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EXHIBIT 4.6
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SOUTHERN ENERGY, INC.
TO
BANKERS TRUST COMPANY,
TRUSTEE.
SUBORDINATED NOTE INDENTURE
DATED AS OF __________ , 2000
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SOUTHERN ENERGY, INC.
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939 AND
SUBORDINATED NOTE INDENTURE, DATED AS OF ____________ 1, 2000
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
(S) 310(a)(1)............................................................................... 609
(a)(2)............................................................................... 609
(a)(3)............................................................................... Not Applicable
(a)(4)............................................................................... Not Applicable
(b).................................................................................. 608
610
(S) 311(a)...................................................................................... 613
311(b)(4)............................................................................... 613(a)
(b)(6)............................................................................... 613(b)
(S) 312(a).................................................................................. 701
702(a)
(c).................................................................................. 702(b)
(S) 313(a).................................................................................. 703(a)
313(b).................................................................................. 703(b)
313(c).................................................................................. 703(c)
704
(d).................................................................................. 703(c)
(S) 314(a).................................................................................. 704, 1007
(b).................................................................................. Not Applicable
(c)(1)............................................................................... 102
(c)(2)............................................................................... 102
(c)(3)............................................................................... Not Applicable
(d).................................................................................. Not Applicable
(e).................................................................................. 102
(S) 315(a).................................................................................. 601(a)
(b).................................................................................. 602
(c).................................................................................. 601(b)
(d).................................................................................. 601(c)
(d)(1)............................................................................... 601(a)(1)
(d)(2)............................................................................... 601(c)(2)
(d)(3)............................................................................... 601(c)(3)
(e).................................................................................. 514
(S) 316(a).................................................................................. 101
(a)(1)(A)............................................................................ 502
512
(a)(1)(B)............................................................................ 513
(a)(2)............................................................................... Not Applicable
(b).................................................................................. 508
(S) 317(a)(1)............................................................................... 503
(a)(2)............................................................................... 504
(b).................................................................................. 1003
(S) 318(a).................................................................................. 107
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TABLE OF CONTENTS
PAGE
Parties.......................................................................................................... 1
Recitals of the Company.......................................................................................... 1
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION............................................ 1
SECTION 101. DEFINITIONS................................................................................ 1
Act............................................................................................ 2
Additional Interest............................................................................ 2
Affiliate...................................................................................... 2
Authenticating Agent........................................................................... 2
Board of Directors............................................................................. 3
Board Resolution............................................................................... 3
Business Day................................................................................... 3
Commission..................................................................................... 3
Company........................................................................................ 3
Company Request or Company Order............................................................... 3
Corporate Trust Office......................................................................... 3
Corporation.................................................................................... 3
Defaulted Interest............................................................................. 3
Depositary..................................................................................... 3
Event of Default............................................................................... 4
Global Security................................................................................ 4
Guarantee...................................................................................... 4
Holder......................................................................................... 4
Indenture...................................................................................... 4
Interest Payment Date.......................................................................... 4
Junior Subordinated Note....................................................................... 4
Maturity....................................................................................... 4
Officers' Certificate.......................................................................... 4
Opinion of Counsel............................................................................. 4
Outstanding.................................................................................... 4
Paying Agent................................................................................... 5
Person......................................................................................... 5
Predecessor Security........................................................................... 5
Property Trustee............................................................................... 5
Redemption Date................................................................................ 5
Redemption Price............................................................................... 5
Regular Record Date............................................................................ 6
Responsible Officer............................................................................ 6
Securities Trust............................................................................... 6
Security Register and Security Registrar....................................................... 6
Senior Indebtedness............................................................................ 6
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Special Record Date............................................................................ 6
Stated Maturity................................................................................ 6
Trust Agreement................................................................................ 7
Trust Indenture Act............................................................................ 7
Trust Securities............................................................................... 7
Trustee........................................................................................ 7
Vice President................................................................................. 7
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS....................................................... 7
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE..................................................... 7
SECTION 104. ACTS OF HOLDERS............................................................................ 7
SECTION 105. NOTICES, ETC., TO TRUSTEE AND COMPANY...................................................... 10
SECTION 106. NOTICE TO HOLDERS OF JUNIOR SUBORDINATED NOTES; WAIVER..................................... 10
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT.......................................................... 10
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS................................................... 11
SECTION 109. SUCCESSORS AND ASSIGNS..................................................................... 11
SECTION 110. SEPARABILITY CLAUSE........................................................................ 11
SECTION 111. BENEFITS OF INDENTURE...................................................................... 11
SECTION 112. GOVERNING LAW.............................................................................. 11
SECTION 113. LEGAL HOLIDAYS............................................................................. 12
ARTICLE TWO...................................................................................................... 12
SECTION 201. FORMS GENERALLY............................................................................ 12
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION............................................ 12
SECTION 203. JUNIOR SUBORDINATED NOTES ISSUABLE IN THE FORM OF A GLOBAL SECURITY........................ 12
ARTICLE THREE THE JUNIOR SUBORDINATED NOTES..................................................................... 14
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES....................................................... 14
SECTION 302. EXECUTION, AUTHENTICATION, DELIVERY AND DATING............................................. 17
SECTION 303. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE........................................ 18
SECTION 304. MUTILATED, DESTROYED, LOST AND STOLEN JUNIOR SUBORDINATED NOTES............................ 19
SECTION 305. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED............................................. 20
SECTION 306. PERSONS DEEMED OWNERS...................................................................... 21
SECTION 307. CANCELLATION............................................................................... 21
SECTION 308. COMPUTATION OF INTEREST.................................................................... 22
ARTICLE FOUR SATISFACTION AND DISCHARGE......................................................................... 22
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.................................................... 22
SECTION 402. APPLICATION OF TRUST MONEY................................................................. 24
SECTION 403. SATISFACTION, DISCHARGE AND DEFEASANCE OF SECURITIES OF ANY SERIES......................... 24
ARTICLE FIVE REMEDIES........................................................................................... 25
SECTION 501. EVENTS OF DEFAULT.......................................................................... 25
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SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT......................................... 27
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE............................ 27
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM........................................................... 28
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF JUNIOR SUBORDINATED NOTES................. 29
SECTION 506. APPLICATION OF MONEY COLLECTED............................................................. 29
SECTION 507. LIMITATION ON SUITS........................................................................ 29
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND INTEREST.................. 30
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES......................................................... 30
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE............................................................. 31
SECTION 511. DELAY OR OMISSION NOT WAIVER............................................................... 31
SECTION 512. CONTROL BY HOLDERS OF JUNIOR SUBORDINATED NOTES............................................ 31
SECTION 513. WAIVER OF PAST DEFAULTS.................................................................... 31
SECTION 514. UNDERTAKING FOR COSTS...................................................................... 32
SECTION 515. WAIVER OF STAY OR EXTENSION LAWS........................................................... 32
ARTICLE SIX THE TRUSTEE.......................................................................................... 32
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES........................................................ 32
SECTION 602. NOTICE OF DEFAULTS......................................................................... 34
SECTION 603. CERTAIN RIGHTS OF TRUSTEE.................................................................. 34
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF JUNIOR SUBORDINATED NOTES...................... 35
SECTION 605. MAY HOLD JUNIOR SUBORDINATED NOTES......................................................... 36
SECTION 606. MONEY HELD IN TRUST........................................................................ 36
SECTION 607. COMPENSATION AND REIMBURSEMENT............................................................. 35
SECTION 608. DISQUALIFICATION; CONFLICTING INTERESTS.................................................... 37
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.................................................... 37
SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.......................................... 37
SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR..................................................... 39
SECTION 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS................................ 40
SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.......................................... 40
SECTION 614. APPOINTMENT OF AUTHENTICATING AGENT........................................................ 40
ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY................................................ 42
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.................................. 42
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS..................................... 42
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SECTION 703. REPORTS BY TRUSTEE......................................................................... 43
SECTION 704. REPORTS BY COMPANY......................................................................... 43
ARTICLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE.............................................. 44
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS....................................... 44
SECTION 802. SUCCESSOR CORPORATION SUBSTITUTED.......................................................... 44
ARTICLE NINE SUPPLEMENTAL INDENTURES............................................................................ 45
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS......................................... 45
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS............................................ 46
SECTION 903. GENERAL PROVISIONS REGARDING SUPPLEMENTAL INDENTURE........................................ 47
SECTION 904. EXECUTION OF SUPPLEMENTAL INDENTURES....................................................... 47
SECTION 905. EFFECT OF SUPPLEMENTAL INDENTURES.......................................................... 47
SECTION 906. CONFORMITY WITH TRUST INDENTURE ACT........................................................ 47
SECTION 907. REFERENCE IN JUNIOR SUBORDINATED NOTES TO SUPPLEMENTAL INDENTURES.......................... 48
ARTICLE TEN COVENANTS.......................................................................................... 48
SECTION 1001. PAYMENT OF PRINCIPAL AND INTEREST......................................................... 48
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY........................................................... 48
SECTION 1003. MONEY FOR JUNIOR SUBORDINATED NOTES PAYMENTS TO BE HELD IN TRUST.......................... 49
SECTION 1004. ADDITIONAL INTEREST....................................................................... 50
SECTION 1005. CORPORATE EXISTENCE....................................................................... 50
SECTION 1006. LIMITATIONS ON DIVIDEND AND CERTAIN OTHER PAYMENTS........................................ 51
SECTION 1007. STATEMENT AS TO COMPLIANCE................................................................ 51
SECTION 1008. WAIVER OF CERTAIN COVENANTS............................................................... 51
SECTION 1009. COVENANTS REGARDING TRUST................................................................. 52
ARTICLE ELEVEN REDEMPTION OF JUNIOR SUBORDINATED NOTES......................................................... 52
SECTION 1101. APPLICABILITY OF ARTICLE.................................................................. 52
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE..................................................... 52
SECTION 1103. SELECTION BY TRUSTEE OF JUNIOR SUBORDINATED NOTES TO BE REDEEMED.......................... 53
SECTION 1104. NOTICE OF REDEMPTION...................................................................... 53
SECTION 1105. DEPOSIT OF REDEMPTION PRICE............................................................... 54
SECTION 1106. JUNIOR SUBORDINATED NOTES PAYABLE ON REDEMPTION DATE...................................... 54
SECTION 1107. JUNIOR SUBORDINATED NOTES REDEEMED IN PART................................................ 55
ARTICLE TWELVE SINKING FUNDS.................................................................................... 55
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SECTION 1201. APPLICABILITY OF ARTICLE.................................................................. 55
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH JUNIOR SUBORDINATED NOTES...................... 55
SECTION 1203. REDEMPTION OF JUNIOR SUBORDINATED NOTES FOR SINKING FUND.................................. 56
ARTICLE THIRTEEN SUBORDINATION.................................................................................. 56
SECTION 1301. JUNIOR SUBORDINATED NOTES SUBORDINATE TO SENIOR INDEBTEDNESS.............................. 56
SECTION 1302. PAYMENT OF PROCEEDS UPON DISSOLUTION, ETC................................................. 56
SECTION 1303. NO PAYMENT WHEN SENIOR INDEBTEDNESS IN DEFAULT............................................ 57
SECTION 1304. PAYMENT PERMITTED IF NO DEFAULT........................................................... 58
SECTION 1305. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS................................... 58
SECTION 1306. PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS............................................... 58
SECTION 1307. TRUSTEE TO EFFECTUATE SUBORDINATION....................................................... 59
SECTION 1308. NO WAIVER OF SUBORDINATION PROVISIONS..................................................... 59
SECTION 1309. TRUST MONEYS NOT SUBORDINATED............................................................. 60
SECTION 1310. NOTICE TO THE TRUSTEE..................................................................... 60
SECTION 1311. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING AGENT............................ 61
SECTION 1312. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR INDEBTEDNESS.................................. 61
SECTION 1313. RIGHTS OF TRUSTEE AS HOLDER OF SENIOR INDEBTEDNESS; PRESERVATION OF TRUSTEE'S
RIGHTS.................................................................................... 61
SECTION 1314. ARTICLE APPLICABLE TO PAYING AGENTS....................................................... 61
SECTION 1315. RELIANCE BY HOLDERS OF SENIOR INDEBTEDNESS ON SUBORDINATION PROVISIONS.................... 62
ARTICLE FOURTEEN MISCELLANEOUS PROVISIONS...................................................................... 62
SECTION 1401. NO RECOURSE AGAINST OTHERS................................................................ 62
SECTION 1402. SET-OFF................................................................................... 62
SECTION 1403. ASSIGNMENT; BINDING EFFECT................................................................ 62
SECTION 1404. ADDITIONAL INTEREST....................................................................... 63
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SUBORDINATED NOTE INDENTURE
THIS SUBORDINATED NOTE INDENTURE is made as of _________, 2000,
between SOUTHERN ENERGY, INC., a corporation duly organized and existing under
the laws of the State of Delaware (herein called the "Company"), having its
principal office at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, and
BANKERS TRUST COMPANY, a banking corporation duly organized and existing under
the laws of the State of New York, having its principal corporate trust office
at Four ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as Trustee (herein called the
"Trustee").
W I T N E S S E T H:
WHEREAS, the Company has duly authorized the execution and delivery of
this Subordinated Note Indenture to provide for the issuance from time to time
of its unsecured subordinated debentures, notes or other evidences of
indebtedness (herein called the "Junior Subordinated Notes"), to be issued in
one or more series as provided in this Subordinated Note Indenture; and
WHEREAS, all things necessary to make this Subordinated Note Indenture
a valid agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, for and in consideration of the premises and the
purchase of the Junior Subordinated Notes by the Holders thereof, it is
mutually covenanted and agreed, for the equal and proportionate benefit of all
Holders of the Junior Subordinated Notes or of any series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
For all purposes of this Subordinated Note Indenture, 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 in the United States of America, and,
except as otherwise herein expressly provided, the term "generally
accepted accounting principles" with respect to any computation
required or permitted
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hereunder shall mean such accounting principles as are generally
accepted in the United States of America at the date of such
computation;
(4) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Subordinated Note
Indenture as a whole and not to any particular Article, Section or
other subdivision; and
(5) Trust Securities related to a particular series of
Junior Subordinated Notes means the series of Trust Securities the
proceeds of the sale of which were loaned to the Company in exchange
for such series of Junior Subordinated Notes, and the guarantee
related to such series of Trust Securities means the guarantee
pursuant to which the Company has guaranteed, to the extent stated
therein, the payment of distributions and certain other amounts with
respect to such series of Trust Securities.
Certain terms, used principally in Article Six, are defined in that
Article.
"Act" when used with respect to any Holder of a Junior Subordinated
Note, has the meaning specified in Section 104.
"Additional Interest" means (i) such additional amounts as may be
required so that the net amounts received and retained by the Holder (if the
Holder is a Securities Trust) after paying taxes, duties, assessments or
governmental charges of whatever nature (other than withholding taxes) imposed
by the United States or any other taxing authority will not be less than the
amounts the Holder would have received had no such taxes, duties, assessments
or other governmental charges been imposed; and (ii) any interest due and not
paid on an Interest Payment Date, together with interest thereon from such
Interest Payment Date to the date of payment, compounded quarterly, on each
Interest Payment Date.
