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[FORM OF INDENTURE]
1ST SOURCE CORPORATION
AND
STATE STREET BANK AND TRUST COMPANY,
AS TRUSTEE
INDENTURE
FLOATING RATE SUBORDINATED DEBENTURES DUE 2027
Dated as of --------------, 1997.
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TABLE OF CONTENTS
Page
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ARTICLE I. DEFINITIONS 1
Section 1.1. Definitions of Terms 1
ARTICLE II. ISSUE, DESCRIPTION, TERMS, CONDITIONS,
REGISTRATION AND EXCHANGE OF THE DEBENTURES 8
Section 2.1. Designation and Principal Amount 8
Section 2.2. Maturity 8
Section 2.3. Form and Payment 9
Section 2.4. [Intentionally Omitted] 10
Section 2.5. Interest 10
Section 2.6. Execution and Authentications 10
Section 2.7. Registration of Transfer and Exchange 11
Section 2.8. Temporary Debentures 12
Section 2.9. Mutilated, Destroyed, Lost or Stolen Debentures 12
Section 2.10. Cancellation 13
Section 2.11. Benefit of Indenture 13
Section 2.12. Authentication Agent 13
ARTICLE III. REDEMPTION OF DEBENTURES 14
Section 3.1. Redemption 14
Section 3.2. Special Event Redemption 14
Section 3.3. Optional Redemption by Company 14
Section 3.4. Notice of Redemption 15
Section 3.5. Payment Upon Redemption 16
Section 3.6. No Sinking Fund 16
ARTICLE IV. EXTENSION OF INTEREST PAYMENT PERIOD 16
Section 4.1. Extension of Interest Payment Period 16
Section 4.2. Notice of Extension 17
Section 4.3. Limitation on Transactions 17
ARTICLE V. PARTICULAR COVENANTS OF THE COMPANY 18
Section 5.1. Payment of Principal and Interest 18
Section 5.2. Maintenance of Agency 18
Section 5.3. Paying Agents 18
Section 5.4. Appointment to Fill Vacancy in Office of Trustee 19
Section 5.5. Compliance with Consolidation Provisions 19
Section 5.6. Limitation on Transactions 19
Section 5.7. Covenants as to the Trust 20
Section 5.8. Covenants as to Purchases 20
ARTICLE VI. DEBENTUREHOLDERS' LISTS AND REPORTS BY THE
COMPANY AND THE TRUSTEE 20
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Section 6.1. Company to Furnish Trustee Names and Addresses
of Debentureholders 20
Section 6.2. Preservation of Information Communications with
Debentureholders 21
Section 6.3. Reports by the Company 21
Section 6.4. Reports by the Trustee 21
ARTICLE VII. REMEDIES OF THE TRUSTEE AND DEBENTUREHOLDERS
ON EVENT OF DEFAULT 22
Section 7.1. Events of Default 22
Section 7.2. Collection of Indebtedness and Suits
for Enforcement by Trust 23
Section 7.3. Application of Moneys Collected 24
Section 7.4. Limitation on Suits 25
Section 7.5. Rights and Remedies Cumulative; Delay or
Omission not Waiver 25
Section 7.6. Control by Debentureholders 26
Section 7.7. Undertaking to Pay Costs 26
ARTICLE VIII. FORM OF DEBENTURE AND ORIGINAL ISSUE 27
Section 8.1. Form of Debenture 27
Section 8.2. Original Issue of Debentures 27
ARTICLE IX. CONCERNING THE TRUSTEE 27
Section 9.1. Certain Duties and Responsibilities Trustee 27
Section 9.2. Notice of Defaults 28
Section 9.3. Certain Rights of Trustee 28
Section 9.4. Trustee Not Responsible for Recitals, etc. 30
Section 9.5. May Hold Debentures 30
Section 9.6. Moneys Held in Trust 30
Section 9.7. Compensation and Reimbursement 30
Section 9.8. Reliance on Officers' Certificate 31
Section 9.9. Disqualification: Conflicting Interests 31
Section 9.10. Corporate Trustee Required; Eligibility 31
Section 9.11. Resignation and Removal; Appointment of
Successor 31
Section 9.12. Acceptance of Appointment by Successor 32
Section 9.13. Merger, Conversion, Consolidation or Succession
to Business 33
Section 9.14. Preferential Collection of Claims Against the
Company 33
ARTICLE X. CONCERNING THE DEBENTUREHOLDERS 33
Section 10.1. Evidence of Action by Holders 33
Section 10.2. Proof of Execution by Debentureholders 34
Section 10.3. Who May be Deemed Owners 34
Section 10.4. Certain Debentures Owned by Company Disregarded 34
Section 10.5. Actions Binding on Future Debentureholders 35
ARTICLE XI. SUPPLEMENTAL INDENTURES 35
Section 11.1. Supplemental Indentures Without the Consent of 35
Debentureholders 35
Section 11.2. Supplemental Indentures with Consent of
Debentureholders 36
Section 11.3. Effect of Supplemental Indentures 36
Section 11.4. Debentures Affected by Supplemental Indentures 37
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Section 11.5. Execution of Supplemental Indentures 37
ARTICLE XII. SUCCESSOR CORPORATION 37
Section 12.1. Company May Consolidate, etc 37
Section 12.2. Successor Corporation Substituted 38
Section 12.3. Evidence of Consolidation, etc. to Trustee 38
ARTICLE XIII. SATISFACTION AND DISCHARGE 38
Section 13.1. Satisfaction and Discharge of Indenture 39
Section 13.2. Discharge of Obligations 39
Section 13.3. Deposited Moneys to be Held in Trust 39
Section 13.4. Payment of Monies Held by Paying Agents 40
Section 13.5. Repayment to Company 40
ARTICLE XIV. IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS 40
Section 14.1. No Recourse 40
ARTICLE XV. MISCELLANEOUS PROVISIONS 41
Section 15.1. Effect on Successors and Assigns 41
Section 15.2. Actions by Successor 41
Section 15.3. Surrender of Company Powers 41
Section 15.4. Notices 41
Section 15.5. Governing Law 41
Section 15.6. Treatment of Debentures as Debt 41
Section 15.7. Compliance Certificates and Opinions 41
Section 15.8. Payments on Business Days 42
Section 15.9. Conflict with Trust Indenture Act 42
Section 15.10. Counterparts 42
Section 15.11. Separability 42
Section 15.12. Assignment 42
Section 15.13. Acknowledgment of Rights 43
ARTICLE XVI. SUBORDINATION OF DEBENTURES 43
Section 16.1. Agreement to Subordinate 43
Section 16.2. Default on Senior Debt, Subordinated Debt or
Additional Senior Obligations 43
Section 16.3. Liquidation; Dissolution; Bankruptcy 44
Section 16.4. Subrogation 45
Section 16.5. Trustee to Effectuate Subordination 45
Section 16.6. Notice by the Company 46
Section 16.7. Rights of the Trustee; Holders of Senior
Indebtedness 46
Section 16.8. Subordination may not be Impaired 48
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CROSS REFERENCE TABLE
SECTION OF TRUST
INDENTURE ACT OF SECTION OF
1939, AS AMENDED INDENTURE
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310(a) 9.10
310(b) 9.9, 9.11
310(c) Not Applicable
311(a) 9.14
311(b) 9.14
311(c) Not Applicable
312(a) 6.1, 6.2(a)
312(b) 6.2(c)
312(c) 6.2(c)
313(a) 6.4(a)
313(b) 6.4(b)
313(c) 6.4(a), 6.4(b)
313(d) 6.4(c)
314(a) 6.3(a)
314(b) Not Applicable
314(c) 15.7
314(d) Not Applicable
314(e) 15.7
314(f) Not Applicable
315(a) 9.1(a), 9.3
315(b) 9.2
315(c) 9.1(a)
315(d) 9.1(b)
315(e) 7.7
316(a) 1.1, 7.6
316(b) 7.4(b)
316(c) 10.1(b)
317(a) 7.2
317(b) 5.3
318(a) 15.9
Note: This Cross-Reference Table does not
constitute part of this Indenture and shall
not affect the interpretation of any of its
terms or provisions.
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INDENTURE
INDENTURE, dated as of -------------, 1997, between 1ST
SOURCE CORPORATION, an Indiana corporation (the "Company") and
STATE STREET BANK AND TRUST COMPANY, a trust company duly
organized and existing under the laws of the Commonwealth of
Massachusetts, as trustee (the "Trustee");
RECITALS
WHEREAS, for its lawful corporate purposes, the Company has
duly authorized the execution and delivery of this Indenture to
provide for the issuance of securities to be known as its
Floating Rate Subordinated Debentures due 2027 (hereinafter
referred to as the "Debentures"), the form and substance of such
Debentures and the terms, provisions and conditions thereof to be
set forth as provided in this Indenture;
WHEREAS, 1st Source Capital Trust II, a Delaware statutory
business trust (the "Trust"), has offered to the public
$--------- aggregate liquidation amount of its Preferred
Securities (as defined herein) and proposes to invest the
proceeds from such offering, together with the proceeds of the
issuance and sale by the Trust to the Company of
$--------- million aggregate liquidation amount of its Common
Securities (as defined herein), in $---------- million aggregate
principal amount of the Debentures; and
WHEREAS, the Company has requested that the Trustee execute
and deliver this Indenture; and
WHEREAS, all requirements necessary to make this Indenture a
valid instrument in accordance with its terms, and to make the
Debentures, when executed by the Company and authenticated and
delivered by the Trustee, the valid obligations of the Company,
have been performed, and the execution and delivery of this
Indenture have been duly authorized in all respects:
WHEREAS, to provide the terms and conditions upon which the
Debentures are to be authenticated, issued and delivered, the
Company has duly authorized the execution of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid
agreement of the Company, in accordance with its terms, have been
done.
NOW, THEREFORE, in consideration of the premises and the
purchase of the Debentures by the holders thereof, it is mutually
covenanted and agreed as follows for the equal and ratable
benefit of the holders of the Debentures:
ARTICLE I.
DEFINITIONS
Section 1.1. Definitions of Terms.
The terms defined in this Section 1.1 (except as in this
Indenture otherwise expressly provided or unless the context
otherwise requires) for all purposes of this Indenture and of any
indenture supplemental hereto shall have the respective meanings
specified in this Section 1.1 and shall include the plural as
well as the singular. All other terms used in this Indenture
that are defined in the Trust Indenture Act, or that are by
reference in the Trust Indenture Act defined in the Securities
Act (except as herein otherwise expressly provided or unless the
context otherwise requires), shall have the meanings
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assigned to such terms in the Trust Indenture Act and in the Securities Act
as in force at the date of the execution of this instrument. All
accounting terms used herein and not expressly defined shall have
the meanings assigned to such terms in accordance with Generally
Accepted Accounting Principles.
"3-Month Treasury" shall have the meaning set forth in
Section 2.5.
"Accelerated Maturity Date" means if the Company elects to
accelerate the Maturity Date in accordance with Section 2.2(c),
the date selected by the Company which is prior to the Scheduled
Maturity Date, but is after March 31, 2002.
"Additional Interest" shall have the meaning set forth in
Section 2.5.
"Additional Senior Obligations" means all indebtedness of
the Company whether incurred on or prior to the date of this
Indenture or thereafter incurred, for claims in respect of
derivative products such as interest and foreign exchange rate
contracts, commodity contracts and similar arrangements;
provided, however, that Additional Senior Obligations does not
include claims in respect of Senior Debt or Subordinated Debt or
obligations which, by their terms, are expressly stated to be not
superior in right of payment to the Debentures or to rank pari
passu in right of payment with the Debentures. For purposes of
this definition, "claim" shall have the meaning assigned thereto
in Section 101(4) of the United States Bankruptcy Code of 1978,
as amended.
"Administrative Trustees" shall have the meaning set forth
in the Trust Agreement.
"Affiliate" means, with respect to a specified Person,
(a) any Person directly or indirectly owning, controlling or
holding with power to vote 10% or more of the outstanding voting
securities or other ownership interests of the specified Person;
(b) any Person 10% or more of whose outstanding voting securities
or other ownership interests are directly or indirectly owned,
controlled or held with power to vote by the specified Person;
(c) any Person directly or indirectly controlling, controlled by,
or under common control with the specified Person; (d) a
partnership in which the specified Person is a general partner;
(e) any officer or director of the specified Person; and (f) if
the specified Person is an individual, any entity of which the
specified Person is an officer, director or general partner.
"Authenticating Agent" means an authenticating agent with
respect to the Debentures appointed by the Trustee pursuant to
Section 2.12.
"Bankruptcy Law" means Title 11, U.S. Code, or any similar
federal or state law for the relief of debtors.
"Board of Directors" means the Board of Directors of the
Company or any duly authorized committee of such Board.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have
been duly adopted by the Board of Directors and to be in full
force and effect on the date of such certification.
"Business Day" means, with respect to the Debentures, any
day other than a Saturday or a Sunday or a day on which federal
or state banking institutions in the Borough of Manhattan, The City
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of New York, are authorized or required by law, executive order
or regulation to close, or a day on which the Corporate Trust
Office of the Trustee or the Property Trustee is closed for business.
"Capital Treatment Event" means the receipt by the Trust of
an Opinion of Counsel, rendered by a law firm having a recognized
banking law practice, to the effect that, as a result of any
amendment to, or change (including any announced prospective
change) in, the laws (or any regulations thereunder) of the
United States or any political subdivision thereof or therein, or
as a result of any official administrative pronouncement or
judicial decision interpreting or applying such laws or
regulations, which amendment or change is effective or such
proposed change, pronouncement or decision is announced on or
after the date of issuance of the Preferred Securities under the
Trust Agreement, there is more than an insubstantial risk of
impairment of the Company's ability to treat the aggregate
liquidation amount of the Preferred Securities (or any
substantial portion thereof) as Tier 1 capital (or the then
equivalent thereof) for purposes of the capital adequacy
guidelines of the Federal Reserve, as then in effect and
appicable to the Company.
"Certificate" means a certificate signed by the principal
executive officer, the principal financial officer, the principal
accounting officer, the treasurer or any vice president of the
Company. The Certificate need not comply with the provisions of
Section 15.7.
"Change in 1940 Act Law" shall have the meaning set forth in
the definition of "Investment Company Event."
"Commission" means the Securities and Exchange Commission.
"Common Securities" means undivided beneficial interests in
the assets of the Trust which rank pari passu with the Preferred
Securities; provided, however, that upon the occurrence of an
Event of Default, the rights of holders of Common Securities to
payment in respect of (i) distributions, and (ii) payments upon
liquidation, redemption and otherwise are subordinated to the
rights of holders of Preferred Securities.
"Company" means 1st Source Corporation, a corporation duly
organized and existing under the laws of the State of Indiana,
and, subject to the provisions of Article XII, shall also include
its successors and assigns.
"Compounded Interest" shall have the meaning set forth in
Section 4.1.
"Corporate Trust Office" means the office of the Trustee at
which, at any particular time, its corporate trust business shall
be principally administered, which office at the date hereof is
located at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust Department.
"Custodian" means any receiver, trustee, assignee,
liquidator, or similar official under any Bankruptcy Law.
"Debentures" shall have the meaning set forth in the
Recitals hereto.
"Debentureholder," "holder of Debentures," "registered
holder," or other similar term, means the Person or Persons in
whose name or names a particular Debenture shall be registered on
the books of the Company or the Trustee kept for that purpose in
accordance with the terms of this Indenture.
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"Debenture Register" shall have the meaning set forth in
Section 2.7(b).
"Debt" means with respect to any Person, whether recourse is
to all or a portion of the assets of such Person and whether or
not contingent, (i) every obligation of such Person for money
borrowed; (ii) every obligation of such Person evidenced by
bonds, debentures, notes or other similar instruments, including
obligations incurred in connection with the acquisition of
property, assets or businesses; (iii) every reimbursement
obligation of such Person with respect to letters of credit,
bankers' acceptances or similar facilities issued for the account
of such Person; (iv) every obligation of such Person issued or
assumed as the deferred purchase price of property or services
(but excluding trade accounts payable or accrued liabilities
arising in the ordinary course of business); (v) every capital
lease obligation of such Person; and (vi) and every obligation of
the type referred to in clauses (i) through (v) of another Person
and all dividends of another Person the payment of which, in
either case, such Person has guaranteed or is responsible or
liable, directly or indirectly, as obligor or otherwise.
"Default" means any event, act or condition that with notice
or lapse of time, or both, would constitute an Event of Default.
"Deferred Interest" shall have the meaning set forth in
Section 4.1.
"Dissolution Event" means that as a result of the occurrence
and continuation of a Special Event, the Trust is to be dissolved
in accordance with the Trust Agreement and the Debentures held by
the Property Trustee are to be distributed to the holders of the
Trust Securities issued by the Trust pro rata in accordance with
the Trust Agreement.
"Distribution Period" shall have the meaning set forth in
Section 2.5.
"Event of Default" means, with respect to the Debentures,
any event specified in Section 7.1, which has continued for the
period of time, if any, and after the giving of the notice, if
any, therein designated.
"Exchange Act," means the Securities Exchange Act of 1934,
as amended, as in effect at the date of execution of this
instrument.
"Extended Interest Payment Period" shall have the meaning
set forth in Section 4.1.
"Extended Maturity Date" means if the Company elects to
extend the Maturity Date in accordance with Section 2.2(b), the
date selected by the Company which is after the Scheduled
Maturity Date but before March 31, 2046.
"Federal Reserve" means the Board of Governors of the
Federal Reserve System.
"Generally Accepted Accounting Principles" means such
accounting principles as are generally accepted at the time of
any computation required hereunder.
"Governmental Obligations" means securities that are
(i) direct obligations of the United States of America for the
payment of which its full faith and credit is pledged; or
(ii) obligations of a Person controlled or supervised by and
acting as an agency or instrumentality of the United States of
America, the payment of which is unconditionally guaranteed as a
full faith and credit obligation by the ▇▇▇▇▇▇
▇
▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ that, in either case, are not callable or redeemable at the
option of the issuer thereof, and shall also include a depositary
receipt issued by a bank (as defined in Section 3(a)(2) of the
Securities Act) as custodian with respect to any such
Governmental Obligation or a specific payment of principal of or
interest on any such Governmental Obligation held by such
custodian for the account of the holder of such depositary
receipt; provided, however, that (except as required by law) such
custodian is not authorized to make any deduction from the amount
payable to the holder of such depositary receipt from any amount
received by the custodian in respect of the Governmental
Obligation or the specific payment of principal of or interest on
the Governmental Obligation evidenced by such depositary receipt.
"Herein," "hereof," and "hereunder," and other words of
similar import, refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
"Indenture" means this instrument as originally executed or
as it may from time to time be supplemented or amended by one or
more indentures supplemental hereto entered into in accordance
with the terms hereof.
