1
EXHIBIT 4.1
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KBK CAPITAL CORPORATION
TO
THE FIRST NATIONAL BANK OF CHICAGO
TRUSTEE
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INDENTURE
DATED AS OF NOVEMBER __, 1998
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______% SUBORDINATED DEBENTURES DUE 2028
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KBK CAPITAL CORPORATION
CERTAIN SECTIONS OF THIS INDENTURE RELATING TO
SECTIONS 310 THROUGH 318, INCLUSIVE, OF THE
TRUST INDENTURE ACT OF 1939:
Trust Indenture
Act Section Indenture Section
Section 310 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.9
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.9
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.8; 6.10
Section 311 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.13
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.13
Section 312 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1; 7.2
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2
Section 313 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3
Section 314 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.4; 10.4
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.1
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.1; 1.2
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2
Section 315 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.14
Section 316 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.1
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2; 5.12
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.13
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.8
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.4
Section 317 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.3
Section 318 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.7
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NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.2 Compliance Certificates and Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 1.3 Form of Documents Delivered to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 1.4 Acts of Holders; Record Dates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 1.5 Notices, Etc., to Trustee and Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 1.6 Notice to Holders; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 1.7 Conflict with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 1.8 Effect of Headings and Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 1.9 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 1.10 Separability Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 1.11 Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 1.12 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 1.13 Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 1.14 Language of Notices, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 1.15 Incorporators, Stockholders, Officers and Directors of the Company Exempt from Individual
Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE II
DEBENTURE FORM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 2.1 Forms Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 2.2 Global Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 2.3 Form of Trustee's Certificate of Authentication . . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE III
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 3.1 Designation, Title and Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 3.2 Execution, Authentication, Delivery and Dating . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 3.3 Temporary Debentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 3.4 Registration, Registration of Transfer and Exchange . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 3.5 Mutilated, Destroyed, Lost and Stolen Debentures . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 3.6 Payment of Interest; Interest Rights Preserved . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 3.7 Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 3.8 Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 3.9 CUSIP Numbers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
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ARTICLE IV
SATISFACTION AND DISCHARGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 4.1 Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 4.2 Application of Trust Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE V
REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 5.1 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by Trustee . . . . . . . . . . . . . . . . . 28
SECTION 5.4 Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 5.5 Trustee May Enforce Claims Without Possession of Debentures . . . . . . . . . . . . . . . . . . . 29
SECTION 5.6 Application of Money Collected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 5.7 Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 5.8 Unconditional Right of Holders to Receive Principal and Interest . . . . . . . . . . . . . . . . 30
SECTION 5.9 Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 5.10 Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 5.11 Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 5.12 Control by Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 5.13 Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 5.14 Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 5.15 Waiver of Usury, Stay or Extension Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
ARTICLE VI
THE TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 6.1 Certain Duties and Responsibilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 6.2 Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 6.3 Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 6.4 Not Responsible for Recitals or Issuance of Debentures . . . . . . . . . . . . . . . . . . . . . 34
SECTION 6.5 May Hold Debentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 6.6 Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 6.7 Compensation and Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 6.8 Disqualification; Conflicting Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 6.9 Corporate Trustee Required; Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 6.10 Resignation and Removal; Appointment of Successor . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 6.11 Acceptance of Appointment by Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 6.12 Merger, Conversion, Consolidation or Succession to Business . . . . . . . . . . . . . . . . . . . 38
SECTION 6.13 Preferential Collection of Claims Against Company . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 6.14 Appointment of Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
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ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 7.1 Company to Furnish Trustee Names and Addresses of Holders . . . . . . . . . . . . . . . . . . . . 40
SECTION 7.2 Preservation of Information; Communications to Holders . . . . . . . . . . . . . . . . . . . . . 40
SECTION 7.3 Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 7.4 Reports by Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 8.1 Company May Consolidate, Etc, Only on Certain Terms . . . . . . . . . . . . . . . . . . . . . . . 42
ARTICLE IX
SUPPLEMENTAL INDENTURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 9.1 Supplemental Indentures Without Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 9.2 Supplemental Indentures with Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 9.3 Execution of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 9.4 Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 9.5 Conformity with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 9.6 Reference in Debentures to Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . 45
ARTICLE X
COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 10.1 Payment of Principal and Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 10.2 Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 10.3 Money for Debenture Payments to Be Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 10.4 Statement by Officers as to Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 10.5 Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 10.6 Waiver of Certain Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
ARTICLE XI
REDEMPTION AND EXCHANGE OF DEBENTURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 11.1 Optional Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 11.2 Election to Redeem; Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 11.3 Selection by Trustee of Debentures to Be Redeemed . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 11.4 Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 11.5 Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 11.6 Debentures Payable on Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 11.7 Debentures Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
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SECTION 11.8 Exchange of Trust Securities for Debentures. . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 11.9 No Sinking Fund. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
ARTICLE XII
EXTENSION OF INTEREST PAYMENT PERIOD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 12.1 Extension of Interest Payment Period. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 12.2 Additional Sums. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
ARTICLE XIII
DEFEASANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 13.1 Legal Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 13.2 Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 13.3 Application by Trustee of Funds Deposited for Payment of
Debentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 13.4 Repayment to Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
ARTICLE XIV
SUBORDINATION OF DEBENTURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 14.1 Agreement to Subordinate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 14.2 Distribution on Dissolution, Liquidation and Reorganization; Subrogation of Debentures . . . . . 55
SECTION 14.3 No Payment on Debentures in Event of Default on Senior Debt . . . . . . . . . . . . . . . . . . . 57
SECTION 14.4 Payments on Debentures Permitted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 14.5 Authorization of Holders of Debentures to Trustee to Effect Subordination . . . . . . . . . . . . 57
SECTION 14.6 Notices to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 14.7 Trustee as Holder of Senior Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 14.8 Modification of Terms of Senior Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
ARTICLE XV
LIMITATION OF TRANSACTIONS; COVENANTS AS TO TRUST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 15.1 Limitation of Transactions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 15.2 Covenants As To Trust. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
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INDENTURE dated as of November 1, 1998, between KBK CAPITAL
CORPORATION, a corporation duly organized and existing under the laws of
Delaware (the "Company"), having its principal office at 2200 City Center II,
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, and THE FIRST NATIONAL BANK OF
CHICAGO, a national banking association, as Trustee (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance of its % Subordinated Debentures Due 2028
(the "Debentures"), a specimen copy of which is attached hereto as Exhibit A, on
the terms set forth in this Indenture and in the Debentures.
All things necessary to make this Indenture a valid agreement of the
Company and the Trustee, in accordance with its terms, have been done.
This Indenture is subject to the provisions of the Trust Indenture Act
that are required to be a part of this Indenture and, to the extent applicable,
shall be governed by such provisions.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Debentures by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Debentures as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION
SECTION 1.1 Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(b) all other terms used herein which are defined in the
Trust Indenture Act, either directly, or by reference therein, have the
meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with generally accepted
accounting principles, and, except as otherwise herein expressly provided, the
term "generally accepted accounting principles" with respect to any
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computation required or permitted hereunder shall mean such accounting
principles as are generally accepted in the United States at the date of such
computation;
(d) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision;
(e) the words "Article" and "Section" refer to an Article
and Section, respectively, of this Indenture unless otherwise specified;
(f) headings are for convenience of reference only and do
not affect interpretation; and
(g) the following terms have the meanings given to them
in the Declaration: (i) Additional Amounts; (ii) Administrative Trustee; (iii)
Distributions; (iv) Trust Common Securities Guarantee; and (v) Trust Preferred
Securities Guarantee.
"Act", when used with respect to any Holder, has the meaning specified
in Section 1.4.
"Additional Interest" means the interest, if any, that shall accrue on
any interest on the Debentures that is in arrears for one or more quarterly
interest payment periods or not paid during any Extension Period, which in
either case shall accrue at the stated rate per annum specified or determined
as specified in such Debenture and compounded quarterly.
"Additional Sums" means, with respect to the Trust Securities, the
additional amounts as may be necessary in order that the amount of
Distributions then due and payable by the Trust on the outstanding Trust
Preferred Securities and Trust Common Securities shall not be reduced as a
result of any additional taxes, duties and governmental charges to which the
Trust has become subject.
"Affiliate" has the same meaning as given to that term in Rule 405
under the Securities Act of 1933, as amended, or any successor rule thereunder;
provided, however, that an Affiliate of the Company shall not be deemed to
include the Trust.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 6.14 to act on behalf of the Trustee to authenticate
Debentures.
"Authorized Newspaper" means a newspaper, in the English language or
in an official language of the country of publication, customarily published on
each Business Day, whether or not published on Saturdays, Sundays or holidays,
and of general circulation in the place in connection with which the term is
used or in the financial community of such place.
"Bankruptcy Law," means Title 11, U.S. Code, or any similar federal or
state law for the relief of debtors.
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"Board of Directors" means the board of directors of the Company, or
the executive or any other committee of that board duly authorized to act in
respect thereof.
"Board Resolution" means a copy of a resolution certified by the
Corporate Secretary or an Assistant Secretary of the Company, the principal
financial officer of the Company or any other authorized officer of the Company
or a person duly authorized by any of them, to have been duly adopted by the
Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means any day other than a day on which banking
institutions in The City of New York are authorized or required by law or
executive order to close.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations, rights in or other equivalents (however designated)
of such Person's capital stock, and any rights (other than debt securities
convertible into capital stock), warrants or options exchangeable for or
convertible into such capital stock.
"Change in 1940 Act Law" means, as a result of the occurrence on or
after the date of the original issuance of the Trust Preferred Securities 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, the Trust is or will be considered an "investment company" which is
required to be registered under the 1940 Act.
"Commission" means the United States Securities and Exchange
Commission, as from time to time constituted, created under the Exchange Act
or, if at any time after the execution of this instrument such Commission is
not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.
"Common Stock" includes any stock of any class of Capital Stock of any
Person which has no preference in respect of dividends or of amounts payable in
the event of any voluntary or involuntary liquidation, dissolution or
winding-up of such Person and which is not subject to redemption by such
Person.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its Chief
Executive Officer, its President, any of its Vice Presidents or any other
authorized officer of the Company or a person duly authorized by any of them,
and delivered to the Trustee.
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"Corporate Trust Office" means the principal office of the Trustee at
which at any particular time its corporate trust business shall be principally
administered, which at the date hereof is ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇.
"corporation" includes corporations, associations, partnerships,
limited liability companies, joint-stock companies and business trusts.
"covenant defeasance" has the meaning specified in Section 13.2.
"Custodian" means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.
"Debentures" means the Company's % Subordinated Debentures
Due 2028.
"Debt" means any obligation created or assumed by any Person for the
repayment of money borrowed and any purchase money obligation created or
assumed by such Person.
"Declaration" means the Amended and Restated Declaration of Trust of
the Trust, dated as of November __, 1998, as the same may be modified, amended
or supplemented in accordance with the applicable provisions thereof, including
all exhibits thereto, including, for all purposes of the Declaration, any such
modification, amendment or supplement, and the provisions of the Trust
Indenture Act that are deemed to be a part of and govern the Declaration.
"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.
"Defaulted Interest" has the meaning specified in Section 3.6.
"defeasance" has the meaning specified in Section 13.1.
"Definitive Debenture" means a Debenture other than a Debenture in the
form of a Global Security or a temporary Debenture.
"Depository" means, with respect to Debentures issuable in whole or in
part in the form of one or more Global Securities, a clearing agency registered
under the Exchange Act that is designated to act as Depository for such
Debentures until a successor Depository shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter shall mean or include
each Person which is then a Depository hereunder, and if at any time there is
more than one such Person, shall be a collective reference to such Persons.
"Dollar" or "$" means the coin or currency of the United States of
America as at the time of payment is legal tender for the payment of public and
private debts.
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"Event of Default" has the meaning specified in Section 5.1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, and any statute successor thereto.
"Extension Period" has the meaning set forth in the form of Debenture
attached as Exhibit A hereto.
"Global Security" means a Debenture in global form that evidences all
or part of the Debentures and is authenticated and delivered to, and registered
in the name of, the Depository for such Debentures or a nominee thereof.
"Holder" means a Person in whose name a Debenture is registered in the
Security Register.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument, and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" also shall include the terms of the
Debentures.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Debentures.
"Lien" means any mortgage, pledge, security interest, charge, lien or
other encumbrance of any kind, whether or not filed, recorded or perfected
under applicable law.
"Liquidation Amount" means an amount with respect to the assets of the
Trust equal to $25 per Trust Security.
"Maturity" means the date on which the principal of the Debentures
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption or otherwise.
"1940 Act" means the Investment Company Act of 1940, as amended from
time to time, or any successor legislation.
"Notice of Default" means a written notice of the kind specified in
Section 5.1(c).
"Officers' Certificate" means, with respect to any Person (who is not
an individual), a certificate signed by the Chairman of the Board, the
President, a Vice President or the Treasurer, and by an assistance Treasurer,
the Secretary or an Assistant Secretary of such Person. The officer
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signing and Officer's Certificate given pursuant to Section 10.4 shall be the
principal executive, financial or accounting officer of the Company.
"Opinion of Counsel" means a written opinion of legal counsel, who may
be an employee of or counsel for the Company who shall be reasonably acceptable
to the Trustee.
"Outstanding", when used with respect to Debentures, means, as of the
date of determination, all Debentures theretofore authenticated and delivered
under this Indenture, except:
(a) Debentures theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(b) Debentures for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any Paying
Agent (other than the Company) in trust or set aside and segregated in trust by
the Company (if the Company shall act as its own Paying Agent) for the Holders
of such Debentures; provided, however, that, if such Debentures are to be
redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been made;
(c) Debentures which have been paid pursuant to Section 3.5 or in
exchange for or in lieu of which other Debentures have been authenticated and
delivered pursuant to this Indenture, other than any such Debentures in respect
of which there shall have been presented to the Trustee proof satisfactory to
it that such Debentures are held by a bona fide purchaser in whose hands such
Debentures are valid obligations of the Company; and
(d) Debentures, except to the extent provided in Sections 13.1 and
13.2, with respect to which the Company has effected defeasance or covenant
defeasance as provided in Article XIII.