"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. Notwithstanding the foregoing, any Securities Trust organized by the
Company shall not be deemed to be an Affiliate of the Company.
"Authenticating Agent" means any Person or Persons authorized by the
Trustee to authenticate one or more series of Junior Subordinated Notes.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of the officers and/or directors of
the Company appointed by 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.
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"Business Day" means a day other than (i) a Saturday or a Sunday, (ii)
a day on which banks in New York, New York are authorized or obligated by law
or executive order to remain closed, or (iii) a day on which the Trustee's
Corporate Trust Office or Property Trustee's principal corporate trust office
is closed for business.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, as
amended, 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.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor corporation shall have become
such pursuant to the applicable provisions of this Subordinated Note Indenture,
and thereafter "Company" shall mean such successor corporation.
"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 President
or a Vice President, and by its Treasurer, an Assistant Treasurer, its
Secretary or an Assistant Secretary, and delivered to the Trustee.
"Corporate Trust Office" means the office of the Trustee in the
Borough of Manhattan, New York City, at which at any particular time its
corporate trust business shall be principally administered, which office at the
date of execution of this Subordinated Note Indenture is located at Four ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
"Corporation" includes corporations, partnerships, limited liability
companies, associations, companies and business trusts.
"Defaulted Interest" has the meaning specified in Section 305.
"Depositary" means, unless otherwise specified by the Company pursuant
to either Section 203 or 301, with respect to Junior Subordinated Notes of any
series issuable or issued as a Global Security, The Depository Trust Company,
New York, New York, or any successor thereto registered as a clearing agency
under the Securities Exchange Act of 1934, as amended, or other applicable
statute or regulation.
"Event of Default" has the meaning specified in Section 501.
"Global Security" means, with respect to any series of Junior
Subordinated Notes issued hereunder, a Junior Subordinated Note that is
executed by the Company and authenticated and delivered by the Trustee to the
Depositary or pursuant to the Depositary's instruction, all in accordance with
Section 203 of this Indenture and any indenture supplemental hereto.
"Guarantee" means a Guarantee Agreement, if any, executed and
delivered by the Company for the benefit of the holders from time to time of
all or a portion of the Trust Securities of a Securities Trust.
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"Holder", when used with respect to any Junior Subordinated Note,
means the Person in whose name the Junior Subordinated Note 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
and shall include the terms of the particular series of Junior Subordinated
Notes established as contemplated by Section 301.
"Interest Payment Date", when used with respect to any series of
Junior Subordinated Notes, means the dates established for the payment of
interest thereon, as provided in the supplemental indenture for such series.
"Junior Subordinated Note" has the meaning stated in the first recital
of this Indenture and more particularly means any Junior Subordinated Notes
authenticated and delivered under this Indenture.
"Maturity", when used with respect to any Junior Subordinated Note,
means the date on which the principal of such Junior Subordinated Note or an
installment of principal becomes due and payable as therein or herein provided,
whether at the Stated Maturity or by declaration of acceleration, call for
redemption or otherwise.
"Officers' Certificate" means a certificate signed by the 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.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee.
"Outstanding", when used with respect to Junior Subordinated Notes,
means, as of the date of determination, all Junior Subordinated Notes
theretofore authenticated and delivered under this Indenture, except:
(i) Junior Subordinated Notes theretofore canceled by the
Trustee or delivered to the Trustee for cancellation;
(ii) Junior Subordinated Notes 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 Junior Subordinated Notes; provided that if such Junior
Subordinated Notes 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;
(iii) Junior Subordinated Notes that have been paid or in
exchange for or in lieu of which other Junior Subordinated Notes have
been authenticated and delivered pursuant
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to this Indenture, other than any such Junior Subordinated Notes in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Junior Subordinated Notes are held by a
bona fide purchaser in whose hands such Junior Subordinated Notes are
valid obligations of the Company; and
(iv) Junior Subordinated Notes, or portions thereof,
converted into or exchanged for another security if the terms of such
Junior Subordinated Notes provide for such conversion or exchange;
provided, however, that in determining, during any period in which any Junior
Subordinated Notes of a series are owned by any Person other than the Company
or any Affiliate thereof, whether the Holders of the requisite principal amount
of Outstanding Junior Subordinated Notes of such series have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, Junior
Subordinated Notes of such series owned by the Company or any Affiliate thereof
shall be disregarded and deemed not to be Outstanding. In determining whether
the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Junior Subordinated
Notes that the Trustee knows to be so owned by the Company or an Affiliate of
the Company in the above circumstances shall be so disregarded. Junior
Subordinated Notes so owned that have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Junior Subordinated
Notes and that the pledgee is not the Company or any Affiliate of the Company.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Junior Subordinated Notes
on behalf of the Company.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"Predecessor Security" of any particular Junior Subordinated Note
means every previous Junior Subordinated Note evidencing all or a portion of
the same debt as that evidenced by such particular Junior Subordinated Note;
and, for the purposes of this definition, any Junior Subordinated Note
authenticated and delivered under Section 304 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Junior Subordinated Note shall be deemed
to evidence the same debt as the mutilated, destroyed, lost or stolen Junior
Subordinated Note.
"Property Trustee", when used with respect to the Junior Subordinated
Notes of any series, means the Person designated as such in the related Trust
Agreement.
"Redemption Date", when used with respect to any Junior Subordinated
Note to be redeemed, means the date fixed for such redemption by or pursuant to
this Indenture.
"Redemption Price", when used with respect to any Junior Subordinated
Note to be redeemed, means the price at which it is to be redeemed pursuant to
this Indenture.
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"Regular Record Date" for the interest payable on any Interest Payment
Date on the Junior Subordinated Notes of any series means the date specified
for that purpose as contemplated by Section 301, whether or not a Business Day.
"Responsible Officer", when used with respect to the Trustee, means
any managing director, any vice president, any assistant vice president, any
assistant secretary, any assistant treasurer or any other officer of the
Corporate Trust and Agency Group of the Trustee customarily performing
functions similar to those performed by any of the above designated officers
and also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his knowledge of and
familiarity with the particular subject.
"Securities Trust" means any statutory business trust formed by the
Company or an Affiliate to issue Trust Securities, the proceeds of which will
be used to purchase Junior Subordinated Notes of one or more series.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 303.
"Senior Indebtedness" means, with respect to the Company, (i) any
payment due in respect of indebtedness of the Company, whether outstanding at
the date of execution of this Subordinated Note Indenture or thereafter
incurred, created or assumed, (a) in respect of money borrowed (including any
financial derivative, hedging or futures contract or similar instrument) and
(b) evidenced by securities, debentures, bonds, notes or other similar
instruments issued by the Company which, by their terms, are senior or senior
subordinated debt securities including, without limitation, all obligations
under its indentures with various trustees; (ii) all capital lease obligations;
(iii) all obligations issued or assumed as the deferred purchase price of
property, all conditional sale obligations and all obligations of the Company
under any title retention agreement (but excluding trade accounts payable
arising in the ordinary course of business and long-term purchase obligations);
(iv) all obligations 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 the payment of which the Company is responsible or liable as obligor,
guarantor or otherwise; and (vi) all 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 the Company (whether or not such obligation is assumed by
the Company), except for (1) any such indebtedness that is by its terms
subordinated to or pari passu with the Junior Subordinated Notes and (2) any
unsecured indebtedness between or among the Company or its Affiliates. Such
Senior Indebtedness shall continue to be entitled to the benefits of the
subordination provisions contained in Article Thirteen irrespective of any
amendment, modification or waiver of any term of such Senior Indebtedness.
"Special Record Date" for the payment of any Defaulted Interest on the
Junior Subordinated Notes of any series means a date fixed by the Trustee
pursuant to Section 305.
"Stated Maturity", when used with respect to any Junior Subordinated
Note or any installment of principal thereof or interest thereon, means the
date specified in such Junior
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Subordinated Note as the fixed date on which the principal of such Junior
Subordinated Note or such installment of principal or interest is due and
payable.
"Trust Agreement", when used with respect to a Securities Trust, means
the agreement or instrument that governs the affairs of such Securities Trust.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, and any reference herein to the Trust Indenture Act or a particular
provision thereof shall mean such Trust Indenture Act or provision, as the case
may be, as amended or replaced from time to time.
"Trust Securities" means the securities issued by a Securities Trust
evidencing the entire beneficial interest therein.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
with respect to one or more series of Junior Subordinated Notes pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder, and if at any time there
is more than one such Person, "Trustee" as used with respect to the Junior
Subordinated Notes of any series shall mean the Trustee with respect to Junior
Subordinated Notes of that series.
"U.S. Government Obligations" means direct obligations of the United
States for the payment of which its full faith and credit is pledged, or
obligations of a person controlled or supervised by and acting as an agency or
instrumentality of the United States and the payment of which is
unconditionally guaranteed by the United States, and shall also include a
depository receipt issued by a bank or trust company as custodian with respect
to any such U.S. Government Obligation or a specific payment of interest on or
principal of any such U.S. Government Obligation held by such custodian for the
account of a holder of a depository receipt; provided that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by
the custodian in respect of the U.S. Government Obligation or the specific
payment of interest on or principal of the U.S. Government Obligation evidenced
by such depository receipt.
"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 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate
or opinion need be furnished.
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Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
(i) a statement that each individual signing such
certificate or opinion has read such covenant or condition and the
definitions herein relating thereto;
(ii) 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;
(iii) a statement that, in the opinion of each such
individual, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to whether
or not such covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each
such individual, such condition or covenant has been complied with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be certified or covered by only one document, but one such
Person may certify or give an opinion with respect to some matters and one or
more other such Persons as to other matters, and any such Person may certify or
give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in
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person or by agent duly appointed in writing. Except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Holders signing such instrument or instruments. Proof of execution
of any such instrument or of a writing appointing any such agent, shall be
sufficient for any purpose of this Indenture and (subject to Section 601)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer in a capacity other than his individual capacity,
such certificate or affidavit shall also constitute sufficient proof of his
authority.
(c) The principal amount and serial numbers of Junior
Subordinated Notes held by any Person, and the date of holding the same, shall
be proved by the Security Register.
(d) Any request, demand, authorization, direction, notice,
consent, election, waiver or other Act of the Holder of any Junior Subordinated
Note shall bind every future Holder of the same Junior Subordinated Note and
the Holder of every Junior Subordinated Note 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
Junior Subordinated Note.
(e) The fact and date of execution of any such instrument or
writing and the authority of the Person executing the same may also be proved
in any other manner which the Trustee deems sufficient; and the Trustee may in
any instance require further proof with respect to any of the matters referred
to in this Section.
(f) If the Company shall solicit from the Holders of Junior
Subordinated Notes of any series any Act, the Company may, at its option, by
Board Resolution, fix in advance a record date for the determination of Holders
of Junior Subordinated Notes entitled to take such Act, but the Company shall
have no obligation to do so. Any such record date shall be fixed at the
Company's discretion. If such a record date is fixed, such Act may be sought or
given before or after the record date, but only the Holders of record at the
close of business on such record date shall be deemed to be Holders of Junior
Subordinated Notes for the purpose of determining whether Holders of the
requisite proportion of Junior Subordinated Notes of such series Outstanding
have authorized or agreed or consented to such Act, and for that purpose the
Junior Subordinated Notes of such series Outstanding shall be computed as of
such record date.
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SECTION 105. NOTICES, ETC., TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent,
election, 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 of a Junior Subordinated
Note 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 and Agency
Group, 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 the attention of its Treasurer,
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, or at any
other address previously furnished in writing to the Trustee by the
Company.
SECTION 106. NOTICE TO HOLDERS OF JUNIOR SUBORDINATED NOTES;
WAIVER.
Except as otherwise expressly provided herein, where this Indenture
provides for notice to Holders of Junior Subordinated Notes of any event, such
notice shall be sufficiently given if in writing and mailed, first-class
postage prepaid, to each Holder affected by such event, at his address as it
appears in the Security Register, not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such Notice.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder. In any
case where notice to Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders of Junior Subordinated Notes 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.
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required to be a part of and
govern this Indenture, such required provision shall control.
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SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 109. 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 110. SEPARABILITY CLAUSE.
In case any provision in this Indenture or the Junior Subordinated
Notes 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.
SECTION 111. BENEFITS OF INDENTURE.
Nothing in this Indenture or the Junior Subordinated Notes, express or
implied, shall give to any Person, other than the parties hereto, their
successors hereunder and the Holders of Junior Subordinated Notes and, to the
extent provided in Section 1403, the holders of Senior Indebtedness or Trust
Securities, any benefit or any legal or equitable right, remedy or claim under
this Indenture.
SECTION 112. GOVERNING LAW.
THIS INDENTURE AND THE JUNIOR SUBORDINATED NOTES SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK.
THE COMPANY HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK. THE COMPANY IRREVOCABLY
CONSENTS AND AGREES, FOR THE BENEFIT OF THE HOLDERS FROM TIME TO TIME OF THE
SECURITIES AND THE TRUSTEE, THAT ANY LEGAL ACTION, SUIT OR PROCEEDING AGAINST
IT WITH RESPECT TO ITS OBLIGATIONS, LIABILITIES OR ANY OTHER MATTER ARISING OUT
OF OR IN CONNECTION WITH THIS INDENTURE OR THE SECURITIES MAY BE BROUGHT IN THE
SUPREME COURT OF NEW YORK, NEW YORK COUNTY OR THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK AND ANY APPELLATE COURT FROM EITHER
THEREOF AND, UNTIL AMOUNTS DUE AND TO BECOME DUE IN RESPECT OF THE JUNIOR
SUBORDINATED NOTES HAVE BEEN PAID, HEREBY IRREVOCABLY CONSENTS AND SUBMITS TO
THE NONEXCLUSIVE JURISDICTION OF EACH SUCH COURT IN PERSONAM, GENERALLY AND
UNCONDITIONALLY WITH RESPECT TO ANY ACTION, SUIT OR PROCEEDING FOR ITSELF AND
IN RESPECT OF ITS PROPERTIES, ASSETS AND REVENUES.
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SECTION 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Junior Subordinated Note shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the Junior
Subordinated Notes) payment of interest or principal (and premium, if any) 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
payment shall be made on the immediately preceding Business Day, in each case
with the same force and effect as if made on the Interest Payment Date or
Redemption Date, or at the Stated Maturity, provided that no interest shall
accrue on the amount so payable for the period from and after such Interest
Payment Date, Redemption Date or Stated Maturity, as the case may be.
ARTICLE TWO
SECTION 201 FORMS GENERALLY.
The Junior Subordinated Notes of each series shall be in substantially
the form appended to the supplemental indenture authorizing such series, in
each case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Junior Subordinated Notes, as evidenced by their
execution of the Junior Subordinated Notes.
