Trust or the Holders of the Trust Securities issued by
the Trust, the Company shall pursue such Ministerial Action in lieu of
redemption; and provided, further, that the Company shall have no right to
-------- -------
redeem the Securities while the Trust is pursuing any Ministerial Action
pursuant to its obligations under the Declaration. The Tax Event
Redemption Price shall be paid prior to 12:00 noon, New York time, on the
date of such redemption or such earlier time as the Company determines;
provided, that, the Company shall deposit with the Trustee an amount
--------
sufficient to pay the Tax Event Redemption Price by 10:00 a.m., New York
time, on the date such Tax Event Redemption Price is to be paid.
ARTICLE XII
Subordination of Securities
---------------------------
SECTION 12.01. Agreement to Subordinate. The Company covenants and
------------------------
agrees, and each Holder of Securities by such Holder's acceptance thereof
likewise covenants and agrees, that all Securities shall be issued subject to
the provisions of this Article XII; and each Holder of a 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,
premium, if any, and interest (including Additional Payments) on all Securities
issued hereunder shall, to the extent and in the manner hereinafter set forth,
be subordinated and junior in right of payment to the prior payment in full of
all Senior Indebtedness, whether outstanding at the date of this Indenture or
thereafter incurred; provided, however, that no provision of this Article XII
-------- -------
shall prevent the occurrence of any default or Event of Default hereunder.
SECTION 12.02. 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
continuing beyond the period of grace, if any, specified in
58
the instrument evidencing such Senior Indebtedness, unless and until such
default shall have been cured or waived or shall have ceased to exist, and in
the event that the maturity of any Senior Indebtedness has been accelerated
because of a default, then no payment shall be made by the Company with respect
to the principal of (including redemption payments), premium, if any, or
interest on the 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 12.02, such payment shall be held in trust for the
benefit of, and shall be paid over or delivered to, the holders of Senior
Indebtedness or their respective representatives, or to the trustee or trustees
under any indenture pursuant to which any of such Senior Indebtedness may have
been issued, as their respective interests may appear, but only to the extent
that the holders of the Senior Indebtedness (or their representative or
representatives or a trustee) notify the Trustee in writing within 90 days of
such payment of the amounts then due and owing on the Senior Indebtedness and
only the amount specified in such notice to the Trustee shall be paid to the
holders of Senior Indebtedness.
SECTION 12.03. Liquidation; Dissolution; Bankruptcy. Upon any
------------------------------------
payment by the Company or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, to creditors upon any
dissolution or winding up or liquidation or reorganization of the Company,
whether voluntary or involuntary, or in bankruptcy, insolvency, receivership or
other proceedings, all amounts (including principal, premium, if any, and
interest) due or to become due upon all Senior Indebtedness shall first be paid
in full, or payment thereof provided for in money in accordance with its terms,
before any payment is made on account of the principal (and premium, if any) or
interest on the Securities; and upon any such dissolution or winding up or
liquidation or reorganization, any payment by the Company, or distribution of
assets of the Company of any kind or character, whether in cash, property or
securities, to which the Holders of the Securities or the Trustee would be
entitled, except for the provisions of this Article XII, shall be paid by the
Company or by any receiver, trustee in bankruptcy, liquidating trustee, agent or
other Person making such payment or distribution, or by the Holders of the
Securities or by the Trustee under this Indenture if received by them or it,
directly to the holders of Senior Indebtedness (pro rata to such holders on the
basis of the respective amounts of Senior Indebtedness held by such holders, as
calculated by the Company) or their representative or representatives, or to the
trustee or
59
trustees under any indenture pursuant to which any instruments evidencing such
Senior Indebtedness may have been issued, as their respective interests may
appear, to the extent necessary to pay such Senior Indebtedness in full, in
money or money's worth, after giving effect to any concurrent payment or
distribution to or for the holders of such Senior Indebtedness, before any
payment or distribution is made to the Holders of Securities 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 or the Holders of the Securities before all Senior Indebtedness is paid
in full, or provision is made for such payment in money in accordance with its
terms, such payment or distribution shall be held in trust for the benefit of
and shall be paid over or delivered to the holders of Senior Indebtedness or
their representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing such Senior Indebtedness
may have been issued, and their respective interests may appear, as calculated
by the Company, for application to the payment of all Senior Indebtedness
remaining unpaid to the extent necessary to pay such Senior Indebtedness in full
in money in accordance with its terms, after giving effect to any concurrent
payment or distribution to or for the holders of such Senior Indebtedness.