"Interest Payment Date," when used with respect to any
installment of interest on the Debentures, means the date
specified in the Debenture or in a Board Resolution or in an
indenture supplemental hereto with respect to the Debentures as
the fixed date on which an installment of interest with respect
to the Debentures is due and payable.
"Investment Company Act" means the Investment Company Act of
1940, as amended, as in effect at the date of execution of this
instrument.
"Investment Company Event" means the receipt by the Trust of
an Opinion of Counsel, rendered by a law firm having a recognized
tax and securities law practice, to the effect that, as a result
of the occurrence of a change in law or regulation or a change in
interpretation or application of law or regulation by any
legislative body, court, governmental agency or regulatory
authority (a "Change in 1940 Act Law"), the Trust is or shall be
considered an "investment company" that is required to be
registered under the Investment Company Act, which Change in 1940
Act Law becomes effective on or after the date of original
issuance of the Preferred Securities under the Trust Agreement.
"Maturity Date" means the date on which the Debentures
mature and on which the principal shall be due and payable
together with all accrued and unpaid interest thereon including
Compounded Interest and Additional Interest, if any.
"Ministerial Action" shall have the meaning set forth in
Section 3.2.
"Officers' Certificate" means a certificate signed by the
President or a Vice President and by the Treasurer or an
Assistant Treasurer or the Controller or an Assistant Controller
or the Secretary or an Assistant Secretary of the Company that is
delivered to the Trustee in accordance with the terms hereof.
Each such certificate shall include the statements provided for
in Section 15.7, if and to the extent required by the provisions
thereof.
"Opinion of Counsel" means an opinion in writing of legal
counsel, who may be an employee of or counsel for the Company,
that is delivered to the Trustee in accordance with the terms
hereof. Each such opinion shall include the statements provided
for in Section 15.7, if and to the extent required by the
provisions thereof.
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"Outstanding," when used with reference to the Debentures,
means, subject to the provisions of Section 10.4, as of any
particular time, all Debentures theretofore authenticated and
delivered by the Trustee under this Indenture, except
(a) Debentures theretofore canceled by the Trustee or any paying
agent, or delivered to the Trustee or any paying agent for
cancellation or that have previously been canceled;
(b) Debentures or portions thereof for the payment or redemption
of which moneys or Governmental Obligations in the necessary
amount shall have been deposited in trust with the Trustee or
with any paying agent (other than the Company) or shall have been
set aside and segregated in trust by the Company (if the Company
shall act as its own paying agent); provided, however, that if
such Debentures or portions of such Debentures are to be redeemed
prior to the maturity thereof, notice of such redemption shall
have been given as in Article III provided, or provision
satisfactory to the Trustee shall have been made for giving such
notice; and (c) Debentures in lieu of or in substitution for
which other Debentures shall have been authenticated and
delivered pursuant to the terms of Section 2.7.
"Person" means any individual, corporation, partnership,
joint-venture, joint-stock company, unincorporated organization
or government or any agency or political subdivision thereof.
"Predecessor Debenture" means every previous Debenture
evidencing all or a portion of the same debt as that evidenced by
such particular Debenture; and, for the purposes of this
definition, any Debenture authenticated and delivered under
Section 2.9 in lieu of a lost, destroyed or stolen Debenture
shall be deemed to evidence the same debt as the lost, destroyed
or stolen Debenture.
"Preferred Securities" means undivided beneficial interests
in the assets of the Trust which rank pari passu with Common
Securities issued by the Trust; provided, however, that upon the
occurrence of an Event of Default, the rights of holders of
Common Securities to payment in respect of distributions and
payments upon liquidation, redemption and otherwise are
subordinated to the rights of holders of Preferred Securities.
"Preferred Securities Guarantee" means any guarantee that
the Company may enter into with the Trustee or other Persons that
operate directly or indirectly for the benefit of holders of
Preferred Securities.
"Property Trustee" has the meaning set forth in the Trust
Agreement.
"Responsible Officer" when used with respect to the Trustee
means the Chairman of the Board of Directors, the President, any
Vice President, the Secretary, the Treasurer, any trust officer,
any corporate trust officer or any other officer or assistant
officer of the Trustee customarily performing functions similar
to those performed by the Persons who at the time shall be such
officers, respectively, or to whom any corporate trust matter is
referred because of his or her knowledge of and familiarity with
the particular subject.
"Scheduled Maturity Date" means March 31, 2027.
"Securities Act," means the Securities Act of 1933, as
amended, as in effect at the date of execution of this
instrument.
"Senior Debt" means the principal of (and premium, if any)
and interest, if any (including interest accruing on or after the
filing of any petition in bankruptcy or for reorganization
relating to the Company whether or not such claim for
post-petition interest is allowed in such proceeding), on Debt, whether
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incurred on or prior to the date of this Indenture or thereafter incurred,
unless, in the instrument creating or evidencing the same or pursuant to which
the same is outstanding, it is provided that such obligations are not superior
in right of payment to the Debentures or to other Debt which is pari passu
with, or subordinated to, the Debentures; provided, however, that
Senior Debt shall not be deemed to include (i) any Debt of the
Company which when incurred and without respect to any election
under section 1111(b) of the United States Bankruptcy Code of
1978, as amended, was without recourse to the Company; (ii) any
Debt of the Company to any of its subsidiaries; (iii) Debt to any
employee of the Company; (iv) Debt which by its terms is
subordinated to trade accounts payable or accrued liabilities
arising in the ordinary course of business to the extent that
payments made to the holders of such Debt by the holders of the
Debentures as a result of the subordination provisions of this
Indenture would be greater than they otherwise would have been as
a result of any obligation of such holders to pay amounts over to
the obligees on such trade accounts payable or accrued
liabilities arising in the ordinary course of business as a
result of subordination provisions to which such Debt is subject;
and (v) Debt which constitutes Subordinated Debt.
"Senior Indebtedness" shall have the meaning set forth in
Section 16.2.
"Special Event" means a Tax Event, a Capital Treatment Event
or an Investment Company Event.
"Subordinated Debt" means the principal of (and premium, if
any) and interest, if any (including interest accruing on or
after the filing of any petition in bankruptcy or for
reorganization relating to the Company whether or not such claim
for post-petition interest is allowed in such proceeding), on
Debt, whether incurred on or prior to the date of this Indenture
or thereafter incurred, which is by its terms expressly provided
to be junior and subordinate to other Debt of the Company (other
than the Debentures).
"Subsidiary" means, with respect to any Person, (i) any
corporation at least a majority of whose outstanding Voting Stock
shall at the time be owned, directly or indirectly, by such
Person or by one or more of its Subsidiaries or by such Person
and one or more of its Subsidiaries; (ii) any general
partnership, joint venture, trust or similar entity, at least a
majority of whose outstanding partnership or similar interests
shall at the time be owned by such Person, or by one or more of
its Subsidiaries, or by such Person and one or more of its
Subsidiaries; and (iii) any limited partnership of which such
Person or any of its Subsidiaries is a general partner.
"Tax Event" means the receipt by the Trust of an Opinion of
Counsel, rendered by a law firm having a recognized tax and
securities practice, to the effect that, as a result of any
amendment to, or change (including any announced prospective
change) in, the laws (or any regulations thereunder) of the
United States or any political subdivision or taxing authority
thereof or therein, or as a result of any official administrative
pronouncement or judicial decision interpreting or applying such
laws or regulations, which amendment or change is effective or
which pronouncement or decision is announced on or after the date
of issuance of the Preferred Securities under the Trust
Agreement, there is more than an insubstantial risk that (i) the
Trust is, or shall be within 90 days after the date of such
Opinion of Counsel, subject to United States federal income tax
with respect to income received or accrued on the Debentures;
(ii) interest payable by the Company on the Debentures is not, or
within 90 days after the date of such Opinion of Counsel, shall
not be, deductible by the Company, in whole or in part, for
United States federal income tax purposes; or (iii) the Trust is,
or shall be within 90 days after the date of such Opinion of
Counsel, subject to more than a de minimis amount of other taxes,
duties, assessments or other governmental charges. The Trust or
the Company shall request and receive such Opinion of
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Counsel with regard to such matters within a reasonable period of time
after the Trust or the Company shall have become aware of any of
the events described in clauses (i) through (iii) above.
"Trust" means 1st Source Capital Trust, a Delaware statutory
business trust.
"Trust Agreement" means the Amended and Restated Trust
Agreement, dated -------------, 1997, of the Trust.
"Trustee" means State Street Bank and Trust Company and,
subject to the provisions of Article IX, shall also include its
successors and assigns, and, if at any time there is more than
one Person acting in such capacity hereunder, "Trustee" shall
mean each such Person.
"Trust Indenture Act," means the Trust Indenture Act of
1939, as amended, subject to the provisions of Sections 11.1,
11.2, and 12.1, as in effect at the date of execution of this
instrument.
"Trust Securities" means the Common Securities and Preferred
Securities, collectively.
"Voting Stock," as applied to stock of any Person, means
shares, interests, participations or other equivalents in the
equity interest (however designated) in such Person having
ordinary voting power for the election of a majority of the
directors (or the equivalent) of such Person, other than shares,
interests, participations or other equivalents having such power
only by reason of the occurrence of a contingency.
ARTICLE II.
ISSUE, DESCRIPTION, TERMS, CONDITIONS
REGISTRATION AND EXCHANGE OF THE DEBENTURES
Section 2.1. Designation and Principal Amount.
There is hereby authorized Debentures designated the
"Floating Rate Subordinated Debentures due 2027," limited in
aggregate principal amount to $--------------, which amount shall
be as set forth in any written order of the Company for the
authentication and delivery of Debentures pursuant to
Section 2.6.
Section 2.2. Maturity.
(a) The Maturity Date shall be either:
(i) the Scheduled Maturity Date; or
(ii) if the Company elects to extend the
Maturity Date beyond the Scheduled Maturity Date
in accordance with Section 2.2(b), the Extended
Maturity Date; or
(iii) if the Company elects to accelerate
the Maturity Date to be a date prior to the
Scheduled Maturity Date in accordance with Section
2.2(c), the Accelerated Maturity Date.
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(b) the Company may at any time before the day which
is 90 days before the Scheduled Maturity Date, elect to
extend the Maturity Date to the Extended Maturity Date,
provided that the Company has received the prior
approval of the Federal Reserve if then required under
applicable capital guidelines or policies of the
Federal Reserve and further provided that the following
conditions in this Section 2.2(b) are satisfied both at
the date the Company gives notice in accordance with
Section 2.2(d) of its election to extend the Maturity
Date and at the Scheduled Maturity Date:
(i) the Company is not in bankruptcy,
otherwise insolvent or in liquidation;
(ii) the Company is not in default in the
payment of interest or principal on the
Debentures; and
(iii) the Trust is not in arrears on
payments of Distributions on the Trust Securities
issued by it and no deferred Distributions are
accumulated.
(c) the Company may at any time before the day which
is 90 days before the Scheduled Maturity Date and after
March 31, 2002, elect to shorten the Maturity Date only
once to the Accelerated Maturity Date provided that the
Company has received the prior approval of the Federal
Reserve if then required under applicable capital
guidelines or policies of the Federal Reserve.
(d) if the Company elects to extend the Maturity Date
in accordance with Section 2.2(b), the Company shall
give notice to the registered holders of the
Debentures, the Property Trustee and the Trust of the
extension of the Maturity Date and the Extended
Maturity Date at least 90 days and no more than 180
days before the Scheduled Maturity Date.
(e) if the Company elects to accelerate the Maturity
Date in accordance with Section 2.2(c), the Company
shall give notice to the registered holders of the
Debentures, the Property Trustee and the Trust of the
extension of the Maturity Date and the Accelerated
Maturity Date at least 90 days and no more than 180
days before the Accelerated Maturity Date.
Section 2.3. Form and Payment.
The Debentures shall be issued in fully registered
certificated form without interest coupons. Principal and
interest on the Debentures issued in certificated form shall be
payable, the transfer of such Debentures shall be registrable and
such Debentures shall be exchangeable for Debentures bearing
identical terms and provisions at the office or agency of the
Trustee; provided, however, that payment of interest may be made
at the option of the Company by check mailed to the holder at
such address as shall appear in the Debenture Register or by wire
transfer to an account maintained by the holder as specified in
the Debenture Register, provided that the holder provides proper
transfer instructions by the regular record date.
Notwithstanding the foregoing, so long as the holder of any
Debentures is the Property Trustee, the payment of the principal
of and interest (including Compounded Interest and Additional
Interest, if any) on such Debentures held by the Property Trustee
shall be made at such place and to such account as may be
designated by the Property Trustee.
Section 2.4. [Intentionally Omitted].
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Section 2.5. Interest.
(a) Each Debenture shall bear interest at a rate per annum
determined by reference to 3-Month Treasury, determined as
described below, plus ----% during any period beginning on, and
including, the date of the original issuance, and ending on, but
excluding, the first Interest Payment Date, and each successive
period beginning on, and including, an Interest Payment Date, and
ending on, but excluding, the next succeeding Interest Payment
Date (a "Distribution Period") applied to the principal amount
thereof, until the principal thereof becomes due and payable, and
on any overdue principal and (without duplication) on any overdue
installment of interest at the same rate per annum compounded
quarterly; provided, however, that said interest rate for the
first Distribution Period shall be ----%. Interest shall be payable
(subject to the provisions of Article IV) quarterly in arrears on
March 31, June 30, September 30 and December 31 of each year
(each, an "Interest Payment Date," commencing on June 30, 1997),
to the Person in whose name such Debenture or any Predecessor
Debenture is registered, at the close of business on the regular
record date for such interest installment, which shall be the
fifteenth day of the last month of the calendar quarter.
(b) The amount of interest payable for any period shall be
computed on the basis of a 360-day year of twelve 30-day months.
The amount of interest payable for any period shorter than a full
quarterly period for which interest is computed shall be computed
on the basis of the number of days elapsed in a 360-day year of
twelve 30-day months. In the event that any date on which
interest is payable on the Debentures is not a Business Day, then
payment of interest payable on such date shall be made on the
next succeeding day which is a Business Day (and without any
interest or other payment in respect of any such delay) with the
same force and effect as if made on the date such payment was
originally payable.
(c) If, at any time while the Property Trustee is the
holder of any Debentures, the Trust or the Property Trustee is
required to pay any taxes, duties, assessments or governmental
charges of whatever nature (other than withholding taxes) imposed
by the United States, or any other taxing authority, then, in any
case, the Company shall pay as additional interest ("Additional
Interest") on the Debentures held by the Property Trustee, such
additional amounts as shall be required so that the net amounts
received and retained by the Trust and the Property Trustee after
paying such taxes, duties, assessments or other governmental
charges shall be equal to the amounts the Trust and the Property
Trustee would have received had no such taxes, duties,
assessments or other government charges been imposed.
(d) "3-Month Treasury" means the yield on United States of
America Treasury constant maturities, adjusted to a constant
maturity of three (3) months, reported by the Federal Reserve.
3-Month Treasury, with respect to any Distribution Period, will be
determined by the Property Trustee as follows:
(i) On the second Business Day preceding the
commencement of such Distribution Period (each a
"Determination Date"), 3-Month Treasury will be the current
yield for United States of America Treasury constant
maturities, adjusted to a constant maturity of three (3)
months, which appears on the applicable Federal Reserve
Statistical Release Series H.15 (519) which includes data
for such Determination Date, or as then currently furnished
or made available by the Federal Reserve if such Series is
no longer published.
(ii) If, with respect to any Determination Date, the
Property Trustee is required but unable to determine 3-Month
Treasury in the manner provided in paragraph (i), 3-Month
Treasury for such Distribution Period will be 3-Month
Treasury as determined on the previous Determination Date.
(e) The Property Trustee will notify the Company, the Trustee
and any securities exchange or interdealer quotation system on which
the Preferred Securities are listed, of the Distribution Rate and
the Distribution Date for each Distribution Period, in each case as
soon as practicable after the determination thereof but in no event
later than the seventh Business Day of the relevant Distribution
Period. Failure to notify the Company, the Trustee or any securities
exchange or interdealer quotation system, or any defect in said notice,
shall not affect the obligation of the Company to make payment on the
Debentures at the applicable Distribution Rate. Any error in the
calculation of the Distribution Rate by the Property Trustee may be
corrected at any time by notice delivered as above provided.
(f) Subject to the corrective rights set forth above, all
certificates, communications, opinions, determinations, calculations,
quotations and decisions given, expressed, made or obtained for the
purposes of the provisions relating to the payment and calculation of
Distributions on the Debentures and the Preferred Securities and the
Debentures by the Trustee or the Property Trustee will (in the absence
of willful default, bad faith and manifest error) be binding on the Trust,
the Company, and all of the holders of the Preferred Securities, and no
liability will (in the absence of willful default, bad faith or manifest
error) attach to the Trustee or the Property Trustee in connection with
the exercise or non-exercise by either of them or their respective powers,
duties and discretion.
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Section 2.6. Execution and Authentications.
(a) The Debentures shall be signed on behalf of the Company
by its Chief Executive Officer, President or one of its Vice
Presidents, under its corporate seal attested by its Secretary or
one of its Assistant Secretaries. Signatures may be in the form
of a manual or facsimile signature. The Company may use the
facsimile signature of any Person who shall have been a Chief
Executive Officer, President or Vice President thereof, or of any
Person who shall have been a Secretary or Assistant Secretary
thereof, notwithstanding the fact that at the time the Debentures
shall be authenticated and delivered or disposed of such Person
shall have ceased to be the Chief Executive Officer, President or
a Vice President, or the Secretary or an Assistant Secretary, of
the Company. The seal of the Company may be in the form of a
facsimile of such seal and may be impressed, affixed, imprinted
or otherwise reproduced on the Debentures. The Debentures may
contain such notations, legends or endorsements required by law,
stock exchange rule or usage. Each Debenture shall be dated the
date of its authentication by the Trustee.
(b) A Debenture shall not be valid until authenticated
manually by an authorized signatory of the Trustee, or by an
Authenticating Agent. Such signature shall be conclusive
evidence that the Debenture so authenticated has been duly
authenticated and delivered hereunder and that the holder is
entitled to the benefits of this Indenture.
(c) At any time and from time to time after the execution
and delivery of this Indenture, the Company may deliver
Debentures executed by the Company to the Trustee for
authentication, together with a written order of the Company for
the authentication and delivery of such Debentures signed by its
Chief Executive Officer, President or any Vice President and its
Treasurer or any Assistant Treasurer, and the Trustee in
accordance with such written order shall authenticate and deliver
such Debentures.