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Debentures have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Debentures owned
by the Company or any other obligor upon the Debentures or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Debentures which the Trustee knows to be so owned shall
be so disregarded. Debentures so owned which have been pledged in good faith
may be regarded as Outstanding if the pledgee establishes to the satisfaction
of the Trustee the pledgee's right so to act with respect to such Debentures
and that the pledgee is not the Company or any other obligor upon the
Debentures or any Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or interest on any Debentures on behalf of the Company.
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"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof or any other entity of whatever nature.
"Place of Payment" means the office or agency of the Company in The
City of New York and such other place or places where, subject to the
provisions of Section 10.2, the principal of and interest on the Debentures are
payable.
"Predecessor Debenture" of any particular 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 3.5 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Debenture
shall be deemed to evidence the same debt as the mutilated, destroyed, lost or
stolen Debenture.
"Property Trustee" means the property trustee of the Trust appointed
pursuant to Section 6.3 of the Declaration.
"Redemption Date", when used with respect to any Debenture to be
redeemed, means the date fixed for such redemption pursuant to Article XI.
"Redemption Price", when used with respect to any Debenture to be
redeemed, means the price at which it is to be redeemed pursuant to Article XI.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Debentures means the date specified for that purpose in Section
3.1.
"Responsible Officer", when used with respect to the Trustee, means
any officer of the Trustee assigned to administer corporate trust matters, and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his or her knowledge of and
familiarity with the particular subject.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.4.
"Senior Debt" means any Debt of the Company, except for trade credit
and any such Debt that is by its terms subordinated to or pari passu with the
Debentures.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 3.6.
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"Stated Maturity", when used with respect to any Debenture or any
installment of principal thereof or interest thereon, means the date specified
in such Debenture as the fixed date on which the principal of such Debenture or
such installment of principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by
one or more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For the purposes of this definition, "voting stock" means stock
which ordinarily has voting power for the election of directors, whether at all
times or only so long as no senior class of stock has such voting power by
reason of any contingency.
"Tax Action" means (a) an amendment to, change in or announced
proposed change in the laws (or any regulations thereunder) of the United
States or any political subdivision or taxing authority thereof of therein, (b)
a judicial decision interpreting, applying or clarifying such laws or
regulations, (c) an administrative pronouncement or action that represents an
official position (including a clarification of an official position) of the
governmental authority or regulatory body making such administrative
pronouncement or taking such action, or (d) a threatened challenge asserted in
connection with an audit of the Company or any of its subsidiaries, or the
Trust, or a threatened challenge asserted in writing against any other taxpayer
that has raised capital through the issuance of securities that are
substantially similar to the Debentures or the Trust Preferred Securities,
which amendment or change is adopted or which decision, pronouncement or
proposed change is announced or which action, clarification or challenge occurs
on or after the date of the prospectus related to the issuance of the Trust
Preferred Securities.
"Trust" means KBK Capital Trust I, a Delaware business trust and an
Affiliate of the Company, and any successor to such trust in accordance with
the Declaration.
"Trust Common Security" means the common securities representing
undivided subordinated beneficial ownership interests in the assets of the
Trust with a Liquidation Amount of $25 per Trust Common Security, issued by the
Trust.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed, except as otherwise
provided in Section 9.5, provided, however, that if the Trust Indenture Act of
1939 is amended after such date, "Trust Indenture Act" means, to the extent
required by any such amendment, the Trust Indenture Act of 1939 as so amended.
"Trust Investment Company Event" means that the Company shall have
requested and received and shall have delivered to the Property Trustee an
Opinion of Counsel (as defined in the Declaration) from a firm having a
national tax and securities practice and that is experienced in 1940 Act
matters (which Opinion of Counsel shall not have been rescinded by such law
firm) to the effect that as a result of a Change in 1940 Act Law, there is more
than an insubstantial risk that the Trust is or, within 90 days after such
date, will be considered an "investment company" which is required to be
registered under the 1940 Act.
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"Trust Preferred Securities" means the preferred undivided beneficial
ownership interests in the assets of the Trust with a Liquidation Amount of $25
per Trust Preferred Security, issued by the Trust.
"Trust Securities" means the Trust Common Securities and the Trust
Preferred Securities.
"Trust Special Event" means a Trust Tax Event or a Trust Investment
Company Event.
"Trust Tax Event" means that the Company shall have requested and
received and shall have delivered to the Property Trustee an Opinion of Counsel
(as defined in the Declaration) from a firm having a national tax and
securities practice (which Opinion of Counsel shall not have been rescinded by
such law firm) that there has been a Tax Action which relates to any of the
items described in (i) through (iii) below, and that there is more than an
insubstantial risk that (i) the Trust is or, within 90 days after such date,
will be subject to United States federal income tax with respect to income
accrued or received on the Debentures, (ii) the Trust is or, within 90 days
after such date, will be subject to more than a de minimis amount of other
taxes, duties, assessments or other governmental charges or (iii) interest
payable by the Company on the Debentures is not or, within 90 days after such
date, will not be deductible by the Company for United States federal income
tax purposes.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder.
"Underwriters" with respect to the Trust Preferred Securities, means
Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. and J.J.B. ▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, Inc.
and the other underwriters named in the Underwriting Agreement.
"Underwriting Agreement" means the underwriting agreement with respect
to the Trust Preferred Securities, dated November __, 1998, among the Company,
the Trust and the Underwriters.
"U.S. Government Obligations" means securities which are (i) direct
obligations of the United States 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, the payment of
which is unconditionally guaranteed as a full faith and credit obligation by
the United States, each of which are not callable or redeemable at the option
of the issuer thereof.
"Vice President", when used with respect to the Company or Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
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SECTION 1.2 Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee such certificates or opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of
an Officer's Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (except for certificates
provided for in Section 10.4) shall include:
(a) a statement that each individual signing such
certificate or opinion has read such covenant or condition and the definitions
herein relating thereto;
(b) 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;
(c) a statement that, in the opinion of each such
individual, he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(d) a statement as to whether, in the opinion of each
such individual, such condition or covenant has been complied with.
SECTION 1.3 Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
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Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.4 Acts of Holders; Record Dates.
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed (either physically or by means of a
facsimile or an electronic transmission, provided that such electronic
transmission is transmitted through the facilities of a Depository) by such
Holders in person or by agent duly appointed in writing; and, except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments are delivered (either physically or by means of a
facsimile or an electronic transmission, provided that such electronic
transmission is transmitted through the facilities of a Depository) to the
Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or
of a writing appointing any such agent shall be sufficient for any purpose of
this Indenture and (subject to Section 315 of the Trust Indenture Act)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
The ownership, principal amount and serial numbers of Debentures held
by any Person, and the date of commencement of such Person's holding the same,
shall be proved by the Security Register.
Any request, demand, authorization, direction, notice, consent, waiver
or other action to the Holder of any Debenture shall bind every future Holder
of the same Debenture and the Holder of every Debenture issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made
upon such Debenture.
Without limiting the foregoing, a Holder entitled hereunder to give or
take any action hereunder with regard to any particular Debenture may do so
with regard to all or any part of the
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principal amount of such Debenture or by one or more duly appointed agents each
of which may do so pursuant to such appointment with regard to all or any
different part of such principal amount.
The Company may set any day as the record date for the purpose of
determining the Holders of Outstanding Debentures entitled to give or take any
request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted by this Indenture to be given or taken by Holders
of Debentures, but the Company shall have no obligation to do so. With regard
to any record date set pursuant to this paragraph, the Holders of Outstanding
Debentures on such record date (or their duly appointed agents), and only such
Persons, shall be entitled to give or take the relevant action, whether or not
such Holders remain Holders after such record date.
SECTION 1.5 Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(a) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or filed in
writing to or with the Trustee at its Corporate Trust Office, Attention:
Corporate Trustee Administration Department, or at any other address previously
furnished in writing to the Company by the Trustee, or
(b) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to the Company
addressed to it at 2200 City Center II, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇, to the attention of the Corporate Secretary, or at any other address
previously furnished in writing to the Trustee by the Company.
SECTION 1.6 Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid (if international mail,
by air mail) to each Holder affected by such event, at his address as it
appears in the Security Register, not later than the latest date (if any), and
not earlier than the earliest date (if any), prescribed for the giving of such
notice. In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders. Any notice mailed to a Holder in the manner herein prescribed
shall be conclusively deemed to have been received by such Holder, whether or
not such Holder actually receives such notice.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver
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shall be the equivalent of such notice. Waivers of notice by Holders shall be
filed with the Trustee, but such filing shall not be a condition precedent to
the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder.
SECTION 1.7 Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under the Trust Indenture
Act to be a part of and govern this Indenture, the latter provision shall
control. If any provision of this Indenture modifies or excludes any provision
of the Trust Indenture Act that may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so modified or
excluded, as the case may be.
SECTION 1.8 Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 1.9 Successors and Assigns.
All covenants and agreements in this Indenture by the parties hereto
shall bind their respective successors and assigns, and inure to the benefit of
their respective successors and assigns, whether so expressed or not.
SECTION 1.10 Separability Clause.
In case any provision in this Indenture or in the Debentures shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 1.11 Benefits of Indenture.
Nothing in this Indenture or in the Debentures, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder, the holders of Senior Debt and the Holders, any benefit or any legal
or equitable right, remedy or claim under this Indenture.
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SECTION 1.12 Governing Law.
This Indenture and the Debentures shall be governed by and construed
in accordance with the law of the State of New York with regard to the
conflicts of law rules of said state.
SECTION 1.13 Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity shall not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or of the Debentures)
payment of interest or principal need not be made at such Place of Payment on
such date, but may be made on the next succeeding day which is a Business Day
except that, if such Business Day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day, in each case
with the same force and effect as if made on the Interest Payment Date or
Redemption Date, or at the Stated Maturity, provided that no interest shall
accrue for the period from and after such Interest Payment Date, Redemption
Date or Stated Maturity, as the case may be.
SECTION 1.14 Language of Notices, Etc.
Any request, demand, authorization, direction, notice, consent, waiver
or Act required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of
the country of publication.
SECTION 1.15 Incorporators, Stockholders, Officers and Directors of the
Company Exempt from Individual Liability.
No recourse under or upon any obligation, covenant or agreement of or
contained in this Indenture or of or contained in the Debentures, or for any
claim based thereon or otherwise in respect thereof, or in the Debentures, or
because of the creation of any indebtedness represented thereby, shall be had
against any incorporator, stockholder, officer or director, as such, past,
present or future, of the Company or any successor Person, either directly or
through the Company or any successor Person, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment
or penalty or otherwise; it being expressly understood that all such liability
is hereby expressly waived and released as a condition of, and as a part of the
consideration for, the execution of this Indenture and the issue of the
Debentures.
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ARTICLE II
DEBENTURE FORM
SECTION 2.1 Forms Generally.
The Debentures, with the form of the Trustee's Certificate of
Authentication to be endorsed thereon, shall be substantially in the form of
Exhibit A hereto.
The definitive Debentures shall be printed, lithographed or engraved
on steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Debentures, as evidenced by their
execution of such Debentures.
SECTION 2.2 Global Securities.
Every Global Security authenticated and delivered hereunder shall bear
a legend in substantially the following form:
THIS DEBENTURE IS A GLOBAL SECURITY WITHIN THE
MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE THEREOF.
THIS DEBENTURE MAY NOT BE TRANSFERRED TO, OR REGISTERED OR
EXCHANGED FOR DEBENTURES REGISTERED IN THE NAME OF, ANY PERSON
OTHER THAN THE DEPOSITORY OR A NOMINEE THEREOF AND NO SUCH
TRANSFER MAY BE REGISTERED, EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE. EVERY DEBENTURE
AUTHENTICATED AND DELIVERED UPON REGISTRATION OF TRANSFER OF,
OR IN EXCHANGE FOR OR IN LIEU OF, THIS DEBENTURE SHALL BE A
GLOBAL SECURITY SUBJECT TO THE FOREGOING, EXCEPT IN SUCH
LIMITED CIRCUMSTANCES.
If Debentures are issuable in whole or in part in the form of one or
more Global Securities, then any Global Security shall represent such of the
Outstanding Debentures as shall be specified therein and may provide that it
shall represent the aggregate amount of Outstanding Debentures from time to
time endorsed thereon and that the aggregate amount of Outstanding Debentures
represented thereby may from time to time be reduced or increased, as the case
may be, to reflect redemptions or exchanges. Any endorsement of a Global
Security to reflect the amount, or any reduction or increase in the amount, of
Outstanding Debentures represented thereby shall be made in such manner and
upon instructions given by such Person or Persons as shall be specified therein
or in a Company Order. Subject to the provisions of Sections 3.2, 3.3 and 3.4,
the Trustee shall deliver and redeliver
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any Global Security in the manner and upon instructions given by the Person or
Persons specified therein or in the applicable Company Order. Any instructions
by the Company with respect to endorsement or delivery or redelivery of a
Global Security shall be in a Company Order (which need not comply with Section
1.2 and need not be accompanied by an Opinion of Counsel).
The provisions of the last sentence of Section 3.2 shall apply to any
Debenture represented by a Global Security if such Debenture was never issued
and sold by the Company and the Company delivers to the Trustee the Global
Security together with a Company Order (which need not comply with Section 1.2
and need not be accompanied by an Opinion of Counsel) with regard to the
reduction or increase, as the case may be, in the principal amount of
Debentures represented thereby, together with the written statement
contemplated by the last sentence of Section 3.2.
SECTION 2.3 Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in substantially
the following form:
This is one of the Debentures referred to in the within-mentioned
Indenture.
THE FIRST NATIONAL BANK OF CHICAGO,
As Trustee
By:
----------------------------------
Authorized Officer
ARTICLE III
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 3.1 Designation, Title and Terms.