For purposes of this Article XII, 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 XII with respect
to the Securities to the payment of all Senior Indebtedness which 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 with or into, another Person or the liquidation or dissolution of the
Company following the conveyance, transfer or lease of all or substantially all
its properties and assets on a consolidated basis to another Person upon the
terms and conditions provided for in Article VIII hereof shall not be deemed a
dissolution, winding up, liquidation or reorganization for the purposes of this
Section 12.03 if such other Person shall, as a part of such consolidation,
merger, conveyance, transfer or lease, comply with the
60
conditions stated in Article VIII hereof. Nothing in Section 12.02 or in this
Section 12.03 shall apply to claims of, or payments to, the Trustee under or
pursuant to Section 6.07 hereof.
SECTION 12.04. Subrogation. Subject to the payment in full of all
-----------
Senior Indebtedness, the rights of the Holders of the Securities shall be
subrogated to the rights of the holders of such Senior Indebtedness to receive
payments or distributions of cash, property or securities of the Company, as the
case may be, applicable to such Senior Indebtedness until the principal of (and
premium, if any) and interest on the Securities shall be paid in full; and, for
the purposes of such subrogation, no payments or distributions to the holders of
such Senior Indebtedness of any cash, property or securities to which the
Holders of the Securities or the Trustee would be entitled except for the
provisions of this Article XII, to or for the benefit of the holders of such
Senior Indebtedness by Holders of the Securities or the Trustee, shall, as
between the Company, its creditors other than holders of Senior Indebtedness,
and the Holders of the Securities, be deemed to be a payment by the Company to
or on account of such Senior Indebtedness. It is understood that the provisions
of this Article XII 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 XII or elsewhere in this Indenture
or in the Securities is intended to or shall impair, as between the Company, its
creditors other than the holders of Senior Indebtedness, and the Holders of the
Securities, the obligation of the Company, which is absolute and unconditional,
to pay to the Holders of the Securities the principal of (and premium, if any)
and interest on the Securities as and when the same shall become due and payable
in accordance with their terms, or is intended to or shall affect the relative
rights of the Holders of the Securities and creditors of the Company, as the
case may be, other than the holders of Senior Indebtedness, nor shall anything
herein or therein prevent the Trustee or the Holder of any Security from
exercising all remedies otherwise permitted by applicable law upon default under
this Indenture, subject to the rights, if any, under this Article XII of the
holders of such Senior Indebtedness in respect of cash, property or securities
of the Company, as the case may be, received upon the exercise of any such
remedy.
61
Upon any payment or distribution of assets of the Company referred to
in this Article XII, the Trustee, subject to the provisions of Sections 6.01 and
6.03, and the Holders of the Securities, shall be entitled to rely upon any
order or decree made by any court of competent jurisdiction in which such
dissolution, winding up, liquidation or reorganization proceedings are pending,
or a certificate of the receiver, trustee in bankruptcy, liquidation trustee,
agent or other Person making such payment or distribution, delivered to the
Trustee or to the Holders of the Securities, for the purposes of ascertaining
the Persons entitled to participate in such distribution, the holders of the
Senior Indebtedness and other indebtedness of the Company, as the case may be,
the amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article XII.
SECTION 12.05. Trustee to Effectuate Subordination. Each Holder of
-----------------------------------
Securities by such Holder's acceptance thereof authorizes and directs the
Trustee on such Holder's behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article XII and
appoints the Trustee as such Holder's attorney-in-fact for any and all such
purposes.