The Junior Subordinated Notes of each series shall be issuable in
registered form without coupons.
The definitive Junior Subordinated Notes may be printed, typewritten,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Junior
Subordinated Notes, as evidenced by their execution of such Junior Subordinated
Notes.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The form of the Trustee's Certificate of Authentication for a series
of Junior Subordinated Notes shall be in substantially the form appended to the
supplemental indenture authorizing such series.
SECTION 203. JUNIOR SUBORDINATED NOTES ISSUABLE IN THE FORM OF A
GLOBAL SECURITY.
(a) If the Company shall establish pursuant to Section 301 that
the Junior Subordinated Notes of a particular series are to be issued in whole
or in part in the form of one or more Global Securities, then the Company shall
execute and the Trustee shall, in accordance with Section 302 and the Company
Order delivered to the Trustee thereunder, authenticate and deliver such Global
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Security or Securities, which (i) shall represent, and shall be denominated in
an amount equal to the aggregate principal amount of the Outstanding Junior
Subordinated Notes of such series to be represented by such Global Security or
Securities, (ii) may provide that the aggregate amount of Outstanding Junior
Subordinated Notes represented thereby may from time to time be increased or
reduced to reflect exchanges, (iii) shall be registered in the name of the
Depositary for such Global Security or Securities or its nominee, (iv) shall be
delivered by the Trustee to the Depositary or pursuant to the Depositary's
instruction and (v) shall bear a legend in accordance with the requirements of
the Depositary.
(b) Notwithstanding any other provision of this Section 203 or of
Section 303, subject to the provisions of paragraph (c) below, unless the terms
of a Global Security expressly permit such Global Security to be exchanged in
whole or in part for individual Junior Subordinated Notes, a Global Security
may be transferred, in whole but not in part and in the manner provided in
Section 303, only to a nominee of the Depositary for such Global Security, or
to the Depositary, or to a successor Depositary for such Global Security
selected or approved by the Company, or to a nominee of such successor
Depositary.
(c) (1) If at any time the Depositary for a Global Security
notifies the Company that it is unwilling or unable to continue as
Depositary for such Global Security or if at any time the Depositary
for the Junior Subordinated Notes for such series shall no longer be
eligible or in good standing under the Securities Exchange Act of
1934, as amended, or other applicable statute or regulation, the
Company shall appoint a successor Depositary with respect to such
Global Security. If a successor Depositary for such Global Security is
not appointed by the Company within 90 days after the Company receives
such notice or becomes aware of such ineligibility, the Company will
execute, and the Trustee, upon receipt of a Company Order for the
authentication and delivery of individual Junior Subordinated Notes of
such series in exchange for such Global Security, will authenticate
and deliver individual Junior Subordinated Notes of such series of
like tenor and terms in definitive form in an aggregate principal
amount equal to the principal amount of the Global Security in
exchange for such Global Security.
(2) The Company may at any time and in its sole
discretion determine that the Junior Subordinated Notes of any series
issued or issuable in the form of one or more Global Securities shall
no longer be represented by such Global Security or Securities. In
such event the Company will execute, and the Trustee, upon receipt of
a Company Request for the authentication and delivery of individual
Junior Subordinated Notes of such series in exchange in whole or in
part for such Global Security, will authenticate and deliver
individual Junior Subordinated Notes of such series of like tenor and
terms in definitive form in an aggregate principal amount equal to the
principal amount of such Global Security or Securities representing
such series in exchange for such Global Security or Securities.
(3) If specified by the Company pursuant to Section 301
with respect to Junior Subordinated Notes issued or issuable in the
form of a Global Security, the Depositary for such Global Security may
surrender such Global Security in exchange in whole or in part for
individual Junior Subordinated Notes of such series of like tenor and
terms in definitive
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form on such terms as are acceptable to the Company and such
Depositary. Thereupon the Company shall execute, and the Trustee shall
authenticate and deliver, without service charge, (A) to each Person
specified by such Depositary a new Junior Subordinated Note or Notes
of the same series of like tenor and terms and of any authorized
denomination as requested by such Person in aggregate principal amount
equal to and in exchange for such Person's beneficial interest in the
Global Security; and (B) to such Depositary a new Global Security of
like tenor and terms and in an authorized denomination equal to the
difference, if any, between the principal amount of the surrendered
Global Security and the aggregate principal amount of Junior
Subordinated Notes delivered to Holders thereof.
(4) In any exchange provided for in any of the preceding
three paragraphs, the Company will execute and the Trustee will
authenticate and deliver individual Junior Subordinated Notes in
definitive form in authorized denominations. Upon the exchange of the
entire principal amount of a Global Security for individual Junior
Subordinated Notes, such Global Security shall be canceled by the
Trustee. Except as provided in the preceding paragraph, Junior
Subordinated Notes issued in exchange for a Global Security pursuant
to this Section shall be registered in such names and in such
authorized denominations as the Depositary for such Global Security,
pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee. Provided that the Company and
the Trustee have so agreed, the Trustee shall deliver such Junior
Subordinated Notes to the Persons in whose names the Junior
Subordinated Notes are registered.
(5) Any endorsement of a Global Security to reflect the
amount, or any increase or decrease in the amount, or changes in the
rights of Holders, of Outstanding Junior Subordinated Notes
represented thereby shall be made in such manner and by such Person or
Persons as shall be specified therein or in the Company Order to be
delivered pursuant to Section 302 with respect thereto. Subject to the
provisions of Section 302, the Trustee shall deliver and redeliver any
such Global Security in the manner and upon instructions given by the
Person or Persons specified therein or in the applicable Company
Order. If a Company Order pursuant to Section 302 has been, or
simultaneously is, delivered, any instructions by the Company with
respect to such Global Security shall be in writing but need not be
accompanied by or contained in an Officers' Certificate and need not
be accompanied by an Opinion of Counsel.
ARTICLE THREE
THE JUNIOR SUBORDINATED NOTES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Junior Subordinated Notes which may
be authenticated and delivered under this Indenture is unlimited.
The Junior Subordinated Notes may be issued in one or more series.
There may be established, pursuant to one or more indentures supplemental
hereto, prior to the issuance of Junior Subordinated Notes of any series,
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(1) the title of the Junior Subordinated Notes of the
series (which shall distinguish the Junior Subordinated Notes of the
series from Junior Subordinated Notes of all other series);
(2) any limit upon the aggregate principal amount of the
Junior Subordinated Notes of the series which may be authenticated and
delivered under this Indenture (except for Junior Subordinated Notes
authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Junior Subordinated Notes of the
series pursuant to Sections 203, 303, 304, 907 or 1107);
(3) the Person to whom interest on a Junior Subordinated
Note of the series shall be payable if other than the Person in whose
name that Junior Subordinated Note (or one or more Predecessor
Securities) is registered at the close of business on the Regular
Record Date for such interest;
(4) the date or dates on which the principal of the
Junior Subordinated Notes of the series is payable, and the right, if
any, to shorten, extend or advance the Stated Maturity of the Junior
Subordinated Notes and the conditions to such shortening, extension or
advancement;
(5) the rate or rates at which the Junior Subordinated
Notes of the series shall bear interest, if any, or any method by
which such rate or rates shall be determined, the date or dates from
which such interest shall accrue, the Interest Payment Dates on which
such interest shall be payable, the Regular Record Date for the
interest payable on Junior Subordinated Notes on any Interest Payment
Date and the basis upon which interest shall be calculated if other
than that of a 360-day year consisting of twelve 30-day months;
(6) the place or places where the principal of (and
premium, if any) and interest, if any, on Junior Subordinated Notes of
the series shall be payable;
(7) the period or periods within which, the price or
prices at which and the terms and conditions upon which Junior
Subordinated Notes of the series may be redeemed, in whole or in part,
at the option of the Company;
(8) the obligation, if any, of the Company to redeem or
purchase Junior Subordinated Notes of the series pursuant to any
sinking fund or analogous provision or at the option of a Holder
thereof and the period or periods within which, the price or prices at
which, and the terms and conditions upon which, Junior Subordinated
Notes of the series shall be redeemed or purchased, in whole or in
part, pursuant to such obligation;
(9) the denominations in which Junior Subordinated Notes
of the series shall be issuable;
(10) if the amount of payments of principal of (and
premium, if any) or interest (including Additional Interest) on the
Junior Subordinated Notes of the series may be
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determined with reference to an index or formula, the manner in which
such amounts shall be determined;
(11) if other than the principal amount thereof, the
portion of the principal amount of Junior Subordinated Notes of the
series which shall be payable upon declaration of acceleration of the
Maturity thereof pursuant to Section 502;
(12) any deletions from, modifications of or additions to
the Events of Default or covenants of the Company as provided herein
pertaining to the Junior Subordinated Notes of the series, and any
change in the rights of the Trustee or Holders of such series pursuant
to Section 901 or 902;
(13) any additions to the definitions currently set forth
in this Indenture with respect to such series;
(14) any exchangeability, conversion or prepayment
provisions of the Junior Subordinated Notes;
(15) whether the Junior Subordinated Notes of the series
shall be issued in whole or in part in the form of a Global Security
or Securities; the terms and conditions, if any, upon which such
Global Security or Securities may be exchanged in whole or in part for
certificated Junior Subordinated Notes of such series and of like
tenor of any authorized denomination and the circumstances under which
such exchange may occur, if other than in the manner provided for in
Section 203; the Depositary for such Global Security or Securities;
and the form of any legend or legends to be borne by any such Global
Security in addition to or in lieu of the legend referred to in
Section 203;
(16) the right, if any, of the Company to extend the
interest payment periods of such series of Junior Subordinated Notes,
including the maximum duration of any such extension or extensions,
the Additional Interest, if any, payable on such Junior Subordinated
Notes during any extension of the interest payment period and any
notice (which shall include notice to the Trustee) that must be given
upon the exercise of such right to extend interest payment periods;
(17) any restriction or condition on the transferability
of such Junior Subordinated Notes; and
(18) any other terms of the series.
All Junior Subordinated Notes of any one series shall be substantially
identical except as to the date or dates from which interest, if any, shall
accrue and denomination and except as may otherwise be provided in the terms of
such Junior Subordinated Notes determined or established as provided above. All
Junior Subordinated Notes of any one series need not be issued at the same time
and, unless otherwise provided, a series may be reopened for issuances of
additional Junior Subordinated Notes of such series.
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SECTION 302. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Junior Subordinated Notes shall be executed on behalf of the
Company by its 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 Junior Subordinated Notes may be manual or facsimile.
Junior Subordinated Notes bearing the manual or facsimile signatures
of individuals who were at the time relevant to the authorization thereof the
proper officers of the Company shall bind the Company, notwithstanding that
such individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Junior Subordinated Notes or did not hold
such offices at the date of such Junior Subordinated Notes.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Junior Subordinated Notes of any series
executed by the Company to the Trustee for authentication, together with a
Company Order for the authentication and delivery of such Junior Subordinated
Notes, and the Trustee, in accordance with the Company Order, shall
authenticate and deliver such Junior Subordinated Notes. If all of the Junior
Subordinated Notes of any series are not to be issued at one time and if the
supplemental indenture establishing such series shall so permit, such Company
Order may set forth procedures acceptable to the Trustee for the issuance of
such Junior Subordinated Notes and determining the terms of particular Junior
Subordinated Notes of such series, such as interest rate, maturity date, date
of issuance and date from which interest shall accrue. In authenticating Junior
Subordinated Notes hereunder, and accepting the additional responsibilities
under this Indenture in relation to such Junior Subordinated Notes, the Trustee
shall be entitled to receive, and (subject to Section 601) shall be fully
protected in relying upon:
(1) an Opinion of Counsel, to the effect that:
(a) the form and terms of such Junior
Subordinated Notes or the manner of determining such
terms have been established in conformity with the
provisions of this Indenture; and
(b) such Junior Subordinated Notes, when
authenticated and delivered by the Trustee and
issued by the Company in the manner and subject to
any conditions specified in such Opinion of Counsel,
will constitute valid and legally binding
obligations of the Company, enforceable in
accordance with their terms, subject, as to
enforcement, to bankruptcy, insolvency,
reorganization and other laws of general
applicability relating to or affecting the
enforcement of creditors' rights and to general
equity principles; and
(2) an Officers' Certificate stating, to the best
knowledge of each signer of such certificate, that no event which is,
or after notice or lapse of time would become, an Event of Default
with respect to any of the Junior Subordinated Notes shall have
occurred and be continuing.
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The Trustee shall not be required to authenticate such Junior Subordinated
Notes if the issue of such Junior Subordinated Notes pursuant to this Indenture
will affect the Trustee's own rights, duties or immunities under the Junior
Subordinated Notes and this Indenture or otherwise in a manner which is not
reasonably acceptable to the Trustee.
If all the Junior Subordinated Notes of any series are not to be
issued at one time, it shall not be necessary to deliver an Opinion of Counsel
and Officers' Certificate at the time of issuance of each such Junior
Subordinated Note, but such opinion and certificate shall be delivered at or
before the time of issuance of the first Junior Subordinated Note of such
series to be issued.
Each Junior Subordinated Note shall be dated the date of its
authentication.
No Junior Subordinated Note shall be entitled to any benefit under
this Indenture or be valid or obligatory for any purpose unless there appears
on such Junior Subordinated Note a certificate of authentication substantially
in the form provided for herein executed by the Trustee by manual signature,
and such certificate upon any Junior Subordinated Note shall be conclusive
evidence, and the only evidence, that such Junior Subordinated Note has been
duly authenticated and delivered hereunder and is entitled to the benefits of
this Indenture.
SECTION 303. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept at the office of the Security
Registrar designated pursuant to this Section 303 or Section 1002 a register
(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 Junior Subordinated Notes and of transfers of Junior Subordinated Notes. The
Trustee is hereby initially appointed as Security Registrar for the purpose of
registering Junior Subordinated Notes and transfers of Junior Subordinated
Notes as herein provided.
Subject to Section 203, upon surrender for registration of transfer of
any Junior Subordinated Note of any series at the office or agency maintained
for such purpose for such series, the Company shall execute, and the Trustee
shall authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Junior Subordinated Notes of the same series,
Stated Maturity and original issue date, of any authorized denominations and of
like tenor and aggregate principal amount.
Subject to Section 203, Junior Subordinated Notes of any series may be
exchanged, at the option of the Holder, for Junior Subordinated Notes of the
same series, Stated Maturity and original issue date, of any authorized
denominations and of like tenor and aggregate principal amount, upon surrender
of the Junior Subordinated Notes to be exchanged at any such office or agency.
Whenever any Junior Subordinated Notes are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Junior Subordinated Notes that the Holder making the exchange is
entitled to receive.
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All Junior Subordinated Notes issued upon any registration of transfer
or exchange of Junior Subordinated Notes shall be the valid obligations of the
Company, evidencing the same debt and entitled to the same benefits under this
Indenture, as the Junior Subordinated Notes surrendered upon such registration
of transfer or exchange.