(d) In authenticating such Debentures and accepting the
additional responsibilities under this Indenture in relation to
such Debentures, the Trustee shall be entitled to receive, and
(subject to Section 9.1) shall be fully protected in relying
upon, an Opinion of Counsel stating that the form and terms
thereof have been established in conformity with the provisions
of this Indenture.
(e) The Trustee shall not be required to authenticate such
Debentures if the issue of such Debentures pursuant to this
Indenture shall affect the Trustee's own rights, duties or
immunities under the Debentures and this Indenture or otherwise
in a manner that is not reasonably acceptable to the Trustee.
Section 2.7. Registration of Transfer and Exchange.
(a) Debentures may be exchanged upon presentation thereof
at the office or agency of the Company designated for such
purpose, or at the office of the Debenture Registrar, for other
Debentures and for a like aggregate principal amount, upon
payment of a sum sufficient to cover any tax or other
governmental charge in relation thereto, all as provided in this
Section 2.7. In respect of any Debentures so surrendered for
exchange, the Company shall execute, the Trustee shall
authenticate and such office or agency shall deliver in exchange
therefor the Debenture or Debentures that the Debentureholder
making the exchange shall be entitled to receive, bearing numbers
not contemporaneously outstanding.
(b) The Company shall keep, or cause to be kept, at its
office or agency designated for such purpose, or at the office of
the Debenture Registrar, or such other location designated by the Company
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a register or registers (herein referred to as the
"Debenture Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall register the
Debentures and the transfers of Debentures as in this Article II
provided and which at all reasonable times shall be open for
inspection by the Trustee. The registrar for the purpose of
registering Debentures and transfer of Debentures as herein
provided shall initially be the Trustee and thereafter as may be
appointed by the Company as authorized by Board Resolution (the
"Debenture Registrar"). Upon surrender for transfer of any
Debenture at the office or agency of the Company designated for
such purpose, the Company shall execute, the Trustee shall
authenticate and such office or agency shall deliver in the name
of the transferee or transferees a new Debenture or Debentures
for a like aggregate principal amount. All Debentures presented
or surrendered for exchange or registration of transfer, as
provided in this Section 2.7, shall be accompanied (if so
required by the Company or the Debenture Registrar) by a written
instrument or instruments of transfer, in form satisfactory to
the Company or the Debenture Registrar, duly executed by the
registered holder or by such holder's duly authorized attorney in
writing.
(c) No service charge shall be made for any exchange or
registration of transfer of Debentures, or issue of new
Debentures in case of partial redemption, but the Company may
require payment of a sum sufficient to cover any tax or other
governmental charge in relation thereto, other than exchanges
pursuant to Section 2.8, the second paragraph of Section 3.5 and
Section 11.4 not involving any transfer.
(d) The Company shall not be required (i) to issue,
exchange or register the transfer of any Debentures during a
period beginning at the opening of business 15 days before the
day of the mailing of a notice of redemption of less than all the
Outstanding Debentures and ending at the close of business on the
day of such mailing; nor (ii) to register the transfer of or
exchange any Debentures or portions thereof called for
redemption.
Section 2.8. Temporary Debentures.
Pending the preparation of definitive Debentures, the
Company may execute, and the Trustee shall authenticate and
deliver, temporary Debentures (printed, lithographed, or
typewritten). Such temporary Debentures shall be substantially
in the form of the definitive Debentures in lieu of which they
are issued, but with such omissions, insertions and variations as
may be appropriate for temporary Debentures, all as may be
determined by the Company. Every temporary Debenture shall be
executed by the Company and be authenticated by the Trustee upon
the same conditions and in substantially the same manner, and
with like effect, as the definitive Debentures. Without
unnecessary delay the Company shall execute and shall furnish
definitive Debentures and thereupon any or all temporary
Debentures may be surrendered in exchange therefor (without
charge to the holders), at the office or agency of the Company
designated for the purpose, and the Trustee shall authenticate
and such office or agency shall deliver in exchange for such
temporary Debentures an equal aggregate principal amount of
definitive Debentures, unless the Company advises the Trustee to
the effect that definitive Debentures need not be executed and
furnished until further notice from the Company. Until so
exchanged, the temporary Debentures shall be entitled to the same
benefits under this Indenture as definitive Debentures
authenticated and delivered hereunder.
Section 2.9. Mutilated, Destroyed, Lost or Stolen Debentures.
(a) In case any temporary or definitive Debenture shall
become mutilated or be destroyed, lost or stolen, the Company
(subject to the next succeeding sentence) shall execute, and upon
the Company's request the Trustee (subject as aforesaid) shall
authenticate and deliver, a new Debenture bearing a
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number not contemporaneously outstanding, in exchange and substitution for
the mutilated Debenture, or in lieu of and in substitution for
the Debenture so destroyed, lost or stolen. In every case the
applicant for a substituted Debenture shall furnish to the
Company and the Trustee such security or indemnity as may be
required by them to save each of them harmless, and, in every
case of destruction, loss or theft, the applicant shall also
furnish to the Company and the Trustee evidence to their
satisfaction of the destruction, loss or theft of the applicant's
Debenture and of the ownership thereof. The Trustee may
authenticate any such substituted Debenture and deliver the same
upon the written request or authorization of the Chairman,
President or any Vice-President and the Treasurer or any
Assistant Treasurer of the Company. Upon the issuance of any
substituted Debenture, the Company may require the payment of a
sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Trustee) connected
therewith. In case any Debenture that has matured or is about to
mature shall become mutilated or be destroyed, lost or stolen,
the Company may, instead of issuing a substitute Debenture, pay
or authorize the payment of the same (without surrender thereof
except in the case of a mutilated Debenture) if the applicant for
such payment shall furnish to the Company and the Trustee such
security or indemnity as they may require to save them harmless,
and, in case of destruction, loss or theft, evidence to the
satisfaction of the Company and the Trustee of the destruction,
loss or theft of such Debenture and of the ownership thereof.
(b) Every replacement Debenture issued pursuant to the
provisions of this Section 2.9 shall constitute an additional
contractual obligation of the Company whether or not the
mutilated, destroyed, lost or stolen Debenture shall be found at
any time, or be enforceable by anyone, and shall be entitled to
all the benefits of this Indenture equally and proportionately
with any and all other Debentures duly issued hereunder. All
Debentures shall be held and owned upon the express condition
that the foregoing provisions are exclusive with respect to the
replacement or payment of mutilated, destroyed, lost or stolen
Debentures, and shall preclude (to the extent lawful) any and all
other rights or remedies, notwithstanding any law or statute
existing or hereafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other
securities without their surrender.
Section 2.10. Cancellation.
All Debentures surrendered for the purpose of payment,
redemption, exchange or registration of transfer shall, if
surrendered to the Company or any paying agent, be delivered to
the Trustee for cancellation, or, if surrendered to the Trustee,
shall be canceled by it, and no Debentures shall be issued in
lieu thereof except as expressly required or permitted by any of
the provisions of this Indenture. On request of the Company at
the time of such surrender, the Trustee shall deliver to the
Company canceled Debentures held by the Trustee. In the absence
of such request the Trustee may dispose of canceled Debentures in
accordance with its standard procedures and deliver a certificate
of disposition to the Company. If the Company shall otherwise
acquire any of the Debentures, however, such acquisition shall
not operate as a redemption or satisfaction of the indebtedness
represented by such Debentures unless and until the same are
delivered to the Trustee for cancellation.
Section 2.11. Benefit of Indenture.
Nothing in this Indenture or in the Debentures, express or
implied, shall give or be construed to give to any Person, other
than the parties hereto and the holders of the Debentures (and,
with respect to the provisions of Article XVI, the holders of
Senior Indebtedness) any legal or equitable right, remedy or
claim under or in respect of this Indenture, or under any
covenant, condition or provision herein contained; all such
covenants, conditions and provisions being for the sole benefit
of the parties hereto
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and of the holders of the Debentures (and, with respect to the
provisions of Article XVI, the holders of Senior Indebtedness).
Section 2.12. Authentication Agent.
(a) So long as any of the Debentures remain Outstanding
there may be an Authenticating Agent for any or all such
Debentures, which the Trustee shall have the right to appoint.
Said Authenticating Agent shall be authorized to act on behalf of
the Trustee to authenticate Debentures issued upon exchange,
transfer or partial redemption thereof, and Debentures so
authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. All references in this
Indenture to the authentication of Debentures by the Trustee
shall be deemed to include authentication by an Authenticating
Agent. Each Authenticating Agent shall be acceptable to the
Company and shall be a corporation that has a combined capital
and surplus, as most recently reported or determined by it,
sufficient under the laws of any jurisdiction under which it is
organized or in which it is doing business to conduct a trust
business, and that is otherwise authorized under such laws to
conduct such business and is subject to supervision or
examination by federal or state authorities. If at any time any
Authenticating Agent shall cease to be eligible in accordance
with these provisions, it shall resign immediately.
(b) Any Authenticating Agent may at any time resign by
giving written notice of resignation to the Trustee and to the
Company. The Trustee may at any time (and upon request by the
Company shall) terminate the agency of any Authenticating Agent
by giving written notice of termination to such Authenticating
Agent and to the Company. Upon resignation, termination or
cessation of eligibility of any Authenticating Agent, the Trustee
may appoint an eligible successor Authenticating Agent acceptable
to the Company. Any successor Authenticating Agent, upon
acceptance of its appointment hereunder, shall become vested with
all the rights, powers and duties of its predecessor hereunder as
if originally named as an Authenticating Agent pursuant hereto.
ARTICLE III.
REDEMPTION OF DEBENTURES
Section 3.1. Redemption.
Subject to the Company having received prior approval of the
Federal Reserve, if then required under the applicable capital
guidelines or policies of the Federal Reserve, the Company may
redeem the Debentures issued hereunder on and after the dates set
forth in and in accordance with the terms of this Article III.
Section 3.2. Special Event Redemption.
Subject to the Company having received the prior approval of
the Federal Reserve, if then required under the applicable
capital guidelines or policies of the Federal Reserve, if a
Special Event has occurred and is continuing, then,
notwithstanding Section 3.3(a) but subject to Section 3.3(b), the
Company shall have the right upon not less than 30 days nor more
than 60 days notice to the holders of the Debentures to redeem
the Debentures, in whole but not in part, for cash within 180
days following the occurrence of such Special Event (the "180-Day
Period") at a redemption price equal to 100% of the principal
amount to be redeemed plus any accrued and unpaid interest
thereon to the date of such
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redemption (the "Redemption Price"), provided that if at the time there is
available to the Company the opportunity to eliminate, within the 180-Day
Period, a Tax Event by taking some ministerial action (a "Ministerial
Action"), such as filing a form or making an election, or pursuing some
other similar reasonable measure which has no adverse effect on
the Company, the Trust or the holders of the Trust Securities
issued by the Trust, the Company shall pursue such Ministerial
Action in lieu of redemption, and, provided further, that the
Company shall have no right to redeem the Debentures while it is
pursuing any Ministerial Action pursuant to its obligations
hereunder, and, provided further, that, if it is determined that
the taking of a Ministerial Action would not eliminate the Tax
Event within the 180-Day Period, the Company's right to redeem
the Debentures shall be restored and it shall have no further
obligations to pursue the Ministerial Action. The Redemption
Price shall be paid prior to 12:00 noon, New York time, on the
date of such redemption or such earlier time as the Company
determines, provided that the Company shall deposit with the
Trustee an amount sufficient to pay the Redemption Price by 10:00
a.m., New York time, on the date such Redemption Price is to be
paid.
Section 3.3. Optional Redemption by Company.
(a) Subject to the provisions of Section 3.3(b), except as
otherwise may be specified in this Indenture, the Company shall
have the right to redeem the Debentures, in whole or in part,
from time to time, on or after March 31, 2002, at a Redemption
Price equal to 100% of the principal amount to be redeemed plus
any accrued and unpaid interest thereon to the date of such
redemption. Any redemption pursuant to this Section 3.3(a) shall
be made upon not less than 30 days nor more than 60 days notice
to the holder of the Debentures, at the Redemption Price. If the
Debentures are only partially redeemed pursuant to this
Section 3.3, the Debentures shall be redeemed pro rata or by lot
or in such other manner as the Trustee shall deem appropriate and
fair in its discretion. The Redemption Price shall be paid prior
to 12:00 noon, New York time, on the date of such redemption or
at such earlier time as the Company determines provided that the
Company shall deposit with the Trustee an amount sufficient to
pay the Redemption Price by 10:00 a.m., New York time, on the
date such Redemption Price is to be paid.
(b) If a partial redemption of the Debentures would result
in the delisting of the Preferred Securities issued by the Trust
from The Nasdaq Stock Market's National Market or any comparable
level or successor listing or any national securities exchange or
other organization on which the Preferred Securities are then
listed or quoted, the Company shall not be permitted to effect
such partial redemption and may only redeem the Debentures in
whole.
Section 3.4. Notice of Redemption.
(a) In case the Company shall desire to exercise such right
to redeem all or, as the case may be, a portion of the Debentures
in accordance with the right reserved so to do, the Company
shall, or shall cause the Trustee to upon receipt of 45 days'
written notice from the Company (which notice shall, in the event
of a partial redemption, include a representation to the effect
that such partial redemption shall not result in the delisting of
the Preferred Securities as described in Section 3.3(b) above),
give notice of such redemption to holders of the Debentures to be
redeemed by mailing, first class postage prepaid, a notice of
such redemption not less than 30 days and not more than 60 days
before the date fixed for redemption to such holders at their
last addresses as they shall appear upon the Debenture Register
unless a shorter period is specified in the Debentures to be
redeemed. Any notice that is mailed in the manner herein
provided shall be conclusively presumed to have been duly given,
whether or not the registered holder receives the notice. In any
case, failure duly to give such notice to the holder of any
Debenture
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designated for redemption in whole or in part, or any defect in the notice,
shall not affect the validity of the proceedings for the redemption of any
other Debentures. In the case of any redemption of Debentures prior to the
expiration of any restriction on such redemption provided in the terms of such
Debentures or elsewhere in this Indenture, the Company shall
furnish the Trustee with an Officers' Certificate evidencing
compliance with any such restriction. Each such notice of
redemption shall specify the date fixed for redemption and the
Redemption Price and shall state that payment of the Redemption
Price shall be made at the Corporate Trust Office, upon
presentation and surrender of such Debentures, that interest
accrued to the date fixed for redemption shall be paid as
specified in said notice and that from and after said date
interest shall cease to accrue. If less than all the Debentures
are to be redeemed, the notice to the holders of the Debentures
shall specify the particular Debentures to be redeemed. If the
Debentures are to be redeemed in part only, the notice shall
state the portion of the principal amount thereof to be redeemed
and shall state that on and after the redemption date, upon
surrender of such Debenture, a new Debenture or Debentures in
principal amount equal to the unredeemed portion thereof shall be
issued.
(b) If less than all the Debentures are to be redeemed, the
Company shall give the Trustee at least 45 days' notice in
advance of the date fixed for redemption as to the aggregate
principal amount of Debentures to be redeemed, and thereupon the
Trustee shall select, by lot or in such other manner as it shall
deem appropriate and fair in its discretion, the portion or
portions (equal to $25 or any integral multiple thereof) of the
Debentures to be redeemed and shall thereafter promptly notify
the Company in writing of the numbers of the Debentures to be
redeemed, in whole or in part. The Company may, if and whenever
it shall so elect pursuant to the terms hereof, by delivery of
instructions signed on its behalf by its President or any Vice
President, instruct the Trustee or any paying agent to call all
or any part of the Debentures for redemption and to give notice
of redemption in the manner set forth in this Section 3.4, such
notice to be in the name of the Company or its own name as the
Trustee or such paying agent may deem advisable. In any case in
which notice of redemption is to be given by the Trustee or any
such paying agent, the Company shall deliver or cause to be
delivered to, or permit to remain with, the Trustee or such
paying agent, as the case may be, such Debenture Register,
transfer books or other records, or suitable copies or extracts
therefrom, sufficient to enable the Trustee or such paying agent
to give any notice by mail that may be required under the
provisions of this Section 3.4.
Section 3.5. Payment Upon Redemption.
(a) If the giving of notice of redemption shall have been
completed as above provided, the Debentures or portions of
Debentures to be redeemed specified in such notice shall become
due and payable on the date and at the place stated in such
notice at the applicable Redemption Price, and interest on such
Debentures or portions of Debentures shall cease to accrue on and
after the date fixed for redemption, unless the Company shall
default in the payment of such Redemption Price with respect to
any such Debenture or portion thereof. On presentation and
surrender of such Debentures on or after the date fixed for
redemption at the place of payment specified in the notice, said
Debentures shall be paid and redeemed at the Redemption Price
(but if the date fixed for redemption is an interest payment
date, the interest installment payable on such date shall be
payable to the registered holder at the close of business on the
applicable record date pursuant to Section 3.3).
(b) Upon presentation of any Debenture that is to be
redeemed in part only, the Company shall execute and the Trustee
shall authenticate and the office or agency where the Debenture
is presented shall deliver to the holder thereof, at the expense
of the Company, a new Debenture of authorized denomination in
principal amount equal to the unredeemed portion of the Debenture
so presented.
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Section 3.6. No Sinking Fund.
The Debentures are not entitled to the benefit of any
sinking fund.
ARTICLE IV.
EXTENSION OF INTEREST PAYMENT PERIOD
Section 4.1. Extension of Interest Payment Period.
So long as no Event of Default has occurred and is
continuing, the Company shall have the right, at any time and
from time to time during the term of the Debentures, to defer
payments of interest by extending the interest payment period of
such Debentures for a period not exceeding 20 consecutive
quarters (the "Extended Interest Payment Period"), during which
Extended Interest Payment Period no interest shall be due and
payable; provided that no Extended Interest Payment Period may
extend beyond the Maturity Date. Interest, the payment of which
has been deferred because of the extension of the interest
payment period pursuant to this Section 4.1, shall bear interest
thereon at the Coupon Rate compounded quarterly for each quarter
of the Extended Interest Payment Period ("Compounded Interest").
At the end of the Extended Interest Payment Period, the Company
shall calculate (and deliver such calculation to the Trustee) and
pay all interest accrued and unpaid on the Debentures, including
any Additional Interest and Compounded Interest (together,
"Deferred Interest") that shall be payable to the holders of the
Debentures in whose names the Debentures are registered in the
Debenture Register on the first record date after the end of the
Extended Interest Payment Period. Before the termination of any
Extended Interest Payment Period, the Company may further extend
such period, provided that such period together with all such
further extensions thereof shall not exceed 20 consecutive
quarters, or extend beyond the Maturity Date of the Debentures.