SECTION 12.06. Notice by the Company. The Company shall give prompt
---------------------
written notice to a Responsible Officer of the Trustee of any fact known to the
Company which would prohibit the making of any payment of monies to or by the
Trustee in respect of the Securities pursuant to the provisions of this Article
XII. Notwithstanding the provisions of this Article XII or any other provision
of this Indenture, the Trustee shall not be charged with knowledge of the
existence of any facts which would prohibit the making of any payment of monies
to or by the Trustee in respect of the Securities pursuant to the provisions of
this Article XII, unless and until a Responsible Officer of the Trustee shall
have received written notice thereof at the Corporate Trust Office of the
Trustee from the Company or a holder or holders of Senior Indebtedness or from
any trustee therefor; and, before the receipt of any such written notice, the
Trustee, subject to the provisions of Section 6.03 hereof, 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 12.06 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 (and premium, if any) or interest on any Security),
then, anything herein contained to the contrary notwithstanding, the Trustee
shall have full power and authority to receive such monies and to apply the
62
same to the purposes for which they were received, and shall not be affected by
any notice to the contrary which may be received by it within two Business Days
prior to such date.
The Trustee, subject to the provisions of Sections 6.01 and 6.03,
shall be entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Indebtedness (or a trustee on
behalf of such holder) to establish that such notice has been given by a holder
of such Senior Indebtedness or a trustee on behalf of any such holder or
holders. In the event that the Trustee determines in good faith that further
evidence is required with respect to the right of any Person as a holder of
Senior Indebtedness to participate in any payment or distribution pursuant to
this Article XII, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and any other facts pertinent to the right of
such Person under this Article XII, 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 12.07. 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 XII in respect of any Senior Indebtedness
at any time held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of
its rights as such holder.
With respect to the holders of Senior Indebtedness of the Company, the
Trustee undertakes to perform or to observe only such of its covenants and
obligations as are set forth in this Article XII, and no implied covenants or
obligations with respect to the holders of such Senior Indebtedness shall be
read into this Indenture against the Trustee. The Trustee shall not be deemed
to owe any fiduciary duty to the holders of such Senior Indebtedness and,
subject to the provisions of Section 6.03, the Trustee shall not be liable to
any holder of such Senior Indebtedness if it shall pay over or deliver to
Holders of Securities, the Company or any other Person money or assets to which
any holder of such Senior Indebtedness shall be entitled by virtue of this
Article XII or otherwise.
SECTION 12.08. Subordination May Not Be Impaired. No right of any
---------------------------------
present or future holder of any Senior Indebtedness to enforce subordination as
herein provided shall at any time in any way be prejudiced or impaired by any
act or failure to act on the part of the Company or by
63
any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof which any such holder may have or
otherwise be charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Indebtedness may, at any time and from time to time,
without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the holders of the Securities
and without impairing or releasing the subordination provided in this Article
XII or the obligations hereunder of the Holders of the Securities to the holders
of Senior Indebtedness, do any one or more of the following: (i) change the
manner, place or terms of payment or extend the time of payment of, or renew or
alter, 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.
------------------------------------------
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
64
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
NATIONWIDE FINANCIAL GROUP, INC.
By:
--------------------------------------
Name:
Title:
Attest:
--------------------------
WILMINGTON TRUST COMPANY
By:
--------------------------------------
Name:
Title:
Attest:
--------------------------
65
STATE OF __________ )
) ss.:
COUNTY OF __________)
On the _____ day of _____, 1997 before me personally came
______________, to me known, who, being by me duly sworn, did depose and say
that s/he is the __________ _________________________________ of Nationwide
Financial Services, Inc., one of the corporations described in and which
executed the foregoing instrument; and that he signed his name thereto by
authority of the Board of Directors of such corporation.
--------------------------------------
Notary Public
[Notarial Seal]
66
STATE OF __________ )
) ss.:
COUNTY OF __________)
On the ____ day of __________, 1997 before me personally came
___________________ to me known, who, being by me duly sworn, did depose and say
that s/he is an _______________ of [TRUSTEE], a corporation described in and
which executed the foregoing instrument; and that he signed his name thereto by
authority of the Board of Directors of such corporation.