Every Junior Subordinated Note 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 Junior Subordinated Notes, 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 Junior
Subordinated Notes, other than exchanges pursuant to Section 304, 907 or 1107
not involving any transfer.
The Company shall not be required (i) to issue, to register the
transfer of or to exchange Junior Subordinated Notes of any series during a
period of 15 days immediately preceding the date notice is given identifying
the serial numbers of the Junior Subordinated Notes of that series called for
redemption, or (ii) to issue, to register the transfer of or to exchange any
Junior Subordinated Notes so selected for redemption in whole or in part,
except the unredeemed portion of any Junior Subordinated Note being redeemed in
part.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
SECTION 304. MUTILATED, DESTROYED, LOST AND STOLEN JUNIOR
SUBORDINATED NOTES.
If any mutilated Junior Subordinated Note is surrendered to the
Trustee, the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a new Junior Subordinated Note of the same series,
Stated Maturity and original issue date, and 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 Junior
Subordinated Note 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 notice to the Company or the Trustee that such Junior
Subordinated Note has been acquired by a bona fide purchaser, the Company shall
execute and upon its request the Trustee shall authenticate and deliver, in
lieu of any such destroyed, lost or stolen Junior Subordinated Note, a new
Junior Subordinated Note of the same series, Stated Maturity and original issue
date, and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
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In case any such mutilated, destroyed, lost or stolen Junior
Subordinated Note has become or is about to become due and payable, the Company
in its discretion may, instead of issuing a new Junior Subordinated Note, pay
such Junior Subordinated Note.
Upon the issuance of any new Junior Subordinated Note under this
Section, the Company may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto and
any other expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Junior Subordinated Note of any series issued pursuant to
this Section in lieu of any destroyed, lost or stolen Junior Subordinated Note
shall constitute an original additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Junior Subordinated Note shall be
at any time enforceable by anyone, and any such new Junior Subordinated Note
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Junior Subordinated Notes of that series
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 Junior
Subordinated Notes.
SECTION 305. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Unless otherwise provided as contemplated by Section 301 with respect
to any series of Junior Subordinated Notes, interest (including Additional
Interest) on any Junior Subordinated Note that 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 Junior Subordinated Note (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
Any interest (including Additional Interest) on any Junior
Subordinated Note of any series that is payable, but is not punctually paid or
duly provided for on any Interest Payment Date (herein called "Defaulted
Interest") shall forthwith cease to be payable to the Holder on the relevant
Regular Record Date by virtue of having been such Holder, and such Defaulted
Interest 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 Junior
Subordinated Notes of such series (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 Junior Subordinated Note of such series and the date of the
proposed payment, and at the same time the Company shall deposit with
the Trustee an amount of money equal to the aggregate amount proposed
to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the
date of the proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such Defaulted
Interest as in this Clause provided. Thereupon the
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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 of Junior Subordinated
Notes of such series at the address of such Holder as it appears in
the Security Register, not less than 10 days prior to such Special
Record Date. Notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor having been so mailed, such
Defaulted Interest shall be paid to the Persons in whose names the
Junior Subordinated Notes of such series (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 make payment of any Defaulted
Interest (including Additional Interest, if any) on the Junior
Subordinated Notes of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Junior Subordinated Notes may be listed, and upon such notice as
may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this
Clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, each Junior
Subordinated Note delivered under this Indenture upon registration of transfer
of or in exchange for or in lieu of any other Junior Subordinated Note shall
carry the rights to interest accrued (including Additional Interest, if any)
and unpaid, and to accrue (including Additional Interest, if any), which were
carried by such other Junior Subordinated Note.
SECTION 306. PERSONS DEEMED OWNERS.
Prior to due presentment of a Junior Subordinated Note 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 Junior Subordinated Note
is registered as the absolute owner of such Junior Subordinated Note for the
purpose of receiving payment of principal of (and premium, if any) and (subject
to Section 305) interest (including Additional Interest, if any) on such Junior
Subordinated Note and for all other purposes whatsoever, whether or not such
Junior Subordinated Note 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 307. CANCELLATION.
All Junior Subordinated Notes surrendered for payment, redemption,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee and shall be promptly canceled by the Trustee. The
Company may at any time deliver to the Trustee for cancellation any Junior
Subordinated Notes
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previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Junior Subordinated Notes so
delivered shall be canceled by the Trustee. No Junior Subordinated Notes shall
be authenticated in lieu of or in exchange for any Junior Subordinated Notes
canceled as provided in this Section, except as expressly permitted by this
Indenture. All canceled Junior Subordinated Notes held by the Trustee shall be
disposed of in accordance with a Company Order or, in the absence of such a
Company Order, in accordance with the Trustee's usual procedure and the Trustee
shall promptly deliver a certificate of disposition to the Company.
SECTION 308. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 301 for
Junior Subordinated Notes of any series, interest on the Junior Subordinated
Notes of each series shall be computed on the basis of a 360-day year
consisting of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall, upon Company Request, cease to be of further
effect (except as to any surviving rights of registration of transfer or
exchange of Junior Subordinated Notes herein expressly provided for) and the
Trustee shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Junior Subordinated Notes
theretofore authenticated and delivered (other than (i)
Junior Subordinated Notes that have been destroyed, lost or
stolen and that have been replaced as provided for in Section
304 and (ii) Junior Subordinated Notes for whose payment
money has theretofore been deposited in trust or segregated
and held in trust by the Company and thereafter repaid to the
Company or discharged from such trust, as provided in Section
1003) have been delivered to the Trustee for cancellation; or
(B) all such Junior Subordinated Notes 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
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(iii) are to be called for
redemption within one year under
arrangements for the giving of notice of
redemption by the Trustee in the name, and
at the expense, of the Company, or
(iv) are deemed paid and discharged
pursuant to Section 403, as applicable;
and the Company, in the case of (B)(i) or (B)(ii) above, has deposited
or caused to be deposited with the Trustee as funds in trust for the
purpose described above an amount sufficient to pay and discharge the
entire indebtedness on such Junior Subordinated Notes not theretofore
delivered to the Trustee for cancellation, for principal (and premium,
if any) and interest to the date of the Stated Maturity or Redemption
Date, as the case may be, or if later, the date of payment;
(2) the Company has paid or caused to be paid all other
sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture have been complied with.
In the event there are Junior Subordinated Notes of two or more series
hereunder, the Trustee shall be required to execute an instrument acknowledging
satisfaction and discharge of this Indenture only if requested to do so with
respect to Junior Subordinated Notes of all series as to which it is Trustee
and if the other conditions thereto are met. In the event there are two or more
Trustees hereunder, then the effectiveness of any such instrument shall be
conditioned upon receipt of such instruments from all Trustees hereunder.
If, subsequent to the date a discharge is effected pursuant to this
Section 401, Additional Interest (in excess of that established as of the date
such discharge is effected) becomes payable in respect of the series of Junior
Subordinated Notes discharged, in order to preserve the benefits of the
discharge established hereunder, the Company shall irrevocably deposit or cause
to be irrevocably deposited in accordance with the provisions of this Section
401, within ten Business Days prior to the date the first payment in respect of
any portion of such excess Additional Interest becomes due, such additional
funds as are necessary to satisfy the provisions of this Section 401 as if a
discharge were being effected as of the date of such subsequent deposit.
Failure to comply with the requirements of this paragraph shall result in the
termination of the benefits of the discharge established by this Section 401.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Company to any Authenticating Agent under Section 614 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 402 and the last
paragraph of Section 1003 shall survive.
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SECTION 402. APPLICATION OF TRUST MONEY.
(a) Subject to the provisions of the last paragraph of Section
1003, all money deposited with the Trustee pursuant to Section 401 shall be
held in trust and applied by it, in accordance with the provisions of the
Junior Subordinated Notes, and this Indenture, to the payment, either directly
or through any Paying Agent (including the Company or an Affiliate acting as
its own Paying Agent) as the Trustee may determine, to the Persons entitled
thereto, of the principal (and premium, if any) and interest for whose payment
such money has been deposited with the Trustee or to make payments as provided
by Sections 401 or 403.
(b) Any monies paid by the Company to the Trustee or any Paying
Agent, or held by the Company in trust, for the payment of the principal (and
premium, if any) or any interest or Additional Interest on any Junior
Subordinated Notes and remaining unclaimed at the end of two years after such
principal (and premium, if any), interest or Additional Interest becomes due
and payable will be repaid to the Company, or released from that trust, upon
its written request, and upon such repayment or release of all liability of the
Company, the Trustee and such Paying Agent with respect thereto will cease.
SECTION 403. SATISFACTION, DISCHARGE AND DEFEASANCE OF SECURITIES
OF ANY SERIES.
The Company, at its option, (a) will be discharged from any and all
obligations in respect of the Junior Subordinated Notes (except in each case
for the obligations to register the transfer or exchange of the Junior
Subordinated Notes, replace stolen, lost or mutilated Junior Subordinated
Notes, maintain paying agencies and hold monies for payment in trust); or (b)
will be released from its obligations with respect to the Junior Subordinated
Notes (except for the obligations set forth in the preceding clause (a) and
except for the obligations to pay the principal of, premium, if any, and any
interest on the Junior Subordinated Notes, to compensate and indemnify the
Trustee and appoint a successor Trustee, provided that the Company has
deposited or caused to be irrevocably deposited (except as provided in Section
402(c), 607 and the last paragraph of Section 1003) with the Trustee
(specifying that each deposit is pursuant to this Section 403) as trust funds
in trust, specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of the Junior Subordinated Notes, U.S. Government
Obligations which, through the payment of interest and principal in respect
thereof in accordance with their terms, will provide money in an amount
sufficient to pay and discharge the principal and interest on the Outstanding
Junior Subordinated Notes on the dates such payments are due in accordance with
the terms of the Junior Subordinated Notes (or if the Company has designated a
Redemption Date pursuant to the final sentence of this paragraph, to and
including the Redemption Date so designated by the Company), and no Event of
Default or event which with notice or lapse of time would become an Event of
Default (including by reason of such deposit) with respect to the Junior
Subordinated Notes of such series shall have occurred and be continuing on the
date of such deposit. To exercise any such option, the Company is required to
deliver to the Trustee (x) an Opinion of Counsel to the effect that the Holders
of the Junior Subordinated Notes will not recognize income, gain or loss for
federal income tax purposes as a result of such deposit, defeasance and
discharge of certain obligations, which in the case of (a) must be based on a
change in law or a ruling by the U.S. Internal Revenue Service and (y) an
Officers' Certificate as to compliance with all conditions precedent provided
for in the Indenture
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relating to the satisfaction and discharge of the Junior Subordinated Notes. If
the Company shall wish to deposit or cause to be deposited money or U.S.
Government Obligations to pay or discharge the principal of (and premium, if
any) and interest, if any, on the outstanding Junior Subordinated Notes to and
including a Redemption Date on which all of the outstanding Junior Subordinated
Notes are to be redeemed, such Redemption Date shall be irrevocably designated
by a Board Resolution delivered to the Trustee on or prior to the date of
deposit of U.S. Government Obligations, and such Board Resolution shall be
accompanied by an irrevocable Company Request that the Trustee give notice of
such redemption in the name and at the expense of the Company not less than 30
nor more than 60 days prior to such Redemption Date in accordance with this
Indenture.
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT.
"Event of Default", wherever used herein with respect to Junior
Subordinated Notes of any series, means any one of the following events
(whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body or occasioned by the operation of Article
Thirteen):
(1) default in the payment of any interest upon any
Junior Subordinated Note of that series when it becomes due and
payable on an Interest Payment Date other than at Maturity, including
Additional Interest (as defined in clause (ii) of the definition
thereof) in respect thereof, and continuance of such default for a
period of thirty (30) days; provided, however, that (i) a valid
extension of the interest payment period by the Company pursuant to
the terms of a supplemental indenture authorizing the Junior
Subordinated Notes of that series shall not constitute a default in
the payment of interest for this purpose and (ii) no such default
shall be deemed to exist if, on or prior to the date on which such
interest became due, the Company shall have made a payment sufficient
to pay such interest pursuant to the Guarantee related to the Trust
Securities of the Securities Trust owning such series of Junior
Subordinated Notes, and shall have delivered a notice to the Trustee
to that effect; or
(2) default in payment of Additional Interest (as defined
in clause (i) of the definition thereof) and the continuance of such
default for a period of thirty (30) days; or
(3) default in the payment of the principal of, (or
premium, if any) or interest (including Additional Interest as defined
in clause (ii) of the definition thereof) on any Junior Subordinated
Note of that series at its Maturity; provided, however, that no such
default in the payment of principal (or premium, if any) or interest
(including Additional Interest as defined in clause (ii) of the
definition thereof) shall be deemed to exist if, on or
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prior to the date such principal (and premium, if any) or interest
(including Additional Interest as defined in clause (ii) of the
definition thereof) became due, the Company shall have made a payment
sufficient to pay such principal (and premium, if any) or interest
(including Additional Interest as defined in clause (ii) of the
definition thereof) pursuant to the Guarantee related to the Trust
Securities of the Securities Trust owning such series of Junior
Subordinated Notes, and shall have delivered a notice to the Trustee
to that effect; or
(4) default in the deposit of any sinking fund payment,
when and as due by the terms of a Junior Subordinated Note of that
series and continuance of such default for a period of thirty (30)
Business Days; or
(5) material default in the performance or material
breach of any covenant or warranty of the Company in this Indenture
(other than a covenant or warranty a default in whose performance or
whose breach is elsewhere in this Section specifically dealt with or
which has expressly been included in this Indenture solely for the
benefit of one or more series of Junior Subordinated Notes other than
that series), 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
Junior Subordinated Notes of that series, a written notice specifying
such default or breach and requiring it to be remedied and stating
that such notice is a "Notice of Default" hereunder; or
(6) the entry by a court having jurisdiction in the
premises of (A) a decree or order for relief in respect of the Company
in an involuntary case or proceeding under any applicable federal or
state bankruptcy, insolvency, reorganization or other similar law or
(B) a decree or order adjudging the Company as bankrupt or insolvent,
or approving as properly filed a petition by one or more Persons other
than the Company seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company under any applicable
federal or state law, or appointing a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official for the
Company or for any substantial part of its property, or ordering the
winding up or liquidation of its affairs, and the continuance of any
such decree or order for relief or any such other decree or order
unstayed and in effect for a period of 90 consecutive days; or
(7) the commencement by the Company of a case or
proceeding under any applicable federal or state bankruptcy,
insolvency, reorganization or other similar law or of any other case
or proceeding to be adjudicated a bankrupt or insolvent, or the
consent by it to the entry of a decree or order for relief in respect
of the Company in a 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 it, or the filing by it of a petition or answer or consent
seeking reorganization or relief under any applicable federal or state
law, or the consent by it to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or similar official of the
Company or of any substantial part of its property, or the making by
it of an assignment for the benefit of creditors, or the admission by
it in
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writing of its inability to pay its debts generally as they become
due, or the taking of corporate action by the Company in furtherance
of any such action; or
(8) any other Event of Default provided with respect to
Junior Subordinated Notes of that series in the supplemental indenture
authorizing such series.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default with respect to Junior Subordinated Notes of
any series at the time Outstanding occurs and is continuing, then in every such
case the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Junior Subordinated Notes of that series may declare the principal
amount (or such portion of the principal amount as may be specified in the
terms of that series) of all of the Junior Subordinated Notes of that series to
be due and payable immediately, by a notice in writing to the Company (and to
the Trustee if given by Holders), and upon any such declaration such principal
amount (or specified amount) shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Junior Subordinated Notes of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, if all Events of Default with respect to
Junior Subordinated Notes of that series, other than the non-payment of the
principal of Junior Subordinated Notes of that series which have become due
solely by such declaration of acceleration, have been cured or waived as
provided in Section 513, then such declaration of acceleration and its
consequences shall be automatically annulled and rescinded. No such rescission
shall affect any subsequent default or impair any right consequent thereon.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR
ENFORCEMENT BY TRUSTEE.