Upon the termination of any Extended Interest Payment Period and
upon the payment of all Deferred Interest then due, the Company
may commence a new Extended Interest Payment Period, subject to
the foregoing requirements. No interest shall be due and payable
during an Extended Interest Payment Period, except at the end
thereof, but the Company may prepay at any time all or any
portion of the interest accrued during an Extended Interest
Payment Period.
Section 4.2. Notice of Extension.
(a) If the Property Trustee is the only registered holder
of the Debentures at the time the Company selects an Extended
Interest Payment Period, the Company shall give written notice to
the Administrative Trustees, the Property Trustee and the Trustee
of its selection of such Extended Interest Payment Period two
Business Days before the earlier of (i) the next succeeding date
on which Distributions on the Trust Securities issued by the
Trust are payable; or (ii) the date the Trust is required to give
notice of the record date, or the date such Distributions are
payable, to The Nasdaq Stock Market's National Market or other
applicable self-regulatory organization or to holders of the
Preferred Securities issued by the Trust, but in any event at
least one Business Day before such record date.
(b) If the Property Trustee is not the only holder of the
Debentures at the time the Company selects an Extended Interest
Payment Period, the Company shall give the holders of the
Debentures and the Trustee written notice of its selection of
such Extended Interest Payment Period at least two Business Days
before the earlier of (i) the next succeeding Interest Payment
Date; or (ii) the date the Company is required to give notice of
the record or payment date of such interest payment to The Nasdaq
Stock Market's National Market or other applicable
self-regulatory organization or to holders of the Debentures.
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(c) The quarter in which any notice is given pursuant to
paragraphs (a) or (b) of this Section 4.2 shall be counted as one
of the 20 quarters permitted in the maximum Extended Interest
Payment Period permitted under Section 4.1.
Section 4.3. Limitation on Transactions.
If (i) the Company shall exercise its right to defer payment
of interest as provided in Section 4.1; or (ii) there shall have
occurred any Event of Default, then (a) the Company shall not
declare or pay any dividend on, make any distributions with
respect to, or redeem, purchase, acquire or make a liquidation
payment with respect to, any of its capital stock (other than
(i) dividends or distributions in common stock of the Company, or
any declaration of a non-cash dividend in connection with the
implementation of a shareholders' rights plan, or the issuance of
stock under any such plan in the future, or the redemption or
repurchase of any such rights pursuant thereto, and
(ii) purchases of common stock of the Company related to the
rights under any of the Company's benefit plans for its
directors, officers or employees); (b) the Company shall not make
any payment of interest, principal or premium, if any, or repay,
repurchase or redeem any debt securities issued by the Company
which rank pari passu with or junior to the Debentures; provided,
however, that notwithstanding the foregoing the Company may make
payments pursuant to its obligations under the Preferred
Securities Guarantee; and (c) the Company shall not redeem,
purchase or acquire less than all of the outstanding Debentures
or any of the Preferred Securities.
ARTICLE V.
PARTICULAR COVENANTS OF THE COMPANY
Section 5.1. Payment of Principal and Interest.
The Company shall duly and punctually pay or cause to be
paid the principal of and interest on the Debentures at the time
and place and in the manner provided herein.
Section 5.2. Maintenance of Agency.
So long as any of the Debentures remain Outstanding, the
Company shall maintain an office or agency at such location or
locations as may be designated as provided in this Section 5.2,
where (i) Debentures may be presented for payment;
(ii) Debentures may be presented as hereinabove authorized for
registration of transfer and exchange; and (iii) notices and
demands to or upon the Company in respect of the Debentures and
this Indenture may be given or served, such designation to
continue with respect to such office or agency until the Company
shall, by written notice signed by its President or a Vice
President and delivered to the Trustee, designate some other
office or agency for such purposes or any of them. If at any
time the Company shall fail to maintain any such required office
or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, notices and demands may be made or
served at the Corporate Trust Office of the Trustee, and the
Company hereby appoints the Trustee as its agent to receive all
such presentations, notices and demands. The Company shall give
the Trustee prompt written notice of any such designation or
rescission thereof.
Section 5.3. Paying Agents.
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(a) The Property Trustee shall act as the Paying Agent. If
the Company shall appoint one or more paying agents for the
Debentures, other than the Trustee, the Company shall cause each
such paying agent to execute and deliver to the Trustee an
instrument in which such agent shall agree with the Trustee,
subject to the provisions of this Section 5.3:
(i) that it shall hold all sums held by it as such
agent for the payment of the principal of or interest on the
Debentures (whether such sums have been paid to it by the
Company or by any other obligor of such Debentures) in trust
for the benefit of the Persons entitled thereto;
(ii) that it shall give the Trustee notice of any
failure by the Company (or by any other obligor of such
Debentures) to make any payment of the principal of or
interest on the Debentures when the same shall be due and
payable;
(iii) that it shall, at any time during the
continuance of any failure referred to in the preceding
paragraph (a)(ii) above, upon the written request of the
Trustee, forthwith pay to the Trustee all sums so held in
trust by such paying agent; and
(iv) that it shall perform all other duties of paying
agent as set forth in this Indenture.
(b) If the Company shall act as its own paying agent with
respect to the Debentures, it shall on or before each due date of
the principal of or interest on such Debentures, set aside,
segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay such principal or
interest so becoming due on Debentures until such sums shall be
paid to such Persons or otherwise disposed of as herein provided
and shall promptly notify the Trustee of such action, or any
failure (by it or any other obligor on such Debentures) to take
such action. Whenever the Company shall have one or more paying
agents for the Debentures, it shall, prior to each due date of
the principal of or interest on any Debentures, deposit with the
paying agent a sum sufficient to pay the principal or interest so
becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal or interest, and (unless such
paying agent is the Trustee) the Company shall promptly notify
the Trustee of this action or failure so to act.
(c) Notwithstanding anything in this Section 5.3 to the
contrary, (i) the agreement to hold sums in trust as provided in
this Section 5.3 is subject to the provisions of Section 13.3 and
13.4; and (ii) the Company may at any time, for the purpose of
obtaining the satisfaction and discharge of this Indenture or for
any other purpose, pay, or direct any paying agent to pay, to the
Trustee all sums held in trust by the Company or such paying
agent, such sums to be held by the Trustee upon the same terms
and conditions as those upon which such sums were held by the
Company or such paying agent; and, upon such payment by any
paying agent to the Trustee, such paying agent shall be released
from all further liability with respect to such money.
Section 5.4. Appointment to Fill Vacancy in Office of Trustee.
The Company, whenever necessary to avoid or fill a vacancy
in the office of Trustee, shall appoint, in the manner provided
in Section 9.10, a Trustee, so that there shall at all times be a
Trustee hereunder.
Section 5.5. Compliance with Consolidation Provisions.
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The Company shall not, while any of the Debentures remain
outstanding, consolidate with, or merge into, or merge into
itself, or sell or convey all or substantially all of its
property to any other company unless the provisions of
Article XII hereof are complied with.
Section 5.6. Limitation on Transactions.
If Debentures are issued to the Trust or a trustee of the
Trust in connection with the issuance of Trust Securities by the
Trust and (i) there shall have occurred any event that would
constitute an Event of Default; (ii) the Company shall be in
default with respect to its payment of any obligations under the
Preferred Securities Guarantee relating to the Trust; or
(iii) the Company shall have given notice of its election to
defer payments of interest on such Debentures by extending the
interest payment period as provided in this Indenture and such
period, or any extension thereof, shall be continuing, then
(a) the Company shall not declare or pay any dividend on, make
any distributions with respect to, or redeem, purchase, acquire
or make a liquidation payment with respect to, any of its capital
stock (other than (i) dividends or distributions in common stock
of the Company, or any declaration of a non-cash dividend in
connection with the implementation of a shareholders' rights
plan, or the issuance of stock under any such plan in the future,
or the redemption or repurchase of any such rights pursuant
thereto, and (ii) purchases of common stock of the Company
related to the rights under any of the Company's benefit plans
for its directors, officers or employees); (b) the Company shall
not make any payment of interest, principal or premium, if any,
or repay, repurchase or redeem any debt securities issued by the
Company which rank pari passu with or junior to the Debentures;
provided, however, that the Company may make payments pursuant to
its obligations under the Preferred Securities Guarantee; and
(c) the Company shall not redeem, purchase or acquire less than
all of the outstanding Debentures or any of the Preferred
Securities.
Section 5.7. Covenants as to the Trust.
For so long as such Trust Securities of the Trust remain
outstanding, the Company shall (i) maintain 100% direct or
indirect ownership of the Common Securities of the Trust;
provided, however, that any permitted successor of the Company
under this Indenture may succeed to the Company's ownership of
the Common Securities; (ii) not voluntarily terminate, wind up or
liquidate the Trust, except upon prior approval of the Federal
Reserve if then so required under applicable capital guidelines
or policies of the Federal Reserve and use its reasonable efforts
to cause the Trust (a) to remain a business trust, except in
connection with a distribution of Debentures, the redemption of
all of the Trust Securities of the Trust or certain mergers,
consolidations or amalgamations, each as permitted by the Trust
Agreement; and (b) to otherwise continue not to be treated as an
association taxable as a corporation or partnership for United
States federal income tax purposes; and (iii) use its reasonable
efforts to cause each holder of Trust Securities to be treated as
owning an individual beneficial interest in the Debentures. In
connection with the distribution of the Debentures to the holders
of the Preferred Securities issued by the Trust upon a
Dissolution Event, the Company shall use its best efforts to list
such Debentures on The Nasdaq Stock Market's National Market or
on such other exchange as the Preferred Securities are then
listed.
Section 5.8. Covenants as to Purchases.
Prior to March 31, 2002, the Company shall not purchase any
Debentures, in whole or in part, from the Trust.
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ARTICLE VI.
DEBENTUREHOLDERS' LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
Section 6.1. Company to Furnish Trustee Names and Addresses of
Debentureholders.
The Company shall furnish or cause to be furnished to the
Trustee (a) on a monthly basis on each regular record date (as
described in Section 2.5) a list, in such form as the Trustee may
reasonably require, of the names and addresses of the holders of
the Debentures as of such regular record date, provided that the
Company shall not be obligated to furnish or cause to furnish
such list at any time that the list shall not differ in any
respect from the most recent list furnished to the Trustee by the
Company (in the event the Company fails to provide such list on a
monthly basis, the Trustee shall be entitled to rely on the most
recent list provided by the Company); and (b) at such other times
as the Trustee may request in writing within 30 days after the
receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the
time such list is furnished; provided, however, that, in either
case, no such list need be furnished if the Trustee shall be the
Debenture Registrar.
Section 6.2. Preservation of Information Communications with
Debentureholders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, all information as to the names and
addresses of the holders of Debentures contained in the most
recent list furnished to it as provided in Section 6.1 and as to
the names and addresses of holders of Debentures received by the
Trustee in its capacity as registrar for the Debentures (if
acting in such capacity).
(b) The Trustee may destroy any list furnished to it as
provided in Section 6.1 upon receipt of a new list so furnished.
(c) Debentureholders may communicate as provided in Section
312(b) of the Trust Indenture Act with other Debentureholders
with respect to their rights under this Indenture or under the
Debentures.
Section 6.3. Reports by the Company.
(a) The Company covenants and agrees to file with the
Trustee, within 15 days after the Company is required to file the
same with the Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time
to time by rules and regulations prescribe) that the Company may
be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Exchange Act; or, if the Company is not
required to file information, documents or reports pursuant to
either of such sections, then to file with the Trustee and the
Commission, in accordance with the rules and regulations
prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports
that may be required pursuant to Section 13 of the Exchange Act
in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in
such rules and regulations.
(b) The Company covenants and agrees to file with the
Trustee and the Commission, in accordance with the rules and
regulations prescribed from to time by the Commission, such
additional information, documents and reports with respect to
compliance by the Company with the conditions and
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covenants provided for in this Indenture as may be required from time to
time by such rules and regulations.
(c) The Company covenants and agrees to transmit by mail,
first class postage prepaid, or reputable over-night delivery
service that provides for evidence of receipt, to the
Debentureholders, as their names and addresses appear upon the
Debenture Register, within 30 days after the filing thereof with
the Trustee, such summaries of any information, documents and
reports required to be filed by the Company pursuant to
subsections (a) and (b) of this Section 6.3 as may be required by
rules and regulations prescribed from time to time by the
Commission.
Section 6.4. Reports by the Trustee.
(a) On or before July 15 in each year in which any of the
Debentures are Outstanding, the Trustee shall transmit by mail,
first class postage prepaid, to the Debentureholders, as their
names and addresses appear upon the Debenture Register, a brief
report dated as of the preceding May 15, if and to the extent
required under Section 313(a) of the Trust Indenture Act.
(b) The Trustee shall comply with Section 313(b) and 313(c)
of the Trust Indenture Act.
(c) A copy of each such report shall, at the time of such
transmission to Debentureholders, be filed by the Trustee with
the Company, with each stock exchange upon which any Debentures
are listed (if so listed) and also with the Commission. The
Company agrees to notify the Trustee when any Debentures become
listed on any stock exchange.
ARTICLE VII.
REMEDIES OF THE TRUSTEE AND DEBENTUREHOLDERS
ON EVENT OF DEFAULT
Section 7.1. Events of Default.
(a) Whenever used herein with respect to the Debentures,
"Event of Default" means any one or more of the following events
that has occurred and is continuing:
(i) the Company defaults in the payment of any
installment of interest upon any of the Debentures, as and
when the same shall become due and payable, and continuance
of such default for a period of 30 days; provided, however,
that a valid extension of an interest payment period by the
Company in accordance with the terms of this Indenture shall
not constitute a default in the payment of interest for this
purpose;
(ii) the Company defaults in the payment of the
principal on the Debentures as and when the same shall
become due and payable whether at maturity, upon redemption,
by declaration or otherwise; provided, however, that a valid
extension of the maturity of such Debentures in accordance
with the terms of this Indenture shall not constitute a
default in the payment of principal;
(iii) the Company fails to observe or perform any other
of its covenants or agreements with respect to the
Debentures for a period of 90 days after the date on which
written notice of
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such failure, requiring the same to be remedied and stating that such
notice is a "Notice of Default" hereunder, shall have been given to the
Company by the Trustee, by registered or certified mail, or to the
Company and the Trustee by the holders of at least 25% in
principal amount of the Debentures at the time Outstanding;
(iv) the Company pursuant to or within the meaning of
any Bankruptcy Law (i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it
in an involuntary case; (iii) consents to the appointment of
a Custodian of it or for all or substantially all of its
property; or (iv) makes a general assignment for the benefit
of its creditors;
(v) a court of competent jurisdiction enters an order
under any Bankruptcy Law that (i) is for relief against the
Company in an involuntary case; (ii) appoints a Custodian of
the Company for all or substantially all of its property; or
(iii) orders the liquidation of the Company, and the order
or decree remains unstayed and in effect for 90 days; or
(vi) the Trust shall have voluntarily or involuntarily
dissolved, wound-up its business or otherwise terminated its
existence except in connection with (i) the distribution of
Debentures to holders of Trust Securities in liquidation of
their interests in the Trust; (ii) the redemption of all of
the outstanding Trust Securities of the Trust; or
(iii) certain mergers, consolidations or amalgamations, each
as permitted by the Trust Agreement.
(b) In each and every such case referred to in items (i)
through (vi) of Section 7.1(a), unless the principal of all the
Debentures shall have already become due and payable, either the
Trustee or the holders of not less than 25% in aggregate
principal amount of the Debentures then Outstanding hereunder, by
notice in writing to the Company (and to the Trustee if given by
such Debentureholders) may declare the principal of all the
Debentures to be due and payable immediately, and upon any such
declaration the same shall become and shall be immediately due
and payable, notwithstanding anything contained in this Indenture
or in the Debentures.
(c) At any time after the principal of the Debentures shall
have been so declared due and payable, and before any judgment or
decree for the payment of the moneys due shall have been obtained
or entered as hereinafter provided, the holders of a majority in
aggregate principal amount of the Debentures then Outstanding
hereunder, by written notice to the Company and the Trustee, may
rescind and annul such declaration and its consequences if:
(i) the Company has paid or deposited with the Trustee a sum
sufficient to pay all matured installments of interest upon all
the Debentures and the principal of any and all Debentures that
shall have become due otherwise than by acceleration (with
interest upon such principal, and upon overdue installments of
interest, at the rate per annum expressed in the Debentures to
the date of such payment or deposit) and the amount payable to
the Trustee under Section 9.6; and (ii) any and all Events of
Default under this Indenture, other than the nonpayment of
principal on Debentures that shall not have become due by their
terms, shall have been remedied or waived as provided in Section
7.6. No such rescission and annulment shall extend to or shall
affect any subsequent default or impair any right consequent
thereon.
(d) In case the Trustee shall have proceeded to enforce any
right with respect to Debentures under this Indenture and such
proceedings shall have been discontinued or abandoned because of
such rescission or annulment or for any other reason or shall
have been determined adversely to the Trustee, then and in every
such case the Company and the Trustee shall be restored
respectively to their former
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positions and rights hereunder, and all rights, remedies and powers of the
Company and the Trustee shall continue as though no such proceedings had been
taken.
Section 7.2. Collection of Indebtedness and Suits for Enforcement by
Trustee.
(a) The Company covenants that (1) in case it shall default
in the payment of any installment of interest on any of the
Debentures, and such default shall have continued for a period of
90 Business Days; or (2) in case it shall default in the payment
of the principal of any of the Debentures when the same shall
have become due and payable, whether upon maturity of the
Debentures or upon redemption or upon declaration or otherwise,
then, upon demand of the Trustee, the Company shall pay to the
Trustee, for the benefit of the holders of the Debentures, the
whole amount that then shall have been become due and payable on
all such Debentures for principal or interest, or both, as the
case may be, with interest upon the overdue principal and (if the
Debentures are held by the Trust or a trustee of the Trust,
without duplication of any other amounts paid by the Trust or
trustee in respect thereof) upon overdue installments of interest
at the rate per annum expressed in the Debentures; and, in
addition thereto, such further amount as shall be sufficient to
cover the costs and expenses of collection, and the amount
payable to the Trustee under Section 9.7.
(b) If the Company shall fail to pay such amounts forthwith
upon such demand, the Trustee, in its own name and as trustee of
an express trust, shall be entitled and empowered to institute
any action or proceedings at law or in equity for the collection
of the sums so due and unpaid, and may prosecute any such action
or proceeding to judgment or final decree, and may enforce any
such judgment or final decree against the Company or other
obligor upon the Debentures and collect the moneys adjudged or
decreed to be payable in the manner provided by law out of the
property of the Company or other obligor upon the Debentures,
wherever situated.
