BNCCORP, INC.
AND
FIRSTAR TRUST COMPANY, Trustee
_________________
INDENTURE
Dated as of May _____, 1997
_________________
$15,000,000
_____% Subordinated Notes due 2004
BNCCORP, INC.
Reconciliation and tie between Trust Indenture Act
of 1939, as amended and Indenture, dated as of May _____, 1997
between BNCCORP, INC. and
Firstar Trust Company, as Trustee.
Trust Indenture
Act Section Indenture Section
--------------- -----------------
Section 310 (a)(1). . . . . . . . . . . . . . 609
(a)(2). . . . . . . . . . . . . . 609
(a)(3). . . . . . . . . . . . . . Not Applicable
(a)(4). . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . 608, 610
(c) . . . . . . . . . . . . . . Not Applicable
Section 311 (a) . . . . . . . . . . . . . . . 613
(b) . . . . . . . . . . . . . . . 613
Section 312 (a) . . . . . . . . . . . . . . . 701, 702(a)
(b) . . . . . . . . . . . . . . . 702(b)
(c) . . . . . . . . . . . . . . . 702(c)
Section 313 (a) . . . . . . . . . . . . . . . 703(a)
(b)(1). . . . . . . . . . . . . . Not Applicable
(b)(2). . . . . . . . . . . . . . 703(a)
(c) . . . . . . . . . . . . . . . 703(a)
(d) . . . . . . . . . . . . . . . 703(b)
Section 314 (a) . . . . . . . . . . . . . . . 704, 1005
(b) . . . . . . . . . . . . . . . Not Applicable
(c)(1). . . . . . . . . . . . . . 102
(c)(2). . . . . . . . . . . . . . 102
(c)(3). . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . 102
(f) . . . . . . . . . . . . . . . 1005
Section 315 (a) . . . . . . . . . . . . . . . 601
(b) . . . . . . . . . . . . . . . 602
(c) . . . . . . . . . . . . . . . 601
(d) . . . . . . . . . . . . . . . 601
(e) . . . . . . . . . . . . . . . 514
Section 316 (a)(last sentence). . . . . . . . 101
(a)(1)(A) . . . . . . . . . . . . 512
(a)(1)(B) . . . . . . . . . . . . 502, 513
(a)(2). . . . . . . . . . . . . . Not Applicable
i
Trust Indenture
Act Section Indenture Section
--------------- -----------------
(b) . . . . . . . . . . . . . . . 508
(c) . . . . . . . . . . . . . . . 104(c)
Section 317 (a)(1). . . . . . . . . . . . . . 503
(a)(2). . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . . . 1003
Section 318 (a) . . . . . . . . . . . . . . . 107
__________________________
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
ii
TABLE OF CONTENTS
Page
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Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Recitals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE - DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS . . . . . . . . . . . 7
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE . . . . . . . . . . 8
SECTION 104. ACTS OF HOLDERS; RECORD DATES. . . . . . . . . . . . . . . 8
SECTION 105. NOTICES, ETC., TO TRUSTEE AND ISSUER . . . . . . . . . . . 9
SECTION 106. NOTICE TO HOLDERS; WAIVER. . . . . . . . . . . . . . . . .10
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT. . . . . . . . . . . . .10
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS . . . . . . . . .10
SECTION 109. SUCCESSORS AND ASSIGNS . . . . . . . . . . . . . . . . . .10
SECTION 110. SEVERABILITY CLAUSE. . . . . . . . . . . . . . . . . . . .11
SECTION 111. BENEFITS OF INDENTURE. . . . . . . . . . . . . . . . . . .11
SECTION 112. GOVERNING LAW. . . . . . . . . . . . . . . . . . . . . . .11
SECTION 113. LEGAL HOLIDAYS . . . . . . . . . . . . . . . . . . . . . .11
SECTION 114. ENTIRE AGREEMENT . . . . . . . . . . . . . . . . . . . . .11
SECTION 115. COUNTERPARTS.. . . . . . . . . . . . . . . . . . . . . . .11
ARTICLE TWO - SECURITY FORMS
SECTION 201. FORMS GENERALLY. . . . . . . . . . . . . . . . . . . . . .12
SECTION 202. CUSIP NUMBER . . . . . . . . . . . . . . . . . . . . . . .12
ARTICLE THREE - THE SECURITIES
SECTION 301. TITLE AND TERMS. . . . . . . . . . . . . . . . . . . . . .12
SECTION 302. DENOMINATIONS. . . . . . . . . . . . . . . . . . . . . . .13
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING . . . . . .13
SECTION 304. TEMPORARY SECURITIES . . . . . . . . . . . . . . . . . . .14
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE. . . .15
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES . . . . .16
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED . . . . . .17
SECTION 308. PERSONS DEEMED OWNERS. . . . . . . . . . . . . . . . . . .18
SECTION 309. CANCELLATION . . . . . . . . . . . . . . . . . . . . . . .18
SECTION 310. COMPUTATION OF INTEREST. . . . . . . . . . . . . . . . . .19
iii
TABLE OF CONTENTS (Cont.)
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ARTICLE FOUR - SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE. . . . . . . . . .19
SECTION 402. DEFEASANCE AND COVENANT DEFEASANCE.. . . . . . . . . . . .20
SECTION 403. APPLICATION OF TRUST MONEY . . . . . . . . . . . . . . . .22
SECTION 404. REPAYMENT OF MONIES HELD BY PAYING AGENT . . . . . . . . .23
SECTION 405. RETURN OF MONIES HELD BY TRUSTEE AND
PAYING AGENT UNCLAIMED FOR TWO YEARS . . . . . . . . . . .23
ARTICLE FIVE - REMEDIES
SECTION 501. EVENTS OF DEFAULT. . . . . . . . . . . . . . . . . . . . .23
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT . . . .25
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR
ENFORCEMENT BY TRUSTEE . . . . . . . . . . . . . . . . . .25
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM . . . . . . . . . . . . .26
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES . . . . . . . . . . . . . . . . . . . . . . . .26
SECTION 506. APPLICATION OF MONEY COLLECTED . . . . . . . . . . . . . .27
SECTION 507. LIMITATION OF SUITS. . . . . . . . . . . . . . . . . . . .27
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE
PRINCIPAL, PREMIUM AND INTEREST. . . . . . . . . . . . . .28
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES . . . . . . . . . . . .28
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE . . . . . . . . . . . . . .28
SECTION 511. DELAY OR OMISSION NOT WAIVER . . . . . . . . . . . . . . .29
SECTION 512. CONTROL BY HOLDERS . . . . . . . . . . . . . . . . . . . .29
SECTION 513. WAIVER OF PAST DEFAULTS. . . . . . . . . . . . . . . . . .29
SECTION 514. UNDERTAKING FOR COSTS. . . . . . . . . . . . . . . . . . .30
SECTION 515. WAIVER OF STAY OR EXTENSION LAWS . . . . . . . . . . . . .30
ARTICLE SIX - THE TRUSTEE
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES. . . . . . . . . . . .30
SECTION 602. NOTICE OF DEFAULTS . . . . . . . . . . . . . . . . . . . .30
SECTION 603. CERTAIN RIGHTS OF TRUSTEE. . . . . . . . . . . . . . . . .31
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES . .32
SECTION 605. MAY HOLD SECURITIES. . . . . . . . . . . . . . . . . . . .32
SECTION 606. MONEY HELD IN TRUST. . . . . . . . . . . . . . . . . . . .32
SECTION 607. COMPENSATION AND REIMBURSEMENT . . . . . . . . . . . . . .32
SECTION 608. DISQUALIFICATION; CONFLICTING INTERESTS. . . . . . . . . .33
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY. . . . . . . . . .33
iv
TABLE OF CONTENTS (Cont.)
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SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR. . . . .33
SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR . . . . . . . . . .34
SECTION 612. MERGER, CONVERSIONS, CONSOLIDATION OR SUCCESSION
TO BUSINESS. . . . . . . . . . . . . . . . . . . . . . . .35
SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST ISSUER . . . . .35
SECTION 614. APPOINTMENT OF AUTHENTICATING AGENT. . . . . . . . . . . .35
ARTICLE SEVEN - HOLDERS' LISTS AND REPORTS BY TRUSTEE AND ISSUER
SECTION 701. ISSUER TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS .37
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS . .37
SECTION 703. REPORTS BY TRUSTEE . . . . . . . . . . . . . . . . . . . .37
SECTION 704. REPORTS BY ISSUER. . . . . . . . . . . . . . . . . . . . .38
ARTICLE EIGHT - CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. ISSUER MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS. . . .38
SECTION 802. SUCCESSOR SUBSTITUTED. . . . . . . . . . . . . . . . . . .39
ARTICLE NINE - SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS . . . .40
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS. . . . . .40
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES . . . . . . . . . . .41
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES. . . . . . . . . . . . .41
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT. . . . . . . . . . . .41
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES . . . .41
ARTICLE TEN - COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST . . . . . . . .42
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY. . . . . . . . . . . . . .42
SECTION 1003. MONEY FOR SECURITY PAYMENTS TO BE HELD IN TRUST. . . . . .42
SECTION 1004. EXISTENCE; CONDUCT OF OPERATIONS; INSURED INSTITUTION. . .43
SECTION 1005. STATEMENT BY OFFICERS AS TO COMPLIANCE . . . . . . . . . .43
SECTION 1006. RESTRICTED PAYMENTS ON CAPITAL STOCK . . . . . . . . . . .44
SECTION 1007. MAINTENANCE OF PROPERTIES; INSURANCE . . . . . . . . . . .44
SECTION 1008. PAYMENT OF TAXES AND OTHER CLAIMS. . . . . . . . . . . . .45
SECTION 1009. BOOKS AND RECORDS. . . . . . . . . . . . . . . . . . . . .45
v
TABLE OF CONTENTS (Cont.)