The Company covenants that if an Event of Default occurs under Section
501(1), (2), (3) or (4) with respect to any Junior Subordinated Notes the
Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Junior Subordinated Notes, the whole amount then due and
payable on such Junior Subordinated Notes for principal (and premium, if any)
and interest (including Additional Interest, if any) and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal (and premium, if any) and on any overdue interest (including
Additional Interest, if any), at the rate or rates prescribed therefor in such
Junior Subordinated Notes, and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due to the Trustee under
Section 607.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute
a judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Junior Subordinated Notes
and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the
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property of the Company or any other obligor upon such Junior Subordinated
Notes, wherever situated.
If an Event of Default with respect to Junior Subordinated Notes of
any series occurs and is continuing, the Trustee may in its discretion proceed
to protect and enforce its rights and the rights of the Holders of Junior
Subordinated Notes of such series 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 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Junior Subordinated Notes or the property of the Company or of such other
obligor or their creditors, the Trustee (irrespective of whether the principal
of the Junior Subordinated Notes shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Company for the payment of overdue
principal or interest) shall be entitled and empowered, by intervention in such
proceeding or otherwise,
(1) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest (including Additional
Interest, if any) owing and unpaid in respect of the Junior
Subordinated Notes and to file such other papers or documents as may
be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due to the Trustee under Section 607) and of the
Holders of Junior Subordinated Notes allowed in such judicial
proceeding, and
(2) 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 of Junior Subordinated Notes 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 of Junior Subordinated Notes, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Junior
Subordinated Note any plan of reorganization, arrangement, adjustment or
composition affecting the Junior Subordinated Notes or the rights of any Holder
thereof or to authorize the Trustee to vote in respect of the claim of any
Holder of a Junior Subordinated Note in any such proceeding.
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SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF JUNIOR
SUBORDINATED NOTES.
All rights of action and claims under this Indenture or the Junior
Subordinated Notes may be prosecuted and enforced by the Trustee without the
possession of any of the Junior Subordinated Notes 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 the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the Junior
Subordinated Notes in respect of which such judgment has been recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED.
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 premium,
if any) or interest (including Additional Interest, if any), upon presentation
of the Junior Subordinated Notes, and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee under
Section 607; and
Second: Subject to Article Thirteen, to the payment of the
amounts then due and unpaid for principal of (and premium, if any) and
interest (including Additional Interest, if any) on the Junior
Subordinated Notes 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 Junior
Subordinated Notes for principal (and premium, if any) and interest
(including Additional Interest, if any), respectively; and
Third: The balance, if any, to the Person or Persons entitled
thereto.
SECTION 507. LIMITATION ON SUITS.
No Holder of any Junior Subordinated Note of any series 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 with respect to the Junior
Subordinated Notes of that series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Junior Subordinated Notes of that series 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;
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(3) such Holder or Holders have offered to the Trustee reasonable
indemnity satisfactory to the Trustee against the costs, expenses and
liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Junior Subordinated
Notes of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatsoever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other of such Holders or to obtain or to seek to obtain priority or preference
over any other of such Holders or to enforce any right under this Indenture,
except in the manner herein provided and for the equal and ratable benefit of
all of such Holders.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM
AND INTEREST.
Notwithstanding any other provision in this Indenture but subject to
Article Thirteen, (1) the Holder of any Junior Subordinated Note shall have the
right, which is absolute and unconditional, to receive payment of the principal
of (and premium, if any) and (subject to Section 305) interest (including any
Additional Interest, if any) on such Junior Subordinated Note on the due dates
expressed in such Junior Subordinated Note (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; and (2) so long as the Junior Subordinated Notes of any series are held
by a Securities Trust, a registered holder of preferred securities issued by
such Securities Trust may institute a legal proceeding directly against the
Company, without first instituting a legal proceeding directly against or
requesting or directing that action be taken by the Property Trustee of such
Securities Trust or any other Person, for enforcement of payment to such
registered holder of principal of or interest on Junior Subordinated Notes of
such series having a principal amount equal to the aggregate stated liquidation
amount of such preferred securities of such registered holder on or after the
due dates therefor specified or provided for in the Junior Subordinated Notes of
such series.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder of a Junior Subordinated Note 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 of Junior Subordinated Notes 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.
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SECTION 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Junior Subordinated Notes in the last
paragraph of Section 304, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders of Junior Subordinated Notes is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Junior
Subordinated Note to exercise any right or remedy 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 of Junior Subordinated Notes
may be exercised from time to time, and as often as may be deemed expedient, by
the Trustee or by the Holders of Junior Subordinated Notes.
SECTION 512. CONTROL BY HOLDERS OF JUNIOR SUBORDINATED NOTES.
The Holders of not less than a majority in principal amount of the
Outstanding Junior Subordinated Notes of any series shall have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee, with respect to the Junior Subordinated Notes of such series, provided
that
(1) such direction shall not be in conflict with any rule of law
or with this Indenture, and could not involve the Trustee in personal
liability in circumstances where reasonable indemnity would not be
adequate, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 513. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in principal amount of the
Outstanding Junior Subordinated Notes of any series may, on behalf of the
Holders of all the Junior Subordinated Notes of such series, waive any past
default hereunder with respect to such series and its consequences, except a
default
(1) in the payment of the principal of (or premium, if any) or
interest (including Additional Interest, if any) on any Junior
Subordinated Note of such series, or
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(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Junior Subordinated Note of such series
affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 514. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any Junior
Subordinated Note by his acceptance thereof shall be deemed to have agreed,
that any court may in its discretion require, in any suit for the enforcement
of any right or remedy under this Indenture, or in any suit against the Trustee
for any action taken, suffered or omitted by it as Trustee, the filing by any
party litigant in such suit of an undertaking to pay the costs of such suit,
and that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit, having due
regard to the merits and good faith of the claims or defenses made by such
party litigant; but the provisions of this Section shall not apply to any suit
instituted by the Company, to any suit instituted by the Trustee, to any suit
instituted by any Holder, or group of Holders, holding in the aggregate more
than 10% in principal amount of the Outstanding Junior Subordinated Notes of
any series or to any suit instituted by any Holder of any Junior Subordinated
Note for the enforcement of the payment of the principal of (or premium, if
any) or interest (including Additional Interest, if any) on any Junior
Subordinated Note on or after the Stated Maturity or Maturities expressed in
such Junior Subordinated Note (or, in the case of redemption, on or after the
Redemption Date).
SECTION 515. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it
may lawfully do so) hereby expressly waives all benefit or advantage of any
such law and covenants that it will not hinder, delay or impede the execution
of any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Event of Default with respect to
Junior Subordinated Notes of any series,
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(1) the Trustee undertakes to perform, with respect to Junior
Subordinated Notes of such series, 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;
and
(2) in the absence of bad faith on its part, the Trustee may, with
respect to Junior Subordinated Notes of such series, conclusively
rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture; but
in the case of any such certificates or opinions which by any
provision hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this
Indenture.
(b) In case an Event of Default with respect to Junior Subordinated
Notes of any series has occurred and is continuing, the Trustee shall exercise,
with respect to Junior Subordinated Notes of such series, such of the rights
and powers vested in it by this Indenture, and use the same degree of care and
skill in their exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct, except that
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer, unless it shall be proved that
the Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders of a majority in principal amount of the
Outstanding Junior Subordinated Notes of any series relating to the
time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Indenture with respect to the Junior
Subordinated Notes of such series; and
(4) 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.
(d) 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.
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SECTION 602. NOTICE OF DEFAULTS.
Within 90 days after the occurrence of any default hereunder with
respect to the Junior Subordinated Notes of any series, the Trustee shall
transmit by mail to all Holders of Junior Subordinated Notes of such series
entitled to receive reports pursuant to Section 313(c) of the Trust Indenture
Act, notice of all defaults hereunder known to the Trustee, unless such default
shall have been cured or waived; provided, however, that, except in the case of
a default in the payment of the principal of (or premium, if any) or interest
(including Additional Interest, if any) on any Junior Subordinated Note of such
series or in the payment of any sinking fund installment with respect to Junior
Subordinated Notes of such series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee or a trust committee of directors or Responsible Officers of the
Trustee in good faith determine that the withholding of such notice is in the
interest of the Holders of Junior Subordinated Notes of such series; and
provided further, that in the case of any default of the character specified in
Section 501(5) with respect to Junior Subordinated Notes of such series, no
such notice to Holders shall be given until at least 45 days after the
occurrence thereof. 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 with respect to Junior Subordinated Notes of such series.
SECTION 603. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 601:
(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;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and a 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 and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, 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 of
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Junior Subordinated Notes of any series pursuant to this Indenture,
unless such Holders shall have offered to the Trustee reasonable
security or indemnity satisfactory to the Trustee against the costs,
expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may
see fit, and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or
attorney;
(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 due care by it hereunder; and
(h) the Trustee shall not be charged with knowledge of any Event
of Default with respect to the Junior Subordinated Notes of any series
for which it is acting as Trustee unless either (1) a Responsible
Officer of the Trustee shall have actual knowledge of the Event of
Default or (2) written notice of such Event of Default shall have been
given to the Trustee by the Company, any other obligor on such Junior
Subordinated Notes or by any Holder of such Junior Subordinated Notes.
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF JUNIOR
SUBORDINATED NOTES.
The recitals contained herein and in the Junior Subordinated Notes
(except the Trustee's certificates of authentication) shall be taken as the
statements of the Company, and the Trustee or any Authenticating Agent assumes
no responsibility for their correctness. The Trustee makes no representations
as to the validity or sufficiency of this Indenture or of the Junior
Subordinated Notes. The Trustee or any Authenticating Agent shall not be
accountable for the use or application by the Company of Junior Subordinated
Notes or the proceeds thereof.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Trust Securities and shall be entitled to rely on the delivery to it
of a written notice by a Person representing himself to be a holder of a Trust
Security to establish that such Person is such a holder. The Trustee may
conclusively rely on an Officers' Certificate as evidence that the holders of
the necessary percentage of liquidation preference of Trust Securities have
taken any action contemplated hereunder and shall have no duty to investigate
the truth or accuracy of any statement contained therein.
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SECTION 605. MAY HOLD JUNIOR SUBORDINATED NOTES.
The Trustee, any Authenticating Agent, 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 Junior Subordinated Notes and,
subject to Sections 608 and 613, may otherwise deal with the Company with the
same rights it would have if it were not Trustee, Authenticating Agent, Paying
Agent, Security Registrar or such other agent.
SECTION 606. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
SECTION 607. COMPENSATION AND REIMBURSEMENT.
The Company agrees
(1) to pay to the Trustee from time to time such compensation as
is agreed upon in writing;
(2) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence, willful misconduct or bad
faith; and
(3) to indemnify the Trustee and its officers, directors and
employees for, and to hold it harmless against, any loss, liability or
expense incurred without negligence, willful misconduct or bad faith
on its part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, 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.
As security for the performance of the obligations of the Company under
this Section the Trustee shall have a lien prior to the Junior Subordinated
Notes upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of, premium, if any, or
interest, if any, on particular Junior Subordinated Notes.
The provisions of this Section 607 shall survive the termination of
this Indenture or the resignation or removal of the Trustee.
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SECTION 608. DISQUALIFICATION; CONFLICTING INTERESTS.
If the Trustee has or shall acquire any conflicting interest, within
the meaning of the Trust Indenture Act, it shall, within 90 days after
ascertaining that it has such conflicting interest, either eliminate such
conflicting interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Indenture.
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America, any State thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least $50,000,000, subject to supervision or examination by federal or
state authority and qualified and eligible under this Article and otherwise
permitted by the Trust Indenture Act to act as Trustee under an indenture
qualified under the Trust Indenture Act. If such corporation publishes reports
of condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation shall be deemed to be its
combined capital surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the Junior
Subordinated Notes of one or more series by giving written notice thereof to
the Company. If the instrument of acceptance by a successor Trustee required by
Section 611 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
with respect to the Junior Subordinated Notes of such series.
(c) The Trustee may be removed at any time with respect to the Junior
Subordinated Notes of any series by Act of the Holders of a majority in
principal amount of the Outstanding Junior Subordinated Notes of such series
delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after
written request therefor by the Company or by any Holder of a Junior
Subordinated Note who has been a Holder of a Junior Subordinated Note for
at least six months, or
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(2) the Trustee shall cease to be eligible under Section 609 and
shall fail to resign after written request therefor by the Company or by
any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company, by a Board Resolution, may remove the
Trustee with respect to all Junior Subordinated Notes, or (ii) subject to
Section 514, any Holder of a Junior Subordinated Note who has been a bona fide
Holder of a Junior Subordinated Note 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 with respect to all Junior
Subordinated Notes and the appointment of a successor Trustee or Trustees.
(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,
with respect to the Junior Subordinated Notes of one or more series, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee or
Trustees with respect to the Junior Subordinated Notes of that or those series
(it being understood that any such successor Trustee may be appointed with
respect to the Junior Subordinated Notes of one or more or all of such series
and that at any time there shall be only one Trustee with respect to the Junior
Subordinated Notes of any particular series) and shall comply with the
applicable requirements of Section 611. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Junior Subordinated Notes of any series
shall be appointed by Act of the Holders of a majority in principal amount of
the Outstanding Junior Subordinated Notes of such series delivered to the
Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance with the
applicable requirements of Section 611, become the successor Trustee with
respect to the Junior Subordinated Notes of such series and to that extent
supersede the successor Trustee appointed by the Company. If no successor
Trustee with respect to the Junior Subordinated Notes of any series shall have
been so appointed by the Company or the Holders of Junior Subordinated Notes
and accepted appointment in the manner required by Section 611, any Holder of a
Junior Subordinated Note who has been a bona fide Holder of a Junior
Subordinated Note of such series 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 with respect to the
Junior Subordinated Notes of such series.
(f) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Junior Subordinated Notes of any series and
each appointment of a successor Trustee with respect to the Junior Subordinated
Notes of any series by mailing written notice of such event by first-class mail,
postage prepaid, to all Holders of such series of Junior Subordinated Notes as
their names and addresses appear in the Security Register.