(c) In case of any receivership, insolvency, liquidation,
bankruptcy, reorganization, readjustment, arrangement,
composition or judicial proceedings affecting the Company or the
creditors or property of either, the Trustee shall have power to
intervene in such proceedings and take any action therein that
may be permitted by the court and shall (except as may be
otherwise provided by law) be entitled to file such proofs of
claim and other papers and documents as may be necessary or
advisable in order to have the claims of the Trustee and of the
holders of the Debentures allowed for the entire amount due and
payable by the Company under this Indenture at the date of
institution of such proceedings and for any additional amount
that may become due and payable by the Company after such date,
and to collect and receive any moneys or other property payable
or deliverable on any such claim, and to distribute the same
after the deduction of the amount payable to the Trustee under
Section 9.7; and any receiver, assignee or trustee in bankruptcy
or reorganization is hereby authorized by each of the holders of
the Debentures to make such payments to the Trustee, and, in the
event that the Trustee shall consent to the making of such
payments directly to such Debentureholders, to pay to the Trustee
any amount due it under Section 9.7.
(d) All rights of action and of asserting claims under this
Indenture, or under any of the terms established with respect to
Debentures, may be enforced by the Trustee without the possession
of any of such Debentures, or the production thereof at any trial
or other proceeding relative thereto, and any such suit or
proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment
shall, after provision for payment to the Trustee of any amounts
due under Section 9.7, be for the ratable benefit of the holders
of the Debentures. In case of an Event of Default hereunder, the
Trustee may in its discretion proceed to protect and enforce the
rights vested in it by this Indenture by such appropriate
judicial proceedings as the Trustee shall deem most effectual to
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protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific
enforcement of any covenant or agreement contained in this
Indenture or in aid of the exercise of any power granted in this
Indenture, or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law. Nothing
contained herein shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any
Debentureholder any plan of reorganization, arrangement,
adjustment or composition affecting the Debentures or the rights
of any holder thereof or to authorize the Trustee to vote in
respect of the claim of any Debentureholder in any such
proceeding.
Section 7.3. Application of Moneys Collected.
Any moneys collected by the Trustee pursuant to this Article
VII with respect to the Debentures shall be applied in the
following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such moneys on account of
principal or interest, upon presentation of the Debentures, and
notation thereon the payment, if only partially paid, and upon
surrender thereof if fully paid:
FIRST: To the payment of costs and expenses of
collection and of all amounts payable to the Trustee under
Section 9.7;
SECOND: To the payment of all Senior Indebtedness of
the Company if and to the extent required by Article XVI;
and
THIRD: To the payment of the amounts then due and
unpaid upon the Debentures for principal and interest, in
respect of which or for the benefit of which such money has
been collected, ratably, without preference or priority of
any kind, according to the amounts due and payable on such
Debentures for principal and interest, respectively.
Section 7.4. Limitation on Suits.
(a) No holder of any Debenture shall have any right by
virtue or by availing of any provision of this Indenture to
institute any suit, action or proceeding in equity or at law upon
or under or with respect to this Indenture or for the appointment
of a receiver or trustee, or for any other remedy hereunder,
unless (i) such holder previously shall have given to the Trustee
written notice of an Event of Default and of the continuance
thereof with respect to the Debentures specifying such Event of
Default, as hereinbefore provided; (ii) the holders of not less
than 25% in aggregate principal amount of the Debentures then
Outstanding shall have made written request upon the Trustee to
institute such action, suit or proceeding in its own name as
trustee hereunder; (iii) such holder or holders shall have
offered to the Trustee such reasonable indemnity as it may
require against the costs, expenses and liabilities to be
incurred therein or thereby; and (iv) the Trustee for 60 days
after its receipt of such notice, request and offer of indemnity,
shall have failed to institute any such action, suit or
proceeding; and (v) during such 60 day period, the holders of a
majority in principal amount of the Debentures do not give the
Trustee a direction inconsistent with the request.
(b) Notwithstanding anything contained herein to the
contrary or any other provisions of this Indenture, the right of
any holder of the Debentures to receive payment of the principal
of and interest on the Debentures, as therein provided, on or
after the respective due dates expressed in such Debenture (or in
the case of redemption, on the redemption date), or to institute
suit for the enforcement of any such payment on or after such
respective dates or redemption date, shall not be impaired or
affected without
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the consent of such holder and by accepting a Debenture hereunder it is
expressly understood, intended and covenanted by the taker and holder of every
Debenture with every other such taker and holder and the Trustee, that no one
or more holders of Debentures shall have any right in any manner
whatsoever by virtue or by availing of any provision of this
Indenture to affect, disturb or prejudice the rights of the
holders of any other of such Debentures, or to obtain or seek to
obtain priority over or preference to any other such holder, or
to enforce any right under this Indenture, except in the manner
herein provided and for the equal, ratable and common benefit of
all holders of Debentures. For the protection and enforcement of
the provisions of this Section 7.4, each and every
Debentureholder and the Trustee shall be entitled to such relief
as can be given either at law or in equity.
Section 7.5. Rights and Remedies Cumulative; Delay or Omission
not Waiver.
(a) Except as otherwise provided in Section 2.9, all powers
and remedies given by this Article VII to the Trustee or to the
Debentureholders shall, to the extent permitted by law, be deemed
cumulative and not exclusive of any other powers and remedies
available to the Trustee or the holders of the Debentures, by
judicial proceedings or otherwise, to enforce the performance or
observance of the covenants and agreements contained in this
Indenture or otherwise established with respect to such
Debentures.
(b) No delay or omission of the Trustee or of any holder of
any of the Debentures to exercise any right or power accruing
upon any Event of Default occurring and continuing as aforesaid
shall impair any such right or power, or shall be construed to be
a waiver of any such default or on acquiescence therein; and,
subject to the provisions of Section 7.4, every power and remedy
given by this Article VII or by law to the Trustee or the
Debentureholders may be exercised from time to time, and as often
as shall be deemed expedient, by the Trustee or by the
Debentureholders.
Section 7.6. Control by Debentureholders.
The holders of a majority in aggregate principal amount of
the Debentures at the time Outstanding, determined in accordance
with Section 10.4, shall have the right to direct the time,
method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power
conferred on the Trustee; provided, however, that such direction
shall not be in conflict with any rule of law or with this
Indenture. Subject to the provisions of Section 9.1, the Trustee
shall have the right to decline to follow any such direction if
the Trustee in good faith shall, by a Responsible Officer or
Officers of the Trustee, determine that the proceeding so
directed would involve the Trustee in personal liability. The
holders of a majority in aggregate principal amount of the
Debentures at the time Outstanding affected thereby, determined
in accordance with Section 10.4, may on behalf of the holders of
all of the Debentures waive any past default in the performance
of any of the covenants contained herein and its consequences,
except (i) a default in the payment of the principal of or
interest on, any of the Debentures as and when the same shall
become due by the terms of such Debentures otherwise than by
acceleration (unless such default has been cured and a sum
sufficient to pay all matured installments of interest and
principal has been deposited with the Trustee (in accordance with
Section 7.1(c)); (ii) a default in the covenants contained in
Section 5.6; or (iii) in respect of a covenant or provision
hereof which cannot be modified or amended without the consent of
the holder of each Outstanding Debenture affected; provided,
however, that if the Debentures are held by the Trust or a
trustee of the Trust, such waiver or modification to such waiver
shall not be effective until the holders of a majority in
liquidation preference of Trust Securities of the Trust shall
have consented to such waiver or modification to such waiver;
provided further, that if the consent of the holder of each
Outstanding
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Debenture is required, such waiver shall not be effective until each holder of
the Trust Securities of the Trust shall have consented to such waiver. Upon
any such waiver, the default covered thereby shall be deemed to be cured for
all purposes of this Indenture and the Company, the Trustee and the
holders of the Debentures shall be restored to their former
positions and rights hereunder, respectively; but no such waiver
shall extend to any subsequent or other default or impair any
right consequent thereon.
Section 7.7. Undertaking to Pay Costs.
All parties to this Indenture agree, and each holder of any
Debentures by such holder's acceptance thereof shall be deemed to
have agreed, that any court may in its discretion require, in any
suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action
taken or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable
costs, including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits and good
faith of the claims or defenses made by such party litigant; but
the provisions of this Section 7.8 shall not apply to any suit
instituted by the Trustee, to any suit instituted by any
Debentureholder, or group of Debentureholders holding more than
10% in aggregate principal amount of the Outstanding Debentures,
or to any suit instituted by any Debentureholder for the
enforcement of the payment of the principal of or interest on the
Debentures, on or after the respective due dates expressed in
such Debenture or established pursuant to this Indenture.
ARTICLE VIII.
FORM OF DEBENTURE AND ORIGINAL ISSUE
Section 8.1. Form of Debenture.
The Debenture and the Trustee's Certificate of
Authentication to be endorsed thereon are to be substantially in
the forms contained as Exhibit A attached hereto and incorporated
herein by reference.
Section 8.2. Original Issue of Debentures.
Debentures in the aggregate principal amount of $----------
may, upon execution of this Indenture, be executed by the Company
and delivered to the Trustee for authentication. If the
Underwriters exercise their Option and there is an Option Closing
Date (as such terms are defined in the Underwriting Agreement,
dated ---------, 1997, by and among the Company, the Trust and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Company, Incorporated, for itself and as
representative of the Underwriters) then, on such Option Closing
Date, Debentures in the additional aggregate principal amount of
$-------- may be executed by the Company and delivered to the
Trustee for authentication. In either such event, the Trustee
shall thereupon authenticate and deliver said Debentures to or
upon the written order of the Company, signed by its Chairman,
its Vice Chairman, its President, or any Vice President and its
Treasurer or an Assistant Treasurer, without any further action
by the Company.
ARTICLE IX.
CONCERNING THE TRUSTEE
Section 9.1. Certain Duties and Responsibilities of Trustee.
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(a) The Trustee, prior to the occurrence of an Event of
Default and after the curing of all Events of Default that may
have occurred, shall undertake to perform with respect to the
Debentures such duties and only such duties as are specifically
set forth in this Indenture, and no implied covenants shall be
read into this Indenture against the Trustee. In case an Event
of Default has occurred that has not been cured or waived, the
Trustee shall exercise such of the rights and powers vested in it
by this Indenture, and use the same degree of care and skill in
their exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
(b) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action,
its own negligent failure to act, or its own willful misconduct,
except that:
(1) prior to the occurrence of an Event of Default and
after the curing or waiving of all such Events of Default
that may have occurred:
(i) the duties and obligations of the Trustee
shall with respect to the Debentures be determined
solely by the express provisions of this Indenture, and
the Trustee shall not be liable with respect to the
Debentures except for the performance of such duties
and obligations as are specifically set forth in this
Indenture, and no implied covenants or obligations
shall be read into this Indenture against the Trustee;
and
(ii) in the absence of bad faith on the part
of the Trustee, the Trustee may with respect to the
Debentures conclusively rely, as to the truth of the
statements and the correctness of the opinions
expressed therein, upon any certificates or opinions
furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any
such certificates or opinions that by any provision
hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to
the requirements of this Indenture;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer or
Responsible Officers of the Trustee, unless it shall be
proved that the Trustee was negligent in ascertaining the
pertinent facts;
(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 not less
than a majority in principal amount of the Debentures at the
time Outstanding relating to the time, method and place of
conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the
Trustee under this Indenture with respect to the Debentures;
and
(4) none of the provisions contained in this Indenture
shall require the Trustee to expend or risk its own funds or
otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any
of its rights or powers, if there is reasonable ground for
believing that the repayment of such funds or liability is
not reasonably assured to it under the terms of this
Indenture or adequate indemnity against such risk is not
reasonably assured to it.
Section 9.2. Notice of Defaults.
Within 90 days after actual knowledge by a Responsible
Officer of the Trustee of the occurrence of any default hereunder
with respect to the Securities, the Trustee shall transmit by
mail to all holders
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of the Debentures, as their names and addresses appear in the Debenture
Register, notice of such default, unless such default shall have been cured or
waived; provided, however, that, except in the case default in the
payment of the principal or interest (including any Additional
Interest) on any Debenture, the Trustee shall be protected in
withholding such notice if and so long as the board of directors,
the executive committee or a trust committee of the directors
and/or Responsible Officers of the Trustee determines in good
faith that the withholding of such notice is in the interests of
the holders of such Debentures; and provided, further, that in
the case of any default of the character specified in section
7.1(a)(iii), no such notice to holders of Debentures need be sent
until at least 30 days after the occurrence thereof. For the
purposes of this Section 9.2, the term "default" means any event
which is, or after notice or lapse of time or both, would become,
an Event of Default with respect to the Debentures.
Section 9.3. Certain Rights of Trustee.
Except as otherwise provided in Section 9.1:
(a) The Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent,
order, approval, bond, security or other paper or document
believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) Any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by a Board
Resolution or an instrument signed in the name of the Company by
the President or any Vice President and by the Secretary or an
Assistant Secretary or the Treasurer or an Assistant Treasurer
thereof (unless other evidence in respect thereof is specifically
prescribed herein);
(c) The Trustee shall not be deemed to have knowledge of a
default or an Event of Default, other than an Event of Default
specified in Section 7.1(a)(i); or (ii), unless and until it
receives written notification of such Event of Default from the
Company or by holders of at least 25% of the aggregate principal
amount of the Debentures at the time Outstanding;
(d) The Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full
and complete authorization and protection in respect of any
action taken or suffered or omitted hereunder in good faith and
in reliance thereon;
(e) The Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the
request, order or direction of any of the Debentureholders,
pursuant to the provisions of this Indenture, unless such
Debentureholders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities
that may be incurred therein or thereby; nothing contained herein
shall, however, relieve the Trustee of the obligation, upon the
occurrence of an Event of Default (that has not been cured or
waived) to exercise with respect to the Debentures such of the
rights and powers vested in it by this Indenture, and to use the
same degree of care and skill in their exercise, as a prudent man
would exercise or use under the circumstances in the conduct of
his own affairs;
(f) The Trustee shall not be liable for any action taken or
omitted to be taken by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred
upon it by this Indenture;
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(g) The Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond, security, or other
papers or documents, unless requested in writing so to do by the
holders of not less than a majority in principal amount of the
Outstanding Debentures (determined as provided in Section 10.4);
provided, however, that if the payment within a reasonable time
to the Trustee of the costs, expenses or liabilities likely to be
incurred by it in the making of such investigation is, in the
opinion of the Trustee, not reasonably assured to the Trustee by
the security afforded to it by the terms of this Indenture, the
Trustee may require reasonable indemnity against such costs,
expenses or liabilities as a condition to so proceeding. The
reasonable expense of every such examination shall be paid by the
Company or, if paid by the Trustee, shall be repaid by the
Company upon demand; and
(h) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by
or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder.
Section 9.4. Trustee Not Responsible for Recitals, etc.
(a) The Recitals contained herein and in the Debentures
shall be taken as the statements of the Company, and the Trustee
assumes no responsibility for the correctness of the same.
(b) The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Debentures.
(c) The Trustee shall not be accountable for the use or
application by the Company of any of the Debentures or of the
proceeds of such Debentures, or for the use or application of any
moneys paid over by the Trustee in accordance with any provision
of this Indenture, or for the use or application of any moneys
received by any paying agent other than the Trustee.
Section 9.5. May Hold Debentures.
The Trustee or any paying agent or registrar for the
Debentures, in its individual or any other capacity, may become
the owner or pledgee of Debentures with the same rights it would
have if it were not Trustee, paying agent or Debenture Registrar.
Section 9.6. Moneys Held in Trust.
Subject to the provisions of Section 13.5, all moneys
received by the Trustee shall, until used or applied as herein
provided, be held in trust for the purposes for which they were
received, but need not be segregated from other funds except to
the extent required by law. The Trustee shall be under no
liability for interest on any moneys received by it hereunder
except such as it may agree with the Company to pay thereon.
Section 9.7. Compensation and Reimbursement.
(a) The Company covenants and agrees to pay to the Trustee,
and the Trustee shall be entitled to, such reasonable
compensation (which shall not be limited by any provision of law
in regard to the compensation of a trustee of an express trust),
as the Company and the Trustee may from time to time
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agree in writing, for all services rendered by it in the execution of the
trusts hereby created and in the exercise and performance of any
of the powers and duties hereunder of the Trustee, and, except as
otherwise expressly provided herein, the Company shall pay or
reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the
Trustee in accordance with any of the provisions of this
Indenture (including the reasonable compensation and the expenses
and disbursements of its counsel and of all Persons not regularly
in its employ) except any such expense, disbursement or advance
as may arise from its negligence or bad faith. The Company also
covenants to indemnify the Trustee (and its officers, agents,
directors and employees) for, and to hold it harmless against,
any loss, liability or expense incurred without negligence or bad
faith on the part of the Trustee and arising out of or in
connection with the acceptance or administration of this trust,
including the costs and expenses of defending itself against any
claim of liability in the premises.
(b) The obligations of the Company under this Section 9.7
to compensate and indemnify the Trustee and to pay or reimburse
the Trustee for expenses, disbursements and advances shall
constitute additional indebtedness hereunder. Such additional
indebtedness shall be secured by a lien prior to that of the
Debentures upon all property and funds held or collected by the
Trustee as such, except funds held in trust for the benefit of
the holders of particular Debentures.
Section 9.8. Reliance on Officers' Certificate.
Except as otherwise provided in Section 9.1, whenever in the
administration of the provisions of this Indenture the Trustee
shall deem it necessary or desirable that a matter be proved or
established prior to taking or suffering or omitting to take any
action hereunder, such matter (unless other evidence in respect
thereof be herein specifically prescribed) may, in the absence of
negligence or bad faith on the part of the Trustee, be deemed to
be conclusively proved and established by an Officers'
Certificate delivered to the Trustee and such certificate, in the
absence of negligence or bad faith on the part of the Trustee,
shall be full warrant to the Trustee for any action taken,
suffered or omitted to be taken by it under the provisions of
this Indenture upon the faith thereof.
Section 9.9. Disqualification: Conflicting Interests.
If the Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Trustee and the Company shall in all respects
comply with the provisions of Section 310(b) of the Trust
Indenture Act.
Section 9.10. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee with respect to the
Debentures issued hereunder which shall at all times be a
corporation organized and doing business under the laws of the
United States of America or any State or Territory thereof or of
the District of Columbia, or a corporation or other Person
permitted to act as trustee by the Commission, authorized under
such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $50,000,000, and subject to
supervision or examination by federal, state, territorial, or
District of Columbia authority. If such corporation publishes
reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority,
then for the purposes of this Section 9.10, the combined capital
and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent
report of condition so published. The Company may not, nor may
any Person directly or indirectly controlling, controlled by, or
under common control with the Company, serve as Trustee. In case
at any
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time the Trustee shall cease to be eligible in accordance
with the provisions of this Section 9.10, the Trustee shall
resign immediately in the manner and with the effect specified in
Section 9.11.