--------------------------------------
Notary Public
[Notarial Seal]
67
EXHIBIT A-1
FORM OF SECURITY
[FORM OF FACE OF SECURITY]
[IF THE DEBENTURE IS TO BE A GLOBAL DEBENTURE INSERT - This Debenture
is a Global Debenture within the meaning of the Indenture hereinafter referred
to and is registered in the name of the Depository Trust Company (the
"Depository") or a nominee of the Depository. This Debenture is exchangeable
for Debentures registered in the name of a person other than the Depository or
its nominee only in the limited circumstances described in the Indenture and no
transfer of this Debenture (other than a transfer of this Debenture as a whole
by the Depository to a nominee of the Depository or by a nominee of the
Depository to the Depository or another nominee of the Depository) may be
registered except in limited circumstances.
Unless this Debenture certificate is presented by an authorized
representative of the Depository to the Trust or its agent for registration of
transfer, exchange or payment, and any Debenture certificate issued is
registered in the name of Cede & Co. or such other name as requested by an
authorized representative of the Depository (and any payment hereon is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of the Depository), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered owner
hereof, Cede & Co., has an interest herein].
__% Junior Subordinated
Deferrable Interest Debenture Due 2037
No. $
[CUSIP No. ]
NATIONWIDE FINANCIAL SERVICES, INC., a corporation duly organized and
existing under the laws of the State of Delaware (herein called "the Company",
which term includes any successor corporation under the Indenture hereinafter
referred to), pursuant to an indenture, dated as of ______, 1997 (the
"Indenture") and for value received, hereby promises to pay to , or
registered assigns, the principal sum [indicated on Schedule A-1 hereof/1/] [of
___________ Dollars ($_______)/2/] on __________, 2037.
Interest Payment Dates: _______________ and _____________,
commencing __________, 1997
Regular Record Dates: the close of business on the first day of the month in
which the Interest Payment Date occurs, commencing
_______, 1997
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
______________________
/1/ To be used for Global Debenture.
/2/ To be used for Certificated Debentures.
2
IN WITNESS WHEREOF, the Company has caused this instrument to be
signed manually or by facsimile by its duly authorized officers and a facsimile
of its corporate seal to be affixed hereto or imprinted hereon.
Dated:
NATIONWIDE FINANCIAL SERVICES, INC.
By:
--------------------------------------
Name:
Title:
[Seal]
Attest:
--------------------------
3
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned
Indenture.
Dated: --------------------------------,
as Trustee
By:
----------------------------
Authorized Signatory
[FORM OF REVERSE OF SECURITY]
NATIONWIDE FINANCIAL SERVICES, INC.
__% Junior Subordinated
Deferrable Interest Debenture Due 2037/1/
1. Interest. Nationwide Financial Services, Inc., a Delaware
--------
corporation (the "Company"), is the issuer of this __% Junior Subordinated
Deferrable Interest Debenture Due 2037 (the "Security") limited in aggregate
principal amount to $_____________, issued under the Indenture hereinafter
referred to. The Company promises to pay interest on the securities in cash
from _____________, 1997 or from the most recent interest payment date to which
interest has been paid or duly provided for, semi-annually (subject to deferral
for up to 10 consecutive semi-annual periods as described in Section 3 hereof)
in arrears on ___________ and __________ of each year (each such date, an
"Interest Payment Date"), commencing __________, 1997, at the rate of __% per
annum plus Additional Payments, if any, until the principal hereof shall have
----
become due and payable.
The amount of interest payable for any period will be computed on the
basis of twelve 30-day months and a 360 day year and, for any period of less
than a full calendar month, the number of days elapsed in such month. To the
extent lawful, the Company shall pay interest (including post-petition interest
in any proceeding under any bankruptcy or similar law) on overdue installments
of interest (without regard to any applicable grace period) at
--------------
/1/ All terms used in this Security which are defined in the Indenture or
in the Declaration referred to therein shall have the meanings assigned to them
in the Indenture or the Declaration, as the case may be.
4
the rate borne by the Securities, compounded semi-annually. Any interest paid
on this Security shall be increased to the extent necessary to pay Additional
Payments as set forth in this Security.