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SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Junior Subordinated Notes, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Junior Subordinated Notes of one or more (but not all) series,
the Company, the retiring Trustee and each successor Trustee with respect to the
Junior Subordinated Notes of one or more series shall execute and deliver an
indenture supplemental hereto wherein each successor Trustee shall accept such
appointment and which (1) shall contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, each successor Trustee all
the rights, powers, trusts and duties of the retiring Trustee with respect to
the Junior Subordinated Notes of that or those series to which the appointment
of such successor Trustee relates, (2) if the retiring Trustee is not retiring
with respect to all Junior Subordinated Notes, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Junior
Subordinated Notes of that or those series as to which the retiring Trustee is
not retiring shall continue to be vested in the retiring Trustee, and (3) shall
add to or change any of the provisions of this Indenture as shall be necessary
to provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees co-trustees of the same
trust and that each such Trustee shall be trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered by any other
such Trustee; and upon the execution and delivery of such supplemental
indenture, the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each 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 with respect to the
Junior Subordinated Notes of that or those series to which the appointment of
such successor Trustee relates; but, on request of the Company or any successor
Trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee hereunder
with respect to the Junior Subordinated Notes of that or those series to which
the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (a) or (b) of this Section, as the case may be.
(d) 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.
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SECTION 612. 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 case any Junior Subordinated Notes 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 Junior Subordinated Notes so authenticated
with the same effect as if such successor Trustee had itself authenticated such
Junior Subordinated Notes.
SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Junior Subordinated Notes), 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). For purposes of Section
311(b)(4) and (6) of the Trust Indenture Act:
(a) "cash transaction" means any transaction in which full payment for
goods or securities sold is made within seven days after delivery of the goods
or securities in currency or in checks or other orders drawn upon banks or
bankers and payable upon demand; and
(b) "self-liquidating paper" means any draft, ▇▇▇▇ of exchange,
acceptance or obligation which is made, drawn, negotiated or incurred by the
Company (or any such obligor) for the purpose of financing the purchase,
processing, manufacturing, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to, possession of
or a lien upon the goods, wares or merchandise or the receivables or proceeds
arising from the sale of the goods, wares or merchandise previously constituting
the security, provided the security is received by the Trustee simultaneously
with the creation of the creditor relationship with the Company (or any such
obligor) arising from the making, drawing, negotiating or incurring of the
draft, ▇▇▇▇ of exchange, acceptance or obligation.
SECTION 614. APPOINTMENT OF AUTHENTICATING AGENT.
At any time when any of the Junior Subordinated Notes remain
Outstanding, the Trustee may appoint an Authenticating Agent or Agents with
respect to one or more series of Junior Subordinated Notes that shall be
authorized to act on behalf of the Trustee to authenticate Junior Subordinated
Notes of such series issued upon exchange, registration of transfer or partial
redemption thereof or pursuant to Section 304, and Junior Subordinated Notes so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the authentication
and delivery of Junior Subordinated Notes by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf
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of the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and shall at all times
be a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than $50,000,000 and subject to supervision or examination
by federal or state authority. If such Authenticating Agent publishes reports
of condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Authenticating Agent shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to
be eligible in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of Junior
Subordinated Notes, if any, of the series with respect to which such
Authenticating Agent will serve, as their names and addresses appear in the
Security Register. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
The provisions of Sections 306, 604 and 605 shall be applicable to each
Authenticating Agent.
If an appointment with respect to one or more series is made pursuant
to this Section, the Junior Subordinated Notes of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternate certificate of authentication in the following form:
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This is one of the Junior Subordinated Notes of the series
designated therein referred to in the within-mentioned Indenture.
As Trustee
By ______________________
As Authenticating Agent
By ______________________
Authorized Signatory
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not later than June 1 and December 1, in
each year, a list, in such form as the Trustee may reasonably require,
containing all the information in the possession or control of the
Company, or any of its Paying Agents other than the Trustee, as to the
names and addresses of the Holders of Junior Subordinated Notes as of
the preceding May 15 or November 15, as the case may be, 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 the most recent Regular Record
Date;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
(a) The Trustee shall comply with the obligations imposed on it
pursuant to Section 312 of the Trust Indenture Act.
(b) Every Holder of Junior Subordinated Notes, 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 the disclosure of any such information as to the names and addresses of the
Holders of Junior Subordinated Notes in accordance with Section 312(b) of the
Trust Indenture Act, regardless of the source from which such information was
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derived, and that the Trustee shall not be held accountable by reason of mailing
any material pursuant to a request made under Section 312(b) of the Trust
Indenture Act.
SECTION 703. REPORTS BY TRUSTEE.
(a) Within 60 days after May 15 of each year commencing with the first
May 15 after the first issuance of Junior Subordinated Notes pursuant to this
Indenture, if required by Section 313(a) of the Trust Indenture Act, the Trustee
shall transmit a brief report dated as of such May 15 with respect to any of the
events specified in such Section 313(a) that may have occurred since the later
of the immediately preceding May 15 and the date of this Indenture.
(b) The Trustee shall transmit the reports required by Section 313(b)
of the Trust Indenture Act at the times specified therein.
(c) Reports pursuant to this Section shall be transmitted in the manner
and to the Persons required by Sections 313(c) and (d) of the Trust Indenture
Act.
SECTION 704. REPORTS BY COMPANY.
The Company, pursuant to Section 314(a) of the Trust Indenture Act,
shall:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) that the Company may
be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934, as amended; or,
if the Company is not required to file information, documents or
reports pursuant to either of said Sections, then it shall file with
the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may
be required pursuant to Section 13 of the Securities Exchange Act of
1934, as amended, in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to time in
such rules and regulations;
(2) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with
respect to compliance by the Company with the conditions and covenants
of this Indenture as may be required from time to time by such rules
and regulations;
(3) transmit, within 30 days after the filing thereof with the
Trustee, to the Holders of Junior Subordinated Notes, in the manner and
to the extent provided in Section 313(c) of the Trust Indenture Act,
such summaries of any information, documents and reports required to be
filed by the Company pursuant to paragraphs (1) and (2) of this
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Section 704 as may be required by rules and regulations prescribed
from time to time by the Commission; and
(4) notify the Trustee when and as the Junior Subordinated
Notes of any series become admitted to trading on any national
securities exchange.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
Nothing contained in this Indenture or in the Junior Subordinated Notes
will prevent any consolidation of the Company with, or merger of the Company
with or into, any other corporation or corporations (whether or not affiliated
with the Company), or successive consolidations or mergers to which the Company
or its successor will be a party, or will prevent any sale, lease or conveyance
of the property of the Company, as an entirety or substantially as an entirety;
provided that upon any such consolidation, merger, sale, lease or conveyance to
which the Company is a party and in which the Company is not the surviving
corporation, the due and punctual performance and observance of all of the
covenants and conditions of the Indenture to be performed or observed by the
Company and the due and punctual payment of the principal of, premium, if any,
and interest on all of the Junior Subordinated Notes, according to their tenor,
shall be expressly assumed by supplemental indenture satisfactory in form to the
Trustee, executed and delivered to the Trustee, by the corporation formed by
such consolidation, or into which the Company shall have been merged, or which
shall have acquired such property; provided that immediately after giving effect
to such transaction, no Event of Default, and no event which, after notice or
lapse of time or both, would become an Event of Default shall have happened and
be continuing.
SECTION 802. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation by the Company with or merger by the Company
into any corporation or any conveyance, transfer or lease of the properties and
assets of the Company substantially as an entirety in accordance with Section
801, the successor corporation formed by such consolidation or into which the
Company is merged or to which such conveyance, transfer or lease is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
corporation had been named as the Company herein, and thereafter, except in the
case of a lease, the predecessor corporation shall be relieved of all
obligations and covenants under this Indenture and the Junior Subordinated
Notes.
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ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders of Junior Subordinated Notes, 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 of another corporation to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Junior Subordinated Notes; or
(2) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Junior Subordinated Notes (and if
such covenants are to be for the benefit of less than all series of
Junior Subordinated Notes, stating that such covenants are expressly
being included solely for the benefit of such series) or to surrender
any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default; or
(4) to add to or change any of the provisions of this
Indenture, to change or eliminate any restrictions on the payment of
principal (or premium, if any) on Junior Subordinated Notes or to
permit the issuance of Junior Subordinated Notes in uncertificated
form, provided any such action shall not adversely affect the interests
of the Holders of Junior Subordinated Notes of any series in any
material respect; or
(5) to change or eliminate any of the provisions of this
Indenture with respect to any series of Junior Subordinated Notes
theretofore unissued; or
(6) to secure the Junior Subordinated Notes; or
(7) to establish the form or terms of Junior Subordinated
Notes of any series as permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Junior
Subordinated Notes of one or more series and to add to or change any of
the provisions of this Indenture as shall be necessary to provide for
or facilitate the administration of the trusts hereunder by more than
one Trustee, pursuant to the requirements of Section 611(b); or
(9) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make provisions with respect to
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matters or questions arising under this Indenture, provided such
action shall not adversely affect the interests of the Holders of
Junior Subordinated Notes of any series or holders of outstanding
Trust Securities in any material respect; or
(10) subject to Section 903(a), to make any change in Article
Thirteen that would limit or terminate the benefits available to any
holder of Senior Indebtedness under such Article; or
(11) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to effect the
qualification of this Indenture under the Trust Indenture Act or under
any similar federal statute hereafter enacted, and to add to this
Indenture such other provisions as may be expressly required by the
Trust Indenture Act.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Junior Subordinated Notes of each series
affected by such supplemental indenture, 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 of Junior Subordinated Notes of such series under this Indenture;
provided, however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Junior Subordinated Note affected
thereby,
(1) extend the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Junior Subordinated
Note, or reduce the principal amount thereof or the rate of interest
(including Additional Interest) thereon or any premium payable upon the
redemption thereof, or change the method of calculating the rate of
interest thereon, 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
(2) reduce the percentage in principal amount of the Outstanding
Junior Subordinated Notes of any series, 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 902, Section 513
or Section 1008, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Junior
Subordinated Note affected thereby; provided, however, that this
clause shall not be deemed to require the consent of any Holder of a
Junior Subordinated Note with respect to changes in the references to
"the Trustee" and concomitant changes in this Section and Section
1008, or the deletion of this proviso, in accordance with the
requirements of Sections 611(b) and 901(8), or
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(4) modify the provisions of this Indenture with respect to
the subordination of the Junior Subordinated Notes in a manner adverse
to such Holder.
SECTION 903. GENERAL PROVISIONS REGARDING SUPPLEMENTAL INDENTURE.
(a) A supplemental indenture entered into pursuant to Section 901 or
Section 902 may not make any change that adversely affects the rights under
Article Thirteen of any holder of Senior Indebtedness then outstanding unless
the holders of such Senior Indebtedness (or any group or representative thereof
authorized to give a consent) consent to such change.
(b) A supplemental indenture which changes or eliminates any covenant
or other provision of this Indenture which has expressly been included solely
for the benefit of one or more particular series of Junior Subordinated Notes,
or which modifies the rights of the Holders of Junior Subordinated Notes of such
series with respect to such covenant or other provision, shall be deemed not to
affect the rights under this Indenture of the Holders of Junior Subordinated
Notes of any other series.
(c) It shall not be necessary for any Act of Holders of Junior
Subordinated Notes under this Section to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient if such Act or
action shall approve the substance thereof.
SECTION 904. 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 601) 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, immunities or liabilities under this Indenture or
otherwise.
SECTION 905. 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 Junior Subordinated Notes theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby.
SECTION 906. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
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SECTION 907. REFERENCE IN JUNIOR SUBORDINATED NOTES TO SUPPLEMENTAL
INDENTURES.
Junior Subordinated Notes of any series 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 Junior Subordinated Notes of any series 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 Junior
Subordinated Notes of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL AND INTEREST.
The Company covenants and agrees for the benefit of each series of
Junior Subordinated Notes that it will duly and punctually pay the principal of
(and premium, if any) and interest, including Additional Interest (subject to
the right of the Company to extend an interest payment period pursuant to the
terms of a supplemental indenture authorizing the Junior Subordinated Notes of
that series), on the Junior Subordinated Notes of that series in accordance with
the terms of the Junior Subordinated Notes and this Indenture.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Company or its Affiliate will maintain an office or agency where
Junior Subordinated Notes of each series may be presented or surrendered for
payment, where Junior Subordinated Notes of that series may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company in respect of the Junior Subordinated Notes of that series 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 in respect of any series of Junior Subordinated Notes or shall
fail to furnish the Trustee with the address thereof, such presentations and
surrenders of Junior Subordinated Notes of that series may be made and 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 such
respective presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Junior Subordinated Notes of one or more series
may be presented or surrendered for any or all such purposes and may from time
to time rescind such designations. The Company will give prompt written notice
to the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.
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SECTION 1003. MONEY FOR JUNIOR SUBORDINATED NOTES PAYMENTS TO BE HELD IN
TRUST.
If the Company or one of its Affiliates shall at any time act as its
own Paying Agent with respect to any series of Junior Subordinated Notes, it
will, on or before each due date of the principal of (and premium, if any) or
interest (including Additional Interest, if any) on any of the Junior
Subordinated Notes of that series, segregate and hold in trust for the benefit
of the Persons entitled thereto a sum sufficient to pay the principal (and
premium, if any) or interest (including Additional Interest, if any) 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 for any
series of Junior Subordinated Notes, it will, prior to each due date of the
principal of (and premium, if any) or interest (including Additional Interest,
if any) on any Junior Subordinated Notes of that series, deposit with a Paying
Agent a sum sufficient to pay the principal (and premium, if any) or interest
(including Additional Interest, if any) so becoming due, such sum to be held in
trust for the benefit of the Persons entitled to such principal (and premium,
if any) or interest (including Additional Interest, if any), 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 for any series of Junior
Subordinated Notes 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:
(1) hold all sums held by it for the payment of the principal
of (and premium, if any) or interest (including Additional Interest, if
any) on Junior Subordinated Notes of that series in trust for the
benefit of the Persons entitled thereto until such sums shall be paid
to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Junior Subordinated Notes of that series) in
the making of any payment of principal of (and premium, if any) or
interest (including Additional Interest, if any) on the Junior
Subordinated Notes of that series; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
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.
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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 (and premium, if
any) or interest (including Additional Interest, if any) on any Junior
Subordinated Note of any series and remaining unclaimed for two years after
such principal (and premium, if any) or interest (including Additional
Interest, 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
trust; and the Holder of such Junior Subordinated Note 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; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in a newspaper of general circulation in New York City
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid
to the Company.
SECTION 1004. ADDITIONAL INTEREST.
If the Junior Subordinated Notes of a series provide for the payment
of Additional Interest (for purposes of this Section 1004, as defined in clause
(i) of the definition thereof) to the Holders of such Junior Subordinated
Notes, then the Company shall pay to each Holder of such Junior Subordinated
Notes the Additional Interest as provided therein.