Section 9.11. Resignation and Removal; Appointment of Successor.
(a) The Trustee or any successor hereafter appointed, may
at any time resign by giving written notice thereof to the
Company and by transmitting notice of resignation by mail, first
class postage prepaid, to the Debentureholders, as their names
and addresses appear upon the Debenture Register. Upon receiving
such notice of resignation, the Company shall promptly appoint a
successor trustee with respect to Debentures by written
instrument, in duplicate, executed by order of the Board of
Directors, one copy of which instrument shall be delivered to the
resigning Trustee and one copy to the successor trustee. If no
successor trustee shall have been so appointed and have accepted
appointment within 30 days after the mailing of such notice of
resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor trustee
with respect to Debentures, or any Debentureholder who has been a
bona fide holder of a Debenture or Debentures for at least six
months may, subject to the provisions of Section 9.9, on behalf
of himself and all others similarly situated, petition any such
court for the appointment of a successor trustee. Such court may
thereupon after such notice, if any, as it may deem proper and
prescribe, appoint a successor trustee.
(b) In case at any time any one of the following shall
occur
(i) the Trustee shall fail to comply with the
provisions of Section 9.9 after written request therefor by
the Company or by any Debentureholder who has been a bona
fide holder of a Debenture or Debentures for at least six
months; or
(ii) the Trustee shall cease to be eligible in
accordance with the provisions of Section 9.10 and shall
fail to resign after written request therefor by the Company
or by any such Debentureholder; or
(iii) the Trustee shall become incapable of acting, or
shall be adjudged a bankrupt or insolvent, or commence a
voluntary bankruptcy proceeding, or a receiver of the
Trustee or of its property shall be appointed or consented
to, or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then, in any
such case, the Company may remove the Trustee with respect
to all Debentures and appoint a successor trustee by written
instrument, in duplicate, executed by order of the Board of
Directors, one copy of which instrument shall be delivered
to the Trustee so removed and one copy to the successor
trustee, or, subject to the provisions of Section 9.9,
unless the Trustee's duty to resign is stayed as provided
herein, any Debentureholder who has been a bona fide holder
of a Debenture or Debentures for at least six months may, on
behalf of that holder and all others similarly situated,
petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor trustee.
Such court may thereupon after such notice, if any, as it
may deem proper and prescribe, remove the Trustee and
appoint a successor trustee.
(c) The holders of a majority in aggregate principal amount
of the Debentures at the time Outstanding may at any time remove
the Trustee by so notifying the Trustee and the Company and may
appoint a successor Trustee with the consent of the Company.
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(d) Any resignation or removal of the Trustee and
appointment of a successor trustee with respect to the Debentures
pursuant to any of the provisions of this Section 9.11 shall
become effective upon acceptance of appointment by the successor
trustee as provided in Section 9.12.
(e) Any successor trustee appointed pursuant to this
Section 9.11 may be appointed with respect to the Debentures, and
at any time there shall be only one Trustee with respect to the
Debentures.
Section 9.12. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor
trustee with respect to the Debentures, every successor trustee
so appointed shall execute, acknowledge and deliver to the
Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor
trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of
the retiring Trustee; but, on the request of the Company or the
successor trustee, such retiring Trustee shall, upon payment of
its charges, execute and deliver an instrument transferring to
such successor trustee all the rights, powers, and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to
such successor trustee all property and money held by such
retiring Trustee hereunder.
(b) Upon request of any successor trustee, the Company
shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor trustee all
such rights, powers and trusts referred to in paragraph (a) of
this Section 9.12.
(c) No successor trustee shall accept its appointment
unless at the time of such acceptance such successor trustee
shall be qualified and eligible under this Article IX.
(d) Upon acceptance of appointment by a successor trustee
as provided in this Section 9.12, the Company shall transmit
notice of the succession of such trustee hereunder by mail, first
class postage prepaid, to the Debentureholders, as their names
and addresses appear upon the Debenture Register. If the Company
fails to transmit such notice within ten days after acceptance of
appointment by the successor trustee, the successor trustee shall
cause such notice to be transmitted at the expense of the
Company.
Section 9.13. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any
corporation succeeding to the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder,
provided that such corporation shall be qualified under the
provisions of Section 9.9 and eligible under the provisions of
Section 9.10, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding. In case any Debentures
shall have been authenticated, but not delivered, by the Trustee
then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such
authentication and deliver the Debentures so authenticated with
the same effect as if such successor Trustee had itself
authenticated such Debentures.
Section 9.14. Preferential Collection of Claims Against the Company.
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The Trustee shall comply with Section 311(a) of the Trust
Indenture Act, excluding any creditor relationship described in
Section 311(b) of the Trust Indenture Act. A Trustee who has
resigned or been removed shall be subject to Section 311(a) of
the Trust Indenture Act to the extent included therein.
ARTICLE X.
CONCERNING THE DEBENTUREHOLDERS
Section 10.1. Evidence of Action by Holders.
(a) Whenever in this Indenture it is provided that the
holders of a majority or specified percentage in aggregate
principal amount of the Debentures may take any action (including
the making of any demand or request, the giving of any notice,
consent or waiver or the taking of any other action), the fact
that at the time of taking any such action the holders of such
majority or specified percentage have joined therein may be
evidenced by any instrument or any number of instruments of
similar tenor executed by such holders of Debentures in Person or
by agent or proxy appointed in writing.
(b) If the Company shall solicit from the Debentureholders
any request, demand, authorization, direction, notice, consent,
waiver or other action, the Company may, at its option, as
evidenced by an Officers' Certificate, fix in advance a record
date for the determination of Debentureholders entitled to give
such request, demand, authorization, direction, notice, consent,
waiver or other action, but the Company shall have no obligation
to do so. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other action
may be given before or after the record date, but only the
Debentureholders of record at the close of business on the record
date shall be deemed to be Debentureholders for the purposes of
determining whether Debentureholders of the requisite proportion
of Outstanding Debentures have authorized or agreed or consented
to such request, demand, authorization, direction, notice,
consent, waiver or other action, and for that purpose the
Outstanding Debentures shall be computed as of the record date;
provided, however, that no such authorization, agreement or
consent by such Debentureholders on the record date shall be
deemed effective unless it shall become effective pursuant to the
provisions of this Indenture not later than six months after the
record date.
Section 10.2. Proof of Execution by Debentureholders.
Subject to the provisions of Section 9.1, proof of the
execution of any instrument by a Debentureholder (such proof
shall not require notarization) or his agent or proxy and proof
of the holding by any Person of any of the Debentures shall be
sufficient if made in the following manner:
(a) The fact and date of the execution by any such Person
of any instrument may be proved in any reasonable manner
acceptable to the Trustee.
(b) The ownership of Debentures shall be proved by the
Debenture Register of such Debentures or by a certificate of the
Debenture Registrar thereof.
(c) The Trustee may require such additional proof of any
matter referred to in this Section 10.2 as it shall deem
necessary.
Section 10.3. Who May be Deemed Owners.
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Prior to the due presentment for registration of transfer of
any Debenture, the Company, the Trustee, any paying agent, any
Authenticating Agent and any Debenture Registrar may deem and
treat the Person in whose name such Debenture shall be registered
upon the books of the Company as the absolute owner of such
Debenture (whether or not such Debenture shall be overdue and
notwithstanding any notice of ownership or writing thereon made
by anyone other than the Debenture Registrar) for the purpose of
receiving payment of or on account of the principal of and
interest on such Debenture (subject to Section 2.3) and for all
other purposes; and neither the Company nor the Trustee nor any
paying agent nor any Authenticating Agent nor any Debenture
Registrar shall be affected by any notice to the contrary.
Section 10.4. Certain Debentures Owned by Company Disregarded.
In determining whether the holders of the requisite
aggregate principal amount of Debentures have concurred in any
direction, consent or waiver under this Indenture, the Debentures
that are owned by the Company or any other obligor on the
Debentures or by any Person directly or indirectly controlling or
controlled by or under common control with the Company or any
other obligor on the Debentures shall be disregarded and deemed
not to be Outstanding for the purpose of any such determination,
except that for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, consent or
waiver, only Debentures that the Trustee actually knows are so
owned shall be so disregarded. The Debentures so owned that have
been pledged in good faith may be regarded as Outstanding for the
purposes of this Section 10.4, if the pledgee shall establish to
the satisfaction of the Trustee the pledgee's right so to act
with respect to such Debentures and that the pledgee is not a
Person directly or indirectly controlling or controlled by or
under direct or indirect common control with the Company or any
such other obligor. In case of a dispute as to such right, any
decision by the Trustee taken upon the advice of counsel shall be
full protection to the Trustee.
Section 10.5. Actions Binding on Future Debentureholders.
At any time prior to (but not after) the evidencing to the
Trustee, as provided in Section 10.1, of the taking of any action
by the holders of the majority or percentage in aggregate
principal amount of the Debentures specified in this Indenture in
connection with such action, any holder of a Debenture that is
shown by the evidence to be included in the Debentures the
holders of which have consented to such action may, by filing
written notice with the Trustee, and upon proof of holding as
provided in Section 10.2, revoke such action so far as concerns
such Debenture. Except as aforesaid any such action taken by the
holder of any Debenture shall be conclusive and binding upon such
holder and upon all future holders and owners of such Debenture,
and of any Debenture issued in exchange therefor, on registration
of transfer thereof or in place thereof, irrespective of whether
or not any notation in regard thereto is made upon such
Debenture. Any action taken by the holders of the majority or
percentage in aggregate principal amount of the Debentures
specified in this Indenture in connection with such action shall
be conclusively binding upon the Company, the Trustee and the
holders of all the Debentures.
ARTICLE XI.
SUPPLEMENTAL INDENTURES
Section 11.1. Supplemental Indentures Without the Consent of
Debentureholders.
In addition to any supplemental indenture otherwise
authorized by this Indenture, the Company and the Trustee may
from time to time and at any time enter into an indenture or
indentures supplemental
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hereto (which shall conform to the provisions of the Trust Indenture Act as
provisions of the Trust Indenture Act as then in effect), without
the consent of the Debentureholders, for one or more of the following
purposes:
(a) to cure any ambiguity, defect, or inconsistency herein,
in the Debentures;
(b) to comply with Article X;
(c) to provide for uncertificated Debentures in addition to
or in place of certificated Debentures;
(d) to add to the covenants of the Company for the benefit
of the holders of all or any of the Debentures or to surrender
any right or power herein conferred upon the Company;
(e) to add to, delete from, or revise the conditions,
limitations, and restrictions on the authorized amount, terms, or
purposes of issue, authentication, and delivery of Debentures, as
herein set forth;
(f) to make any change that does not adversely affect the
rights of any Debentureholder in any material respect;
(g) to provide for the issuance of and establish the form
and terms and conditions of the Debentures, to establish the form
of any certifications required to be furnished pursuant to the
terms of this Indenture or of the Debentures, or to add to the
rights of the holders of the Debentures; or
(h) qualify or maintain the qualification of this Indenture
under the Trust Indenture Act.
The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, and to make any
further appropriate agreements and stipulations that may be
therein contained, but the Trustee shall not be obligated to
enter into any such supplemental indenture that affects the
Trustee's own rights, duties or immunities under this Indenture
or otherwise. Any supplemental indenture authorized by the
provisions of this Section 11.1 may be executed by the Company
and the Trustee without the consent of the holders of any of the
Debentures at the time Outstanding, notwithstanding any of the
provisions of Section 11.2.
Section 11.2. Supplemental Indentures with Consent of Debentureholders.
With the consent (evidenced as provided in Section 10.1) of
the holders of not less than a majority in aggregate principal
amount of the Debentures at the time Outstanding, the Company,
when authorized by Board Resolutions, and the Trustee may from
time to time and at any time enter into an indenture or
indentures supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act as then in effect) for the
purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of any
supplemental indenture or of modifying in any manner not covered
by Section 11.1 the rights of the holders of the Debentures under
this Indenture; provided, however, that no such supplemental
indenture shall without the consent of the holders of each
Debenture then Outstanding and affected thereby, (i) extend the
fixed maturity of any Debentures, reduce the principal amount
thereof, or reduce the rate or extend the time of payment of
interest thereon, without the consent of the holder of each
Debenture so affected; or (ii) reduce the aforesaid percentage of
Debentures, the holders of which are required to consent to any
such supplemental indenture; provided further, that if the
Debentures are held by the Trust or a trustee of the Trust, such
supplemental indenture shall not be effective until the holders
of a majority in liquidation preference of Trust Securities of the
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Trust shall have consented to such supplemental indenture;
provided further, that if the consent of the holder of each
Outstanding Debenture is required, such supplemental indenture
shall not be effective until each holder of the Trust Securities
of the Trust shall have consented to such supplemental indenture.
It shall not be necessary for the consent of the Debentureholders
affected thereby under this Section 11.2 to approve the
particular form of any proposed supplemental indenture, but it
shall be sufficient if such consent shall approve the substance
thereof.
Section 11.3. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture pursuant to
the provisions of this Article XI, this Indenture shall be and be
deemed to be modified and amended in accordance therewith and the
respective rights, limitations of rights, obligations, duties and
immunities under this Indenture of the Trustee, the Company and
the holders of Debentures shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of
any such supplemental indenture shall be and be deemed to be part
of the terms and conditions of this Indenture for any and all
purposes.
Section 11.4. Debentures Affected by Supplemental
Indentures.
Debentures affected by a supplemental indenture,
authenticated and delivered after the execution of such
supplemental indenture pursuant to the provisions of this Article
XI, may bear a notation in form approved by the Company, provided
such form meets the requirements of any exchange upon which the
Debentures may be listed, as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new
Debentures so modified as to conform, in the opinion of the Board
of Directors of the Company, to any modification of this
Indenture contained in any such supplemental indenture may be
prepared by the Company, authenticated by the Trustee and
delivered in exchange for the Debentures then Outstanding.
Section 11.5. Execution of Supplemental Indentures.
(a) Upon the request of the Company, accompanied by their
Board Resolutions authorizing the execution of any such
supplemental indenture, and upon the filing with the Trustee of
evidence of the consent of Debentureholders required to consent
thereto as aforesaid, the Trustee shall join with the Company in
the execution of such supplemental indenture unless such
supplemental indenture affects the Trustee's own rights, duties
or immunities under this Indenture or otherwise, in which case
the Trustee may in its discretion but shall not be obligated to
enter into such supplemental indenture. The Trustee, subject to
the provisions of Sections 9.1, may receive an Opinion of Counsel
as conclusive evidence that any supplemental indenture executed
pursuant to this Article XI is authorized or permitted by, and
conforms to, the terms of this Article XI and that it is proper
for the Trustee under the provisions of this Article XI to join
in the execution thereof.
(b) Promptly after the execution by the Company and the
Trustee of any supplemental indenture pursuant to the provisions
of this Section 11.5, the Trustee shall transmit by mail, first
class postage prepaid, a notice, setting forth in general terms
the substance of such supplemental indenture, to the
Debentureholders as their names and addresses appear upon the
Debenture Register. Any failure of the Trustee to mail such
notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental indenture.
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ARTICLE XII.
SUCCESSOR CORPORATION
Section 12.1. Company May Consolidate, etc.
Nothing contained in this Indenture or in any of the
Debentures shall prevent any consolidation or merger of the
Company with or into any other corporation or corporations
(whether or not affiliated with the Company, as the case may be),
or successive consolidations or mergers in which the Company, as
the case may be, or its successor or successors shall be a party
or parties, or shall prevent any sale, conveyance, transfer or
other disposition of the property of the Company, as the case may
be, or its successor or successors as an entirety, or
substantially as an entirety, to any other corporation (whether
or not affiliated with the Company, as the case may be, or its
successor or successors) authorized to acquire and operate the
same; provided, however, the Company hereby covenants and agrees
that, (i) upon any such consolidation, merger, sale, conveyance,
transfer or other disposition, the due and punctual payment, in
the case of the Company, of the principal of and interest on all
of the Debentures, according to their tenor and the due and
punctual performance and observance of all the covenants and
conditions of this Indenture to be kept or performed by the
Company as the case may be, shall be expressly assumed, by
supplemental indenture (which shall conform to the provisions of
the Trust Indenture Act, as then in effect) satisfactory in form
to the Trustee executed and delivered to the Trustee by the
entity formed by such consolidation, or into which the Company,
as the case may be, shall have been merged, or by the entity
which shall have acquired such property; (ii) in case the
Company consolidates with or merges into another Person or
conveys or transfers its properties and assets substantially then
as an entirety to any Person, the successor Person is organized
under the laws of the United States or any state or the District
of Columbia; and (iii) immediately after giving effect thereto,
an Event of Default, and no event which, after notice or lapse of
time or both, would become an Event of Default, shall have
occurred and be continuing.
Section 12.2. Successor Corporation Substituted.
(a) In case of any such consolidation, merger, sale,
conveyance, transfer or other disposition and upon the assumption
by the successor corporation, by supplemental indenture, executed
and delivered to the Trustee and satisfactory in form to the
Trustee, of, in the case of the Company, the due and punctual
payment of the principal of and interest on all of the Debentures
Outstanding and the due and punctual performance of all of the
covenants and conditions of this Indenture to be performed by the
Company, as the case may be, such successor corporation shall
succeed to and be substituted for the Company, with the same
effect as if it had been named as the Company herein, and
thereupon the predecessor corporation shall be relieved of all
obligations and covenants under this Indenture and the
Debentures.
(b) In case of any such consolidation, merger, sale,
conveyance, transfer or other disposition such changes in
phraseology and form (but not in substance) may be made in the
Debentures thereafter to be issued as may be appropriate.
(c) Nothing contained in this Indenture or in any of the
Debentures shall prevent the Company from merging into itself or
acquiring by purchase or otherwise all or any part of the
property of any other Person (whether or not affiliated with the
Company).
Section 12.3. Evidence of Consolidation, etc. to Trustee.
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The Trustee, subject to the provisions of Section 9.1, may
receive an Opinion of Counsel as conclusive evidence that any
such consolidation, merger, sale, conveyance, transfer or other
disposition, and any such assumption, comply with the provisions
of this Article XII.
ARTICLE XIII.
SATISFACTION AND DISCHARGE
Section 13.1. Satisfaction and Discharge of Indenture.