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ARTICLE ELEVEN - REDEMPTION OF SECURITIES
SECTION 1101. RIGHT OF REDEMPTION. . . . . . . . . . . . . . . . . . . .46
SECTION 1102. APPLICABILITY OF ARTICLE . . . . . . . . . . . . . . . . .46
SECTION 1103. ELECTION TO REDEEM; NOTICE OF TRUSTEE. . . . . . . . . . .46
SECTION 1104. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED. . . . .46
SECTION 1105. NOTICE OF REDEMPTION . . . . . . . . . . . . . . . . . . .47
SECTION 1106. DEPOSIT OF REDEMPTION PRICE. . . . . . . . . . . . . . . .47
SECTION 1107. SECURITIES PAYABLE ON REDEMPTION DATE. . . . . . . . . . .48
SECTION 1108. SECURITIES REDEEMED IN PART. . . . . . . . . . . . . . . .48
ARTICLE TWELVE - SUBORDINATION
SECTION 1201. AGREEMENT TO SUBORDINATE . . . . . . . . . . . . . . . . .48
SECTION 1202. PAYMENT TO SECURITY HOLDERS. . . . . . . . . . . . . . . .48
SECTION 1203. SUBROGATION. . . . . . . . . . . . . . . . . . . . . . . .50
SECTION 1204. AUTHORIZATION BY HOLDERS . . . . . . . . . . . . . . . . .51
SECTION 1205. NOTICE TO TRUSTEE. . . . . . . . . . . . . . . . . . . . .51
SECTION 1206. TRUSTEE'S RELATION TO SENIOR INDEBTEDNESS. . . . . . . . .53
SECTION 1207. NO IMPAIRMENT OF SUBORDINATION . . . . . . . . . . . . . .53
TESTIMONIUM
SIGNATURES AND SEALS. . . . . . . . . . . . . . . . . . . . . . . . . . .54
SCHEDULE A - FORM OF SECURITY
vi
THIS INDENTURE, dated as of May _____, 1997, is between BNCCORP, INC., a
Delaware corporation (the "Issuer"), and Firstar Trust Company, a state banking
association duly organized and existing under the laws of the State of
Wisconsin, as Trustee (the "Trustee").
RECITALS:
The Issuer has duly authorized the creation of an issue of its _____%
Subordinated Notes due 2004 (the "Securities") of substantially the tenor and
amount hereinafter set forth, and to provide therefor, the Issuer has duly
authorized the execution and delivery of this Indenture.
All things necessary to make the Securities, when executed by the Issuer
and authenticated and delivered hereunder and duly issued by the Issuer, the
valid obligations of the Issuer, and to make this Indenture a valid, binding and
enforceable agreement of the Issuer, in accordance with their and its terms have
been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually agreed by the Issuer and the Trustee, for
the equal and proportionate benefit of all Holders of the Securities, as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein; and
(3) 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.
"Acceleration Event" shall have the meaning specified in Section 502
hereof.
"Act" when used with respect to any Holder, has the meaning specified in
Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the
purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 614 to act on behalf of the Trustee to authenticate Securities.
"Board of Directors" of any corporation means either the board of directors
of such corporation or any duly authorized committee of that Board.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the corporation to which such resolution relates as
having 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 each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in either the Borough of
Manhattan, The City of New York, New York are authorized or obligated by law or
executive order to close.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations, warrants, rights, options or other equivalents
(however designated) of corporate stock or any other equity interest of such
Person, including each class of common stock and preferred stock.
"Commission" means the 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" means the common stock, $.01 par value per share, of the
Issuer or any class of stock issued by the Issuer upon a reclassification of the
Common Stock.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Issuer by its Chairman of the Board, its President or
a Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or
Assistant Secretary, and delivered to the Trustee.
"Consolidated Net Income" means, for any period, the net income (or loss)
of the Issuer and the Subsidiaries on a consolidated basis for such period taken
as a single accounting period, determined in accordance with GAAP, provided,
however, that there shall not be included in Consolidated Net Income (1) any net
income (loss) of a Subsidiary for any period during which it was not a
Subsidiary or (2) any net income (loss) of businesses, properties or assets
acquired or disposed of (by way of merger, consolidation, purchase, sale or
otherwise) by the Issuer or any Subsidiary for any period prior to the
acquisition thereof or subsequent to the disposition thereof.
2
"Corporate Trust Office" means (i) the principal corporate trust office of
the Trustee located in Milwaukee, Wisconsin and (ii) for purposes of Section
1002, the corporate trust office of the Trustee's agent located in the Borough
of Manhattan, The City of New York, New York at which at any particular time its
corporate trust business shall be administered.
"Covenant Defeasance" has the meaning specified in Section 402.
"Defaulted Interest" has the meaning specified in Section 307.
"Defeasance" has the meaning specified in Section 402.
"Depositary" means, with respect to any Security issued in the form of one
or more Global Securities, the Person designated as Depositary by the Issuer in
or pursuant to this Indenture, which Person must be, to the extent required by
applicable law or regulation, a clearing agency registered under the Exchange
Act, and any successor to such Person. If at any time there is more than one
such Person, "Depositary" shall mean, with respect to any Security, the
qualifying entity which has been appointed with respect to such Securities.
"Disqualified Stock" means any Capital Stock that, by its terms (or by the
terms of any security into which it is convertible or for which it is
exercisable, redeemable or exchangeable), matures, or is mandatorily redeemable,
pursuant to a sinking fund obligation or otherwise, or is redeemable at the
option of the holder thereof, in whole or in part, on or prior to, the stated
final maturity of the Securities.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"GAAP" means generally accepted accounting principles, as in effect in the
United States of America, set forth in the opinions and pronouncements of the
Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting
Standards Board or in such other statements by such other entity as is approved
by a significant segment of the accounting profession, which are applicable to
the circumstances as of the date of this Indenture.
"Global Security" means a Security bearing the legend specified in Section
303 evidencing all or part of the Outstanding Securities, issued to the
Depositary or its nominee and registered in the name of such Depositary or its
nominee.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indebtedness" means (without duplication), with respect to any Person,
(i) any obligation, contingent or otherwise, of such Person for borrowed money,
(ii) any obligation (including the Securities) of such Person evidenced by
bonds, debentures, notes or other similar instruments, (iii) any obligation of
such Person to pay the deferred or unpaid purchase price of property or
services,
3
including conditional sale obligations and title retention arrangements,
except accounts payable and accrued expenses incurred in the ordinary course
of business and any interest accruing subsequent to any event of default with
respect to such an obligation, and (iv) any obligation under a lease that is
required to be capitalized for financial reporting purposes in accordance
with GAAP.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof, including, for
all purposes of this instrument and any such supplemental indenture, the
provisions of the Trust Indenture Act that are deemed to be a part of and govern
this instrument and any such supplemental indenture, respectively.
"Independent Public Accountants" means a nationally recognized firm of
accountants that, with respect to the Issuer, are independent public accountants
within the meaning of the rules and regulations promulgated by the Commission
under the Securities Act, who may be the independent public accountants
regularly retained by the Issuer or who may be other independent public
accountants.
"Initial Issuance Date" means the date of the original issuance of the
Securities.
"Insured Institution" means any "insured bank," as defined in 12 U.S.C.
Section 1813(h), or a similar definition under any succeeding federal law
hereinafter enacted.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Securities.
"Issuer" means the Person named as the "Issuer" in the initial paragraph of
this Indenture until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture and thereafter "Issuer" shall mean each
such successor Person.
"Maturity," when used with respect to any Security, means the date on which
the principal of such Security becomes due and payable as therein or herein
provided, whether at the Stated Maturity or by declaration of acceleration, call
for redemption or otherwise.
"Money," with respect to any payment, deposit or other transfer pursuant to
or contemplated by the terms hereof, means United States dollars or other
equivalent unit of legal tender for payment of public or private debts in the
United States of America.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, the President or a Vice President, and by the Controller, Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary, of the Issuer and
delivered to the Trustee. One of the officers signing an Officers' Certificate
given pursuant to Section 1005 shall be the principal executive, financial or
accounting officer of the Issuer.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Issuer and who shall be reasonably acceptable to the Trustee.
4
"Outstanding" when used with respect to the Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, EXCEPT:
(i) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or redemption
Money in the necessary amount has been theretofore deposited, in accordance
with Sections 401 or 402 hereof, with the Trustee or any Paying Agent
(other than the Issuer) in trust or set aside and segregated in trust by
the Issuer (if the Issuer shall act as its own Paying Agent) for the
Holders of such Securities; PROVIDED that, if such Securities, or portions
thereof, are to be redeemed prior to Maturity, notice of such redemption
has been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made; and
(iii) Securities which have been paid pursuant to Section 306 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any such
Securities in respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Securities are held by a bona
fide purchaser in whose hands such Securities are valid obligations of the
Issuer;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Issuer or any other obligor upon the Securities or any Affiliate of the
Issuer 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 Securities which the Trustee knows to be so owned shall
be so disregarded. Securities 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 Securities and
that the pledgee is not the Issuer or any other obligor upon the Securities or
any Affiliate of the Issuer or of such other obligor.