Except as otherwise provided in or pursuant to this Indenture, if the
Junior Subordinated Notes of a series provide for the payment of Additional
Interest, at least 10 days prior to the first Interest Payment Date with
respect to that series of Junior Subordinated Notes upon which such Additional
Interest shall be payable (or, if the Junior Subordinated Notes of that series
shall not bear interest prior to Maturity, the first day on which a payment of
principal and any premium is made), and at least 10 days prior to each date of
payment of principal and any premium or interest if there has been any change
with respect to the matters set forth in the below-mentioned Officers'
Certificate, the Company will furnish the Trustee and the Company's Paying
Agents, if other than the Trustee or the Company, with an Officers' Certificate
stating the amount of the Additional Interest payable per minimum authorized
denomination of such Junior Subordinated Notes (and, if such Additional
Interest is payable only with respect to particular Junior Subordinated Notes,
then the names of the Holders of such Junior Subordinated Notes).
SECTION 1005. CORPORATE EXISTENCE.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and the rights (charter and statutory) and franchises of the Company;
provided, however, that the Company shall not be required to preserve any such
right or franchise if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company, and that the loss thereof is not disadvantageous in any material
respect to the Holders.
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SECTION 1006. LIMITATIONS ON DIVIDEND AND CERTAIN OTHER PAYMENTS.
The Company covenants that, subject to the next succeeding sentence,
it will not (a) declare or pay any dividends on, or redeem, purchase, acquire
or make a distribution or liquidation payment with respect to, any of its
capital stock except for dividends, payments or distributions payable in shares
of, or options, warrants, rights to subscribe for or purchase shares of, its
capital stock and conversions or exchanges of capital stock, reclassifications
of its capital stock of one class or series for capital stock of another class
or series, except for any transaction relating to a shareholders' rights plan
and except for a redemption, purchase or other acquisition of shares of its
capital stock made for the purpose of an employee incentive plan or benefit
plan or similar arrangement of the Company or any of its subsidiaries or (b)
make any payment of interest, principal of 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 Junior Subordinated Notes (except by conversion
into or exchange for shares of its capital stock) or (c) make any guarantee
payment with respect to the foregoing, if at such time (i) the Company shall be
in default with respect to its guarantee payments or other payment obligations
under the Guarantee with respect to the series of Trust Securities, if any,
related to such series of Junior Subordinated Notes, (ii) there shall have
occurred and be continuing any Event of Default with respect to such series of
Junior Subordinated Notes, or (iii) the Company shall have given notice of its
election to extend an interest payment period for such series of Junior
Subordinated Notes and such extension is continuing. The preceding sentence,
however, shall not restrict the payment of accrued dividends or the purchase of
fractional interests in shares of the Company's capital stock pursuant to the
conversion or exchange provisions of such capital stock or the security being
converted or exchanged.
SECTION 1007. STATEMENT AS TO COMPLIANCE.
(a) The Company shall deliver to the Trustee, within 120 days after the
end of each fiscal year, a written statement, which need not comply with Section
102, signed by the principal executive officer, the principal financial officer
or the principal accounting officer of the Company, as to his or her knowledge
of the Company's compliance with all conditions and covenants under this
Indenture. For purposes of this Section 1007, such compliance shall be
determined without regard to any period of grace or requirement of notice under
this Indenture.
(b) The Company shall deliver to the Trustee, no later than the
Business Day on which the event occurs, written notice of the liquidation,
dissolution or winding-up of a Securities Trust if such liquidation, dissolution
or winding-up would occur earlier than the Stated Maturity of the Junior
Subordinated Notes owned by such Securities Trust.
(c) The Company shall deliver to the Trustee, within five days after
the occurrence thereof, written notice of any event which after notice or lapse
of time or both would become an Event of Default pursuant to Section 501.
SECTION 1008. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 1005 and 1006 with respect
to the Junior Subordinated Notes of any
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series if before the time for such compliance the Holders of at least a
majority in principal amount of the Outstanding Junior Subordinated Notes of
such series shall, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such term, provision or condition,
but no such waiver shall extend to or affect such term, provision or condition
except to the extent so expressly waived, and, until such waiver shall become
effective, the obligations of the Company and the duties of the Trustee in
respect of any such term, provision or condition shall remain in full force and
effect.
SECTION 1009. COVENANTS REGARDING TRUST.
For so long as the Trust Securities remain outstanding, the Company
covenants (i) to directly or indirectly maintain 100% ownership of the Common
Securities (as defined in the Trust Agreement relating to such securities) of
the Trust and to permit such Common Securities to be transferred only as
permitted by the related Trust Agreements; provided, however, that any
permitted successor of the Company hereunder may succeed to the Company's
ownership of such Common Securities; (ii) to use its reasonable efforts to
cause the Trust (a) to remain a statutory business trust, except in connection
with the distribution of Junior Subordinated Notes to the holders of Trust
Securities in liquidation of the Trust, the redemption of all of the Trust
Securities of the Trust, or certain mergers, consolidations or amalgamations,
each as permitted under the Trust Agreement, and (b) to otherwise continue to
be classified as a grantor trust for United States federal income tax purposes;
and (iii) to comply with all of its obligations and agreements in the related
Trust Agreement.
ARTICLE ELEVEN
REDEMPTION OF JUNIOR SUBORDINATED NOTES
SECTION 1101. APPLICABILITY OF ARTICLE.
Junior Subordinated Notes of any series which are redeemable before
their Stated Maturity shall be redeemable in accordance with their terms and
(except as otherwise specified as contemplated by Section 301 for Junior
Subordinated Notes of any series) in accordance with this Article.
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Junior Subordinated Notes
shall be evidenced by a Board Resolution. In case of any redemption at the
election of the Company of all of the Junior Subordinated Notes of any series,
the Company shall, at least 30 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee and the
related Property Trustee), notify the Trustee and the related Property Trustee
in writing of such Redemption Date. In case of any redemption at the election of
the Company of less than all the Junior Subordinated Notes of any series, the
Company shall, at least 30 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee and the
related Property Trustee), notify the Trustee and the related Property Trustee
in writing of
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such Redemption Date and of the principal amount of Junior Subordinated Notes
of such series to be redeemed. In the case of any redemption of Junior
Subordinated Notes (i) prior to the expiration of any restriction on such
redemption provided in the terms of such Junior Subordinated Notes or elsewhere
in this Indenture, or (ii) pursuant to an election of the Company which is
subject to a condition specified in the terms of such Junior Subordinated Notes,
the Company shall furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction or condition.
SECTION 1103. SELECTION BY TRUSTEE OF JUNIOR SUBORDINATED NOTES TO BE
REDEEMED.
If the Junior Subordinated Notes are registered in the name of only
one Holder, any partial redemptions shall be pro rata. If the Junior
Subordinated Notes are held in definitive form by more than one Holder and if
less than all the Junior Subordinated Notes of any series are to be redeemed,
the particular Junior Subordinated Notes to be redeemed shall be selected not
more than 30 days prior to the Redemption Date by the Trustee, from the
Outstanding Junior Subordinated Notes of such series not previously called for
redemption, by lot or other such method as the Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of portions
(equal to the minimum authorized denomination for Junior Subordinated Notes of
that series or any integral multiple thereof) of the principal amount of Junior
Subordinated Notes of such series of a denomination larger than the minimum
authorized denomination for Junior Subordinated Notes of that series.
The Trustee shall promptly notify the Company in writing of the Junior
Subordinated Notes selected for redemption and, in the case of any Junior
Subordinated Notes selected for partial redemption, the principal amount
thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Junior Subordinated
Notes shall relate, in the case of any Junior Subordinated Notes redeemed or to
be redeemed only in part, to the portion of the principal amount of such Junior
Subordinated Notes which has been or is to be redeemed.
SECTION 1104. NOTICE OF REDEMPTION.
Notice of redemption shall be given in the manner provided in Section
106 to the Holders of Junior Subordinated Notes to be redeemed not less than 30
nor more than 60 days prior to the Redemption Date.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Junior Subordinated Notes
of any series are to be redeemed, the identification (and, in the case
of partial redemption, the principal amounts) of the particular Junior
Subordinated Notes to be redeemed,
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(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Junior Subordinated Note to be
redeemed and, if applicable, that interest thereon will cease to accrue
on and after said date,
(5) the place or places where such Junior Subordinated Notes
are to be surrendered for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the
case.
Notice of redemption of Junior Subordinated Notes 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 1105. DEPOSIT OF REDEMPTION PRICE.
Except as otherwise provided in a supplemental indenture pursuant to
Section 301, prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company or its Affiliate is acting
as its own Paying Agent, segregate and hold in trust as provided in Section
1003) an amount of money sufficient to pay the Redemption Price of and accrued
interest, if any, on all the Junior Subordinated Notes which are to be redeemed
on that date.
SECTION 1106. JUNIOR SUBORDINATED NOTES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the Junior
Subordinated Notes so to be redeemed shall, on the Redemption Date, become due
and payable at the Redemption Price therein specified together with any accrued
interest (including any Additional Interest) thereon, and from and after such
date (unless the Company shall default in the payment of the Redemption Price
and accrued interest) such Junior Subordinated Notes shall cease to bear
interest. Upon surrender of any such Junior Subordinated Note for redemption in
accordance with such notice, such Junior Subordinated Note shall be paid by the
Company at the Redemption Price, together with accrued interest, if any, and
any Additional Interest to the Redemption Date; provided, however, that, except
as otherwise provided in a supplemental indenture pursuant to Section 301,
installments of interest on Junior Subordinated Notes whose Stated Maturity is
on or prior to the Redemption Date shall be payable to the Holders of such
Junior Subordinated Notes, or one or more Predecessor Securities, registered as
such at the close of business on the relevant Record Dates according to their
terms and the provisions of Section 305.
If any Junior Subordinated Note called for redemption shall not be so
paid upon surrender thereof for redemption, the principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate
prescribed therefor in the Junior Subordinated Note.
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SECTION 1107. JUNIOR SUBORDINATED NOTES REDEEMED IN PART.
Any Junior Subordinated Note that is to be redeemed only in part
shall be surrendered at an office or agency of the Company 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 deliver
to the Holder of such Junior Subordinated Note without service charge, a new
Junior Subordinated Note of the same series, Stated Maturity and original issue
date 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 Junior Subordinated Note so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Junior Subordinated Notes of a series except as otherwise
specified as contemplated by Section 301 for Junior Subordinated Notes of such
series.
The minimum amount of any sinking fund payment provided for by the
terms of Junior Subordinated Notes of any series is herein referred to as a
"mandatory sinking fund payment", and any payment in excess of such minimum
amount provided for by the terms of Junior Subordinated Notes of any series is
herein referred to as an "optional sinking fund payment". If provided for by the
terms of Junior Subordinated Notes of any series, the cash amount of any sinking
fund payment may be subject to reduction as provided in Section 1202. Each
sinking fund payment shall be applied to the redemption of Junior Subordinated
Notes of any series as provided for by the terms of Junior Subordinated Notes of
such series.
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH JUNIOR SUBORDINATED
NOTES.
The Company (1) may deliver Outstanding Junior Subordinated Notes of a
series (other than any previously called for redemption), and (2) may apply as a
credit Junior Subordinated Notes of a series which have been redeemed either at
the election of the Company pursuant to the terms of such Junior Subordinated
Notes or through the application of permitted optional sinking fund payments
pursuant to the terms of such Junior Subordinated Notes, in each case in
satisfaction of all or any part of any sinking fund payment with respect to the
Junior Subordinated Notes of such series required to be made pursuant to the
terms of such Junior Subordinated Notes as provided for by the terms of such
series; provided that such Junior Subordinated Notes have not been previously so
credited. Such Junior Subordinated Notes shall be received and credited for such
purpose by the Trustee at the Redemption Price specified in such Junior
Subordinated Notes
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for redemption through operation of the sinking fund and the amount of such
sinking fund payment shall be reduced accordingly.
SECTION 1203. REDEMPTION OF JUNIOR SUBORDINATED NOTES FOR SINKING FUND.
Not less than 60 days prior to each sinking fund payment date for any
series of Junior Subordinated Notes, the Company will deliver to the Trustee an
Officers' Certificate specifying the amount of the next ensuing sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering and crediting Junior
Subordinated Notes of that series pursuant to Section 1202 and stating the basis
for such credit and that such Junior Subordinated Notes have not previously been
so credited and will also deliver to the Trustee any Junior Subordinated Notes
to be so delivered. Not less than 30 days before each such sinking fund payment
date the Trustee shall select the Junior Subordinated Notes to be redeemed upon
such sinking fund payment date in the manner specified in Section 1103 and cause
notice of the redemption thereof to be given in the name of and at the expense
of the Company in the manner provided in Section 1104. Such notice having been
duly given, the redemption of such Junior Subordinated Notes shall be made upon
the terms and in the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
SUBORDINATION
SECTION 1301. JUNIOR SUBORDINATED NOTES SUBORDINATE TO SENIOR INDEBTEDNESS.
The Company covenants and agrees, and each Holder of a Junior
Subordinated Note, by his acceptance thereof, likewise covenants and agrees,
that, to the extent and in the manner hereinafter set forth in this Article
(subject to Article Four), the payment of the principal of, premium, if any, and
interest (including Additional Interest) on each and all of the Junior
Subordinated Notes are hereby expressly made subordinate and subject in right of
payment to the prior payment in full in cash of all Senior Indebtedness.
SECTION 1302. PAYMENT OF PROCEEDS UPON DISSOLUTION, ETC.
Upon any payment or distribution of assets of the Company to creditors
upon any liquidation, dissolution, winding-up, reorganization, assignment for
the benefit of creditors, marshaling of assets or liabilities or any
bankruptcy, insolvency or similar proceedings of the Company (each such event,
if any, referred to as a "Proceeding"), the holders of Senior Indebtedness
shall be entitled to receive payment in full of all amounts due on or to become
due on or in respect of all Senior Indebtedness (including any interest
accruing thereon after the commencement of any such Proceeding, whether or not
allowed as a claim against the Company in such Proceeding), before the Holders
of the Junior Subordinated Notes are entitled to receive any payment or
distribution (excluding any payment described in Section 1309) on account of
the
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principal of, premium, if any, or interest (including Additional Interest, if
any) on the Junior Subordinated Notes or on account of any purchase, redemption
or other acquisition of Junior Subordinated Notes by the Company (all such
payments, distributions, purchases, redemptions and acquisitions, whether or
not in connection with a Proceeding, herein referred to, individually and
collectively, as a "Payment").