If at any time: (a) the Company shall have delivered to the
Trustee for cancellation all Debentures theretofore authenticated
(other than any Debentures that shall have been destroyed, lost
or stolen and that shall have been replaced or paid as provided
in Section 2.9) and Debentures for whose payment money or
Governmental Obligations have theretofore been deposited in trust
or segregated and held in trust by the Company (and thereupon
repaid to the Company or discharged from such trust, as provided
in Section 13.5); or (b) all such Debentures not theretofore
delivered to the Trustee for cancellation shall have become due
and payable, or are by their terms to become due and payable
within one year or are to be called for redemption within one
year under arrangements satisfactory to the Trustee for the
giving of notice of redemption, and the Company shall deposit or
cause to be deposited with the Trustee as trust funds the entire
amount in moneys or Governmental Obligations sufficient or a
combination thereof, sufficient in the opinion of a nationally
recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay at
maturity or upon redemption all Debentures not theretofore
delivered to the Trustee for cancellation, including principal
and interest due or to become due to such date of maturity or
date fixed for redemption, as the case may be, and if the Company
shall also pay or cause to be paid all other sums payable
hereunder by the Company; then this Indenture shall thereupon
cease to be of further effect except for the provisions of
Sections 2.3, 2.7, 2.9, 5.1, 5.2, 5.3 and 9.10, that shall
survive until the date of maturity or redemption date, as the
case may be, and Sections 9.6 and 13.5, that shall survive to
such date and thereafter, and the Trustee, on demand of the
Company and at the cost and expense of the Company, shall execute
proper instruments acknowledging satisfaction of and discharging
this Indenture.
Section 13.2. Discharge of Obligations.
If at any time all Debentures not heretofore delivered to
the Trustee for cancellation or that have not become due and
payable as described in Section 13.1 shall have been paid by the
Company by depositing irrevocably with the Trustee as trust funds
moneys or an amount of Governmental Obligations sufficient in the
opinion of a nationally recognized certified public accounting
firm to pay at maturity or upon redemption all Debentures not
theretofore delivered to the Trustee for cancellation, including
principal and interest due or to become due to such date of
maturity or date fixed for redemption, as the case may be, and if
the Company shall also pay or cause to be paid all other sums
payable hereunder by the Company, then after the date such moneys
or Governmental Obligations, as the case may be, are deposited
with the Trustee, the obligations of the Company under this
Indenture shall cease to be of further effect except for the
provisions of Sections 2.3, 2.7, 2.9, 5.1, 5.2, 5.3, 9.6, 9.10
and 13.5 hereof that shall survive until such Debentures shall
mature and be paid. Thereafter, Sections 9.6 and 13.5 shall
survive.
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Section 13.3. Deposited Moneys to be Held in Trust.
All monies or Governmental Obligations deposited with the
Trustee pursuant to Sections 13.1 or 13.2 shall be held in trust
and shall be available for payment as due, either directly or
through any paying agent (including the Company acting as its own
paying agent), to the holders of the Debentures for the payment
or redemption of which such moneys or Governmental Obligations
have been deposited with the Trustee.
Section 13.4. Payment of Monies Held by Paying Agents.
In connection with the satisfaction and discharge of this
Indenture, all moneys or Governmental Obligations then held by
any paying agent under the provisions of this Indenture shall,
upon demand of the Company, be paid to the Trustee and thereupon
such paying agent shall be released from all further liability
with respect to such moneys or Governmental Obligations.
Section 13.5. Repayment to Company.
Any monies or Governmental Obligations deposited with any
paying agent or the Trustee, or then held by the Company in
trust, for payment of principal of or interest on the Debentures
that are not applied but remain unclaimed by the holders of such
Debentures for at least two years after the date upon which the
principal of or interest on such Debentures shall have
respectively become due and payable, shall be repaid to the
Company, as the case may be, on May 31 of each year or (if then
held by the Company) shall be discharged from such trust; and
thereupon the paying agent and the Trustee shall be released from
all further liability with respect to such moneys or Governmental
Obligations, and the holder of any of the Debentures entitled to
receive such payment shall thereafter, as an unsecured general
creditor, look only to the Company for the payment thereof.
ARTICLE XIV.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS
AND DIRECTORS
Section 14.1. No Recourse.
No recourse under or upon any obligation, covenant or
agreement of this Indenture, or of the Debentures, or for any
claim based thereon or otherwise in respect thereof, shall be had
against any incorporator, stockholder, officer or director, past,
present or future as such, of the Company or of any predecessor
or successor corporation, either directly or through the Company
or any such predecessor or successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being
expressly understood that this Indenture and the obligations
issued hereunder are solely corporate obligations, and that no
such personal liability whatever shall attach to, or is or shall
be incurred by, the incorporators, stockholders, officers or
directors as such, of the Company or of any predecessor or
successor corporation, or any of them, because of the creation of
the indebtedness hereby authorized,
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or under or by reason of the obligations, covenants or agreements contained in
this Indenture or in any of the Debentures or implied therefrom; and that any
and all such personal liability of every name and nature, either
at common law or in equity or by constitution or statute, of, and
any and all such rights and claims against, every such
incorporator, stockholder, officer or director as such, because
of the creation of the indebtedness hereby authorized, or under
or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Debentures or
implied therefrom, are hereby expressly waived and released as a
condition of, and as a consideration for, the execution of this
Indenture and the issuance of such Debentures.
ARTICLE XV.
MISCELLANEOUS PROVISIONS
Section 15.1. Effect on Successors and Assigns.
All the covenants, stipulations, promises and agreements in
this Indenture contained by or on behalf of the Company shall
bind their respective successors and assigns, whether so
expressed or not.
Section 15.2. Actions by Successor.
Any act or proceeding by any provision of this Indenture
authorized or required to be done or performed by any board,
committee or officer of the Company shall and may be done and
performed with like force and effect by the corresponding board,
committee or officer of any corporation that shall at the time be
the lawful sole successor of the Company.
Section 15.3. Surrender of Company Powers.
The Company by instrument in writing executed by appropriate
authority of its Board of Directors and delivered to the Trustee
may surrender any of the powers reserved to the Company, and
thereupon such power so surrendered shall terminate both as to
the Company, as the case may be, and as to any successor
corporation.
Section 15.4. Notices.
Except as otherwise expressly provided herein any notice or
demand that by any provision of this Indenture is required or
permitted to be given or served by the Trustee or by the holders
of Debentures to or on the Company may be given or served by
being deposited first class postage prepaid in a post-office
letterbox addressed (until another address is filed in writing by
the Company with the Trustee), as follows: c/o 1st Source
Corporation, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: Chief Financial Officer. Any notice, election,
request or demand by the Company or any Debentureholder to or
upon the Trustee shall be deemed to have been sufficiently given
or made, for all purposes, if given or made in writing at the
Corporate Trust Office of the Trustee.
Section 15.5. Governing Law.
This Indenture and each Debenture shall be deemed to be a
contract made under the internal laws of the State of Indiana and
for all purposes shall be construed in accordance with the laws
of said State.
Section 15.6. Treatment of Debentures as Debt.
It is intended that the Debentures shall be treated as
indebtedness and not as equity for federal income tax purposes.
The provisions of this Indenture shall be interpreted to further
this intention.
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Section 15.7. Compliance Certificates and Opinions.
(a) Upon any application or demand by the Company to the
Trustee to take any action under any of the provisions of this
Indenture, the Company shall furnish to the Trustee an Officers'
Certificate stating that all conditions precedent provided for in
this Indenture relating to the proposed action have been complied
with and an Opinion of Counsel stating that in the opinion of
such counsel all such conditions precedent have been complied
with, except that in the case of any such application or demand
as to which the furnishing of such documents is specifically
required by any provision of this Indenture relating to such
particular application or demand, no additional certificate or
opinion need be furnished.
(b) Each certificate or opinion of the Company provided for
in this Indenture and delivered to the Trustee with respect to
compliance with a condition or covenant in this Indenture shall
include (1) a statement that the Person making such certificate
or opinion has read such covenant or condition; (2) a brief
statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in
such certificate or opinion are based; (3) a statement that, in
the opinion of such Person, he has made such examination or
investigation as, in the opinion of such Person, is necessary to
enable him to express an informed opinion as to whether or not
such covenant or condition has been complied with; and (4) a
statement as to whether or not, in the opinion of such Person,
such condition or covenant has been complied with.
Section 15.8. Payments on Business Days.
In any case where the date of maturity of interest or
principal of any Debenture or the date of redemption of any
Debenture shall not be a Business Day, then payment of interest
or principal may be made on the next succeeding Business Day with
the same force and effect as if made on the nominal date of
maturity or redemption, and no interest shall accrue for the
period after such nominal date.
Section 15.9. Conflict with Trust Indenture Act.
If and to the extent that any provision of this Indenture
limits, qualifies or conflicts with the duties imposed by
Sections 310 to 317, inclusive, of the Trust Indenture Act, such
imposed duties shall control.
Section 15.10. Counterparts.
This Indenture may be executed in any number of
counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same
instrument.
Section 15.11. Separability.
In case any one or more of the provisions contained in this
Indenture or in the Debentures shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any
other provisions of this Indenture or of the Debentures, but this
Indenture and the Debentures shall be construed as if such
invalid or illegal or unenforceable provision had never been
contained herein or therein.
Section 15.12. Assignment.
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The Company shall have the right at all times to assign any
of its respective rights or obligations under this Indenture to a
direct or indirect wholly owned Subsidiary of the Company,
provided that, in the event of any such assignment, the Company
shall remain liable for all such obligations. Subject to the
foregoing, this Indenture is binding upon and inures to the
benefit of the parties thereto and their respective successors
and assigns. This Indenture may not otherwise be assigned by the
parties thereto.
Section 15.13. Acknowledgment of Rights.
The Company acknowledges that, with respect to any
Debentures held by the Trust or a trustee of the Trust, if the
Property Trustee fails to enforce its rights under this Indenture
as the holder of the Debentures held as the assets of the Trust,
any holder of Preferred Securities may institute legal
proceedings directly against the Company to enforce such Property
Trustee's rights under this Indenture without first instituting
any legal proceedings against such Property Trustee or any other
person or entity. Notwithstanding the foregoing, if an Event of
Default has occurred and is continuing and such event is
attributable to the failure of the Company to pay interest or
principal on the Debentures on the date such interest or
principal is otherwise payable (or in the case of redemption, on
the redemption date), the Company acknowledges that a holder of
Preferred Securities may directly institute a proceeding for
enforcement of payment to such holder of the principal of or
interest on the Debentures having a principal amount equal to the
aggregate liquidation amount of the Preferred Securities of such
holder on or after the respective due date specified in the
Debentures.
ARTICLE XVI.
SUBORDINATION OF DEBENTURES
Section 16.1. Agreement to Subordinate.
The Company covenants and agrees, and each holder of
Debentures issued hereunder by such holder's acceptance thereof
likewise covenants and agrees, that all Debentures shall be
issued subject to the provisions of this Article XVI; and each
holder of a Debenture, whether upon original issue or upon
transfer or assignment thereof, accepts and agrees to be bound by
such provisions. The payment by the Company of the principal of
and interest on all Debentures issued hereunder shall, to the
extent and in the manner hereinafter set forth, be subordinated
and junior in right of payment to the prior payment in full of
all Senior Debt, Subordinated Debt and Additional Senior
Obligations (collectively, "Senior Indebtedness") to the extent
provided herein, whether outstanding at the date of this
Indenture or thereafter incurred. No provision of this Article
XVI shall prevent the occurrence of any default or Event of
Default hereunder.
Section 16.2. Default on Senior Debt, Subordinated Debt or
Additional Senior Obligations.
In the event and during the continuation of any default by
the Company in the payment of principal, premium, interest or any
other payment due on any Senior Indebtedness of the Company, or
in the event that the maturity of any Senior Indebtedness of the
Company has been accelerated because of a default, then, in
either case, no payment shall be made by the Company with respect
to the principal (including redemption payments) of or interest
on the Debentures. In the event that, notwithstanding the
foregoing, any payment shall be received by the Trustee when such
payment is prohibited by the preceding sentence of this Section
16.2, such payment shall be held in trust for the benefit of, and
shall be paid over or delivered to, the holders of Senior
Indebtedness or their respective representatives, or to
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the trustee or trustees under any indenture pursuant to which any of
such Senior Indebtedness may have been issued, as their
respective interests may appear, but only to the extent that the
holders of the Senior Indebtedness (or their representative or
representatives or a trustee) notify the Trustee in writing
within 90 days of such payment of the amounts then due and owing
on the Senior Indebtedness and only the amounts specified in such
notice to the Trustee shall be paid to the holders of Senior
Indebtedness.
Section 16.3. Liquidation; Dissolution; Bankruptcy.
(a) Upon any payment by the Company or distribution of
assets of the Company of any kind or character, whether in cash,
property or securities, to creditors upon any dissolution or
winding-up or liquidation or reorganization of the Company,
whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other proceedings, all amounts due upon all
Senior Indebtedness of the Company shall first be paid in full,
or payment thereof provided for in money in accordance with its
terms, before any payment is made by the Company on account of
the principal or interest on the Debentures; and upon any such
dissolution or winding-up or liquidation or reorganization, any
payment by the Company, or distribution of assets of the Company
of any kind or character, whether in cash, property or
securities, to which the holders of the Debentures or the Trustee
would be entitled to receive from the Company, except for the
provisions of this Article XVI, shall be paid by the Company or
by any receiver, trustee in bankruptcy, liquidating trustee,
agent or other Person making such payment or distribution, or by
the holders of the Debentures or by the Trustee under this
Indenture if received by them or it, directly to the holders of
Senior Indebtedness of the Company (pro rata to such holders on
the basis of the respective amounts of Senior Indebtedness held
by such holders, as calculated by the Company) or their
representative or representatives, or to the trustee or trustees
under any indenture pursuant to which any instruments evidencing
such Senior Indebtedness may have been issued, as their
respective interests may appear, to the extent necessary to pay
such Senior Indebtedness in full, in money or money's worth,
after giving effect to any concurrent payment or distribution to
or for the holders of such Senior Indebtedness, before any
payment or distribution is made to the holders of Debentures or
to the Trustee.
(b) In the event that, notwithstanding the foregoing, any
payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, prohibited by
the foregoing, shall be received by the Trustee before all Senior
Indebtedness of the Company is paid in full, or provision is made
for such payment in money in accordance with its terms, such
payment or distribution shall be held in trust for the benefit of
and shall be paid over or delivered to the holders of such Senior
Indebtedness or their representative or representatives, or to
the trustee or trustees under any indenture pursuant to which any
instruments evidencing such Senior Indebtedness may have been
issued, and their respective interests may appear, as calculated
by the Company, for application to the payment of all Senior
Indebtedness of the Company, as the case may be, remaining unpaid
to the extent necessary to pay such Senior Indebtedness in full
in money in accordance with its terms, after giving effect to any
concurrent payment or distribution to or for the benefit of the
holders of such Senior Indebtedness.
(c) For purposes of this Article XVI, the words "cash,
property or securities" shall not be deemed to include shares of
stock of the Company as reorganized or readjusted, or securities
of the Company or any other corporation provided for by a plan of
reorganization or readjustment, the payment of which is
subordinated at least to the extent provided in this Article XVI
with respect to the Debentures to the payment of all Senior
Indebtedness of the Company, as the case may be, that may at the
time be outstanding, provided that (i) such Senior Indebtedness
is assumed by the new corporation, if any, resulting from any
such reorganization or readjustment; and (ii) the rights of the
holders of such Senior
44
50
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 XII shall not be deemed a dissolution, winding-up,
liquidation or reorganization for the purposes of this Section
16.3 if such other corporation shall, as a part of such
consolidation, merger, conveyance or transfer, comply with the
conditions stated in Article XII. Nothing in Section 16.2 or in
this Section 16.3 shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 9.7.
Section 16.4. Subrogation.
(a) Subject to the payment in full of all Senior
Indebtedness of the Company, the rights of the holders of the
Debentures shall be subrogated to the rights of the holders of
such Senior Indebtedness to receive payments or distributions of
cash, property or securities of the Company, as the case may be,
applicable to such Senior Indebtedness until the principal of and
interest on the Debentures shall be paid in full; and, for the
purposes of such subrogation, no payments or distributions to the
holders of such Senior Indebtedness of any cash, property or
securities to which the holders of the Debentures or the Trustee
would be entitled except for the provisions of this Article XVI,
and no payment over pursuant to the provisions of this Article
XVI to or for the benefit of the holders of such Senior
Indebtedness by holders of the Debentures or the Trustee, shall,
as between the Company, its creditors other than holders of
Senior Indebtedness of the Company, and the holders of the
Debentures, be deemed to be a payment by the Company to or on
account of such Senior Indebtedness. It is understood that the
provisions of this Article XVI are and are intended solely for
the purposes of defining the relative rights of the holders of
the Debentures, on the one hand, and the holders of such Senior
Indebtedness on the other hand.
(b) Nothing contained in this Article XVI or elsewhere in
this Indenture or in the Debentures is intended to or shall
impair, as between the Company, its creditors (other than the
holders of Senior Indebtedness of the Company), and the holders
of the Debentures, the obligation of the Company, which is
absolute and unconditional, to pay to the holders of the
Debentures the principal of and interest on the Debentures as and
when the same shall become due and payable in accordance with
their terms, or is intended to or shall affect the relative
rights of the holders of the Debentures and creditors of the
Company, as the case may be, other than the holders of Senior
Indebtedness of the Company, as the case may be, nor shall
anything herein or therein prevent the Trustee or the holder of
any Debenture from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the
rights, if any, under this Article XVI of the holders of such
Senior Indebtedness in respect of cash, property or securities of
the Company, as the case may be, received upon the exercise of
any such remedy.
(c) Upon any payment or distribution of assets of the
Company referred to in this Article XVI, the Trustee, subject to
the provisions of Article IX, and the holders of the Debentures
shall be entitled to conclusively rely upon any order or decree
made by any court of competent jurisdiction in which such
dissolution, winding-up, liquidation or reorganization
proceedings are pending, or a certificate of the receiver,
trustee in bankruptcy, liquidation trustee, agent or other Person
making such payment or distribution, delivered to the Trustee or
to the holders of the Debentures, for the purposes of
ascertaining the Persons entitled to participate in such
distribution, the holders of Senior Indebtedness and other
indebtedness of the Company, as the case may be, the amount
thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to
this Article XVI.
45
51
Section 16.5. Trustee to Effectuate Subordination.
Each holder of Debentures by such holder's acceptance
thereof authorizes and directs the Trustee on such holder's
behalf to take such action as may be necessary or appropriate to
effectuate the subordination provided in this Article XVI and
appoints the Trustee such holder's attorney-in-fact for any and
all such purposes.
Section 16.6. Notice by the Company.