"Paying Agent" means any Person authorized by the Issuer to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Issuer.
"Person" means any individual, corporation, partnership, joint venture,
limited liability company, association, joint-stock company, trust,
unincorporated association or organization or government or any agency or
political subdivision thereof.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
5
"Redemption Date," when used with respect to any Security or portion
thereof to be redeemed, means the date fixed for such redemption by or pursuant
to this Indenture.
"Redemption Price," when used with respect to any Security or portion
thereof to be redeemed, means the price fixed for such redemption by or pursuant
to this Indenture.
"Regular Record Date" for the interest payable on any Security on any
Interest Payment Date means the 15th day (whether or not a Business Day) of the
calendar month next preceding such Interest Payment Date.
"Responsible Officer", when used with respect to the Trustee, means the
chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the controller
or any assistant controller or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to any particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Securities" means the _____% Subordinated Notes due 2004, or any of them,
as amended or supplemented from time to time, that are authenticated and
delivered pursuant to this Indenture, including any Securities represented by a
Global Security or Securities.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Senior Indebtedness" means all Indebtedness of the Issuer, including
principal and interest on such Indebtedness whether outstanding on the date of
this Indenture or hereafter created, incurred, assumed or guaranteed by the
Issuer, unless such Indebtedness, by its terms or the terms of the instrument
creating or evidencing it is subordinate in right of payment to, or PARI PASSU
with, the Securities.
"Special Record Date" for the payment of any Defaulted Interest on any
Security means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity," when used with respect to any Security, any Indebtedness
or any installment of interest thereon, means the date established by this
Indenture or evidence of Indebtedness as the fixed date on which the principal
of such Security or Indebtedness or such installment of interest is due and
payable.
"Subsidiary" means, with respect to the Issuer and its Subsidiaries, (A)
(i) a corporation a majority of whose Capital Stock is at the time, directly or
indirectly, owned (beneficially or of record) by the Issuer, by one or more
Subsidiaries or by the Issuer and one or more Subsidiaries or (ii) any other
Person (other than a corporation) in which the Issuer, one or more Subsidiaries
or the
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Issuer and one or more Subsidiaries, directly or indirectly, at the date of
determination thereof has at least majority ownership interest and, either
directly or indirectly, has the power to direct the policies, management and
affairs thereof, economic, financial or otherwise, and (B) that, in
accordance with GAAP, the accounts of which would be included on a
consolidated basis in the Issuer's financial statements.
"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 the "Trustee"
shall mean such successor Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended
by the Trust Indenture Reform Act of 1990 and as in force on the date of this
Indenture; PROVIDED, HOWEVER, that in the event the Trust Indenture Act of
1939 is amended after such date, "Trust Indenture Act" means to the extent
required by any such amendment, the Trust Indenture Act of 1939 as so amended.
"U.S. Government Obligations" shall mean direct obligations of the
United States of America that are backed by its full faith and credit.
"Vice President," when used with respect to the Issuer or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president."
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Issuer to the Trustee to take any
action under any provision of this Indenture, the Issuer shall furnish to the
Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of
an Officers' Certificate, if to be given by an officer of the Issuer, 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 Officers' Certificate and Opinion of Counsel with respect to
compliance with a condition or covenant provided for in this Indenture shall
include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, such
individual has made such examination or investigation as is necessary to
enable such individual to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
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(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be 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 Officers' Certificate or opinion of an officer of the Issuer 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 Opinion of Counsel may be based,
insofar as it relates to the factual matters, upon a certificate or opinion
of, or representations by, an officer or officers of the Issuer stating that
the information with respect to such factual matters is in the possession of
the Issuer, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect
to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. ACTS OF HOLDERS; RECORD DATES.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in 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 to the Trustee and, where it is hereby expressly required, to the
Issuer. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments. Proof of execution of any
such instrument or of a writing appointing any such agent shall be sufficient
for any purpose of this Indenture and (subject to Section 601) conclusive in
favor of the Trustee and the Issuer, if made in the manner provided in this
Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the execution thereof.
Where such execution is by a signer 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
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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.
(c) The Issuer may, in the circumstances permitted by the Trust
Indenture Act, fix any day as the record date for the purpose of determining
the Holders entitled to give or take any request, demand, authorization,
direction, notice, consent, waiver or other action, or to vote on any action,
authorized or permitted to be given or taken by Holders. If not set by the
Issuer prior to the first solicitation of a Holder made by any Person in
respect of any such action, or, in the case of any such vote, prior to such
vote, the record date for any such action or vote shall be the 30th day (or,
if later, the date of the most recent list of Holders required to be provided
pursuant to Section 701) prior to such first solicitation or vote, as the
case may be. With regard to any record date, only the Holders on such date
(or their duly designated proxies) shall be entitled to give or take, or vote
on, the relevant action.
(d) If the Securities are represented by one or more Global Securities,
the Issuer may, in the circumstances permitted by the Trust Indenture Act,
fix any date as the record date for the purpose of determining the Persons
who are beneficial owners of interests in any such Global Security or
Securities held by the Depositary entitled under the procedures of such
Depositary to give or take any request, demand, authorization, direction,
notice, consent, waiver or other action, or to vote on any action authorized
or permitted to be given or taken by such beneficial owners. If not set by
the Issuer prior to the first solicitation of a beneficial owner of interests
in such Global Security or Securities made by any Person in respect of any
such action, or, in the case of any such vote, prior to such vote, the record
date for any such action or vote shall be the 30th day prior to such first
solicitation or vote, as the case may be. With respect to any record date,
only the beneficial owners of interests in such Global Security or
Securities, determined in accordance with the procedures of the Depositary,
shall be entitled to give or take, or vote on, the relevant action.
(e) The ownership of Securities shall be proved by the Security Register.
(f) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee or
the Issuer in reliance thereon, whether or not notation of such action is
made upon such Security.
SECTION 105. NOTICES, ETC., TO TRUSTEE AND ISSUER
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture
to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Issuer 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, or
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(2) the Issuer 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 Issuer addressed
to it at the address of its principal office specified on the signature
pages of this Indenture or at any other address previously furnished in
writing to the Trustee by the Issuer in accordance with this Section 105.
SECTION 106. 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, to each
Holder affected by such event, at such Holder's address as it appears in the
Security Register, not later than the latest date (if any), and not earlier
than the earliest date (if any), prescribed for the giving of such notice.
In any case where notice to Holders is given by mail, neither the failure to
mail such notice, nor any defect in any notice so mailed, to any particular
Holder shall affect the sufficiency of such notice with respect to other
Holders. Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee,
but such filing shall not be a condition precedent to the validity of any
action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason
of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder.
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with the duties
imposed by any required provision of the Trust Indenture Act, by the
operation of Section 318(c) thereof, such imposed duties shall control,
except as, and to the extent, expressly excluded from this Indenture, as
permitted by the Trust Indenture Act. 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 provisions shall be deemed to apply to this
Indenture as so modified or to be excluded, as the case may be.
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 109. SUCCESSORS AND ASSIGNS.
All covenants and agreements of the Issuer in this Indenture and in the
Securities shall bind its successors and assigns, whether so expressed or
not. All covenants and agreements of the Trustee in this Indenture shall bind
its successors and assigns whether so expressed or not.
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SECTION 110. SEVERABILITY CLAUSE.
In case any provision in this Indenture or the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby, and such provisions shall be given effect to the fullest extent
permitted by law.
SECTION 111. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
and assigns hereunder and the Holders of Securities, any benefit or any legal
or equitable right, remedy or claim under this Indenture.
SECTION 112. GOVERNING LAW.
This Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York, without regard to
principles of conflicts of law.
SECTION 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day, then (notwithstanding
any other provision of this Indenture or of the Securities) payment of
interest or principal (and premium, if any) need not be made on such date,
but may be made on the next succeeding Business Day with the same force and
effect as if made on the Interest Payment Date or Redemption Date, or at the
Stated Maturity, PROVIDED that, for purposes of computing such payment, 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 114. ENTIRE AGREEMENT.
This Indenture, together with any schedules attached hereto, embodies
the entire agreement and understanding of the Issuer, the Trustee and the
Holders in respect of the subject matter contained herein. This Indenture,
together with any schedules attached hereto, supersedes all prior agreements
and understandings (whether written or oral) between such parties with
respect to such subject matter.
SECTION 115. COUNTERPARTS.
This Indenture may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
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ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The Securities and the Trustee's certificates of authentication shall be
in substantially the forms set forth in Schedule A to this Indenture which is
incorporated in and made a part of this Indenture. The Securities may have
such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture, and may have such letters,
numbers or other marks of identification and such legends or endorsements
placed thereon as may be required to comply with any law or with any rules or
regulations issued pursuant thereto or the rules of any securities exchange
or which the Securities may be listed or to conform to general usage, all as
may be determined by the officers executing such Securities, as evidenced by
their execution of the Securities. Any portion of the text of any Security
may be set forth on the reverse thereof, with an appropriate reference
thereto on the face of the Security.