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 Junior Subordinated Notes 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 to the trustee or trustees under any indenture pursuant to
which any instruments evidencing any such Senior Indebtedness may have been
issued, as their respective interests may appear, as calculated by the Company,
for application to the payment of all Senior Indebtedness remaining unpaid to
the extent necessary to pay all Senior Indebtedness in full 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, "assets of the Company" 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 with respect to the Junior Subordinated
Notes to the payment of all Senior Indebtedness that may at the time be
outstanding; provided, however, that (i) the Senior Indebtedness is assumed by
the new corporation, if any, resulting from any such reorganization or
readjustment, and (ii) the rights of the holders of the Senior Indebtedness are
not, without the consent of such holders, altered by such reorganization or
readjustment. The consolidation of the Company with, or the merger of the
Company into, another corporation or the liquidation or dissolution of the
Company following the conveyance or transfer of its property as an entirety, or
substantially as an entirety, to another corporation upon the terms and
conditions provided for in Article Eight hereof shall not be deemed a
dissolution, winding-up, liquidation or reorganization for the purposes of this
Section 1302 if such other corporation shall, as a part of such consolidation,
merger, conveyance or transfer, comply with the conditions stated in Article
Eight hereof. Nothing in Section 1303 or in this Section 1302 shall apply to
claims of, or payments to, the Trustee under or pursuant to Section 607.
SECTION 1303. NO PAYMENT WHEN SENIOR INDEBTEDNESS IN DEFAULT.
No payment of any principal, including redemption payments, if any,
premium, if any, or interest on (including Additional Interest) the Junior
Subordinated Notes shall be made if:
(i) any Senior Indebtedness is not paid when due whether at
the stated maturity of any such payment or by call for redemption and
any applicable grace period with respect to such default has ended,
with such default remaining uncured and such default has not been
waived or otherwise ceased to exist;
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(ii) the maturity of any Senior Indebtedness has been accelerated
because of a default; or
(iii)notice has been given of the exercise of an option to require
repayment, mandatory payment or prepayment or otherwise.
In the event that, notwithstanding the foregoing, the Company shall
make any Payment to the Trustee or any Holder prohibited by the foregoing
provisions of this Section, then in such event such Payment shall be held in
trust and paid over and delivered forthwith to the holders of the Senior
Indebtedness.
The provisions of this Section shall not apply to any Payment with
respect to which Section 1302 hereof would be applicable.
SECTION 1304. PAYMENT PERMITTED IF NO DEFAULT.
Nothing contained in this Article or elsewhere in this Indenture or in
any of the Junior Subordinated Notes shall prevent the Company, at any time
except during the pendency of any Proceeding referred to in Section 1302 hereof
or under the conditions described in Section 1303 hereof, from making Payments.
Nothing in this Article shall have any effect on the right of the Holders or the
Trustee to accelerate the maturity of the Junior Subordinated Notes upon the
occurrence of an Event of Default, but, in that event, no payment may be made in
violation of the provisions of this Article with respect to the Junior
Subordinated Notes. If payment of the Junior Subordinated Notes is accelerated
because of an Event of Default, the Company shall promptly notify the holders of
the Senior Indebtedness (or their representatives) of such acceleration.
SECTION 1305. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS.
The rights of the Holders of the Junior Subordinated Notes shall be
subrogated to the rights of the holders of such Senior Indebtedness to receive
payments and distributions of cash, property and securities applicable to the
Senior Indebtedness until the principal of, premium, if any, and interest
(including Additional Interest) on the Junior Subordinated Notes shall be paid
in full. For purposes of such subrogation, no payments or distributions to the
holders of the Senior Indebtedness of any cash, property or securities to which
the Holders of the Junior Subordinated Notes or the Trustee would be entitled
except for the provisions of this Article, and no payments pursuant to the
provisions of this Article to the holders of Senior Indebtedness by Holders of
the Junior Subordinated Notes or the Trustee, shall, as among the Company, its
creditors other than holders of Senior Indebtedness and the Holders of the
Junior Subordinated Notes, be deemed to be a payment or distribution by the
Company to or on account of the Senior Indebtedness.
SECTION 1306. PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS.
The provisions of this Article are and are intended solely for the
purpose of defining the relative rights of the Holders on the one hand and the
holders of Senior Indebtedness on the other hand. Nothing contained in this
Article or elsewhere in this Indenture or in the Junior Subordinated
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Notes is intended to or shall (a) impair, as among the Company, its creditors
other than holders of Senior Indebtedness and the Holders of the Junior
Subordinated Notes, the obligation of the Company, which is absolute and
unconditional (and which, subject to the rights under this Article of the
holders of Senior Indebtedness, is intended to rank equally with all other
general obligations of the Company), to pay to the Holders of the Junior
Subordinated Notes the principal of, premium, if any, and interest (including
Additional Interest) on the Junior Subordinated Notes as and when the same
shall become due and payable in accordance with their terms; or (b) affect the
relative rights against the Company of the Holders of the Junior Subordinated
Notes and creditors of the Company other than the holders of Senior
Indebtedness; or (c) prevent the Trustee or the Holder of any Junior
Subordinated Note from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the rights, if
any, under this Article of the holders of Senior Indebtedness to receive cash,
property and securities otherwise payable or deliverable to the Trustee or such
Holder or, under the conditions specified in Section 1303, to prevent any
payment prohibited by such Section or enforce their rights pursuant to the
penultimate paragraph in Section 1303.
SECTION 1307. TRUSTEE TO EFFECTUATE SUBORDINATION.
Each Holder of a Junior Subordinated Note by his acceptance thereof
authorizes and directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article and appoints the Trustee his attorney-in-fact for any and all such
purposes, including, in the event of any dissolution, winding-up, liquidation or
reorganization of the Company, whether in bankruptcy, insolvency, receivership
proceedings or otherwise, the timely filing of a claim for the unpaid balance of
the indebtedness of the Company owing to such Holder in the form required in
such proceedings and the causing of such claim to be approved.
SECTION 1308. NO WAIVER OF SUBORDINATION PROVISIONS.
No right of any present or future holder of any Senior Indebtedness to
enforce the subordination provisions provided herein shall at any time in any
way be prejudiced or impaired by any act or failure to act on the part of the
Company or by any act or any 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 any such holder may have
or be otherwise 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 Junior
Subordinated Notes, without incurring responsibility to the Holders of the
Junior Subordinated Notes and without impairing or releasing the subordination
provided in this Article or the obligations hereunder of the Holders of the
Junior Subordinated Notes to the holders of Senior Indebtedness, do any one or
more of the following: (i) change the manner, place or terms of payment or
extend the time of payment of, or renew or alter, Senior Indebtedness, or
otherwise amend or supplement in any manner Senior Indebtedness or any
instrument evidencing the same or any agreement under which Senior Indebtedness
is outstanding; (ii) permit the Company to borrow, repay and then reborrow any
or all of the Senior Indebtedness; (iii) sell, exchange, release or otherwise
deal with any property pledged, mortgaged or otherwise
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securing Senior Indebtedness; (iv) release any Person liable in any manner for
the collection of Senior Indebtedness; (v) exercise or refrain from exercising
any rights against the Company and any other Person; or (vi) apply any sums
received by them to Senior Indebtedness.
SECTION 1309. TRUST MONEYS NOT SUBORDINATED.
Notwithstanding anything contained herein to the contrary, payments
from money held in trust by the Trustee under Article Four for the payment of
the principal of, premium, if any, and interest (including Additional Interest)
on any series of Junior Subordinated Notes shall not be subordinated to the
prior payment of any Senior Indebtedness or subject to the restrictions set
forth in this Article and no Holder of such Junior Subordinated Notes nor the
Trustee shall be obligated to pay over such amount to the Company, any holder of
Senior Indebtedness (or a designated representative of such holder) or any other
creditor of the Company.
SECTION 1310. NOTICE TO THE TRUSTEE.
The Company shall give prompt written notice to a Responsible Officer
of the Trustee of any fact known to the Company that would prohibit the making
of any payment of monies to or by the Trustee in respect of the Junior
Subordinated Notes pursuant to the provisions of this Article. Notwithstanding
the provisions of this Article or any other provision of this Indenture, the
Trustee shall not be charged with knowledge of the existence of any facts that
would prohibit the making of any payment of monies to or by the Trustee in
respect of the Junior Subordinated Notes pursuant to the provisions of this
Article unless and until a Responsible Officer of the Trustee shall have
received written notice thereof at the Corporate Trust Office of the Trustee
from the Company or a holder or holders of Senior Indebtedness or from any
trustee therefor; and before the receipt of any such written notice, the
Trustee, subject to the provisions of Section 601, shall be entitled in all
respects to assume that no such facts exist; provided, however, that if the
Trustee shall not have received the notice provided for in this Section 1310 at
least two Business Days prior to the date upon which, by the terms hereof, any
money may become payable for any purpose (including, without limitation, the
payment of the principal of (or premium, if any) or interest on any Junior
Subordinated Note), then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to receive such
money and to apply the same to the purposes for which they were received, and
shall not be affected by any notice to the contrary that may be received by it
within two Business Days prior to such date.
The Trustee, subject to the provisions of Section 601, shall be
entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Indebtedness (or a trustee on
behalf of such holder) to establish that such notice has been given by a holder
of Senior Indebtedness or a trustee on behalf of any such holder or holders. In
the event that the Trustee determines in good faith that further evidence is
required with respect to the right of any Person as a holder of Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article, 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 rights of
such Person under this Article, and if such evidence is not furnished the
Trustee may
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defer any payment to such Person pending judicial determination as to the right
of such Person to receive such payment.
SECTION 1311. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING
AGENT.
Upon any payment or distribution of assets of the Company referred to
in this Article, the Trustee, subject to the provisions of Section 601 hereof,
and the Holders of the Junior Subordinated Notes shall be entitled to rely upon
any order or decree entered by any court of competent jurisdiction in which such
Proceeding is pending, or a certificate of the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee for the benefit of creditors, agent or
other Person making such payment or distribution, delivered to the Trustee or to
the Holders of Junior Subordinated Notes, for the purpose of ascertaining the
Persons entitled to participate in such payment or distribution, the holders of
the Senior Indebtedness, the amount thereof or payable thereon, the amount or
amounts paid or distributed thereon and all other facts pertinent thereto or to
this Article, provided that the foregoing shall apply only if such court has
been apprised of the provisions of this Article.
SECTION 1312. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR INDEBTEDNESS.
Subject to the provisions of Section 601, the Trustee shall not be
deemed to owe any fiduciary duty to the holders of Senior Indebtedness and shall
not be liable to any such holders if it shall in good faith mistakenly pay over
or distribute to Holders of Junior Subordinated Notes or to the Company or to
any other Person cash, property or securities to which any holders of Senior
Indebtedness shall be entitled by virtue of this Article or otherwise.
SECTION 1313. RIGHTS OF TRUSTEE AS HOLDER OF SENIOR INDEBTEDNESS;
PRESERVATION OF TRUSTEE'S RIGHTS.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article with respect to any Senior Indebtedness which
may at any time be 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.
Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 607 hereof.
SECTION 1314. ARTICLE APPLICABLE TO PAYING AGENTS.
In case at any time any Paying Agent other than the Trustee (or the
Company or an Affiliate of the Company) shall have been appointed by the Company
and be then acting hereunder, the term "Trustee" as used in this Article shall
in such case (unless the context otherwise requires) be construed as extending
to and including such Paying Agent within its meaning as fully for all intents
and purposes as if such Paying Agent were named in this Article in addition to
or in place of the Trustee.
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SECTION 1315. RELIANCE BY HOLDERS OF SENIOR INDEBTEDNESS ON SUBORDINATION
PROVISIONS.
Each Holder by accepting a Junior Subordinated Note acknowledges and
agrees that the foregoing subordination provisions are, and are intended to be,
an inducement and a consideration to each holder of any Senior Indebtedness,
whether such Senior Indebtedness was created or acquired before or after the
issuance of the Junior Subordinated Notes, to acquire and continue to hold, or
to continue to hold, such Senior Indebtedness and such holder of Senior
Indebtedness shall be deemed conclusively to have relied on such subordination
provisions in acquiring and continuing to hold, or in continuing to hold, such
Senior Indebtedness.
ARTICLE FOURTEEN
MISCELLANEOUS PROVISIONS
SECTION 1401. NO RECOURSE AGAINST OTHERS.
An incorporator or any past, present or future director, officer,
employee or stockholder, as such, of the Company shall not have any liability
for any obligations of the Company under the Junior Subordinated Notes or this
Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. By accepting a Junior Subordinated Note, each
Holder shall waive and release all such liability. Such waiver and release shall
be part of the consideration for the issue of the Junior Subordinated Notes.
SECTION 1402. SET-OFF.
Notwithstanding anything to the contrary in this Indenture or in any
Junior Subordinated Note of any series, prior to the dissolution of any
Securities Trust that has issued Trust Securities related to a series of Junior
Subordinated Notes, the Company shall have the right to set-off and apply
against any payment it is otherwise required to make hereunder or thereunder
with respect to the principal of or interest (including any Additional Interest)
on the Junior Subordinated Notes of such series with and to the extent the
Company has theretofore made, or is concurrently on the date of such payment
making, a payment with respect to the Trust Securities of the series related to
such series of Junior Subordinated Notes under the applicable Guarantee.
Contemporaneously with, or as promptly as practicable after, any such payment
under such Guarantee, the Company shall deliver to the Trustee an Officers'
Certificate (upon which the Trustee shall be entitled to rely conclusively
without any requirement to investigate the facts contained therein) to the
effect that such payment has been made and that, as a result of such payment,
the corresponding payment under the related series of Junior Subordinated Notes
has been set-off in accordance with this Section 1402.
SECTION 1403. ASSIGNMENT; BINDING EFFECT.
The Company shall have the right at all times to assign any of its
rights or obligations under this Indenture to a direct or indirect wholly-owned
subsidiary of the Company; provided that, in the
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event of any such assignment, the Company shall remain primarily liable for the
performance of all such obligations. This Indenture may also be assigned by the
Company in connection with a transaction described in Article Eight. This
Indenture shall be binding upon and inure to the benefit of the Company, the
Trustee, the Holders, any Security Registrar, Paying Agent and Authenticating
Agent and, to the extent specifically set forth herein, the holders of Senior
Indebtedness and their respective successors and assigns. The provisions of
clause (2) of Section 508 and Section 1006 are for the benefit of the holders
of the series of Trust Securities referred to therein and, prior to the
dissolution of the related Securities Trust, may be enforced by such holders. A
holder of a Trust Security shall not have the right, as such a holder, to
enforce any other provision of this Indenture.
SECTION 1404. ADDITIONAL INTEREST.
Whenever there is mentioned in this Indenture, in any context, the
payment of the principal of, premium, if any, or interest on, or in respect of,
any Junior Subordinated Note of any series, such mention shall be deemed to
include mention of the payment of Additional Interest provided for by the terms
of such series of Junior Subordinated Notes to the extent that, in such context,
Additional Interest is, were or would be payable in respect thereof pursuant to
such terms, and express mention of the payment of Additional Interest in any
provisions hereof shall not be construed as excluding Additional Interest in
those provisions hereof where such express mention is not made.
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.
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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.
SOUTHERN ENERGY, INC.
By:
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Vice President
Attest:
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Vice President and Secretary
BANKERS TRUST COMPANY
Trustee
By:
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Attest:
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