(a) The Company shall give prompt written notice to a
Responsible Officer of the Trustee of any fact known to the
Company that would prohibit the making of any payment of monies
to or by the Trustee in respect of the Debentures pursuant to the
provisions of this Article XVI. Notwithstanding the provisions
of this Article XVI or any other provision of this Indenture, the
Trustee shall not be charged with knowledge of the existence of
any facts that would prohibit the making of any payment of monies
to or by the Trustee in respect of the Debentures pursuant to the
provisions of this Article XVI, unless and until a Responsible
Officer of the Trustee shall have received written notice thereof
from the Company or a holder or holders of Senior Indebtedness or
from any trustee therefor; and before the receipt of any such
written notice, the Trustee, subject to the provisions of Section
9.1, shall be entitled in all respects to assume that no such
facts exist; provided, however, that if the Trustee shall not
have received the notice provided for in this Section 16.6 at
least two Business Days prior to the date upon which by the terms
hereof any money may become payable for any purpose (including,
without limitation, the payment of the principal of or interest
on any Debenture), then, anything herein contained to the
contrary notwithstanding, the Trustee shall have full power and
authority to receive such money and to apply the same to the
purposes for which they were received, and shall not be affected
by any notice to the contrary that may be received by it within
two Business Days prior to such date.
(b) The Trustee, subject to the provisions of Section 9.1,
shall be entitled to conclusively rely on the delivery to it of a
written notice by a Person representing himself to be a holder of
Senior Indebtedness of the Company (or a trustee on behalf of
such holder) to establish that such notice has been given by a
holder of such Senior Indebtedness or a trustee on behalf of any
such holder or holders. In the event that the Trustee determines
in good faith that further evidence is required with respect to
the right of any Person as a holder of such Senior Indebtedness
to participate in any payment or distribution pursuant to this
Article XVI, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the
amount of such Senior Indebtedness held by such Person, the
extent to which such Person is entitled to participate in such
payment or distribution and any other facts pertinent to the
rights of such Person under this Article XVI, and, if such
evidence is not furnished, the Trustee may defer any payment to
such Person pending judicial determination as to the right of
such Person to receive such payment.
Section 16.7. Rights of the Trustee; Holders of Senior Indebtedness.
(a) The Trustee in its individual capacity shall be
entitled to all the rights set forth in this Article XVI in
respect of any Senior Indebtedness at any time held by it, to the
same extent as any other holder of Senior Indebtedness, and
nothing in this Indenture shall deprive the Trustee of any of its
rights as such holder. The Trustee's right to compensation and
reimbursement of expenses as set forth in Section 9.7 shall not
be subject to the subordination provisions of the Article XVI.
46
52
(b) With respect to the holders of Senior Indebtedness of
the Company, the Trustee undertakes to perform or to observe only
such of its covenants and obligations as are specifically set
forth in this Article XVI, and no implied covenants or
obligations with respect to the holders of such Senior
Indebtedness shall be read into this Indenture against the
Trustee. The Trustee shall not be deemed to owe any fiduciary
duty to the holders of such Senior Indebtedness and, subject to
the provisions of Section 9.1, the Trustee shall not be liable to
any holder of such Senior Indebtedness if it shall pay over or
deliver to holders of Debentures, the Company or any other Person
money or assets to which any holder of such Senior Indebtedness
shall be entitled by virtue of this Article XVI or otherwise.
Section 16.8. Subordination may not be Impaired.
(a) No right of any present or future holder of any Senior
Indebtedness of the Company to enforce subordination as herein
provided shall at any time in any way be prejudiced or impaired
by any act or failure to act on the part of the Company or by any
act or failure to act, in good faith, by any such holder, or by
any noncompliance by the Company with the terms, provisions and
covenants of this Indenture, regardless of any knowledge thereof
that any such holder may have or otherwise be charged with.
(b) Without in any way limiting the generality of the
foregoing paragraph, the holders of Senior Indebtedness of the
Company may, at any time and from time to time, without the
consent of or notice to the Trustee or the holders of the
Debentures, without incurring responsibility to the holders of
the Debentures and without impairing or releasing the
subordination provided in this Article XVI or the obligations
hereunder of the holders of the Debentures to the holders of such
Senior Indebtedness, do any one or more of the following: (i)
change the manner, place or terms of payment or extend the time
of payment of, or renew or alter, such Senior Indebtedness, or
otherwise amend or supplement in any manner such Senior
Indebtedness or any instrument evidencing the same or any
agreement under which such Senior Indebtedness is outstanding;
(ii) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing such Senior
Indebtedness; (iii) release any Person liable in any manner for
the collection of such Senior Indebtedness; and (iv) exercise or
refrain from exercising any rights against the Company and any
other Person.
47
53
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.
1ST SOURCE CORPORATION
By:------------------------------------
Name:----------------------------------
Title:---------------------------------
Attest:
-----------------------------------
STATE STREET BANK AND TRUST COMPANY,
as trustee
By:------------------------------------
Name:----------------------------------
Title:---------------------------------
Attest:
-----------------------------------
48
54
STATE OF INDIANA )
) ss:
COUNTY OF ST. ▇▇▇▇▇▇ )
On this ------- day of -------------------------------,
199---, before me appeared ------------------------------, to me
personally known, who, being by me duly sworn, did say that he is
the ---------------------------- of 1ST SOURCE CORPORATION, and
that the seal affixed to said instrument is the corporate seal of
said corporation, and that said instrument was signed and sealed
in behalf of said corporation by authority of its board of
directors and said ------------------------------, acknowledged
said instrument to be the free act and deed of said corporation.
In testimony whereof I have hereunto set my hand and affixed
my official seal at my office in said county and state the day
and year last above written.
---------------------------------------
Notary Public
[seal] My term expires:-----------------------
COMMONWEALTH OF MASSACHUSETTS )
) ss:
COUNTY OF SUFFOLK )
On this ------- day of -------------------------------,
199---, before me appeared ------------------------------, to me
personally known, who, being by me duly sworn, did say that he is
the ---------------------------- of STATE STREET BANK AND TRUST
COMPANY, and that the seal affixed to said instrument is the
corporate seal of said corporation, and that said instrument was
signed and sealed in behalf of said corporation by authority of
its board of directors and said ------------------------------,
acknowledged said instrument to be the free act and deed of said
corporation.
In testimony whereof I have hereunto set my hand and affixed
my official seal at my office in said county and state the day
and year last above written.
---------------------------------------
Notary Public
[seal] My term expires:-----------------------
49
55
EXHIBIT A
(FORM OF FACE OF DEBENTURE)
No.------------------------- $ ----------
CUSIP No. ------------------
1ST SOURCE CORPORATION
FLOATING RATE SUBORDINATED DEBENTURE
DUE MARCH 31, 2027
1st Source Corporation, an Indiana corporation (the
"Company," which term includes any successor corporation under
the Indenture hereinafter referred to), for value received,
hereby promises to pay to, State Street Bank and Trust Company,
as Property Trustee, or registered assigns, the principal sum of
($----------) on March 31, 2027 (the "Stated Maturity"), and to
pay interest on said principal sum from ----------, 1997, or from
the most recent interest payment date (each such date, an
"Interest Payment Date") to which interest has been paid or duly
provided for, quarterly (subject to deferral as set forth herein)
in arrears on March 31, June 30, September 30 and December 31 of
each year commencing June 30, 1997, at a rate per annum
determined by reference to 3-Month Treasury, determined as
described below, plus ----% during any period beginning on, and
including, the date of original issuance, and ending on, but
excluding, the first Interest Payment Date, and each successive
period beginning on, and including, an Interest Payment Date, and
ending on, but excluding, the next succeeding Interest Payment
Date (a "Distribution Period") applied to the principal amount
thereof, until the principal hereof shall have become due and
payable, and on any overdue principal and (without duplication)
on any overdue installment of interest at the same rate per annum
compounded quarterly; provided, however, that said interest rate
for the first Distribution Period shall be ----%. The amount of
interest payable on any Interest Payment Date shall be computed on
the basis of a 360-day year of twelve 30-day months. The amount of
interest for any partial period shall be computed on the basis of
the number of days elapsed in a 360-day year of twelve 30-day
months. In the event that any date on which interest is payable
on this Debenture is not a business day, then payment of interest
payable on such date shall be made on the next succeeding day
that is a business day (and without any interest or other payment
in respect of any such delay) with the same force and effect as
if made on such date. "3-Month Treasury" means the yield on
United States of America Treasury constant maturities, adjusted
to a constant maturity of three (3) months, reported by the
Federal Reserve. 3-Month Treasury, with respect to any
Distribution Period, will be determined by the Property Trustee
as follows: (i) On the second Business Day preceding the
commencement of such Distribution Period (each a "Determination
Date"), 3-Month Treasury will be the current yield for United
States of America Treasury constant maturities, adjusted to a
constant maturity of three (3) months, which appears on the
applicable Federal Reserve Statistical Release Series H.15 (519)
which includes data for such Determination Date, or as then
currently furnished or made available by the Federal Reserve if
such Series is no longer published; (ii) and if, with respect to
any Determination Date, the Property Trustee is required but unable
Exhibit A-1
56
to determine 3-Month Treasury in the manner provided in
clause (i) above, 3-Month Treasury for such Distribution Period
will be 3-Month Treasury as determined on the previous
Determination Date. The interest installment so payable, and
punctually paid or duly provided for, on any Interest Payment
Date shall, as provided in the Indenture, be paid to the person
in whose name this Debenture (or one or more Predecessor
Debentures, as defined in said Indenture) is registered at the
close of business on the regular record date for such interest
installment, which shall be the fifteenth day of the last month
of the calendar quarter in which such Interest Payment Date
occurs unless otherwise provided in the Indenture. Any such
interest installment not punctually paid or duly provided for
shall forthwith cease to be payable to the registered holders on
such regular record date and may be paid to the Person in whose
name this Debenture (or one or more Predecessor Debentures) is
registered at the close of business on a special record date to
be fixed by the Trustee for the payment of such defaulted
interest, notice whereof shall be given to the registered holders
of the Debentures not less than 10 days prior to such special
record date, or may be paid at any time in any other lawful
manner not inconsistent with the requirements of any securities
exchange on which the Debentures may be listed, and upon such
notice as may be required by such exchange, all as more fully
provided in the Indenture. The principal of and the interest on
this Debenture shall be payable at the office or agency of the
Trustee maintained for that purpose in any coin or currency of
the United States of America that at the time of payment is legal
tender for payment of public and private debts; provided,
however, that payment of interest may be made at the option of
the Company by check mailed to the registered holder at such
address as shall appear in the Debenture Register.
Notwithstanding the foregoing, so long as the holder of this
Debenture is the Property Trustee, the payment of the principal
of and interest on this Debenture shall be made at such place and
to such account as may be designated by the Trustee.
The Stated Maturity may be shortened at any time by the
Company to any date not earlier than March 31, 2002, subject to
the Company having received prior approval of the Federal Reserve
if then required under applicable capital guidelines or policies
of the Federal Reserve. Such date may also be extended at any
time at the election of the Company for one or more periods, but
in no event to a date later than March 31, 2046, subject to
certain limitations described in the Indenture.
The indebtedness evidenced by this Debenture is, to the
extent provided in the Indenture, subordinate and junior in right
of payment to the prior payment in full of all Senior
Indebtedness, and this Debenture is issued subject to the
provisions of the Indenture with respect thereto. Each holder of
this Debenture, by accepting the same, (a) agrees to and shall be
bound by such provisions; (b) authorizes and directs the Trustee
on his or her behalf to take such action as may be necessary or
appropriate to acknowledge or effectuate the subordination so
provided; and (c) appoints the Trustee his or her
attorney-in-fact for any and all such purposes. Each holder
hereof, by his or her acceptance hereof, hereby waives all notice
of the acceptance of the subordination provisions contained
herein and in the Indenture by each holder of Senior
Indebtedness, whether now outstanding or hereafter incurred, and
waives reliance by each such holder upon said provisions.
This Debenture shall not be entitled to any benefit under
the Indenture hereinafter referred to, be valid or become
obligatory for any purpose until the Certificate of
Authentication hereon shall have been signed by or on behalf of
the Trustee.
The provisions of this Debenture are continued on the
reverse side hereof and such continued provisions shall for all
purposes have the same effect as though fully set forth at this
place.
IN WITNESS WHEREOF, the Company has caused this instrument
to be executed.
Exhibit A-2
57
Dated
1ST SOURCE CORPORATION
By:------------------------------------
Name:-----------------------------------
Title:----------------------------------
Attest:
By:---------------------------------
Name:-------------------------------
Title:------------------------------
Exhibit A-3
58
[FORM OF CERTIFICATE OF AUTHENTICATION]
CERTIFICATE OF AUTHENTICATION
This is one of the Debentures described in the
within-mentioned Indenture.
Dated:
STATE STREET BANK AND TRUST COMPANY, ---------------------------------
as Trustee or Authentication Agent
By----------------------------------- By-------------------------------
Authorized Signatory
Exhibit A-4
59
[FORM OF REVERSE OF DEBENTURE]
FLOATING RATE SUBORDINATED DEBENTURE
(CONTINUED)
This Debenture is one of the subordinated debentures of the
Company (herein sometimes referred to as the "Debentures"),
specified in the Indenture, all issued or to be issued under and
pursuant to an Indenture dated as of ------------- (the
"Indenture") duly executed and delivered between the Company and
State Street Bank and Trust Company, as Trustee (the "Trustee"),
to which Indenture reference is hereby made for a description of
the rights, limitations of rights, obligations, duties and
immunities thereunder of the Trustee, the Company and the holders
of the Debentures. The Debentures are limited in aggregate
principal amount as specified in the Indenture.
Because of the occurrence and continuation of a Special
Event, in certain circumstances, this Debenture may become due
and payable at the principal amount together with any interest
accrued thereon (the "Redemption Price"). The Redemption Price
shall be paid prior to 12:00 noon, Eastern Standard Time, time,
on the date of such redemption or at such earlier time as the
Company determines. The Company shall have the right to redeem
this Debenture at the option of the Company, without premium or
penalty, in whole or in part at any time on or after March 31,
2002 (an "Optional Redemption"), or at any time in certain
circumstances upon the occurrence of a Special Event, at a
Redemption Price equal to 100% of the principal amount plus any
accrued but unpaid interest, to the date of such redemption. Any
redemption pursuant to this paragraph shall be made upon not less
than 30 days nor more than 60 days notice, at the Redemption
Price. If the Debentures are only partially redeemed by the
Company pursuant to an Optional Redemption, the Debentures shall
be redeemed pro rata or by lot or by any other method utilized by
the Trustee.
In the event of redemption of this Debenture in part only, a
new Debenture or Debentures for the unredeemed portion hereof
shall be issued in the name of the holder hereof upon the
cancellation hereof.
In case an Event of Default, as defined in the Indenture,
shall have occurred and be continuing, the principal of all of
the Debentures may be declared, and upon such declaration shall
become, due and payable, in the manner, with the effect and
subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and
the Trustee, with the consent of the holders of not less than a
majority in aggregate principal amount of the Debentures at the
time outstanding, as defined in the Indenture, to execute
supplemental indentures for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions
of the Indenture or of any supplemental indenture or of modifying
in any manner the rights of the holders of the Debentures;
provided, however, that no such supplemental indenture shall (i)
extend the fixed maturity of the Debentures except as provided in
the Indenture, or reduce the principal amount thereof, or reduce
the rate or extend the time of payment of interest thereon,
without the consent of the holder of each Debenture so affected;
or (ii) reduce the aforesaid percentage of Debentures, the
holders of which are required to consent to any such supplemental
indenture, without the consent of the holders of each Debenture
then outstanding and affected thereby. The Indenture also
contains provisions permitting the holders of a majority in
aggregate principal amount of the Debentures at the time
outstanding, on behalf of all of the holders of the Debentures,
to waive any past default in the performance of any of the
covenants contained in the Indenture, or established pursuant to
the Indenture, and its consequences,
Exhibit A-5
60
except a default in the payment of the principal of or interest on any of the
Debentures. Any such consent or waiver by the registered holder of this
Debenture (unless revoked as provided in the Indenture) shall be
conclusive and binding upon such holder and upon all future
holders and owners of this Debenture and of any Debenture issued
in exchange herefor or in place hereof (whether by registration
of transfer or otherwise), irrespective of whether or not any
notation of such consent or waiver is made upon this Debenture.
No reference herein to the Indenture and no provision of
this Debenture or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional,
to pay the principal and interest on this Debenture at the time
and place and at the rate and in the money herein prescribed.
The Company shall have the right at any time during the term
of the Debentures and from time to time to extend the interest
payment period of such Debentures for up to 20 consecutive
quarters (each, an "Extended Interest Payment Period"), at the
end of which period the Company shall pay all interest then
accrued and unpaid (together with interest thereon at the rate
specified for the Debentures to the extent that payment of such
interest is enforceable under applicable law). Before the
termination of any such Extended Interest Payment Period, the
Company may further extend such Extended Interest Payment Period,
provided that such Extended Interest Payment Period together with
all such further extensions thereof shall not exceed 20
consecutive quarters. At the termination of any such Extended
Interest Payment Period and upon the payment of all accrued and
unpaid interest and any additional amounts then due, the Company
may commence a new Extended Interest Payment Period.
As provided in the Indenture and subject to certain
limitations therein set forth, this Debenture is transferable by
the registered holder hereof on the Debenture Register of the
Company, upon surrender of this Debenture for registration of
transfer at the office or agency of the Trustee accompanied by a
written instrument or instruments of transfer in form
satisfactory to the Company or the Trustee duly executed by the
registered holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Debentures of authorized
denominations and for the same aggregate principal amount shall
be issued to the designated transferee or transferees. No
service charge shall be made for any such transfer, but the
Company may require payment of a sum sufficient to cover any tax
or other governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of
this Debenture, the Company, the Trustee, any paying agent and
the Debenture Registrar may deem and treat the registered holder
hereof as the absolute owner hereof (whether or not this
Debenture shall be overdue and notwithstanding any notice of
ownership or writing hereon made by anyone other than the
Debenture Registrar) for the purpose of receiving payment of or
on account of the principal hereof and interest due hereon and
for all other purposes, and neither the Company nor the Trustee
nor any paying agent nor any Debentures Registrar shall be
affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of
or the interest on this Debenture, or for any claim based hereon,
or otherwise in respect hereof, or based on or in respect of the
Indenture, against any incorporator, stockholder, officer or
director, past, present or future, as such, of the Company or of
any predecessor or successor corporation, whether by virtue of
any constitution, statute or rule of law, or by the enforcement
of any assessment or penalty or otherwise, all such liability
being, by the acceptance hereof and as part of the consideration
for the issuance hereof, expressly waived and released.
Exhibit A-6
61
The Debentures are issuable only in registered form without
coupons in denominations of $25 and any integral multiple
thereof.
All terms used in this Debenture that are defined in the
Indenture shall have the meanings assigned to them in the
Indenture.
Exhibit A-7