There is hereby authorized the Company's " % Subordinated
Debentures due 2028," limited in aggregate principal amount to (a) $25,750,000
plus (b) such aggregate principal amount (which may not exceed $3,862,500
principal amount) of additional Debentures as shall be purchased by the
Underwriters pursuant to the Underwriting Agreement on the Option Closing Date
(as such term is defined in the Underwriting Agreement), which amount shall be
as set forth in any written order of the Company for the authentication and
delivery of Debentures pursuant to Section 3.2. All of the Debentures issued
pursuant to this Indenture shall be deemed to have been issued as of, and shall
begin to accrue interest as specified herein from, the Closing Time (as such
term is defined in the Underwriting Agreement). The Debentures will be issued
only in registered form without coupons and only in denominations of $25 and
any integral multiple thereof. The Debentures will mature on November __, 2028
and bear interest at a rate of % per annum from November __, 1998, or
from the most recent Interest Payment Date to which interest has been paid or
duly provided
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for, payable quarterly in arrears on February __, May __, August __, and
November __ of each year, commencing February __, 1999. The interest so
payable, and punctually paid or duly provided for, on any Interest Payment Date
will be paid to the Person in whose name this Debenture (or one or more
Predecessor Debentures) is registered at the close of business on the Regular
Record Date for such interest, which shall be the [fifteenth] day of the
[month] of such Interest Payment Date (that is, each , ,
and ). Interest on the Debentures will be
computed on the basis of a 360-day year comprised of twelve, 30-day months.
Principal of and interest on the Debentures will be payable and
transfers of the Debentures will be registrable at the office or agency of the
Company which will be the Corporate Trust Office and transfers of the Debentures
will also be registrable at such other office or agency of the Company as may be
maintained for such purpose. In addition, payment of interest may be made, at
the option of the Company, by (i) check mailed to the address of the Person
entitled thereto as shown on the Security Register or (ii) by wire transfer in
immediately available funds at such place and to such account as may be
designated to the Paying Agent by the Person entitled thereto as specified in
the Security Register no later than the applicable Record Date.
The Debentures will be redeemable as provided in Article XI.
All Debentures shall be substantially identical except as to
denomination and except as may otherwise be provided in and (subject to Section
3.2) set forth, or determined in the manner provided, in any indenture
supplemental hereto.
SECTION 3.2 Execution, Authentication, Delivery and Dating.
The Debentures shall be executed on behalf of the Company by its
Chairman of the Board, its Chief Executive Officer, its Chief Financial
Officer, its President or any Vice President and need not be attested. The
signature of any of these officers on the Debentures may be manual or
facsimile.
Debentures bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Debentures or did not
hold such offices at the date of such Debentures.
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 Company Order for the
authentication and delivery of such Debentures, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Debentures.
Each Debenture shall be dated the date of its authentication.
No Debenture shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Debenture a
certificate of authentication substantially
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in the form provided for herein executed by the Trustee by manual signature of
an authorized officer, and such certificate upon any Debenture shall be
conclusive evidence, and the only evidence, that such Debenture has been duly
authenticated and delivered hereunder. Notwithstanding the foregoing, if any
Debenture shall have been authenticated and delivered hereunder but never
issued and sold by the Company, and the Company shall deliver such Debenture to
the Trustee for cancellation as provided in Section 3.8, for all purposes of
this Indenture such Debenture shall be deemed never to have been authenticated
and delivered hereunder and shall never be entitled to the benefits of this
Indenture.
SECTION 3.3 Temporary Debentures.
Pending the preparation of Definitive Debentures, the Company may
execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Debentures which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the Definitive Debentures in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Debentures may determine, as evidenced by their
execution of such Debentures.
If temporary Debentures are issued, the Company will cause Definitive
Debentures to be prepared without unreasonable delay. After the preparation of
Definitive Debentures, the temporary Debentures shall be exchangeable for
Definitive Debentures upon surrender of the temporary Debentures at the office
or agency of the Company maintained pursuant to Section 10.2 for the purpose of
exchanges of Debentures, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Debentures the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor one or more
Definitive Debentures, of any authorized denominations and of a like aggregate
principal amount. Until so exchanged the temporary Debentures shall in all
respects be entitled to the same benefits under this Indenture as Definitive
Debentures of such tenor.
SECTION 3.4 Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at an office or agency of the
Company a register (the register maintained in such office or in any other
office or agency of the Company in a Place of Payment being herein sometimes
referred to as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration
of Debentures and of transfer of Debentures. The Company will prior to the
issuance of any Debentures hereunder, appoint the Trustee as the initial
"Security Registrar" for the purpose of registering Debentures and transfers of
Debentures as herein provided and its Corporate Trust Office as the initial
office or agency where the Security Register will be maintained. The Company
may at any time replace such Security Registrar, change such office or agency or
act as its own Security Registrar. The Company will give prompt written notice
to the Trustee of any change of the Security Registrar or of the location of
such office or agency.
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Upon surrender for registration of transfer of any Debenture at the
office or agency of the Company maintained pursuant to Section 10.2 for such
purpose, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Debentures, of any authorized denominations and of a like aggregate
principal amount.
At the option of the Holder, Debentures (except those in the form of a
Global Security) may be exchanged for other Debentures, of any authorized
denominations and of a like aggregate principal amount and tenor, upon
surrender of the Debentures to be exchanged at such office or agency. Whenever
any Debentures are so surrendered for exchange, the Company shall execute, and
the Trustee shall authenticate and deliver, the Debentures which the Holder
making the exchange is entitled to receive.
All Debentures issued upon any registration of transfer or exchange of
Debentures shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Debentures
surrendered upon such registration of transfer or exchange.
Every Debenture presented or surrendered for registration of transfer
or exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Debentures, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Debentures, other than
exchanges pursuant to Section 3.3, 9.6 or 11.7 not involving any transfer.
The Company shall not be required (1) to issue, register the transfer
of or exchange Debentures during a period beginning at the opening of business
15 days before the day of the mailing of a notice of redemption of Debentures
selected for redemption under Section 11.3 and ending at the close of business
on the day of such mailing, or (2) to register the transfer of or exchange any
Debenture so selected for redemption in whole or in part, except the unredeemed
portion of any Debenture being redeemed in part.
Each Global Security authenticated under this Indenture shall be
registered in the name of the Depository designated for such Global Security or
a nominee thereof and delivered to such Depository or a nominee thereof or
custodian therefor, and each such Global Security shall constitute a single
Debenture for all purposes of this Indenture.
Any exchange of a Global Security for other Debentures may be made in
whole or in part, and all Debentures issued in exchange for a Global Security
or any portion thereof shall be registered in such names as the Depository for
such Global Security shall direct.
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If at any time the Depository for the Debentures notifies the Company
that it is unwilling or unable to continue as Depository for the Debentures or
if at any time the Depository for the Debentures shall no longer be qualified
to serve as the Depository, the Company shall appoint a successor Depository
with respect to the Debentures. If a successor Depository for the Debentures
is not appointed by the Company within 90 days after the Company receives such
notice or becomes aware of such ineligibility, the Company will execute, and
the Trustee, upon receipt of a Company Order for the authentication and
delivery of Definitive Debentures, will authenticate and deliver Debentures of
like tenor and terms in definitive form in an aggregate principal amount equal
to the principal amount of the Global Security or Securities in exchange for
such Global Security or Securities.
The Company may at any time and in its sole discretion determine that
Debentures issued in the form of one or more Global Securities shall no longer
be represented by such Global Securities. In such event, the Company will
execute, and the Trustee, upon receipt of a Company Order for the
authentication and delivery of Definitive Debentures, will authenticate and
deliver Debentures of like tenor and terms in definitive form in an aggregate
principal amount equal to the principal amount of the Global Security or
Securities in exchange for such Global Security or Securities.
Notwithstanding any other provision in this Indenture, no Global
Security may be transferred to, or registered or exchanged for Debentures
registered in the name of, any Person other than the Depository for such Global
Security or any nominee thereof, and no such transfer may be registered, unless
(1) such Depository (A) notifies the Company that it is unwilling or unable to
continue as Depository for such Global Security or (B) ceases to be qualified
to serve as Depository, (2) the Company executes and delivers to the Trustee a
Company Order that such Global Security shall be so transferable, registrable
and exchangeable, and such transfers shall be registrable, or (3) there shall
have occurred and be continuing an Event of Default. Notwithstanding any other
provision in this Indenture, a Global Security to which the restriction set
forth in the preceding sentence shall have ceased to apply may be transferred
only to, and may be registered and exchanged for Debentures registered only in
the name or names of, such Person or Persons as the Depository for such Global
Security shall have directed and no transfer thereof other than such a transfer
may be registered.
Every Debenture authenticated and delivered upon registration of
transfer of or in exchange for or in lieu of a Global Security to which the
restriction set forth in the first sentence of the preceding paragraph shall
apply, whether pursuant to this Section, Section 3.3 or 3.5 or otherwise, shall
be authenticated and delivered in the form of, and shall be, a Global Security
unless such Debenture is registered in the name of a Person other than the
Depository for such Global Security or a nominee thereof.
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SECTION 3.5 Mutilated, Destroyed, Lost and Stolen Debentures.
If any mutilated Debenture is surrendered to the Trustee, together
with, in proper cases, such security or indemnity as may be required by the
Company or the Trustee to save each of them and any agent of either of them
harmless, the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a new Debenture of like tenor and principal amount
and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Debenture and (ii) such security or indemnity as may be required by them to
save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Debenture has been
acquired by a bona fide purchaser, the Company shall execute and the Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen
Debenture a new Debenture of like tenor and principal amount and bearing a
number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Debenture has
become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Debenture, pay such Debenture.
Upon the issuance of any new Debenture under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Debenture issued pursuant to this Section in exchange for
any mutilated Debenture or in lieu of any destroyed, lost or stolen Debenture
shall constitute an original additional contractual obligation of the Company,
whether or not the mutilated, destroyed, lost or stolen Debenture shall be at
any time 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.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Debentures.
SECTION 3.6 Payment of Interest; Interest Rights Preserved.
Interest on any Debenture which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Debenture (or one or more Predecessor Debentures) is registered
at the close of business on the Regular Record Date for such interest.
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Subject to the provisions of Article XII, any interest on any
Debenture which is payable, but is not punctually paid or duly provided for, on
any Interest Payment Date (herein called "Defaulted Interest") shall forthwith
cease to be payable to the Holder on the relevant Regular Record Date by virtue
of having been such Holder, and such Defaulted Interest may be paid by the
Company, at its election in each case, as provided in Clause (a) or (b) below:
(a) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Debentures (or their
respective Predecessor Debentures) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which shall be
fixed in the following manner. The Company shall notify the Trustee in writing
of the amount of Defaulted Interest proposed to be paid on each Debenture and
the date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this Clause
provided. Thereupon the Trustee shall fix a Special Record Date for the
payment of such Defaulted Interest which shall be not more than 15 days and not
less than 10 days prior to the date of the proposed payment and not less than
10 days after the receipt by the Trustee of the notice of the proposed payment.
The Trustee shall promptly notify the Company of such Special Record Date and,
in the name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each Holder of
Debentures at his address as it appears in the Security Register, not less than
10 days prior to such Special Record Date. Notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons in whose names the
Debentures (or their respective Predecessor Debentures) are registered at the
close of business on such Special Record Date and shall no longer be payable
pursuant to the following Clause (b).
(b) The Company may make payment of any Defaulted
Interest on the Debentures 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, if, after notice
given by the Company to the Trustee of the proposed payment pursuant to this
Clause, such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, Section 3.4 and
Article XII, each Debenture delivered under this Indenture upon registration
of transfer of or in exchange for or in lieu of any other Debenture, shall
carry the rights to interest accrued and unpaid, and to accrue, which were
carried by such other Debenture.
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SECTION 3.7 Persons Deemed Owners.
Prior to due presentment of a Debenture for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Debenture is registered as the owner of such
Debenture for the purpose of receiving payment of principal of and (subject to
Sections 3.4 and 3.6) any interest on such Debenture and for all other purposes
whatsoever, whether or not such Debenture be overdue, and neither the Company,
the Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
No holder of any beneficial interest in any Global Security held on
its behalf by a Depository shall have any rights under this Indenture with
respect to such Global Security, and such Depository may be treated by the
Company, the Trustee, and any agent of the Company or the Trustee as the owner
of such Global Security for all purposes whatsoever. None of the Company, the
Trustee nor any agent of the Company or the Trustee will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests of a Global Security
or for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
SECTION 3.8 Cancellation.
All Debentures surrendered for payment, redemption or registration of
transfer or exchange shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee and shall be promptly cancelled by it.
The Company may at any time deliver to the Trustee for cancellation any
Debentures previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever, and may deliver to the Trustee (or
to any other Person for delivery to the Trustee) for cancellation any
Debentures previously authenticated hereunder which the Company has not issued
and sold, and all Debentures so delivered shall be promptly cancelled by the
Trustee. No Debentures shall be authenticated in lieu of or in exchange for
any Debentures cancelled as provided in this Section, except as expressly
permitted by this Indenture. All cancelled Debentures held by the Trustee
shall be disposed of in accordance with its customary procedures, and the
Trustee shall thereafter deliver to the Company a certificate with respect to
such disposition.
SECTION 3.9 CUSIP Numbers.
The Company in issuing the Debentures may use "CUSIP" numbers (in
addition to the other identification numbers printed on the Debentures), and,
if so, the Trustee shall use "CUSIP" numbers in notices of redemption as a
convenience to Holders; provided, however, that any such notice may state that
no representation is made as to the correctness of such "CUSIP" numbers either
as printed on the Debentures or as contained in any notice of a redemption and
that reliance may be placed only on the other identification numbers printed on
the Debentures, and any such redemption shall not be affected by any defect in
or omission of such "CUSIP" numbers.