2. Additional Sums. The Company shall pay to Nationwide Financial
---------------
Services Capital Trust (and its permitted successors or assigns under the
Declaration) (the "Trust") the Additional Sums.
3. Extension of Interest Payment Period. So long as no Event of
------------------------------------
Default (or an event which would be an Event of Default with the giving of
required notice or the passage of time) has occurred and is continuing the
Company shall have the right, at any time during the term of this Security, from
time to time to defer payments of interest by extending the interest payment
period of such Security for up to 10 consecutive semi-annual periods (an
"Extended Interest Payment Period"). To the extent permitted by applicable law,
interest, the payment of which has been deferred because of the extension of the
interest payment period pursuant to Section 3.12 of the Indenture, will bear
interest thereon at __% compounded semi-annually for each semi-annual period of
the Extended Interest Payment Period ("Compounded Interest"). At the end of the
Extended Interest Payment Period, the Company shall pay all interest then
accrued and unpaid on the Securities including any Compounded Interest that
shall be payable to the Holders of the Securities in whose names the Securities
are registered in the Security Register on the first Regular Record Date after
the end of the Extended Interest Payment Period. Before the termination of any
Extended Interest Payment Period, the Company may further extend such period so
long as no Event of Default (or an event which would be an Event of Default with
the giving of required notice or the passage of time) has occurred and is
continuing; provided, that such period together with all such further extensions
--------
thereof shall not exceed 10 consecutive semi annual periods or extend beyond the
Maturity of the Security. Upon the termination of any Extended Interest Payment
Period and upon the payment of all interest and Additional Payments, if any,
then due, the Company may commence a new Extended Interest Payment Period,
subject to the foregoing requirements. No interest shall be due and payable
during an Extended Interest Payment Period except at the end thereof.
If the Property Trustee is the sole holder of the Security, the
Company shall give the Holder of the Security and the Trustee notice of its
selection of an Extended Interest Payment Period at least one Business Day prior
to the earlier of (i) the Interest Payment Date or (ii) if the Capital
Securities are listed on the New York Stock Exchange or other stock exchange or
quotation system, the date the
5
Trust is required to give notice to the New York Stock Exchange or other
applicable self-regulatory organization or to holders of the Capital Securities
on the record date or he date such distributions are payable, but in any event
not less than ten Business Days prior to such record date.
If the Property Trustee is not the sole holder of the Securities, the
Company shall give the Holders of these Securities and the Trustee notice of its
selection of an Extended Interest Payment Period at least ten Business Days
prior to the earlier of (i) the Interest Payment Date or (ii) the date the Trust
is required to give notice to the New York Stock Exchange or other applicable
self-regulatory organization or to holders of the Securities on the record date
or the date such distributions are payable, but in any event not less than two
Business Days prior to such record date.
The semi-annual period in which any notice is given pursuant to the
second and third paragraphs of this Section 3 shall be counted as one of the 10
semi-annual periods permitted in the maximum Extended Interest Payment Period
permitted under the first paragraph of this Section 3.
4. Method of Payment. The interest so payable, and punctually paid
-----------------
or duly provided for, on any Interest Payment Date will, as provided in the
Indenture, be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on the regular
record date for such interest installment, which shall be the close of business
on the first day of the month in which the Interest Payment Date occurs (the
"Regular Record Date"), commencing __________, 1997. Any such interest not so
punctually paid or duly provided for shall forthwith cease to be payable to the
Holder on such Regular Record Date and may either be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is registered at the
close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be given to Holders of
Securities not less than ten days prior to such Special Record Date, or be paid
at any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the securities may be listed, and upon such
notice as may be required by such exchange, all as more fully provided in said
Indenture.
Payment of the principal of and interest on this Security will be made
at the office or agency of the Company maintained for that purpose in New York,
New York, in such coin or currency of the United States of America as at the
6
time of payment is legal tender for payment of public and private debts;
provided, however, that, at the option of the Company, payment of interest may
-------- -------
be made by check mailed to the address of the person entitled thereto as such
address shall appear in the Security Register.