The definitive Securities shall be printed, lithographed or engraved or
produced by any combination of these methods on steel engraved borders or may
be produced in any other manner permitted by any law or any rules or
regulations issued pursuant thereto or the rules of any securities exchange
on which the Securities may be listed or to conform to general usage, all as
determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
SECTION 202. CUSIP NUMBER.
The Issuer in issuing the Securities may use a "CUSIP" number, and if so
used, the Trustee may use the CUSIP number in notices of redemption or
exchange as a convenience to Holders; provided, that any such notice may
state that no representation is made as to the correctness or accuracy of the
CUSIP number printed in the notice or on the Securities, and that reliance
may be placed only on the other identification numbers printed on the
Securities. The Issuer will promptly notify the Trustee of any change in the
CUSIP number.
ARTICLE THREE
THE SECURITIES
SECTION 301. TITLE AND TERMS.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is limited to $15,000,000, except for
Securities authenticated and delivered upon registration of transfer of, or
in exchange for, or in lieu of, other Securities pursuant to Section 304,
305, 306, 906 or 1108. The Company Order shall specify the amount of
Securities to be authenticated and the date on which the original issue of
Securities is to be authenticated. The aggregate principal amount of
Securities outstanding at any time may not exceed the amount set forth in the
preceding sentence, subject to the proviso set forth therein.
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The Securities shall be known and designated as the "_____% Subordinated
Notes due 2004" of the Issuer. Their Stated Maturity shall be May 31, 2004
and they shall bear interest at the rate of _____% per annum from the date of
issuance or from the most recent Interest Payment Date to which interest has
been paid or duly provided for, as the case may be, payable monthly, on the
first Business Day of each month, commencing July 1, 1997 until the principal
thereof is paid or made available for payment.
The principal of (and premium, if any) and interest on the Securities
shall be payable at the office or agency of the Issuer in the Borough of
Manhattan, The City of New York, New York maintained for such purpose and at
any other office or agency maintained by the Issuer for such purpose;
PROVIDED, HOWEVER, that, at the option of the Issuer, payment of interest may
be made by check mailed on or before the Stated Maturity to the address of
the Person entitled thereto as such address shall appear in the Security
Register.
The Securities shall be redeemable as provided in Article Eleven.
SECTION 302. DENOMINATIONS.
The Securities shall be issuable only in registered form without coupons
and only in denominations of $1,000 and any integral multiple thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the Issuer by its Chairman
of the Board, its President, one of its Vice Presidents or the Treasurer,
under its corporate seal reproduced thereon attested by its Secretary or one
of its Assistant Secretaries. The signature of any of these officers on the
Securities may be manual or facsimile.
The Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Issuer shall bind the Issuer,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did
not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Issuer may deliver Securities executed by the Issuer to
the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities; and the Trustee in accordance
with such Company Order shall authenticate and deliver such Securities as in
this Indenture provided and not otherwise.
If the Issuer shall establish by Company Order that all or a portion of
the Securities are to be issued in the form of one or more Global Securities,
then the Issuer shall execute and the Trustee shall, in accordance with this
Section 303 and the Company Order with respect to such Securities,
authenticate and deliver one or more Global Securities that (i) shall
represent and shall be denominated in an amount equal to the aggregate
principal amount of all or a portion of the Securities issued and not yet
cancelled or exchanged to be represented by such Global Securities,
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(ii) shall be registered in the name of the Depositary for such Global
Security or Securities or the nominee of such Depositary, (iii) shall be
delivered by the Trustee to such Depositary or a nominee thereof or a
custodian therefor or pursuant to such Depositary's instructions and (iv)
shall bear a legend substantially to the following effect: "This Security is
a Registered Global Security within the meaning of the Indenture hereinafter
referred to and is registered in the name of a Depositary or a nominee
thereof. This Security may not be exchanged in whole or in part for a
Security registered, and no transfer of this Security in whole or in part may
be registered in the name of any Person other than such Depositary or a
nominee thereof, except in the limited circumstances described in the
Indenture".
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence that such Security has been duly
authenticated and delivered hereunder and that the Holder is entitled to the
benefits of this Indenture. Each reference in this Indenture to authentication
by the Trustee includes an agent appointed pursuant to Section 614.
SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities, the Issuer may
execute, and upon Company Order the Trustee shall authenticate and deliver in
the manner provided in Section 303, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine, as evidenced by their execution of
such Securities. Such temporary Securities may be Global Securities.
Except in the case of temporary Global Securities, which shall be
exchanged in accordance with the provisions, if temporary Securities are
issued, the Issuer will cause definitive Securities to be prepared without
unreasonable delay. After the preparation of definitive Securities, the
temporary Securities shall be exchangeable for definitive Securities upon
surrender of the temporary Securities at any office or agency of the Issuer
designated pursuant to Section 1002, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities, the
Issuer shall execute, and the Trustee shall authenticate and deliver in
exchange therefor, a like principal amount of definitive Securities of
authorized denominations. Unless otherwise provided in or pursuant to this
Indenture with respect to a temporary Global Security, until so exchanged the
temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities.
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SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Issuer shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency designated pursuant to Section 1002 being herein sometimes
collectively referred to as the "Security Register") in which, subject to
such reasonable regulations as it may prescribe, the Issuer shall provide for
the registration of Securities and of transfer of Securities. The Trustee is
hereby appointed "Security Registrar" for the purpose of registering
Securities and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security at the
Corporate Trust Office or at any other office or agency of the Issuer
designated pursuant to Section 1002 for such purpose, the Issuer shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Securities of any
authorized denominations and of a like aggregate principal amount.
At the option of the Holder Securities may be exchanged for other
Securities of any authorized denominations and of a like aggregate principal
amount, upon surrender of the Securities to be exchanged at such office or
agency. Whenever any Securities are so surrendered for exchange, the Issuer
shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
Each Global Security authenticated under this Indenture shall be
registered in the name of the Depositary or a nominee thereof, and each such
Global Security shall constitute a single security for all purposes of this
Indenture.
Notwithstanding any other provision of this Section 305, unless and
until it is exchanged in whole or in part for Securities in definitive
registered form, a Global Security representing all or a portion of the
Securities may not be transferred except as a whole by the Depositary to a
nominee of the Depositary or by a nominee of the Depositary to the Depositary
or another nominee of the Depositary or by the Depositary or any such nominee
to a successor Depositary for such series or a nominee of such successor
Depositary.
If at any time the Depositary for any Global Securities notifies the
Issuer that it is unwilling or unable to continue as Depositary for such
Securities or is no longer eligible because it ceased to be a clearing agency
registered under the Exchange Act or any other applicable statute or
regulation, the Issuer shall appoint a successor Depositary with respect to
such Securities. If a successor Depositary for such Securities is not
appointed by the Issuer within 90 days after the Issuer receives such notice
or becomes aware of such ineligibility, the Issuer's election that such
Registered Securities be represented by one or more Global Securities shall
no longer be effective and the Issuer will execute, and the Trustee, upon
receipt of an Officers' Certificate of the Issuer for the authentication and
delivery of definitive Securities of such series, will authenticate and
deliver, Securities of such series in definitive registered form without
coupons, of like tenor in any authorized denominations, in an aggregate
principal amount equal to the principal amount of the
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Global Security or Securities representing such Securities in exchange for
such Global Security or Securities.
The Issuer may at any time and in its sole discretion determine that the
Securities issued in the form of one or more Global Securities shall no
longer be represented by a Global Security. In such event the Issuer will
execute, and the Trustee, upon receipt of an Officers' Certificate for the
authentication and delivery of definitive Securities of such series, will
authenticate and deliver, Securities of such series in definitive registered
form without coupons, in any authorized denominations, in an aggregate
principal amount equal to the principal amount of the Global Security or
Securities representing such Securities in exchange for such Global Security
or Securities.
None of the Issuer, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Global Security or for maintaining, supervising or reviewing
any records relating to such beneficial ownership interests.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Issuer evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for
exchange shall (if so required by the Issuer or the Trustee) be duly endorsed,
or be accompanied by a written instrument of transfer in form satisfactory to
the Issuer and the Security Registrar duly executed, by the Holder thereof or
his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Issuer 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 Securities,
other than exchanges pursuant to Section 304, 906 or 1108 not involving any
transfer.
The Issuer shall not be required (i) to issue, register the transfer of
or exchange any Security during a period beginning at the opening of business
15 days before the day of the mailing of a notice of redemption of Securities
selected for redemption under Section 1104 and ending at the close of
business on the day of such mailing, or (ii) to register the transfer of or
exchange any Security so selected for redemption in whole or in part, except
the unredeemed portion of any Security being redeemed in part.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security is surrendered to the Trustee, the Issuer
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of like tenor and principal amount, bearing a number
not contemporaneously outstanding.
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If there shall be delivered to the Issuer and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security and
(ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice
to the Issuer or the Trustee that such Security has been acquired by a bona
fide purchaser, the Issuer shall execute and upon its request the Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of like tenor and principal amount, bearing a number
not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Issuer in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Issuer 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 or its agent)
connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Issuer whether or not the destroyed, lost or
stolen Security 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 Securities duly authenticated and delivered hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Interest on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person
in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest.