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ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further
effect with respect to Debentures (except as to any surviving rights of
registration of transfer or exchange of the Debentures herein expressly
provided for), and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture
with respect to such Debentures, when
(a) either
(i) all such Debentures theretofore authenticated
and delivered (other than (1) such Debentures which have been
destroyed, lost or stolen and which have been replaced or paid as
provided in Section 3.5, and (2) such Debentures for whose payment
money has theretofore been deposited in trust or segregated and held
in trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 10.3) have been
delivered to the Trustee for cancellation; or
(ii) all such Debentures not theretofore delivered
to the Trustee for cancellation
(A) have become due and payable, or
(B) will become due and payable at their
Stated Maturity within one year, or
(C) are to be called for redemption
within one year under arrangements satisfactory to the Trustee
for the giving of notice of redemption by the Trustee in the
name, and at the expense, of the Company,
and the Company in the case of (A), (B) or (C) above, has deposited or caused
to be deposited with the Trustee as trust funds in trust for the purpose an
amount of money sufficient to pay and discharge the entire indebtedness on the
Debentures not theretofore delivered to the Trustee for cancellation, for
principal and interest to the date of such deposit (in the case of Debentures
which have become due and payable) or to the Stated Maturity or Redemption
Date, as the case may be;
(b) the Company has paid or caused to be paid all other
sums payable hereunder by the Company with respect to such Debentures; and
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(c) the Company has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of
this Indenture with respect to such Debentures have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to the Debentures, (x) the obligations of the Company to the Trustee
under Section 6.7 and the right of the Trustee to resign under Section 6.10
shall survive, and (y) if money shall have been deposited with the Trustee
pursuant to subclause (ii) of Clause (a) of this Section, the obligations of
the Company and/or the Trustee under Sections 4.2, 6.6, 7.1 and 10.2 and the
last paragraph of Section 10.3 shall survive.
SECTION 4.2 Application of Trust Money.
Subject to the provisions of the last paragraph of Section 10.3, all
money deposited with the Trustee pursuant to Section 4.1 shall be held in trust
and applied by it, in accordance with the provisions of the Debentures and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and interest for
whose payment such money has been deposited with the Trustee.
ARTICLE V
REMEDIES
SECTION 5.1 Events of Default.
"Event of Default", wherever used herein with respect to the
Debentures, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative or
governmental body):
(a) default in the payment of any interest upon or any
additional amount payable in respect of any Debentures when it becomes due and
payable, and continuance of such default for a period of 30 days (whether or
not such payment is prohibited by the subordination provisions set forth in
Article XIV hereof or in any indenture supplemental hereto); provided, however,
that a valid extension of an interest payment period by the Company in
accordance with the terms of Article XII hereof or any indenture supplemental
hereto shall not constitute a default in the payment of interest for this
purpose;
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(b) default in the payment of the principal of any
Debentures as and when the same shall become due and payable whether at
Maturity, upon redemption, by declaration or otherwise, (whether or not such
payment is prohibited by the subordination provisions set forth in Article XIV
hereof or in any indenture supplemental hereto); provided, however, that a
valid extension of the Maturity of the Debentures in accordance with the terms
of this Indenture or any indenture supplemental hereto shall not constitute a
default in the payment of principal;
(c) default in the performance, or breach, of any term,
covenant or warranty of the Company in this Indenture (other than a term,
covenant or warranty a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with), and continuance of such
default or breach for a period of 60 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the Company
and the Trustee by the Holders of at least 25% in principal amount of the
Outstanding Debentures, a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a "Notice of
Default" hereunder; or
(d) the Company pursuant to or within the meaning of any
Bankruptcy Law (A) commences a voluntary case, (B) consents to the entry of any
order for relief against it in an involuntary case, (C) consents to the
appointment of a Custodian of it or for all or substantially all of its
property, or (D) makes a general assignment for the benefit of its creditors;
or
(e) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that (A) is for relief against the Company in
an involuntary case, (B) appoints a Custodian of the Company or for all or
substantially all of its property, or (C) orders the liquidation of the
Company, and the order or decree remains unstayed and in effect for 90 days; or
(f) if, after the original issuance of the Debentures to
the Trust or the Property Trustee in connection with the original issuance of
Trust Securities by the Trust, 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 the 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 Declaration.
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment.
If an Event of Default occurs and is continuing, then in every such
case the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Debentures may declare the principal amount of all of the
Debentures to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by Holders), and upon any such declaration
such principal amount (or specified amount) shall become immediately due and
payable.
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At any time after such a declaration of acceleration with respect to
the Debentures has been made and before a judgment or decree for payment of the
money due has been obtained by the Trustee as hereinafter in this Article
provided, the Holders of a majority in principal amount of the Outstanding
Debentures, by written notice to the Company and the Trustee, may rescind and
annul such declaration and its consequences if
(a) the Company has paid or deposited with the Trustee a
sum sufficient to pay
(i) all overdue interest on all Debentures,
(ii) the principal of any Debentures which have
become due otherwise than by such declaration of acceleration and any
interest thereon at the rate or rates prescribed therefor in such
Debentures,
(iii) to the extent that payment of such interest
is lawful, interest upon overdue interest at the rate or rates
prescribed therefor in such Debentures, and
(iv) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel; and
(b) all Events of Default with respect to Debentures,
other than the nonpayment of the principal of Debentures which have become due
solely by such declaration of acceleration, have been cured or waived as
provided in Section 5.13.
No such rescission shall affect any subsequent Default or impair any
right consequent thereon.
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if
(a) default is made in the payment of any interest on any
Debenture when such interest becomes due and payable and such default continues
for a period of 30 days (whether or not such payment is prohibited by the
provisions of Article XIV hereof), or
(b) default is made in the payment of the principal of
any Debenture at the Maturity thereof (whether or not such payment is
prohibited by the provisions of Article XIV hereof),
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Debentures, the whole amount then due and payable on such
Debentures for principal and interest and, to the extent that payment of such
interest shall be legally enforceable, interest on any overdue
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principal and on any overdue interest, at the rate or rates prescribed therefor
in such Debentures, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute
a judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such 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 any other obligor upon such Debentures, wherever
situated.
If an Event of Default with respect to the Debentures occurs and is
continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of the Debentures by such appropriate
judicial proceedings as the Trustee shall deem most effectual to protect and
enforce any such rights, whether for the specific enforcement of any covenant
or agreement in this Indenture or in aid of the exercise of any power granted
herein, or to enforce any other proper remedy.
SECTION 5.4 Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company or any
other obligor upon the Debentures, their property or their creditors, the
Trustee shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture
Act in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same, and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 6.7.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
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 Holder in any such proceeding; provided,
however, that the Trustee may, on behalf of the Holders, vote for the election
of a trustee in bankruptcy or similar official to be a member of a creditors'
or other similar committee.
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SECTION 5.5 Trustee May Enforce Claims Without Possession of Debentures.
All rights of action and claims under this Indenture or the Debentures
may be prosecuted and enforced by the Trustee without the possession of any of
the Debentures or the production thereof in any proceeding relating thereto,
and any such proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Debentures in respect of which such
judgment has been recovered.
SECTION 5.6 Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or interest,
upon presentation of the Debentures and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
6.7;
SECOND: Subject to Article XIV, to the payment of the amounts then due
and unpaid for principal of and interest on the Debentures ratably, without
preference or priority of any kind, according to the amounts due and payable on
such Debentures for principal and interest, respectively; and
THIRD: The balance, if any, to the Company.
SECTION 5.7 Limitation on Suits.
No Holder of any Debenture shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
(a) such Holder has previously given written notice to
the Trustee of a continuing Event of Default with respect to the Debentures;
(b) the Holders of not less than 25% in principal amount
of the Outstanding Debentures shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be incurred
in compliance with such request;
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(d) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any such
proceeding; and
(e) no direction inconsistent with such written request
has been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Debentures;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 5.8 Unconditional Right of Holders to Receive Principal and
Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Debenture shall have the right, which is absolute and unconditional, to
receive payment of the principal and (subject to Sections 3.4 and 3.6 and
Article XIV) interest on such Debenture on the respective Stated Maturities
expressed in such Debenture (or, in the case of redemption, on the Redemption
Date) and to institute suit for the enforcement of any such payment, and such
rights shall not be impaired without the consent of such Holder.
SECTION 5.9 Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders
shall be restored severally and respectively to their former positions
hereunder, and thereafter all rights and remedies of the Trustee and the
Holders shall continue as though no such proceeding had been instituted.
SECTION 5.10 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Debentures in the last
paragraph of Section 3.5, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.
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SECTION 5.11 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Debentures
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by
law to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
SECTION 5.12 Control by Holders.
The Holders of a majority in aggregate principal amount of the
Outstanding Debentures shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Debentures; provided, however, that
(a) such direction shall not be in conflict with any rule
of law or with this Indenture;
(b) the Trustee may take any other action deemed proper
by the Trustee which is not inconsistent with such direction; and
(c) subject to the provisions of Section 6.1, the Trustee
shall have the right to decline to follow any such direction if the Trustee in
good faith shall determine that the proceeding so directed would involve the
Trustee in personal liability.
SECTION 5.13 Waiver of Past Defaults.
The Holders of a majority in aggregate principal amount of the
Outstanding Debentures may on behalf of the Holders of all the Debentures waive
any past default hereunder and its consequences, except
(a) a continuing default in the payment of the principal
or any interest on any Debentures as and when the same shall become due by the
terms of the Debentures otherwise than by acceleration (unless such default has
been cured and sums sufficient to pay all matured installments of interest and
principal has been deposited with the Trustee (in accordance with this
Indenture)), which default cannot be waived without the consent of the
Holder(s) of each of the Debentures, and
(b) a default in respect of a covenant or provision
hereof which under Article IX cannot be modified or amended without the consent
of the Holder of each Outstanding Debenture affected; provided, however, that
if the Debentures are held by the Trust or a trustee of such Trust, such waiver
or modification to such waiver shall not be effective until the holders of a
majority in Liquidation Amount of Trust Securities of the Trust (or such higher
percentage in Liquidation
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Amount of Trust Securities as may be specified in the Declaration) shall have
consented to such waiver or modification to such waiver; provided further, that
if the consent of the Holders of a majority in Liquidation Amount of the Trust
Securities of a class (or such higher percentage in Liquidation Amount of such
class of Trust Securities as may be specified in the Declaration) is required
under the Declaration, such waiver shall not be effective until the Holders of
a majority (or such higher percentage, as the case may be) in Liquidation
Amount of the Trust Securities of such class shall have consented to such
waiver.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture, but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 5.14 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit
to file an undertaking to pay the costs of such suit, and may assess costs
against any such party litigant, in the manner and to the extent provided in
the Trust Indenture Act; provided, however, that neither this Section nor the
Trust Indenture Act shall be deemed to authorize any court to require such an
undertaking or to make such an assessment in any suit instituted by the Company
or by the Trustee.
SECTION 5.15 Waiver of Usury, Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any usury, stay or extension law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture, and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such law had been
enacted.
ARTICLE VI
THE TRUSTEE
SECTION 6.1 Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided by
the Trust Indenture Act. No provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it. Whether
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or not therein expressly so provided, every provision of this Indenture
relating to the conduct or affecting the liability of or affording protection
to the Trustee shall be subject to the provisions of this Section.
SECTION 6.2 Notice of Defaults.
If a Default occurs and is continuing with respect to the Debentures,
the Trustee shall, within 90 days after it occurs, transmit, in the manner and
to the extent provided in Section 313(c) of the Trust Indenture Act, notice of
all uncured or unwaived Defaults known to it; provided, however, that, except
in the case of a Default in payment on the Debentures, the Trustee may withhold
the notice if and so long as the board of directors, the executive committee or
a trust committee of its directors and/or its duly authorized officers in good
faith determines that withholding such notice is in the interests of Holders;
provided further, however, that, in the case of any default or breach of the
character specified in Section 5.1(c) with respect to the Debentures, no such
notice to Holders shall be given until at least 60 days after the occurrence
thereof.
SECTION 6.3 Certain Rights of Trustee.
Subject to the provisions of Section 6.1:
(a) the Trustee may rely on and shall be protected in
acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
reasonably 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 Company Request
or Company Order (other than delivery of any Debenture to the Trustee for
authentication and delivery pursuant to Section 3.2, which shall be
sufficiently evidenced as provided therein) and any resolution of the Board of
Directors shall be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith on
its part, rely upon an Officer's Certificate;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this
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Indenture, unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which might
be incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other paper or
document but the Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due care by
it hereunder; and
(h) the Trustee may request that the Company deliver an
Officer's Certificate setting forth the names of individuals and/or titles of
officers authorized at such time to take specified actions pursuant to this
Indenture, which Officer's Certificate may be signed by any person authorized
to sign an Officer's Certificate, including any person specified as so
authorized in any such certificate previously delivered and not superseded.
SECTION 6.4 Not Responsible for Recitals or Issuance of Debentures.
The recitals contained herein and in the Debentures, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee or any Authenticating Agent assumes no
responsibility for their correctness. Neither the Trustee nor any
Authenticating Agent makes any representations as to the validity or
sufficiency of this Indenture or of the Debentures. The Trustee or any
Authenticating Agent shall not be accountable for the use or application by the
Company of Debentures or the proceeds thereof.
SECTION 6.5 May Hold Debentures.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Debentures and, subject to
Sections 6.8 and 6.13, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
SECTION 6.6 Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
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SECTION 6.7 Compensation and Reimbursement.
The Company agrees:
(a) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which compensation
shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(b) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any provision of this Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad faith;
and
(c) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or bad
faith on its part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and
expenses of defending itself against any claim or liability in connection with
the exercise or performance of any of its powers or duties hereunder, except
those attributable to its negligence or bad faith.
The obligations of the Company under this Section to compensate 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.
Without limiting any rights available to the Trustee under applicable
law, when the Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 5.1(d) or Section 5.1(e), the expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for such services are intended to constitute expenses of
administration under any applicable Bankruptcy Law.
The provisions of this Section shall survive the satisfaction and
discharge of this Indenture and the defeasance of the Debentures.
SECTION 6.8 Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
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SECTION 6.9 Corporate Trustee Required; Eligibility.
There shall at all times be one Trustee hereunder which shall be a
Person that is eligible pursuant to the Trust Indenture Act to act as such and
has a combined capital and surplus required by the Trust Indenture Act. If
such Person publishes reports of condition at least annually, pursuant to law
or to the requirements of a supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such Person shall
be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time the Trustee shall
cease to be eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect hereinafter
specified in this Article.