5. Paying Agent and Security Registrar. The Trustee will act as
-----------------------------------
Paying Agent and Security Registrar. The Company may change any Paying Agent,
Security Registrar or co-registrar without prior notice. The Company or any of
its Affiliates may act in any such capacity.
6. Indenture. The Company issued the Securities under an indenture,
---------
dated as of ____________, 1997 (the "Indenture"), between the Company and
______________, as Trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Trustee,
the Company and the Holders of the Securities, and of the terms upon which the
Securities are, and are to be, authenticated and delivered. The terms of the
Securities include those stated in the Indenture and those made part of the
Indenture by the Trust Indenture Act of 1939 (15 U.S. Code (S)(S) 77aaa-77bbbb)
("TIA") as in effect on the date of the Indenture. The Securities are subject
to, and qualified by, all such terms, certain of which are summarized hereon,
and holders are referred to the Indenture and the TIA for a statement of such
terms. The Securities are unsecured general obligations of the Company limited
to $________________ in the aggregate principal amount and subordinated in right
of payment to all existing and future Senior Indebtedness of the Company. No
reference herein to the Indenture and no provision of this Security or of the
Indenture shall alter or impair the obligation of the Company, which is absolute
and unconditional, to pay the principal of and interest on this Security at the
times, place and rate, and in the coin or currency, herein prescribed or to
convert this Security as provided in the Indenture.
7. Optional Redemption. Subject to the applicable provisions of the
-------------------
Indenture, the Company shall have the right to redeem the Securities, in whole
or in part, at any time or from time to time, after the issuance of the Capital
Securities, at the Redemption Price (which Redemption Price includes the Make-
Whole Premium). On or after the Redemption Date, interest will cease to accrue
on the Securities, or portion thereof, called for redemption.
8. Optional Redemption Upon Tax Event. The Securities are subject to
----------------------------------
redemption in whole or in part for
7
cash, if a Tax Event (as defined in Annex I to the Declaration) shall occur and
be continuing and certain other conditions specified in the Indenture are met,
at a redemption price equal to the Tax Event Redemption Price (which Tax Event
Redemption Price does not include the Make-Whole Premium). Any redemption
pursuant to this Section 8 will be made upon not less than 30 nor more than 60
days' notice.
9. Notice of Redemption. Notice of redemption will be mailed at
--------------------
least 30 days but not more than 60 days before the Redemption Date to each
Holder of the Securities to be redeemed at his address of record. In the event
of a redemption of less than all of the Securities, the Securities will be
chosen for redemption by the Trustee in accordance with the Indenture. On and
after the Redemption Date, interest ceases to accrue on the Securities or
portions of them called for redemption.
If this Security is redeemed subsequent to a Regular Record Date with
respect to any Interest Payment Date specified above and on or prior to such
Interest Payment Date, then any accrued interest will be paid to the person in
whose name this Security is registered at the close of business on such record
date.
10. Mandatory Redemption. The Securities will mature on ___________,
--------------------
2037. Upon the repayment of the Securities, whether at maturity or upon
acceleration or earlier redemption or otherwise, the proceeds from such
repayment or payment (including, without limitation, any Market-Whole Premium)
shall simultaneously be applied to redeem Trust Securities having an aggregate
liquidation amount of the Securities so repaid or redeemed at the applicable
redemption price together with accrued and unpaid distributions through the date
of redemption; provided, that holders of the Trust Securities shall be given not
--------
less than 30 nor more than 60 days notice of such redemption.
11. Subordination. The payment of the principal of, interest on or
-------------
any other amounts due on the Securities is subordinated in right of payment to
all existing and future Senior Indebtedness (as defined below) of the Company,
as described in the Indenture. Each holder, by accepting a Security, agrees to
such subordination and authorizes and directs the Trustee on its behalf to take
such action as may be necessary or appropriate to effectuate the subordination
so provided and appoints the Trustee as its attorney-in-fact for such purpose.