Any interest on any Security which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Holder on
the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Issuer, at its election in each
case, as provided in clause (1) or (2) below:
(1) The Issuer may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities (or their respective Predecessor
Securities) are registered at the close of business on a Special Record
Date for the payment of such Defaulted Interest, which shall be fixed in
the following manner. The Issuer shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each Security
17
and the date of the proposed payment, and at the same time the Issuer 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 Issuer of such
Special Record Date and, in the name and at the expense of the Issuer,
shall cause notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor to be mailed, first-class postage prepaid,
to each Holder at such Holder's 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 Securities (or their respective
Predecessor Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the
following clause (2).
(2) The Issuer may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon such
notice as may be required by such exchange, if, after notice given by the
Issuer to the Trustee of the proposed payment pursuant to this clause, such
manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. PERSONS DEEMED OWNERS.
Prior to due presentment of a Security for registration of transfer, the
Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the
Person in whose name such Security is registered as the owner of such Security
for the purpose of receiving payment of principal of (and premium, if any) and
(subject to Section 307) interest on such Security and for all other purposes
whatsoever, whether or not such Security shall be overdue, and neither the
Issuer, the Trustee nor any agent of the Issuer or the Trustee shall be affected
by notice to the contrary.
SECTION 309. CANCELLATION.
All Securities surrendered for payment, redemption or registration of
transfer or exchange, if surrendered to any Person other than the Trustee,
shall be delivered to the Trustee or its agent for cancellation or, if
surrendered to the Trustee, shall be promptly cancelled by it. The Issuer
may at any time deliver to the Trustee or its agent for cancellation any
Securities previously authenticated
18
and delivered hereunder which the Issuer may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly cancelled by
the Trustee. No Securities shall be authenticated in lieu of or in exchange
for any Securities cancelled as provided in this Section, except as expressly
permitted by this Indenture. All cancelled Securities held by the Trustee
shall be destroyed and a certificate of destruction delivered by the Trustee
to the Issuer, unless the Issuer otherwise directs the Trustee by a Company
Order. Any Securities acquired by the Issuer shall not operate as a
redemption or satisfaction of the debt represented by such Securities unless
and until such Securities are delivered to the Trustee or its agent for
cancellation.
SECTION 310. COMPUTATION OF INTEREST.
Interest on the Securities shall be computed on the basis of a year of 360
days consisting of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of Securities herein
expressly provided for), and the Trustee, on demand of and at the expense of
the Issuer, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other
than (i) Securities which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 306 and (ii) Securities
for whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Issuer and thereafter repaid to the
Issuer or discharged from such trust, as provided in Section 405) have been
delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within
one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Issuer,
19
and the Issuer, in the case of (i), (ii) or (iii) above, has irrevocably
deposited or caused to be deposited with the Trustee as funds in trust for
such purpose Money in an amount sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to the Trustee
for cancellation, for principal (and premium, if any) and interest to the
date of such deposit (in the case of Securities which have become due and
payable) or to the Stated Maturity or Redemption Date, as the case may be;
(2) the Issuer has paid or caused to be paid all other sums payable
hereunder by the Issuer, including amounts owing to the Trustee; and
(3) the Issuer has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have
been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Issuer to the Trustee under Section 607, the obligation of
the Trustee to any Authenticating Agent under Section 614 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of clause (1) of
this Section, the obligations of the Trustee under Sections 403 and 405 shall
survive.
SECTION 402. DEFEASANCE AND COVENANT DEFEASANCE.
(1) In addition to discharge of the Indenture pursuant to Section 401, the
Issuer, upon the deposit with the Trustee as funds in trust for such purpose
funds sufficient to pay and discharge the entire indebtedness on the Securities
for principal (and premium, if any) and interest to the Stated Maturity shall be
deemed to have paid and discharged the entire debt on all the Securities on the
91st day after the date of such deposit and the provisions of this Indenture
shall no longer be in effect (except as to the provisions of Sections 306, 508,
607, 1002, 1003 and Article Four), (hereinafter "defeasance"), and the Trustee,
at the expense of the Issuer, shall at the Issuer's request, execute proper
instruments acknowledging the same, if the Issuer notifies the Trustee that the
provisions of this Section 402(1) are being complied with solely to effect a
defeasance and if:
(A) with reference to this provision the Issuer has 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 Securities (a) Money in an amount, or (b)
U.S. Government Obligations, maturing as to principal and interest at such
times and in such amounts as will insure (without investment of such cash
or reinvestment of any interest or proceeds from such U.S. Government
Obligations) the availability of Money or (c) 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 of and interest on all Securities on
each date that such principal and interest is due and payable;
(B) no Default or Event of Default with respect to the Securities of
such series shall have occurred and be continuing on the date of such
deposit or, insofar as Section 501(7) is concerned, at any time during the
period ending on and including the 91st day after
20
the date of such deposit (it being understood that this condition shall not
be deemed satisfied until the expiration of such period);
(C) such defeasance shall not cause the Trustee to have a conflicting
interest for purposes of the Trust Indenture Act with respect to any
securities of the Issuer;
(D) such defeasance shall not result in a breach or violation of, or
constitute a Default or Event of Default under, the Indenture, the
Securities or any other agreement or instrument to which the Issuer is a
party or by which it is bound;
(E) the Issuer has delivered to the Trustee an Opinion of Counsel to
the effect, and such opinion shall confirm, (i) that, based on the fact
that (x) the Issuer 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,
Holders of the Securities will not recognize income, gain or loss for
federal income tax purposes as a result of such deposit, defeasance and
discharge 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, defeasance and discharge had not occurred; and (ii) that the
trust arising from such deposit shall not constitute an "investment
company" or an entity "controlled" by an "investment company" as such terms
are defined in the Investment Company Act of 1940, as amended; and
(F) the Issuer has paid or caused to be paid all other sums then
payable hereunder by the Issuer, including amounts owing to the Trustee,
and the Issuer has delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel, each stating that all conditions precedent provided for
relating to the defeasance contemplated by this provision have been
complied with.
(2) The Issuer shall be released from its obligations under Articles Eight
and Ten, other than the obligation to provide that any successor to the Issuer,
as a condition to such succession, assume the performance of any covenant of
this Indenture of the Issuer relating to the compensation, reimbursement of
expenses and indemnities of the Trustee and any predecessor Trustee, on and
after the date the conditions set forth below are satisfied (hereinafter,
"covenant defeasance"). For this purpose, such covenant defeasance means that,
with respect to the Outstanding Securities, the Issuer may omit to comply with
and shall have no liability in respect of any term, condition or limitation set
forth in such Article or any such covenant, whether directly or indirectly by
reason of any reference elsewhere herein to such Article or any such covenant or
by reason of any reference in such Article to any other provision herein or in
any other document and such omission to comply shall not constitute an Event of
Default under Section 501, but the remainder of this Indenture and the
Securities shall be unaffected thereby. The following shall be the conditions
to application of this subsection (2) of this Section 402:
(A) the Issuer has 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
Securities, (a) Money in an amount, or (b) U.S.
21
Government Obligations maturing as to principal and interest at such times
and in such amounts as will insure (without investment of such cash or
reinvestment of any interest or proceeds from such U.S. Government
Obligations) the availability of Money in an amount or (c) 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
Securities on each date that such principal or interest is due and payable;
(B) no Default or Event of Default or event which with notice or
lapse of time or both would become an Event or Default with respect to the
Securities shall have occurred and be continuing on the date of such
deposit or, insofar as Section 501(7) is concerned, at any time during the
period ending on the 91st day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until the
expiration of such period);
(C) such covenant defeasance will not result in a breach or violation
of, or constitute a Default or Event of Default under, this Indenture, the
Securities or any agreement or instrument to which the Issuer is a party or
by which it is bound;
(D) such covenant defeasance shall not cause the Trustee to have a
conflicting interest as defined in Section 310(b) of the Trust Indenture
Act;
(E) such covenant defeasance shall not cause any Securities then
listed on any registered national securities exchange to be delisted;
(F) the Issuer shall have delivered to the Trustee an Opinion of
Counsel to the effect (i) that the Holders of the Securities will not
recognize income, gain or loss for Federal income tax purposes as a result
of such covenant defeasance and will be subject to Federal income tax on
the same amounts, in the same manner and at the same times as would have
been the case if such covenant defeasance had not occurred; and (ii) that
the trust arising from such deposit shall not constitute an "investment
company" or an entity "controlled" by an "investment company" as such terms
are defined in The Investment Company Act of 1940, as amended; and
(G) the Issuer shall have paid or cause to be paid all other sums
then payable hereunder by the Issuer, including amounts owing to the
Trustee, and the Issuer shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent relating to the covenant defeasance contemplated by this
provision have been complied with.
SECTION 403. APPLICATION OF TRUST MONEY.
Subject to the provisions of Section 405, all Money and U.S. Government
Obligations deposited with the Trustee pursuant to Sections 401 and 402 and all
Money received by the Trustee in respect of U.S. Government Obligations
deposited with the Trustee pursuant to Section 402 shall
22
be held in trust and applied by it, in accordance with the provisions of the
Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Issuer acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal (and
premium, if any) and interest for whose payment such money has been deposited
with the Trustee.