SECTION 6.10 Resignation and Removal; Appointment of Successor.
No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 6.11.
The Trustee may resign at any time by giving written notice thereof to
the Company. If the instrument of acceptance by a successor Trustee required
by Section 6.11 shall not have been delivered to the Trustee within 60 days
after the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
The Trustee may be removed at any time by the Act of the Holders of a
majority in principal amount of the Outstanding Debentures, delivered to the
Trustee and to the Company.
If at any time:
(a) the Trustee shall fall to comply with Section 6.8
after written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Debenture for at least six months, or
(b) the Trustee shall cease to be eligible under Section
6.9 and shall fail to resign after written request therefor by the Company or
by any such Holder, or
(c) the Trustee shall become incapable of acting or shall
be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or control
of the Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (A) the Company may remove the Trustee, or (B) subject
to Section 5.14, any Holder who has been a bona fide Holder of a Debenture for
at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee or Trustees.
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If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, the Company
shall promptly appoint a successor Trustee and shall comply with the applicable
requirements of Section 6.11. If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a successor Trustee
shall be appointed by Act of the Holders of a majority in principal amount of
the Outstanding Debentures delivered to the Company and the retiring Trustee,
the successor Trustee so appointed shall, forthwith upon its acceptance of such
appointment in accordance with the applicable requirements of Section 6.11,
become the successor Trustee and to that extent supersede the successor Trustee
appointed by the Company. If no successor Trustee shall have been so appointed
by the Company or the Holders and accepted appointment in the manner required
by Section 6.11, any Holder who has been a bona fide Holder of a Debenture for
at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the appointment of a
successor Trustee.
The Company shall give notice of each resignation and each removal of
the Trustee and each appointment of a successor Trustee to all Holders of
Debentures in the manner provided in Section 1.6. Each notice shall include
the name of the successor Trustee and the address of its Corporate Trust
Office.
SECTION 6.11 Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor
Trustee, such successor Trustee so appointed shall execute, acknowledge and
deliver to the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on the request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all
the rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder.
(b) Upon request of any such successor Trustee, the
Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts referred to in paragraph (a) of this Section.
(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.
SECTION 6.12 Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all the corporate
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trust business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any 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 6.13 Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Debentures), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims
against the Company (or any such other obligor).
SECTION 6.14 Appointment of Authenticating Agent.
The Trustee (upon notice to the Company) may appoint an Authenticating
Agent or Agents which shall be acceptable to the Company and shall be
authorized to act on behalf of the Trustee to authenticate Debentures issued
upon original issue (in accordance with procedures acceptable to the Trustee)
and upon exchange, registration of transfer or partial redemption thereof or
pursuant to Section 3.5, 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. Wherever reference is
made in this Indenture to the authentication and delivery of Debentures by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State
thereof or the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less than
$50,000,000 and subject to supervision or examination by Federal or State
authority. If such Authenticating Agent publishes reports of condition at
least annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined
capital and surplus of such Authenticating Agent shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to
be eligible in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all of
the corporate agency or corporate trust business of such Authenticating Agent,
shall continue to be an Authenticating Agent, provided such corporation shall
be otherwise
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eligible under this Section, without the execution or filing of any paper or
any further act on the part of the Trustee or such Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of
Debentures as their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
If an appointment is made pursuant to this Section, the Debentures may
have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternative certificate of authentication in the following
form:
This is one of the Debentures referred to in the within-mentioned
Indenture.
The First National Bank of Chicago,
As Trustee
By:
--------------------------------------
As Authenticating Agent
By:
--------------------------------------
Authorized Officer
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ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1 Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not later than [June 15] and [December
15] in each year, a list for each series of Securities, in such form as the
Trustee may reasonably require, of the names and addresses of the Holders of
Debentures as of the preceding [May 30] or [November 30], as the case may be,
and
(b) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days prior to
the time such list is furnished;
provided, however, that if and so long as the Trustee shall be the Security
Registrar, no such list need be furnished.
SECTION 7.2 Preservation of Information; Communications to Holders.
The Trustee shall comply with the obligations imposed upon it pursuant
to Section 312 of the Trust Indenture Act.
The rights of the Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Debentures, and the
corresponding rights and privileges of the Trustee, shall be as provided by the
Trust Indenture Act.
Every Holder of Debentures, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee nor
any agent of either of them shall be held accountable by reason of any
disclosure of information as to the names and addresses of Holders made
pursuant to the Trust Indenture Act.
SECTION 7.3 Reports by Trustee.
The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto.
Reports so required to be transmitted at stated intervals of not more
than 12 months shall be transmitted no later than July 15 in each calendar year
with respect to the 12-month period ending on the previous May 15, commencing
May 15, 1999.
A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with the American Stock Exchange, with the
Commission and with the Company.
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SECTION 7.4 Reports by Company.
The Company shall:
(a) 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) which the Company may be required to file with
the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; or,
if the Company is not required to file information, documents or reports
pursuant to either of said sections, then it shall file with the Trustee and
the Commission, in accordance with rules and regulations prescribed from time
to time by the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of the
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) file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with respect to
compliance by the Company with the conditions and covenants of this Indenture
as may be required from time to time by such rules and regulations; and
(c) transmit by mail to all Holders, as their names and
addresses appear in the Security 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 paragraphs (a) and (b)
of this Section as may be required by rules and regulations prescribed from
time to time by the Commission.
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1 Company May Consolidate, Etc, Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person
or sell, lease or transfer its properties and assets as, or substantially as,
an entirety to, any Person, unless:
(a) (A) in the case of a merger, the Company is the
surviving entity, or (B) the Person formed by such consolidation or into which
the Company is merged or the Person which acquires by sale or transfer, or
which leases, the properties and assets of the Company as, or substantially as,
an entirety shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form reasonably satisfactory to the
Trustee, the due and punctual payment of the principal of and interest on all
the Debentures and the performance or observance of every covenant and
condition of this Indenture on the part of the Company to be performed or
observed;
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(b) immediately after giving effect to such transaction,
no Default or Event of Default exists; and
(c) the Company has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger, sale, transfer or lease and the supplemental indenture required in
connection with such transaction comply with this Article and that all
conditions precedent herein provided for relating to such transaction have been
complied with.
SECTION 8.2 Company May Form Holding Company Only on Certain Terms.
Notwithstanding anything to the contrary in Section 8.1, the Company
may form a holding company by merger with or into a single direct or indirect
wholly owned subsidiary of the Company, whether under Section 251(g) of the
General Corporation Law of Delaware or otherwise, and in connection therewith
the Company may sell, transfer or lease any of its properties and units to such
holding company, provided that:
(a) Such holding company shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form reasonably
satisfactory to the Trustee, the due and punctual payment of the principal of
and interest on all Debentures and the performance or observance of every
covenant and condition of this Indenture on the part of the Company to be
performed or observed;
(b) Immediately after giving effect to such transaction, no
Default or Event of Default exists; and
(c) the Company has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that the formation of such
holding company and the transactions effected in connection therewith and the
supplemental indenture required in connection with such transaction comply with
this Article and that all conditions precedent herein provided for relating to
such transactions have been complied with.
SECTION 8.3 Successor Substituted.
Upon any consolidation of the Company with, or merger of the Company
into, any other Person or any sale, transfer or lease of the properties and
assets of the Company as, or substantially as, an entirety in accordance with
Section 8.1 or formation of a holding company in accordance with Section 8.2,
the successor Person formed by such consolidation or into which the Company is
merged or to which such sale, transfer or lease is made, or which constitutes
the holding company contemplated by Section 8.2, shall succeed to, and be
substituted for, and may exercise every right
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and power of, the Company under this Indenture with the same effect as if such
successor Person had been named originally as the Company herein, and
hereafter, except in the case of a lease, the predecessor Person shall be
relieved of all obligations and covenants under this Indenture and the
Debentures.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company and the Trustee, at
any time and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any of the
following purposes:
(a) to secure the Debentures; or
(b) to evidence the succession of another Person to the
Company and the assumption by such successor of the covenants of the Company
herein and in the Debentures; or
(c) to add to the covenants of the Company or the Events
of Default for the benefit of the Holders of Debentures or to surrender any
right or power herein conferred upon the Company; or
(d) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision herein, to
comply with any applicable mandatory provisions of law or to make any other
provisions with respect to matters or questions arising under this Indenture,
provided that such action pursuant to this Clause (d) shall not adversely
affect the interests of the Holders of Debentures in any material respect; or
(e) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee pursuant to the requirements of
Section 6.11; or
(f) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to effect the qualification of
this Indenture under the Trust Indenture Act or under any similar federal
statute subsequently enacted, and to add to this Indenture such other
provisions as may be expressly required under the Trust Indenture Act.
SECTION 9.2 Supplemental Indentures with Consent of Holders.
With the consent of the Holders of a majority in aggregate principal
amount of the Outstanding Debentures, by Act of said Holders delivered to the
Company and the Trustee, the Company and the Trustee may enter into an
indenture or indentures supplemental hereto for the
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purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of modifying in any manner the
rights of the Holders of Debentures under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Debenture affected thereby,
(a) change the Stated Maturity of the principal of or
interest on, any Debenture, or reduce the principal amount thereof or the rate
of interest thereon or modify the provisions of this Indenture with respect to
the subordination of the Debentures in a manner adverse to the Holders, or
(b) reduce the percentage in principal amount of the
Outstanding Debentures the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this Indenture, or
(c) change any obligation of the Company, with respect to
Outstanding Debentures, to maintain an office or agency in the places and for
the purposes specified in Section 10.2, or
(d) modify any of the provisions of this Section, Section
5.13 or Section 10.6, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived without
the consent of the Holder of each Outstanding Debenture affected thereby;
provided, however, that this clause shall not be deemed to require the consent
of any Holder with respect to changes in the references to the "Trustee" and
concomitant changes in this Section, or the deletion of this proviso, in
accordance with the requirements of Sections 6.11 and 9.1(e).
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
SECTION 9.3 Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 6.1) shall be fully protected in relying upon,
an Opinion of Counsel stating that the execution of such supplemental indenture
is authorized or permitted by this Indenture. The Trustee may, but shall not
be obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
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SECTION 9.4 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes, and every
Holder of Debentures theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
SECTION 9.5 Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 9.6 Reference in Debentures to Supplemental Indentures.
Debentures authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and if required by the
Trustee shall, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so
determine, new Debentures so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Debentures.
ARTICLE X
COVENANTS
SECTION 10.1 Payment of Principal and Interest.
The Company covenants and agrees for the benefit of the Debentures
that it will duly and punctually pay the principal of and interest on the
Debentures in accordance with the terms of the Debentures and this Indenture.
SECTION 10.2 Maintenance of Office or Agency.
The Company will maintain in the Place of Payment for the Debentures
an office or agency where Debentures may be presented or surrendered for
payment, where Debentures may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Debentures and this Indenture may be served. The Company will give prompt
written notice to the Trustee of the location, and any change in the location,
of such office or agency. If at any time the Company shall fail to maintain
any such required office or agency or shall fail to furnish the Trustee with
the address thereof, such presentations, surrenders, notices and demands may be
made or served at the Corporate Trust Office of the Trustee, and the Company
hereby appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands.
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The Company may also from time to time designate one or more other
offices or agencies where the Debentures may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations,
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in each
Place of Payment for Debentures for such purposes. The Company will give
prompt written notice to the Trustee of any such designation or rescission and
of any change in the location of any such other office or agency.
The Company hereby initially designates as the Place of Payment
Chicago, Illinois, and initially appoints the Trustee at its Corporate Trust
Office as the Company's office or agency for each such purpose.
SECTION 10.3 Money for Debenture Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent, it will,
on or before each due date of the principal of or interest on any of the
Debentures, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal and interest so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as
herein provided and will promptly notify the Trustee of its action or failure
so to act.
Whenever the Company shall have one or more Paying Agents, it will, on
or prior to each due date of the principal of or interest on any Debentures,
deposit with a Paying Agent a sum sufficient to pay such amount, such sum to be
held as provided by the Trust Indenture Act, and (unless such Paying Agent is
the Trustee) the Company will promptly notify the Trustee of its action or
failure so to act.
The Company will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will (1) hold all sums held by it for the payment of the
principal of or interest on Debentures in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or otherwise
disposed of as herein provided; (2) give the Trustee notice of any default by
the Company (or any other obligor upon the Debentures) in the making of any
payment of principal or interest on the Debentures; and (3) during the
continuance of any such default, upon the written request of the Trustee,
forthwith pay to the Trustee all sums held in trust by such Paying Agent for
payment in respect of the Debentures.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Company or such
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Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of or interest on any
Debenture and remaining unclaimed for two years after such principal or
interest has become due and payable shall be paid to the Company on Company
Request, or (if then held by the Company) shall be discharged from such trust;
and the Holder of such Debenture shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all liability of
the Trustee or such Paying Agent with respect to such trust money, and all
liability of the Company as trustee thereof, shall thereupon cease, provided,
however, that the Trustee or such Paying Agent, before being required to make
any such repayment, may at the expense of the Company cause to be published
once, in an Authorized Newspaper in each Place of Payment with respect to such
series, notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid
to the Company.
SECTION 10.4 Statement by Officers as to Default.
The Company will deliver to the Trustee, within 150 days after the end
of each fiscal year of the Company ending after the date hereof, an Officer's
Certificate, stating whether or not to the best knowledge of the signer thereof
the Company is in default in the performance and observance of any of the
terms, provisions and conditions of this Indenture (without regard to any
period of grace or requirement of notice provided hereunder) and, if the
Company shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge.
SECTION 10.5 Existence.
Subject to Article Eight, the Company will do or cause to be done all
the things necessary to preserve and keep in full force and effect its
existence, rights (charter and statutory) and franchises; provided, however,
that the Company shall not be required to preserve any such right or franchise
if it shall determine that the preservation thereof is no longer desirable in
the conduct of the business of the Company.