Senior Indebtedness shall mean in respect of the Company (i) the
principal, premium, if any, and interest in respect of (A) indebtedness of such
obligor for money
8
borrowed and (B) indebtedness evidenced by securities, debentures, bonds or
other similar instruments issued by such obligor, (ii) all capital lease
obligations of such obligor, (iii) all obligations of such obligor issued or
assumed as the deferred purchase price of property, all conditional sale
obligations of such obligor and all obligations of such obligor under any title
retention agreement (but excluding trade accounts payable arising in the
ordinary course of business), (iv) all obligations of such obligor of the
reimbursement of any letter of credit, banker's acceptance, security purchase
facility or similar credit transaction, (v) all obligations of the type referred
to in clauses (i) through (iv) above of other persons for the payment of which
such obligor is responsible or liable as obligor, guarantor or otherwise, (vi)
al obligations of the type referred to in clauses (i) through (v) above of other
persons secured by any lien on any property or asset of such obligor (whether or
not such obligation is assumed by such obligor), except for (1) any such
indebtedness that is by its terms subordinated to or pari passu with the
Securities and (2) any indebtedness (including all other debt securities and
guarantees in respect of those debt securities) initially issued to any other
trust, or a trustee of such trust, partnership, or other entity affiliated with
the Company that is, directly or indirectly, a financing vehicle of the Company
(a "Financing Entity") in connection with the issuance by such Financing Entity
of preferred securities or other similar securities and (vii) interest accruing
subsequent to events of bankruptcy of the Company and its subsidiaries at the
rate provided for in the documentation governing such Senior Indebtedness,
whether or not such interest is an allowed claim enforceable against the debtor
in a bankruptcy case under relevant bankruptcy law.
12. Registration, Transfer, Exchange and Denominations. As provided
--------------------------------------------------
in the Indenture and subject to certain limitations therein set forth, the
transfer of this Security is registrable in the Security Register, upon
surrender of his Security for registration of transfer at the office or agency
of the Company in New York, New York, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
The Securities are issuable only in registered form without coupons in
denominations of $1,000 and integral multiples thereof. No service charge shall
be made for any such registration of transfer or exchange, but the Company
9
may require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith. Prior to due presentment of this
Security for registration of transfer, the Company, the Trustee and any agent of
the Company or the Trustee may treat the Person in whose name this Security is
registered as the owner hereof for all purposes, whether or not this Security be
overdue, and neither the Company, the Trustee nor any such agent shall be
affected by notice to the contrary. In the event of redemption or conversion of
this Security in part only, a new Security or Securities for the unredeemed or
unconverted portion hereof will be issued in the name of the Holder hereof upon
the cancellation hereof.
13. Persons Deemed Owners. Except as provided in Section 3 hereof,
---------------------
the registered Holder of a Security may be treated as its owner for all
purposes.
14. Unclaimed Money. If money for the payment of principal or
---------------
interest remains unclaimed for two years, the Trustee and the Paying Agent shall
pay the money back to the Company at its written request. After that, holders
of Securities entitled to the money must look to the Company for payment unless
an abandoned property law designates another Person and all liability of the
Trustee and such Paying Agent with respect to such money shall cease.
15. Defaults and Remedies. The Securities shall have the Events of
---------------------
Defaults as set forth in Section 5.01 of the Indenture. Subject to certain
limitations in the Indenture, if an Event of Default occurs and is continuing,
the Trustee by notice to the Company or the holders of at least 25% in aggregate
principal amount of the then outstanding Securities by notice to the Company and
the Trustee may declare all the Securities to be due and payable immediately;
provided, that, if the Property Trustee is the sole Holder of the Security and
--------
if, upon an Event of Default, the Trustee or the holder of not less than 25% in
aggregate principal amount of the then outstanding Securities fail to declare
the principal of all the Securities to be immediately due and payable, the
holders of at least 25% in aggregate liquidation amount of Capital Securities
then outstanding shall have such right by a notice in writing to the Company and
the Trustee; and upon any such declaration such principal and all accrued
interest shall become immediately due and payable; provided, that the payment of
--------
principal and interest on such Securities shall remain subordinated to the
extent provided in the Indenture.