SECTION 404. REPAYMENT OF MONIES HELD BY PAYING AGENT.
Upon the satisfaction and discharge of this Indenture with respect to the
Securities in accordance with Section 401, all Money in excess of the amount
necessary to satisfy and discharge this Indenture (subject to Section 405
hereof) then held by any Paying Agent under the provisions of this Indenture
with respect to the Securities shall, upon demand of the Issuer, be repaid to it
or paid to the Trustee and thereupon such Paying Agent shall be released from
all further liability with respect to such Money.
SECTION 405. RETURN OF MONIES HELD BY TRUSTEE AND PAYING AGENT UNCLAIMED FOR
TWO YEARS.
Any Money deposited with or paid to the Trustee or any Paying Agent for the
payment of the principal of and interest on the Securities and not applied but
remaining unclaimed for two years after the date upon which such principal and
interest shall have become due and payable, shall, upon the written request of
the Issuer and unless otherwise required by mandatory provisions of applicable
escheat or abandoned or unclaimed property law, be repaid to the Issuer by the
Trustee or such Paying Agent, and the Holder of the Securities shall, unless
otherwise required by mandatory provisions of applicable escheat or abandoned or
unclaimed property laws, thereafter look only to the Issuer for any payment
which such Holder may be entitled to collect, and all liability of the Trustee
or any Paying Agent with respect to such monies shall thereupon cease; PROVIDED,
HOWEVER, that the Trustee or such Paying Agent, before being required to make
any such repayment with respect to Money deposited with it for any payment,
shall at the expense of the Issuer, mail by first class mail to Holders of such
Securities at their addresses as they shall appear on the Security Register
notice, that such Money remain unpaid and that, after a date specified therein,
which shall not be less than thirty days from the date of such mailing or
publication, any unclaimed balance of such money then remaining will be repaid
to the Issuer.
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT.
"Event of Default", wherever used herein, 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):
23
(1) failure by the Issuer or any successor thereto to pay the
principal on any Security when due at Maturity or upon a redemption of such
Security when and as due by the terms of Article Eleven; or
(2) failure by the Issuer or any successor thereto to pay any
interest on any Security for a period of 10 days after such interest shall
have become due and payable; or
(3) failure to perform any other covenant set forth in this Indenture
and continuance of such failure for a period of 30 days after there has
been given, by registered or certified mail, to the Issuer by the Trustee
or to the Issuer and the Trustee by the Holders of at least 25% in
aggregate principal amount of the Outstanding Securities a written notice
specifying such default and requiring such default to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(4) default in the payment at Stated Maturity of Indebtedness of the
Issuer or a Subsidiary having an outstanding principal amount due at Stated
Maturity greater than $2.0 million and such default shall have continued
without being cured, waived or consented to or without such Indebtedness
being discharged for a period of 30 days beyond any applicable grace
period; or
(5) an event of default as defined in any mortgage, indenture or
instrument of the Issuer or any Subsidiary shall have happened and resulted
in the acceleration of Indebtedness, which together with the principal
amount of any other Indebtedness so accelerated, aggregates $2.0 million or
more at any time, and such default shall not have been cured or waived and
such acceleration shall not have been rescinded or annulled; or
(6) entry of a final judgment, decree or order against the Issuer or
any Subsidiary for the payment of money in excess of $1.0 million and such
judgment, decree or order continues unsatisfied for 60 days from the entry
thereof, unless vacated, discharged or stayed pending appeal within such
60-day period; or
(7) the entry by a court or agency or supervisory authority having
competent jurisdiction of:
(a) a decree or order for relief in respect of the Issuer or any of
its Subsidiaries in an involuntary proceeding under any applicable bankruptcy,
insolvency, reorganization or other similar law and such decree or order shall
remain unstayed and in effect for a period of 60 consecutive days; or
(b) a decree or order adjudging the Issuer or any of its Subsidiaries
to be insolvent, or approving a petition seeking reorganization, arrangement,
adjustment or composition of the Issuer or its Subsidiaries and such decree or
order shall remain unstayed and in effect for a period of 60 consecutive days;
or
24
(c) a decree or order appointing the Federal Deposit Insurance
Corporation (the "FDIC") or any other Person to act as a custodian, receiver,
liquidation, assignee, trustee or other similar official of the Issuer, any of
its Subsidiaries or of any substantial part of the property of the Issuer or its
Subsidiaries, as the case may be, or ordering the winding up or liquidation of
the affairs of the Issuer or its Subsidiaries and such decree or order shall
remain unstayed and in effect for a period of 60 consecutive days; or
(d) the commencement by the Issuer or any of its Subsidiaries of a
voluntary proceeding under any applicable bankruptcy, insolvency, reorganization
or other similar law or of a voluntary proceeding seeking to be adjudicated
insolvent or the consent by the Issuer or any of its Subsidiaries to the entry
of a decree or order for relief in an involuntary proceeding under any
applicable bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any insolvency proceedings against it, or the filing by the
Issuer or any of its Subsidiaries of a petition or answer or consent seeking
reorganization or relief under any applicable law, or the consent by the Issuer
or any of its Subsidiaries to the filing of such petition or to the appointment
of or taking possession by a custodian, receiver, liquidator, assignee, trustee
or similar official of the Issuer or any of its Subsidiaries or any substantial
part of the property of the Issuer or any of its Subsidiaries or the making by
the Issuer or any of its Subsidiaries of an assignment for the benefit of
creditors, or the taking of corporate action by the Issuer or any of its
Subsidiaries in furtherance of any such action.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default described in Section 501(7) (an "Acceleration
Event") shall occur and be continuing, then and in every such case the Trustee
or the Holders of not less than 25% in aggregate principal amount of the
Outstanding Securities may declare the principal of all the Securities to be due
and payable immediately, by a notice in writing to the Issuer (and to the
Trustee if given by Holders), and upon any such declaration such principal and
accrued interest to the date of acceleration shall become immediately due and
payable.
At any time after such declaration of acceleration has been made and before
a judgment or decree for payment of the Money due has been obtained by the
Trustee as hereinafter in this Article provided, the Holders of a majority in
aggregate principal amount of the Outstanding Securities, by written notice to
the Issuer and the Trustee, may rescind and annul such declaration and its
consequences if all Acceleration Events have been remedied and all payments due,
other than those due as a result of acceleration, have been made.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.
The Issuer covenants that if an Event of Default occurs, the Issuer will,
upon demand of the Trustee, pay to it, for the benefit of the Holders of such
Securities, the whole amount of Money then due and payable on such Securities
for principal (and premium, if any) and interest, and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal (and premium, if any) and on any overdue interest, at the rate borne
by the Securities, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection,
25
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
In the event that the Issuer 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 Money so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Issuer or any other obligor upon the Securities and
collect the moneys adjudged or decreed to be payable in the manner provided by
law out of the property of the Issuer or any other obligor upon the Securities,
wherever situated.
If an Event of Default occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of any judicial or regulatory proceeding relative to the Issuer or
any other obligor upon the Securities, its property or its creditors, the
Trustee shall be entitled and empowered (irrespective of whether the principal
of the Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have made
any demand on the Issuer for the payment of any overdue principal or interest),
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 Money 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 607.
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, agreement, adjustment or composition affecting the Securities or
the rights of any Holder thereof or to authorize the Trustee to vote in respect
of the claim of any Holder in any such proceeding.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the
26
Trustee, its agents and counsel, be for the ratable benefit of the Holders of
the Securities in respect of which such judgment has been recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED.
Any Money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such Money on account of principal (or premium,
if any) or interest, upon presentation of the Securities and the notation
thereon of the payment, if only partially paid, and upon surrender thereof, if
fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
607;
SECOND: In the case the principal of the Securities shall not have
become due and payable, to the payment of the amounts then due and unpaid
upon the Securities for interest in respect of which or for the benefit of
which such Money has been collected, in the order of the Maturity of the
installments of such interest, with interest, to the extent that such
interest has been collected by the Trustee, upon overdue installments of
interest at the rate borne by the Securities, such payments to be made
ratably, without preference or priority of any kind, according to the
aggregate amounts due and payable on such Securities for interest;
THIRD: In the case the principal of the Securities shall have
become due and payable, to the payment of the amounts then due and unpaid
upon the Securities for principal and interest in respect of which or for
the benefit of which such Money has been collected, with interest, to the
extent that such interest has been collected by the Trustee, upon overdue
installments of interest at the rate borne by the Securities, such payments
to be made ratably, without preference or priority of any kind, according
to the aggregate amounts due and payable on such Securities for principal
and interest, respectively; and
FOURTH: The balance, if any, to the Person or Persons entitled
thereto.
SECTION 507. LIMITATION OF SUITS.
No Holder of any Security shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the appointment of
a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default;
(2) the Holders of not less than 25% in aggregate principal amount of
the Outstanding Securities shall have made written request to the Trustee
to institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
27
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request (including counsel fees and expenses);
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority
in aggregate principal amount of the Outstanding Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND
INTEREST.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of (and premium, if any) and (subject to Section 307)
interest on such Security on the respective Stated Maturities expressed in such
Security (or, in the case of redemption pursuant to Section 1101, 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 509. 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 Issuer, 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 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in Section 306, 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 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Security to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Subject to the provisions of Section 507, 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 512. CONTROL BY HOLDERS.