SECTION 10.6 Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Section 10.5, if before the time for
such compliance the Holders of at least a majority in aggregate principal
amount of the Outstanding Debentures shall, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with such
term, provision or condition, but no such waiver shall extend to or affect such
term, provision or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of the Company and
the duties of the Trustee in respect of any such term, provision or condition
shall remain in full force and effect; provided, however, that if the
Debentures are held by
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the Trust or a trustee of such Trust, such waiver or modification to such
waiver shall not be effective until the holders of a majority in Liquidation
Amount of Trust Securities shall have consented to such waiver or modification
to such waiver; provided further, that if the consent of the Holders of a
majority in Liquidation Amount of the Trust Securities of a class is required
under the Declaration, such waiver shall not be effective until the Holders of
a majority in Liquidation Amount of the Trust Securities of each such class
shall have consented to such waiver.
ARTICLE XI
REDEMPTION AND EXCHANGE OF DEBENTURES
SECTION 11.1 Optional Redemption.
Subject to the provisions of this Article XI set forth below, the
Company shall have the right to redeem the Debentures, in whole or in part,
from time to time, on or after November __, 2001. Any redemption will be made
upon not less than 30 days nor more than 60 days notice to the Holders of the
Debentures, at a Redemption Price equal to 100% of the principal amount of the
Debentures being redeemed together with accrued and unpaid interest (including
Additional Interest and Additional Sums, if any) to (but not including) the
date fixed for redemption (subject to the rights of Holders of record on any
Regular Record Date to receive interest due on any Interest Payment Date that
is on or prior to such redemption date).
SECTION 11.2 Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Debentures shall be
evidenced by a Board Resolution. The Company shall, at least [60] days prior
to the Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date, of
the principal amount of Debentures to be redeemed and, if applicable, of the
tenor of the Debentures to be redeemed.
SECTION 11.3 Selection by Trustee of Debentures to Be Redeemed.
If less than all the Debentures are to be redeemed, the particular
Debentures to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Debentures not previously
called for redemption, by such method as the Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of portions
(equal to the minimum authorized denomination for the Debentures or any integral
multiple thereof) of the principal amount of Debentures of a denomination larger
than the minimum authorized denomination for Debentures.
The Trustee shall promptly notify the Company in writing of the
Debentures selected for redemption and, in the case of any Debentures selected
for partial redemption, the principal amount thereof to be redeemed.
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For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Debentures shall relate,
in the case of any Debentures redeemed or to be redeemed only in part, to the
portion of the principal amount of such Debentures which has been or is to be
redeemed.
SECTION 11.4 Notice of Redemption.
Notice of redemption shall be given by first-class mail (if
international mail, by air mail), postage prepaid, mailed not less than 30 nor
more than 60 days prior to the Redemption Date, to each Holder of Debentures to
be redeemed, at his address appearing in the Security Register.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) if less than all the Outstanding Debentures are to be
redeemed, the identification (and, in the case of partial redemption of any
Debentures, the principal amounts) of the particular Debentures to be redeemed,
(d) that on the Redemption Date the Redemption Price will
become due and payable upon each such Debenture to be redeemed and that
interest thereon will cease to accrue on and after said date, and
(e) the place or places where such Debentures are to be
surrendered for payment of the Redemption Price.
Notice of redemption of Debentures to be redeemed shall be given by
the Company or, at the Company's request, by the Trustee in the name and at the
expense of the Company.
SECTION 11.5 Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 10.3) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Debentures
which are to be redeemed on that date.
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SECTION 11.6 Debentures Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Debentures so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price, and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest) such
Debentures shall cease to bear interest. Upon surrender of any such Debenture
for redemption in accordance with said notice, such Debenture shall be paid by
the Company at the Redemption Price, together with accrued interest to the
Redemption Date; provided, however, that, installments of interest whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the Holders
of such Debentures, or one or more Predecessor Debentures, registered as such
at the close of business on the relevant Record Dates according to their terms
and the provisions of Section 3.6.
If any Debenture called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid, bear
interest from the Redemption Date at the rate prescribed therefor in the
Debenture.
SECTION 11.7 Debentures Redeemed in Part.
Any Debenture which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing), and the Company shall
execute, and the Trustee shall authenticate and deliver to the Holder of such
Debenture without service charge, a new Debenture or Debentures of like tenor,
of any authorized denomination as requested by such Holder, in aggregate
principal amount equal to and in exchange for the unredeemed portion of the
principal of the Debenture so surrendered.
SECTION 11.8 Exchange of Trust Securities for Debentures.
(a) At any time the Company shall have the right to
terminate the Trust and cause the Debentures to be distributed to the holders
of the Trust Securities in liquidation of the Trust after satisfaction of
liabilities to creditors of the Trust as provided by applicable law.
(b) If a Trust Special Event shall occur, the Company
shall give the Trustee notice of the same. If a Trust Special Event shall
occur and be continuing, the Declaration requires the Property Trustee and the
Administrative Trustees to direct the Trustee to exchange all outstanding Trust
Securities for the Debentures having an aggregate unpaid principal amount equal
to the aggregate Liquidation Amount of the Trust Securities to be exchanged
with accrued and unpaid interest in an amount equal to any unpaid distributions
(including any Additional Amounts) on the Trust Securities, provided that, in
the case of a Trust Tax Event, the Company shall have the right to direct the
Trustee that less than all, or none, of the Trust Securities be so exchanged if
and for so long as the Company shall have elected to pay any Additional Sums
such that the net amounts received by holders of the Trust Securities not so
exchanged in respect of distributions are not
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reduced as a result of such Trust Tax Event, and shall not have revoked any
such election or failed to make such payments.
SECTION 11.9 No Sinking Fund.
The Debentures are not entitled to the benefit of any sinking fund.
ARTICLE XII
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 12.1 Extension of Interest Payment Period.
As long as an Event of Default under Section 5.1 shall not have
occurred and be 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 as provided in the form of
Debenture attached as Exhibit A.
SECTION 12.2 Additional Sums.
In the event that (a) the Property Trustee is the Holder of all of the
Outstanding Debentures, (b) a Trust Tax Event in respect of the Trust shall
have occurred and be continuing and (c) the Company shall not have (i) redeemed
or exchanged all the Debentures pursuant to Section 11.1 or 11.8, respectively,
or (ii) terminated the Trust pursuant to Section 9.1 of the Declaration, the
Company shall pay Additional Sums to the Trust for so long as the Property
Trustee is the registered holder of the Debentures. Whenever in this Indenture
or the Debentures there is a reference in any context to the payment of
principal of or interest on the Debentures, such mention shall be deemed to
include mention of the payments of the Additional Sums provided for in this
section to the extent that, in such context, Additional Sums are, were or would
be payable in respect thereof pursuant to the provisions of this section and
express mention of the payment of Additional Sums (if applicable) in any
provisions hereof shall not be construed as excluding Additional Sums in those
provisions hereof where such express mention is not made; provided, however,
that the extension of an interest payment period pursuant to Section 12.1 shall
not extend the payment of any Additional Sums that may be due and payable
during such interest payment period.
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ARTICLE XIII
DEFEASANCE
SECTION 13.1 Legal Defeasance.
In addition to discharge of the Indenture pursuant to Section 4.1, the
Company shall be deemed to have paid and discharged the entire indebtedness on
all the Debentures on the 91st day after the date of the deposit referred to in
Clause (a) below, and the provisions of this Indenture with respect to the
Debentures shall no longer be in effect (except as to (1) rights of
registration of transfer and exchange of Debentures and the Company's right of
optional redemption, (2) substitution of mutilated, destroyed, lost or stolen
Debentures, (3) rights of holders of Debentures to receive payments of
principal thereof and interest thereon, upon the original Stated Maturities
therefor [or on the specified Redemption Dates therefor] (but not upon
acceleration), (4) the rights, obligations, duties and immunities of the
Trustee hereunder, (5) [the rights to exchange the Debentures], (6) the rights
of the Holders of Debentures as beneficiaries hereof with respect to the
property so deposited with the Trustee payable to all or any of them, and (7)
the obligations of the Company under Section 10.2), and the Trustee, at the
expense of the Company, shall, upon a Company Request, execute proper
instruments acknowledging the same, if the conditions set forth below are
satisfied (hereinafter, "defeasance"):
(a) The Company has irrevocably deposited or caused to be
deposited with the Trustee as trust funds in trust, for the purposes of making
the following payments, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of the Debentures (i) cash in an amount,
or (ii) U.S. Government Obligations, maturing as to principal and interest at
such times and in such amounts as will insure the availability of cash, or
(iii) 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 the principal and
interest on all Debentures on each date that such principal or interest is due
and payable or on any Redemption Date established pursuant to Clause (c) below;
(b) The Company has delivered to the Trustee an Opinion
of Counsel based on the fact that (x) the Company has received from, or there
has been published by, the Internal Revenue Service a ruling, or (y) since the
date hereof, there has been a change in the applicable federal income tax law,
in either case to the effect that, and such opinion shall confirm that, the
Holders of the Debentures will not recognize income, gain or loss for federal
income tax purposes as a result of such deposit and defeasance and will be
subject to federal income tax on the same amount and in the same manner and at
the same times, as would have been the case if such deposit and defeasance had
not occurred;
(c) If the Debentures are to be redeemed prior to Stated
Maturity, notice of such redemption shall have been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee shall have been
made;
(d) No Event of Default or event which with notice or
lapse of time or both would become an Event of Default shall have occurred and
be continuing on the date of such deposit; and
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(e) The Company has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel each stating that all conditions
precedent provided for or relating to the defeasance contemplated by this
provision have been complied with.
For this purpose, such defeasance means that the Company and any other
obligor upon the Debentures shall be deemed to have paid and discharged the
entire debt represented by the Debentures, which shall thereafter be deemed to
be "Outstanding" only for the purposes of Section 13.3 and the rights and
obligations referred to in Clauses (1) through (7), inclusive, of the first
paragraph of this Section, and to have satisfied all its other obligations
under the Debentures and this Indenture insofar as the Debentures are
concerned.
SECTION 13.2 Covenant Defeasance.
The Company and any other obligor, if any, shall be released on the
91st day after the date of the deposit referred to in Clause (a) below from its
obligations under Sections 7.4, 8.1 and 10.5 with respect to the Debentures on
and after the date the conditions set forth below are satisfied (hereinafter,
"covenant defeasance"), and the Debentures shall thereafter be deemed to be not
"Outstanding" for the purposes of any request, demand, authorization,
direction, notice, waiver, consent or declaration or other action or Act of
Holders (and the consequences of any thereof) in connection with such
covenants, but shall continue to be deemed Outstanding for all other purposes
hereunder. For this purpose, such covenant defeasance means that, with respect
to the Debentures, the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
Section, whether directly or indirectly by reason of any reference elsewhere
herein to such Section or by reason of any reference in such Section to any
other provision herein or in any other document and such omission to comply
shall not constitute a Default or an Event of Default under Section 5.1, but,
except as specified above, the remainder of this Indenture and the Debentures
shall be unaffected thereby. The following shall be the conditions to
application of this Section 13.2:
(a) The Company has irrevocably deposited or caused to be
deposited with the Trustee as trust funds in trust for the purpose of making
the following payments, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of the Debentures, (i) cash in an amount,
or (ii) U.S. Government Obligations, maturing as to principal and interest at
such times and in such amounts as will insure the availability of cash, or
(iii) 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 the principal and
interest on all Debentures on each date that such principal and interest is due
and payable or on any Redemption Date established pursuant to Clause (b) below;
(b) If the Debentures are to be redeemed prior to Stated
Maturity, notice of such redemption shall have been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee shall have been
made;
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(c) No Event of Default or event which with notice or
lapse of time or both would become an Event of Default shall have occurred and
be continuing on the date of such deposit;
(d) The Company shall have delivered to the Trustee an
Opinion of Counsel which shall confirm that the holders of the Debentures will
not recognize income, gain or loss for federal income tax purposes as a result
of such deposit and covenant defeasance and will be subject to federal income
tax on the same amount and in the same manner and at the same time as would
have been the case if such deposit and covenant defeasance had not occurred;
and
(e) The Company shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel each stating that all conditions
precedent provided for relating to the covenant defeasance contemplated by this
provision have been complied with.
SECTION 13.3 Application by Trustee of Funds Deposited for Payment of
Debentures.
Subject to the provisions of the last paragraph of Section 10.3, all
monies or U.S. Government Obligations deposited with the Trustee pursuant to
Section 13.1 or 13.2 (and all funds earned on such monies or U.S. Government
Obligations) shall be held in trust and applied by it to the payment, 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 monies have been deposited with the Trustee, of all sums due and
to become due thereon for principal and interest but such monies need not be
segregated from other funds except to the extent required by law. Subject to
Sections 13.1 and 13.2, the Trustee promptly shall pay to the Company upon
request any excess monies held by it at any time.
SECTION 13.4 Repayment to Company.
The Trustee and any Paying Agent promptly shall pay or return to the
Company upon Company Request any money and U.S. Government Obligations held by
them at any time that are not required for the payment of the principal of and
any interest on the Debentures for which money or U.S. Government Obligations
have been deposited pursuant to Section 13.1 or 13.2.
The provisions of the last paragraph of Section 10.3 shall apply to
any money held by the Trustee or any Paying Agent under this Article that
remains unclaimed for two years after the Maturity of Debentures for which
money or U.S. Government Obligations have been deposited pursuant to Section
13.1 or 13.2.
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ARTICLE XIV
SUBORDINATION OF DEBENTURES
SECTION 14.1 Agreement to Subordinate.
The Company, for itself, its successors and assigns, covenants and
agrees, and each Holder of Debentures, by his acceptance thereof, likewise
covenants and agrees, that the payment of the principal of and interest on
each and all of the Debentures is hereby expressly subordinated, to the extent
and in the manner hereinafter set forth, in right of payment to the prior
payment in full of all Senior Debt.
SECTION 14.2 Distribution on Dissolution, Liquidation and Reorganization;
Subrogation of Debentures.