The holders of a majority in principal amount of the Securities then
outstanding by written notice to the Trustee may rescind an acceleration and its
consequences if the rescission would not conflict with any judgment or
10
decree and if all existing Events of Default have been cured or waived except
nonpayment of principal or interest that has become due solely because of the
acceleration. Holders may not enforce the Indenture or the Securities except as
provided in the Indenture. Subject to certain limitations, holders of a
majority in principal amount of the then outstanding Securities issued under the
Indenture may direct the Trustee in its exercise of any trust or power. The
Company must furnish annually compliance certificates to the Trustee and the
Property Trustee. The above description of Events of Default and remedies is
qualified by reference to, and subject in its entirety by, the more complete
description thereof contained in the Indenture.
16. Amendments, Supplements and Waivers. The Indenture permits,
-----------------------------------
subject to the rights of holders of Capital Securities set forth therein and in
the Declaration and with certain other exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of a
majority in aggregate principal amount of the Securities at the time
Outstanding. The Indenture also contains provisions permitting the Holders of
specified percentages in aggregate principal amount of the Securities at the
time Outstanding, on behalf of the Holders of all the Securities, subject to the
right of the holders of the Capital Securities set forth therein and in the
Declaration, to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Security shall be conclusive
and binding upon such Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer hereof or in exchange
therefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security. The above description of amendments, supplements and
waivers is qualified by reference to, and subject in its entirety by the more
complete description thereof contained in the Indenture.
17. Trustee Dealings with the Company. The Trustee, in its
---------------------------------
individual or any other capacity may become the owner or pledgee of the
Securities and may otherwise deal with the Company or an Affiliate with the same
rights it would have, as if it were not Trustee, subject to certain limitations
provided for in the Indenture and in the TIA. Any Agent may do the same with
like rights.
18. No Recourse Against Others. A director, officer, employee or
--------------------------
stockholder, as such, of the Company shall not have any liability for any
obligations of the Company under the Securities or the Indenture or for any
11
claim based on, in respect of or by reason of such obligations or their
creation. Each Holder of the Securities by accepting a Security waives and
releases all such liability. The waiver and release are part of the
consideration for the issue of the Securities.
19. Governing Law. THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL
-------------
GOVERN THE INDENTURE AND THE SECURI TIES WITHOUT REGARD TO CONFLICT OF LAW
PROVISIONS THEREOF.
20. Authentication. The Securities shall not be valid until
--------------
authenticated by the manual signature of an authorized officer of the Trustee or
an authenticating agent.
21. Abbreviations. Customary abbreviations may be used in the name
-------------
of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
22. Agreed Tax Treatment. The Company and, by its acceptance of this
--------------------
Security or a beneficial interest therein, the Holder of, and any Person that
acquires a beneficial interest in, this Security agree that for United States
federal, state and local tax purposes it is intended that this Security
constitute indebtedness.
12
The Company will furnish to any Holder of the Securities upon written
request and without charge a copy of the Indenture. Request may be made to:
Nationwide Financial Services, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention of: Chief Financial Officer
13
ASSIGNMENT FORM
To assign this Security, fill in the form below:
(I) or (we) assign and transfer this Security to
--------------------------------------------------------------------------------
(Insert assignee's social security or tax I.D. no.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint________________________________________________________
agent to transfer this Security on the books of the Company. The agent may
substitute another to act for him.
Your Signature:
------------------------------------------------
(Sign exactly as your name appears on the other
side of this Security)
Date:
---------------------------------
Signature Guarantee: /2/
-----------------------------
------------
/2/ Signature must be guaranteed by a commercial bank, trust company or member
firm of the New York Stock Exchange.
14
SCHEDULE A
The initial principal amount of this Global Security shall be $ .
The following increases or decreases in the principal amount of this Global
Security have been made:
Amount of increase
in Principal Amount
of this Global Signature of
Security Including Amount of decrease Principal Amount of authorized officer
open exercise of in Principal Amount this Global Security of Trustee or
over-allotment of this Global following such Securities
Date Made option Security decrease or increase Custodian
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