The Holders of a majority in aggregate principal amount of the Outstanding
Securities shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee, PROVIDED that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
This Section 512 shall be in lieu of Section 316(a)(1)(A) of the Trust
Indenture Act, and such Section 316(a)(1)(A) is hereby expressly excluded
from this Indenture, as permitted by the Trust Indenture Act.
SECTION 513. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in principal amount of the
Outstanding Securities may on behalf of the Holders of all the Securities waive
any past default hereunder and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest on any Security, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
This Section 513 shall be in lieu of Section 316(a)(1)(B) of the Trust
Indenture Act, and such Section 316(a)(1)(B) is hereby expressly excluded from
this Indenture, as permitted by the Trust Indenture Act.
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SECTION 514. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; PROVIDED that neither this Section nor the Trust Indenture Act
shall be deemed to authorize any court to require such an undertaking or to make
such an assessment in any suit instituted by the Issuer and any provision of the
Trust Indenture Act to such effect is hereby expressly excluded from this
Indenture, as permitted by the Trust Indenture Act.
SECTION 515. WAIVER OF STAY OR EXTENSION LAWS.
The Issuer covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants herein or
the performance of this Indenture; and the Issuer (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that they will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES.
The duties and responsibilities of the Trustee shall be as provided by the
Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
SECTION 602. NOTICE OF DEFAULTS.
The Trustee shall give the Holders notice of any default hereunder as and
to the extent provided by the Trust Indenture Act; PROVIDED, HOWEVER, that in
the case of any default of the character specified in Section 501(3), no such
notice to Holders shall be given until at least 30 days after the occurrence
thereof. For the purpose of this Section, the term "default" means any event
which is, or after notice or lapse of time or both would become, an Event of
Default. The Trustee shall not be deemed to have knowledge of any default or
Event of Default specified in Sections
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501(3) through 501(7) unless a Responsible Officer shall have received written
notice thereof from the Issuer or a Holder.
SECTION 603. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate or any
other certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be genuine and to
have been signed or presented by the proper party or parties;
(b) any request or direction of the Issuer mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order; and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) Whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, conclusively rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document but the Trustee, in its sole discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit, and,
if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Issuer, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder; and
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(h) the Trustee shall not be liable for any action taken or omitted
by it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Indenture.
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Issuer,
and the Trustee assumes no responsibility for their correctness. The Trustee
makes no representations as to the validity or sufficiency of this Indenture,
the Securities, or any prospectus used in connection with the sale of the
Securities. The Trustee shall not be accountable for the use or application by
the Issuer of Securities or the proceeds thereof.
SECTION 605. MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Issuer, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
608 and 613, may otherwise deal with the Issuer and receive, collect, hold and
retain collections from the Issuer with the same rights it would have if it were
not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such
other agent.
SECTION 606. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed with the Issuer.
SECTION 607. COMPENSATION AND REIMBURSEMENT.
The Issuer covenants and agrees:
(1) 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);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify the Trustee for, and to hold it harmless against,
any loss, liability or expense incurred without gross negligence or bad
faith on its part, arising out of or in connection with the acceptance or
administration of this trust, including the costs and
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expenses of defending itself against any claim or liability in connection
with the exercise or performance of any of its powers or duties hereunder.
The obligations under this Section 607 to compensate and indemnify the
Trustee and to pay or reimburse the Trustee for expenses, disbursements and
advances shall constitute additional indebtedness hereunder, shall survive the
satisfaction and discharge of this Indenture or the resignation or removal of
the Trustee. When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Article Five hereof, the expenses
(including the reasonable fees and expenses of its counsel) and the compensation
for the services in connection therewith are intended to constitute expenses of
administration under any bankruptcy law.
SECTION 608. DISQUALIFICATION; CONFLICTING INTERESTS.
If the Trustee has or shall acquire any conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
conflicting interest or resign in the manner provided by, and subject to the
provisions of the Trust Indenture Act and this Indenture.
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be a
corporation or national banking association organized and doing business under
the laws of the United States of America, any State thereof or the District of
Columbia, authorized under such laws to exercise corporate trust powers, having
a combined capital and surplus of at least $10,000,000, subject to supervision
or examination by Federal or State authority and having a Corporate Trust Office
in the Borough of Manhattan, The City of New York, New York. If such
corporation publishes reports of condition at least annually, pursuant to law or
to the requirements of said supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such corporation
shall be deemed to be its combined capital 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
Section 610.
SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 611.
(b) The Trustee may resign at any time by giving written notice thereof to
the Issuer. If an instrument of acceptance by a successor Trustee shall not
have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the Holders of a
majority in principal amount of the Outstanding Securities, delivered to the
Trustee and to the Issuer.
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(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after written
request therefor by the Issuer or by any Holder who has been a bona fide
Holder of a Security for at least six months, unless the Trustee's duty to
resign is stayed in accordance with the provisions of Section 310(b) of the
Trust Indenture Act, or
(2) the Trustee shall cease to be eligible under Section 609 and
shall fail to resign after written request therefor by the Issuer or by any
such Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conversation or liquidation,
then, in any such case, (i) the Issuer by a Board Resolution may remove the
Trustee, or (ii) subject to Section 514, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, the Issuer,
by a Board Resolution shall promptly appoint a successor Trustee. If, within
one year after such resignation, removal or incapability, on the occurrence of
such vacancy, a successor Trustee shall be appointed by Act of the Holders of
majority in principal amount of the Outstanding Securities delivered to the
Issuer and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment, become the successor Trustee
and supersede the successor Trustee appointed by the Issuer. If no successor
Trustee shall have been so appointed by the Issuer or the Holders and accepted
appointment in the manner hereinafter provided, any Holder who has been a bona
fide Holder of a Security for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee. Such court may thereupon, after such
notice, if any, as it may deem proper and prescribe, remove the Trustee and
appoint a successor Trustee.
(f) The Issuer shall give notice of each resignation and each removal of
the Trustee and each appointment of a successor Trustee to all Holders in the
manner provided for in Section 106. Each notice shall include the name of the
successor Trustee and the address of its Corporate Trust Office.
SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
Every successor Trustee appointed hereunder shall execute, acknowledge and
deliver to the Issuer 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
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and duties of the retiring Trustee; but, on request of the Issuer or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all
the rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and Money held by
such retiring Trustee hereunder. Upon request of any such successor Trustee,
the Issuer 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.
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 612. MERGER, CONVERSIONS, 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 trustee
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 Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST ISSUER.
If and when the Trustee shall be or become a creditor of the Issuer (or any
other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Issuer (or any such other obligor).
SECTION 614. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint an Authenticating Agent or Agents which shall be
authorized to act on behalf of the Trustee to authenticate Securities issued
upon original issue and upon exchange, registration of transfer or partial
redemption or pursuant to Section 306, and Securities 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 Securities 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 Issuer and shall at all times be a corporation authorized 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 $10,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent
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publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus
as set forth in its most recent report of condition so published. If at any
time an Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Issuer. 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 Issuer. 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 Issuer and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders 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 Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section, and the Trustee
shall be entitled to be reimbursed for such payments, subject to the provisions
of Section 607.
If an appointment is made pursuant to this Section, the Securities 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 Securities referred to in the within mentioned
Indenture.
-------------------------------------------------
As Trustee
By:
----------------------------------------------
As Authenticating Agent
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By:
----------------------------------------------
Authorized Signatory
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND ISSUER
SECTION 701. ISSUER TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
The Issuer will furnish or cause to be furnished to the Trustee
(a) semi-annually, not more than 15 days after each June 15 and
December 15, a list in such form as the Trustee may reasonably require, of
the names and addresses of the Holders as of the applicable date, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Issuer, as the case may be, of any such
request, a list of similar form and content as of a date not more than 15
days prior to the time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with respect
to their rights under this Indenture or under the Securities, and the
corresponding rights and duties of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same, agrees
with the Issuer and the Trustee that neither the Issuer nor the Trustee nor any
agent of any of them shall be held accountable by reason of any disclosure of
information as to names and addresses of Holders made pursuant to the Trust
Indenture Act.
SECTION 703. REPORTS BY TRUSTEE.
(a) 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.
The interval between transmissions of reports to be
37
transmitted at intervals shall be twelve months or such shorter time required
by the Trust Indenture Act. If the Trust Indenture Act does not specify the
first date on which a report is due, the first such date shall be June 15
commencing with the year in which the Securities are first issued.
(b) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange or market upon which
the Securities are listed or quoted, with the Commission and with the Issuer.
The Issuer will notify the Trustee if the Securities are listed on any stock
exchange or quoted on any other market.
SECTION 704. REPORTS BY ISSUER.
(a) The Issuer covenants and agrees to file or cause to be filed with the
Trustee and the Commission, and transmit to Holders, such information, documents
and other reports, and such summaries thereof, as may be required pursuant to
the Trust Indenture Act at the times and in the manner provided pursuant to such
Act; PROVIDED that any such information, documents or reports required to be
filed with the Commission pursuant to Section 13 or 15(d) of the Exchange Act
shall be filed with the Trustee within 15 days after the same is so required to
be filed with the Commission.