Upon any distribution of assets of the Company upon any dissolution,
winding up, liquidation or reorganization of the Company, whether in
bankruptcy, insolvency, reorganization or receivership proceedings or upon an
assignment for the benefit of creditors or any other marshalling of the assets
and liabilities of the Company or otherwise (subject to the power of a court of
competent jurisdiction to make other equitable provision reflecting the rights
conferred in this Indenture upon the Senior Debt and the holders thereof with
respect to the Debentures and the Holders thereof by a lawful plan or
reorganization under applicable Bankruptcy Law),
(a) the holders of all Senior Debt shall be entitled to
receive payment in full of the principal thereof, premium, if any, interest,
and any interest thereon, due thereon before the Holders of the Debentures are
entitled to receive any payment upon the principal of and interest or other
amounts on the Debentures or interest on overdue amounts thereof; and
(b) any payment 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 except for the
provisions of this Article XIV shall be paid by the liquidating trustee or
agent or other person making such payment or distribution, whether a trustee in
bankruptcy, a receiver or liquidating trustee or otherwise, directly to the
holders of Senior Debt or their representative or representatives or to the
trustee or trustees under any indenture under which any instruments evidencing
any of such Senior Debt may have been issued, ratably according to the
aggregate amounts remaining unpaid on account of the principal of, premium, if
any, interest, and any interest thereon, on the Senior Debt held or represented
by each, to the extent necessary to make payment in full of all Senior Debt
remaining unpaid, after giving effect to any concurrent payment or distribution
to the holders of such Senior Debt; and
(c) 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, shall be received by the Trustee or
the Holders of the Debentures before all Senior Debt is paid in full, such
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payment or distribution shall be paid over to the holders of such Senior Debt
or their representative or representatives or to the trustee or trustees under
any indenture under which any instruments evidencing any of such Senior Debt
may have been issued, ratably as aforesaid, for application to the payment of
all Senior Debt remaining unpaid until all such Senior Debt shall have been
paid in full, after giving effect to any concurrent payment or distribution to
the holders of such Senior Debt.
Subject to the payment in full of all Senior Debt, the Holders of the
Debentures shall be subrogated to the rights of the holders of Senior Debt to
receive payments or distributions of cash, property or securities of the
Company applicable to Senior Debt until the principal, interest and other
amounts, and any interest thereon, of or on the Debentures shall be paid in
full and no such payments or distributions to the Holders of the Debentures of
cash, property or securities otherwise distributable to the Senior Debt shall,
as between the Company, its creditors other than the holders of Senior Debt,
and the Holders of the Debentures, be deemed to be a payment by the Company to
or on account of the Debentures. It is understood that the provisions of this
Article XIV are and are intended solely for the purpose of defining the
relative rights of the Holders of the Debentures, on the one hand, and the
holders of Senior Debt, on the other hand. Nothing contained in this Article
XIV 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
Debt, and the Holders of the Debentures, the obligation of the Company, which
is unconditional and absolute, to pay to the Holders of the Debentures the
principal, interest and other amounts, and any interest thereon, of or on the
Debentures as and when the same shall become due and payable in accordance with
their terms, or to affect the relative rights of the Holders of the Debentures
and creditors of the Company other than the holders of Senior Debt, nor shall
anything herein or in the Debentures 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 XIV of the holders of Senior Debt in respect of cash, property or
securities of the Company received upon the exercise of any such remedy. Upon
any payment or distribution of assets of the Company referred to in this
Article XIV, the Trustee shall be entitled to conclusively rely upon a
certificate of the liquidating trustee or agent or other person making any
distribution to the Trustee for the purpose of ascertaining the persons
entitled to participate in such distribution, the holders of Senior Debt and
other indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon, and all other facts pertinent
thereto or to this Article XIV.
The Trustee, however, shall not be deemed to owe any fiduciary duty to
the holders of Senior Debt. The Trustee shall not be liable to any such holder
if it shall pay over or distribute to or on behalf of Holders of Debentures or
the Company money or assets to which any holder of Senior Debt shall be
entitled by virtue of this Article XIV. The rights and claims of the Trustee
under Section 6.7 shall not be subject to the provisions of this Article XIV.
If the Trustee or any Holder of Debentures does not file a proper
claim or proof of debt in the form required in any proceeding referred to above
prior to 30 days before the expiration of the time to file such claim in such
proceeding, then the holder of any Senior Debt is hereby authorized, and has
the right, to file an appropriate claim or claims for or on behalf of such
Holder of Debentures.
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SECTION 14.3 No Payment on Debentures in Event of Default on Senior Debt.
No payment by the Company on account of principal, interest or other
amounts, and any interest thereon, of or on the Debentures shall be made unless
full payment of amounts then due for principal, premium, if any, sinking funds,
and interest or other amounts on Senior Debt has been made or duly provided for
in money or money's worth.
SECTION 14.4 Payments on Debentures Permitted.
Nothing contained in this Indenture or in any of the Debentures shall
(a) affect the obligation of the Company to make, or prevent the Company from
making, at any time except as provided in Sections 14.2 and 14.3, payments of
principal, interest or other amounts, and interest thereon, of or on the
Debentures or (b) prevent the application by the Trustee of any monies
deposited with it hereunder to the payment of or on account of the principal,
interest or other amounts, and any interest thereon, of or on the Debentures
unless the Trustee shall have received at its Corporate Trust Office written
notice of any event prohibiting the making of such payment at least [two]
Business Days (i) prior to the date fixed for such payment, (ii) prior to the
execution of an instrument to satisfy and discharge this Indenture based upon
the deposit of funds under Section 4.1(a)(ii), (iii) prior to the execution of
an instrument acknowledging the defeasance of such Debentures pursuant to
Section 13.1 or (iv) prior to any deposit pursuant to Clause (a) of Section
13.2 with respect to such Debentures.
SECTION 14.5 Authorization of Holders of Debentures to Trustee to Effect
Subordination.
Each Holder of Debentures by his acceptance thereof authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination as provided in this Article XIV and
appoints the Trustee his attorney-in-fact for any and all such purposes.
SECTION 14.6 Notices to Trustee.
The Company shall give prompt written notice to a Responsible Officer
of the Trustee located at the Corporate Trust Office of the Trustee of any fact
known to the Company which would prevent the making of any payment to or by the
Trustee in respect of the Debentures. Notwithstanding the provisions of this
Article XIV or any other provisions of this Indenture, neither the Trustee nor
any Paying Agent (other than the Company) shall be charged with knowledge of
the existence of any Senior Debt or of any event which would prohibit the
making of any payment of monies to or by the Trustee or such Paying Agent,
unless and until a Responsible Officer of the Trustee or such Paying Agent
shall have received (in the case of the Trustee, at its Corporate Trust Office)
written notice thereof from the Company or from the holder of any Senior Debt
or from the trustee for or representative of any Senior Debt together with
proof satisfactory to the Trustee of such holding of Senior Debt or of the
authority of such trustee or representative; provided, however, that if at
least two Business Days prior to the date upon which by the terms hereof any
such monies may
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become payable for any purpose (including, without limitation, the payment of
the principal of, interest or other amounts on any Debenture, or any interest
thereon) or the date on which the Trustee shall execute an instrument
acknowledging satisfaction and discharge of this Indenture or the defeasance of
Debentures pursuant to Section 13.1 or the date on which a deposit pursuant to
Clause (a) of Section 13.2 is made, the Trustee shall not have received with
respect to such monies or the monies deposited with it as a condition to such
satisfaction and discharge or defeasance the notice provided for in this
Section 14.6, then, anything herein contained to the contrary notwithstanding,
the Trustee shall have full power and authority to receive such monies and to
apply the same to the purpose for which they were received, and shall not be
affected by any notice to the contrary which may be received by it on or after
such two Business Days prior to such date. The Trustee 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 Debt (or a trustee or
representative on behalf of such holder) to establish that such a notice has
been given by a holder of Senior Debt or a trustee or representative on behalf
of any such holder. In the event that the Trustee determines in good faith
that further evidence is required with respect to the right of any Person as a
holder of Senior Debt to participate in any payment or distribution pursuant to
this Article XIV, the Trustee may request such Person to furnish evidence to
the reasonable satisfaction of the Trustee as to the amount of Senior Debt 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 XIV 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 14.7 Trustee as Holder of Senior Debt.
The Trustee shall be entitled to all the rights set forth in this
Article XIV in respect of any Senior Debt at any time held by it to the same
extent as any other holder of Senior Debt and nothing in this Indenture shall
be construed to deprive the Trustee of any of its rights as such holder.
SECTION 14.8 Modification of Terms of Senior Debt.
Any renewal or extension of the time of payment of any Senior Debt or
the exercise by the holders of Senior Debt of any of their rights under any
instrument creating or evidencing Senior Debt, including without limitation the
waiver of default thereunder, may be made or done all without notice to or
assent from Holders of the Debentures or the Trustee.
No compromise, alteration, amendment, modification, extension, renewal
or other change of, or waiver, consent or other action in respect of, any
liability or obligation under or in respect of, or of any of the terms,
covenants or conditions of any indenture or other instrument under which any
Senior Debt is outstanding or of such Senior Debt, whether or not such release
is in accordance with the provisions of any applicable document, shall in any
way alter or affect any of the provisions of this Article XIV or of the
Debentures relating to the subordination thereof.
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ARTICLE XV
LIMITATION OF TRANSACTIONS; COVENANTS AS TO TRUST
SECTION 15.1 Limitation of Transactions.
So long as any Debentures remain outstanding, if (a) for any
distribution period, full distributions on a cumulative basis on any Trust
Preferred Securities have not been paid or declared and set aside for payment,
(b) an Event of Default has occurred and is continuing or there shall have
occurred and be continuing any event of which the Company has actual knowledge
that, with the giving of notice or lapse of time, or both, would constitute an
Event of Default, (c) the Company is in default of its obligations under the
Trust Preferred Securities Guarantee or the Trust Common Securities Guarantee,
or (d) the Company shall have given notice of its election to defer payments of
interest on the Debentures by extending the interest payment period as provided
in Article XII and such period or any extension thereof shall be continuing,
then, during such period, the Company shall not (i) declare or pay dividends
on, make distributions with respect to, or redeem, purchase or acquire, or make
a liquidation payment with respect to any of its Capital Stock (except for
dividends or distributions in shares of, or options, warrants or rights to
subscribe for or purchase shares of its Capital Stock and conversions or
exchanges of Common Stock of one class for Common Stock of another class) or
(ii) make any payments of principal, interest or premium, if any, on or repay
or repurchase or redeem any debt securities (including guarantees of
indebtedness for money borrowed) of the Company that rank pari passu with or
junior to the Debentures (other than (v) any redemption, liquidation, interest,
principal or guarantee payment by the Company where the payment is made by way
of securities (including Capital Stock) that rank pari passu with or junior to
the securities on which such redemption, interest, principal or guarantee
payment is being made, (w) payments under the Trust Preferred Securities
Guarantee or the Trust Common Securities Guarantee, (x) purchases of Common
Stock related to the issuance of Common Stock under any of the Company's
benefit plans for its directors, officers or employees, (y) as a result of a
reclassification of the Company's Capital Stock or the exchange or conversion
of one series or class of the Company's Capital Stock for another series or
class of the Company's Capital Stock and (z) the purchase of fractional
interests in shares of the Company's Capital Stock pursuant to the conversion
or exchange provisions of such Capital Stock or the security being converted or
exchanged).
SECTION 15.2 Covenants As To Trust.
The Company covenants with each Holder of the Debentures that it will
(i) for so long as Trust Preferred Securities are outstanding, (a) maintain
directly or indirectly 100% ownership of the Trust Common Securities, provided,
that any permitted successor of the Company under this Indenture may succeed to
the Company's ownership of the Trust Common Securities; and (b) not voluntarily
terminate, wind-up or liquidate the Trust, except in connection with (A) a
distribution of the Debentures to the holders of Trust Preferred Securities in
liquidation of the Trust, (B) the redemption of all Trust Securities or (C)
mergers, consolidations or amalgamations permitted by the Declaration; (ii) use
its commercially reasonable efforts, consistent with the terms and provisions
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of the Declaration to cause the Trust to remain classified as a grantor trust,
and not taxable as a corporation, for United States federal income tax
purposes; and (iii) honor all obligations relating to the exchange of the Trust
Securities for Debentures.
-------------------------
This instrument may be executed with counterpart signature pages or in
any number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, all as of the day and year first above written.
KBK CAPITAL CORPORATION
By:
------------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By:
------------------------------------
Name:
Title:
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EXHIBIT A
[FORM OF FACE OF DEBENTURE]
[IF THE DEBENTURE IS TO BE A GLOBAL SECURITY, INSERT THE FOLLOWING --
THIS DEBENTURE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE THEREOF. THIS DEBENTURE MAY NOT BE TRANSFERRED TO, OR REGISTERED OR
EXCHANGED FOR DEBENTURES REGISTERED IN THE NAME OF, ANY PERSON OTHER THAN THE
DEPOSITORY OR A NOMINEE THEREOF AND NO SUCH TRANSFER MAY BE REGISTERED, EXCEPT
IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE. EVERY DEBENTURE
AUTHENTICATED AND DELIVERED UPON REGISTRATION OF TRANSFER OF, OR IN EXCHANGE FOR
OR IN LIEU OF, THIS DEBENTURE SHALL BE A GLOBAL SECURITY SUBJECT TO THE
FOREGOING, EXCEPT IN SUCH LIMITED CIRCUMSTANCES.
UNLESS THIS DEBENTURE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY (55 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇) TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
DEBENTURE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND
ANY PAYMENT HEREON IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL SINCE THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
No. CUSIP NO.
------------------------ --------------
KBK CAPITAL CORPORATION
% SUBORDINATED DEBENTURE DUE 2028
KBK Capital Corporation, a Delaware corporation (the "Company," which
term includes any successor corporation under the Indenture hereinafter referred
to), for value received, hereby promises to pay to The First National Bank of
Chicago, as Property Trustee, or registered assigns, the principal sum
of ____________________________________________________ ($_______________)
[or such greater or lesser principal sums as shall be noted on the Schedule
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69
attached hereto]* on November __, 2028 and to pay interest on said principal sum
from November __, 1998 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
February __, May __, August __, and November __ of each year, commencing
February __, 1999, at the rate of % per annum plus Additional Interest and
Additional Sums (as defined in Section 1.1 of the Indenture) if any, until the
principal hereof shall have become due and payable, and on any overdue
principal. The amount of interest payable for any period will be computed on the
basis of a 360-day year of twelve 30-day months, and for any period shorter than
a full quarter, on the basis of the actual number of days elapsed in a 90-day
quarter. In the event that any date on which interest is payable on this
Debenture is not a Business Day, then a payment of the interest payable on such
date will be made on the next succeeding day which is a Business Day (and
without any interest or other payment in respect of any such delay) except that,
if such Business Day is in the next succeeding calendar year, such payment shall
be made on the immediately preceding Business Day (and without any interest or
other payment in respect of any such delay), in each case with the same force
and effect as if made on the date the payment was originally payable. A
"Business Day" shall mean any day other than a day on which banking institutions
in the City of New York or Chicago, Illinois are authorized or required by law
or executive order to close. The interest installment so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as provided in the
Indenture, be paid to the Person in whose name this Debenture (or one or more
Predecessor Debentures, as defined in the Indenture) is registered at the close
of business on the Regular Record Date for such interest installment, which
shall be the close of business on the [fifteenth] day of the [month] of such
Interest Payment Date. Any such interest installment not so punctually paid or
duly provided for shall forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose name this
Debenture (or one or more Predecessor Debentures) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice of which shall be given to Holders of Debentures
not less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Debentures may be listed, and upon such notice
as may be required by such exchange, all as more fully provided in said
Indenture.
The Company shall have the right at any time during the term of this
Debenture, from time to time, to extend the interest payment period of such
Debenture for a period not exceeding 20 consecutive quarters from the date of
issue or the most recent date that interest has been paid or been duly provided
for (an "Extension Period"). During any Extension Period, interest will compound
quarterly. At the end of any Extension Period the Company shall pay all interest
then accrued and unpaid (together with Additional Interest thereon to the extent
that payment of such interest is permitted by applicable law and Additional
Sums, if any) to the Holder(s) in whose names the Debentures are registered on
the Regular Record Date preceding the end of the Extension Period. "Additional
Interest" means interest that shall accrue on any interest on the Debentures
that is in arrears for more than one quarter or not paid during an Extension
Period, which in either case shall accrue at the rate per annum borne by this
Debenture compounded quarterly. Prior to the termination of any such Extension
Period, the Company may further extend the interest payment period, provided
---------------------------
* Insert if Global Security or if held by the Property Trustee.
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that such Extension Period together with all such previous and further
extensions thereof shall not exceed 20 consecutive quarters or extend beyond the
Maturity of this Debenture or end on a date other than an Interest Payment Date.
Upon the termination of any Extension Period and upon the payment of all accrued
and unpaid interest and any Additional Interest then due, the Company may select
a new Extension Period, subject to the foregoing requirements. No interest shall
be due and payable during an Extension Period except at the end thereof and no
default under this Debenture or Event of Default shall be deemed to occur solely
as a result of an Extension Period. The Company shall give the Holder of this
Debenture and the Trustee notice of its selection of an Extension Period at
least one Business Day prior to the earlier of (i) the record date for the date
distributions on the Trust Securities would have been payable or, if no Trust
Securities are outstanding, for the date interest on the Debentures would have
been payable or (ii) the date that the Property Trustee is required to give
notice to the American Stock Exchange or other applicable self-regulatory
organization or to holders of the Trust Securities of the record date or the
date distributions by such Trust are payable.
Payment of the principal of and interest on this Debenture will be made
at the Corporate Trust Office or such other office or agency of the Company
maintained for that purpose, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts; provided, however, that at the option of the Company payment of
interest may be made (i) by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register or (ii) by wire
transfer in immediately available funds to such account as may be designated by
the Person entitled thereto as specified in the Security Register, so long as
the applicable Paying Agent has received proper transfer instructions in writing
by the Record Date prior to the applicable Interest Payment Date.
[If a Global Security, insert-- Payment of the principal of and [if
applicable, insert -- any such] interest on this Debenture will be made by
transfer of immediately available funds to a bank account in _______________
designated by the Holder in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts.]
The indebtedness evidenced by this Debenture is, to the extent provided
in the Indenture, subordinate and subject in right of payment to the prior
payment in full of all Senior Debt, 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 behalf to take such action as may be
necessary or appropriate to effectuate the subordination so provided and (c)
appoints the Trustee his attorney-in-fact for any and all such purposes. Each
Holder hereof, by his acceptance hereof, waives all notice of the acceptance of
the subordination provisions contained herein and in the Indenture by each
holder of Senior Debt, whether now outstanding or hereafter incurred, and waives
reliance by each such holder upon said provisions.
Reference is hereby made to the further provisions of the Indenture
summarized on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
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Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this
Debenture shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose.
IN WITNESS WHEREOF, KBK Capital Corporation has caused this instrument
to be duly executed under its corporate seal.
Dated: ,
------------------ -------
KBK CAPITAL CORPORATION
By:
-----------------------------------
Name:
Title:
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[FORM OF CERTIFICATE OF AUTHENTICATION]
This is one of the Debentures referred to in the within mentioned
Indenture.
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By:
---------------------------------
Authorized Officer
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[FORM OF REVERSE OF DEBENTURE]
This Debenture is one of a duly authorized issue of debt securities of
the Company, designated as its % Subordinated Debentures Due 2028 (herein
called the "Debentures"), limited in aggregate principal amount to (a)
$20,600,000 plus (b) such additional aggregate principal amount (which may not
exceed $3,090,000 principal amount) of Debentures as shall be purchased in
connection with the exercise by the Underwriters of the over-allotment option
pursuant to the Underwriting Agreement, issued under an Indenture, dated as of
November 1, 1998 (the "Indenture"), between the Company and The First National
Bank of Chicago, as Trustee (herein called the "Trustee," which term includes
any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Trustee, the Company and the Holders of the Debentures, and of the terms
upon which the Debentures are, and are to be, authenticated and delivered.
All terms used in this Debenture which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
The Company shall have the right to redeem this Debenture, at the
option of the Company, upon not less than 30 nor more than 60 days' notice,
without premium or penalty, in whole or in part at any time on or after November
__, 2001 (an "Optional Redemption") at a price equal to 100% of the principal
amount of the Debentures being redeemed (the "Optional Redemption Price")
together with accrued and unpaid interest, including Additional Interest and
Additional Sums to, but excluding, the redemption date.
If the Debentures are redeemed on any February __, May __, August __,
or November __, accrued and unpaid interest (including accrued and unpaid
Additional Interest, if any) shall be payable to holders of record on the
relevant record date.
So long as the corresponding Trust Securities are outstanding, the
proceeds from the redemption of any of the Debentures will be used by the
Property Trustee to redeem Trust Securities in accordance with the Declaration.
[In addition, so long as the Trust Securities are outstanding, the proceeds from
any repayment or prepayment of the Debentures will be used to redeem Trust
Securities in accordance with the Declaration.]
If the Debentures are only partially redeemed by the Company pursuant
to an Optional Redemption, the Debentures will 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 will be issued in the
name of the Holder hereof upon the cancellation hereof, except in the case of a
Global Security in which case the Trustee may reflect a reduction in
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the principal amount of such Global Security by making a notation of same in the
schedule included in such Global Security.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all of the Debentures and the
interest accrued thereon 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.
If a Trust Special Event (as defined herein) shall occur and be
continuing, this Debenture shall be exchangeable for Trust Securities in
accordance with Section 11.8 of the Indenture.
"Trust Investment Company Event" means that the Property Trustee of the
Trust, on behalf of KBK Capital Trust I (the "Trust"), shall have received an
opinion of counsel from a firm having a national tax and securities practice and
that is experienced in such matters (which opinion of counsel shall not have
been rescinded by such law firm) to the effect that as a result of the
occurrence on or after November __, 1998 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, there is more than an
insubstantial risk that the Trust is or, within 90 days after such date, will be
considered an "investment company" which is required to be registered under the
Investment Company Act of 1940.
"Trust Special Event" means the occurrence of a Trust Investment
Company Event or a Trust Tax Event.
"Trust Tax Event" means the receipt by the Property Trustee of the
Trust, on behalf of the Trust, of an opinion of counsel, from a firm having a
national tax and securities practice (which opinion of counsel shall not have
been rescinded by such law firm) to the effect that there has been (a) an
amendment to, change or announced proposed change in the laws (or any
regulations thereunder) of the United States or any political subdivision or
taxing authority thereof or therein, (b) a judicial decision interpreting,
applying or clarifying such laws or regulations, (c) an administrative
pronouncement or action that represents an official position (including a
clarification of an official position) of the governmental authority or
regulatory body making such administrative pronouncement or taking such action,
or (d) a threatened challenge asserted in connection with an audit of the
Company or any of its subsidiaries, or the Trust, or a threatened challenge
asserted in writing against any other taxpayer that has raised capital through
the issuance of securities that are substantially similar to the Debentures or
the Trust Preferred Securities, which amendment or change is adopted or which
decision, pronouncement or proposed change is announced or which action,
clarification or challenge occurs on or after November __, 1998 and that there
is more than an insubstantial risk that (a) the Trust is or, within 90 days
after such date, will be subject to United States federal income tax with
respect to income accrued or received on the Debentures, (b) the Trust is or,
within 90 days after such date, will be subject to more than a de minimis amount
of other taxes, duties, assessments or other governmental charges or (c)
interest payable by the Company on
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the Debentures is not or, within 90 days after such date, will not be deductible
by the Company for United States federal income taxes.
The Indenture contains provisions that relieve the Company from the
obligation to comply with certain restrictive covenants of the Indenture and for
satisfaction and discharge at any time of the entire indebtedness of this
Debenture upon compliance by the Company with certain conditions set forth in
the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Debentures at any time by the
Company and the Trustee with the consent of the Holders of a majority in
aggregate principal amount of the Outstanding Debentures. The Indenture also
contains provisions permitting the Holders of a majority in aggregate principal
amount of the Outstanding Debentures, on behalf of the Holders of all
Debentures, to waive compliance by the Company with certain provisions of the
Indenture. The Indenture permits, with certain exceptions as therein provided,
the Holders of a majority in aggregate principal amount of the Outstanding
Debentures to waive defaults under the Indenture and their consequences. Any
such consent or waiver by the Holder of this Debenture shall be conclusive and
binding upon such Holder and upon all future Holders of this Debenture and of
any Debenture issued upon the registration of transfer thereof or in exchange
herefor or in lieu hereof, whether or not 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 of and interest on this
Debenture at the times, place and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Debenture is registerable in the Security
Register, upon surrender of this Debenture for registration of transfer at the
office or agency of the Company in New York, New York, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Debentures,
of authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees. No service charge shall be
made for any such registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith.
Prior to due presentment of this Debenture for registration of
transfer, the Company, the Trustee and any of their respective agents may treat
the Person in whose name this Debenture is registered as the owner hereof for
all purposes, whether or not this Debenture shall be overdue, and neither the
Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
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The Debentures are issuable only in registered form without coupons in
denominations of $25 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Debentures are
exchangeable for a like aggregate principal amount of Debentures of a different
authorized denomination, as requested by the Holder surrendering the same.
The Company and, by its acceptance of this Debenture or a beneficial
interest herein, the Holder of, and any Person that acquires a beneficial
interest in, this Debenture agree that for United States federal, state and
local tax purposes it is intended that this Debenture constitutes indebtedness.
No recourse under or upon any obligation, covenant or agreement of or
contained in the Indenture or of or contained in any of the Debentures, or for
any claim based thereon or otherwise in respect thereof, or in any Debenture, or
because of the creation of any indebtedness represented thereby, shall be had
against any incorporator, stockholder, officer, employee or director, as such,
past, present or future, of the Company or of any successor Person, either
directly or through the Company or any successor Person, whether by virtue of
any constitution, statute or rule of law, or by the enforcement of any
assessment, penalty or otherwise; it being expressly understood by each Holder
that all such liability is hereby expressly waived and released by the
acceptance hereof and as a condition of, and as part of the consideration for,
the issuance of the Debentures and the execution of the Indenture.
THE DEBENTURES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES
THEREOF.
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ASSIGNMENT FORM
To assign this Debenture, fill in the form below:
(I) or (we) assign or transfer this Debenture to
----------------------------------------------------------------
(Insert assignee's social security or tax identification number)
-----------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint ___________________ agent to transfer this Debenture on
the books of the Company. The agent may substitute another to act for him.
Your Signature:
----------------------------------------------------------------
(Sign exactly as your name appears on the other side of this
Debenture)
Date:
-----------------------------
SIGNATURES
Signature Guarantee: *
---------------------------------------------------------
---------------
* Signature must be guaranteed by an institution which is a member of one
of the following recognized Signature Guaranty Programs: (i) The
Securities Transfer Agent Medallion Program (STAMP); (ii) The New York
Stock Exchange Medallion Program (MSP); (iii) The Stock Exchange
Medallion Program (SEMP); or (iv) in such other guarantee programs
acceptable to the Trustee.
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SCHEDULE*
The notations on the following table evidence decreases in the
principal sum of this Debenture resulting from increases resulting from the
exercise of the Over-Allotment Option. As used herein, the term "Over-Allotment
Option" means that certain option to purchase up to 120,000 additional Trust
Preferred Securities granted by the Trust to the Underwriters pursuant to the
Underwriting Agreement, dated November __, 1998, among the Company, the Trust
and the Underwriters (as defined in the Indenture).
--------------------------------------------------------------------------------
Decrease or Increase in Principal Sum Notation Made by
Principal Sum Remaining after Decrease or Security Registrar
Increase
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
----------------------
* Include in Global Security or Debenture held by Property Trustee.
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