(b) The Issuer shall transmit, or cause to be transmitted, to the Holders
of Securities within 30 days after the filing thereof with the Commission its
annual report prepared in accordance with Rule 14a-3 under the Exchange Act. If
the Issuer is no longer required to file such a report with the Commission, the
Issuer shall transmit a report prepared in accordance with Rule 14a-3 under the
Exchange Act to the Holders of Securities on or before May 31 of each year.
(c) If the Issuer is not required to furnish annual or quarterly reports
to its stockholders pursuant to the Exchange Act, the Issuer shall cause its
financial statements, including any notes thereto and, with respect to annual
reports, an auditors' report by an accounting firm of established national
reputation to be so filed with the Trustee within 120 days after the end of each
of the fiscal years and within 60 days after the end of each of the first three
quarters of each such fiscal year and, after the date such reports are so
required to be filed with the Trustee, to be furnished to each Holder. The
Issuer also shall provide the Trustee with such additional copies of such
reports as they may reasonably request, and the Trustee may provide said reports
to any other Person.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. ISSUER MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Issuer shall not consolidate with or merge into any other Person or
sell, convey, transfer or lease all or substantially all of its properties and
assets to any such Person, and the Issuer shall not permit any such Person to
consolidate with or merge into the Issuer or sell, convey, transfer or lease all
or substantially all of its properties and assets to the Issuer, unless:
38
(1) the Issuer shall be the continuing Person, or in case the Issuer
shall consolidate with or merge into another Person or sell, convey,
transfer or lease all or substantially all of its properties and assets to
any Person, the Person formed by such consolidation or into which the
Issuer is merged or the Person which acquires by sale, conveyance or
transfer, or which leases, all or substantially all of the properties and
assets of the Issuer, shall be a corporation organized and validly existing
under the laws of the United States of America, any State thereof or the
District of Columbia and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee the due and punctual payment of the principal
of (and premium, if any) and interest on all the Securities and the due and
punctual performance or observance of each of the other covenants and
agreements of this Indenture on the part of the Issuer to be performed or
observed;
(2) immediately after giving effect to such transaction, no event
which, after notice or lapse of time, or both, would become an Event of
Default shall have occurred and be continuing;
(3) immediately after giving effect to such transaction, each
Subsidiary controlled by the Company or the successor Person that is a
national or state banking association shall be in compliance with all
applicable minimum capital requirements and shall have filed a capital plan
acceptable to its primary regulator; and
(4) the Issuer has delivered to the Trustee an Officers' Certificate
and, if a supplemental indenture is required in connection with such
transaction, also an Opinion of Counsel, stating that such consolidation,
merger, conveyance, transfer or lease and, if a supplemental indenture is
required in connection with such transaction, such supplemental indenture
comply with this Article and that all conditions precedent herein provided
for relating to such transaction have been complied with.
SECTION 802. SUCCESSOR SUBSTITUTED.
Upon any consolidation of the Issuer with, or merger of the Issuer into,
any other Person or any sale, conveyance, transfer or lease of the properties
and assets of the Issuer substantially as an entirety in accordance with Section
801, the successor Person formed by such consolidation or into which the Issuer
is merged or to which such sale, conveyance, transfer or lease is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Issuer under this Indenture with the same effect as if such successor Person
had been named as the Issuer herein, and thereafter, except in the case of a
lease of properties and assets, the predecessor Person shall be relieved of all
obligations and covenants under this Indenture and the Securities.
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ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders the Issuer, when authorized by a Board
Resolution, and the Trustee, at any time and from time to time, may enter into
one or more indentures supplemental hereto, in form satisfactory to the Trustee,
for any of the following purposes:
(1) to evidence the succession of another Person to the Issuer and
the assumption by any such successor of the covenants and agreements of the
Issuer herein or in the Securities; or
(2) to add to the covenants of the Issuer for the benefit of the
Holders, or to surrender any right or power herein conferred upon the
Issuer; or
(3) to secure the Securities; or
(4) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture which shall not be inconsistent with the provisions of
this Indenture, provided such action pursuant to this clause (4) shall not
adversely affect the interests of the Holders in any material respect.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
(a) With the consent of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities, by Act of said Holders
delivered to the Issuer and the Trustee, the Issuer, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders under this Indenture;
PROVIDED, HOWEVER, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Security affected thereby:
(1) change the Stated Maturity of the principal of, or any
installment of interest on, any Security, or reduce the principal amount
thereof or the rate of interest thereon or any premium payable upon the
redemption thereof, or change the place of payment where, or the coin or
currency in which, any Security or any premium or the interest thereon is
payable, or impair the right to institute suit for the enforcement of any
such payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date), or
(2) reduce the percentage in principal amount of the Outstanding
Securities, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of this
40
Indenture or certain defaults hereunder and their consequences) provided
for in this Indenture, or
(3) modify any of the provisions of this Section or Section 513,
except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected thereby.
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 903. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. 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
theretofore or thereafter authenticated and delivered hereunder shall be bound
thereby.
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Issuer or the Trustee shall
so determine, new Securities so modified as to conform, in the opinion of the
Trustee and the Issuer, to any such supplemental indenture may be prepared and
executed by the Issuer and authenticated and delivered by the Trustee in
exchange for Outstanding Securities.
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ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Issuer will duly and punctually pay the principal of (and premium, if
any) and interest on the Securities in accordance with the terms of the
Securities and this Indenture.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Issuer will maintain in the Borough of Manhattan, The City of New York,
New York, an office or agency where Securities may be presented or surrendered
for payment, where Securities may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Issuer in respect of the
Securities and this Indenture may be served. The Corporate Trust Office of the
Trustee shall initially be such office or agency for all of the aforesaid
purposes. The Issuer 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 Issuer 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 Issuer hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and demands.
The Issuer may also from time to time designate one or more other offices
or agencies (in or outside of the above location) where the Securities may be
presented or surrendered for any or all such purposes and may from time to time
rescind such designations; PROVIDED, HOWEVER, that no such designation or
rescission shall in any manner relieve the Issuer of its obligation to maintain
an office or agency in the Borough of Manhattan, The City of New York, New York
for such purposes. The Issuer agrees to 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 Issuer agrees to maintain, and to cause each of its Subsidiaries to
maintain, copies of all minute books, stock records, financial statements and
bank account information at the principal executive offices of the Issuer, or
those of its counsel, in the United States.
SECTION 1003. MONEY FOR SECURITY PAYMENTS TO BE HELD IN TRUST.
If the Issuer shall at any time act as its own Paying Agent, it will, on or
before each due date of the principal of (and premium, if any) or interest on
any of the Securities, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum of Money sufficient to pay the principal (and
premium, if any) or interest so becoming due until such sums shall be paid to
such Persons or otherwise disposed of as herein provided and will promptly
notify the Trustee of its action or failure so to act.
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Whenever the Issuer shall have one or more Paying Agents, it will, on or
before each due date of the principal of (and premium, if any) or interest on
any Securities, deposit with a Paying Agent a sum of Money 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 Issuer will promptly notify the
Trustee of its action or failure so to act.
The Issuer will cause each Paying Agent other than the Trustee to execute
and deliver to the Trustee an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section, that such Paying
Agent will: (i) comply with the provisions of the Trust Indenture Act
applicable to it as a Paying Agent and (ii) during the continuance of any
default by the Issuer (or any other obligor upon the Securities) in the making
of any payment in respect of the Securities, upon the written request of the
Trustee, forthwith pay to the Trustee all sums held in trust by such Paying
Agent as such.
The Issuer 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 Money held in trust by
the Issuer or such Paying Agent, such Money to be held by the Trustee upon the
same terms as those upon which such Money was held by the Issuer or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to such money.
SECTION 1004. EXISTENCE; CONDUCT OF OPERATIONS; INSURED INSTITUTION.
(1) Subject to Article Eight, the Issuer will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence,
rights (charter and statutory) and franchises of the Issuer and its
subsidiaries, and shall comply with all material statutes, rules, regulations
and orders of and restrictions imposed by governmental and administrative
authorities and agencies applicable to the Issuer and its Subsidiaries;
PROVIDED, HOWEVER, subject to paragraph (2) of this Section 1004, that the
Issuer shall not be required to preserve any such right or franchise if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Issuer and its Subsidiaries and
that the loss thereof is not disadvantageous in any material respect to the
Holders.
(2) The Issuer shall do or cause to be done all things necessary to
preserve and keep in full force and effect any Subsidiary that is chartered as a
bank as an Insured Institution and do all things necessary to ensure that
savings accounts of any such Subsidiary are insured by the FDIC or any successor
organization up to the maximum amount permitted by the Federal Deposit Insurance
Act and regulations thereunder or any succeeding federal law hereinafter
enacted.
SECTION 1005. STATEMENT BY OFFICERS AS TO COMPLIANCE.
(1) The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year, an Officers' Certificate, stating whether or not to the
best knowledge of the signers thereof the Issuer is in default in the
performance and observance of any of the terms, provisions and conditions
43
of this Indenture, (other than a term, provision or condition specifically
dealt with in Clause (2) of this Section 1006) setting forth the arithmetical
computations required to show compliance with the provisions of Section 1007
during the previous year, and, if the Issuer shall be in default, specifying
all such defaults and the nature and status thereof of which they may have
knowledge.
(2) The Issuer will deliver to the Trustee, within five days after the
occurrence thereof, written notice of any event which after notice or lapse of
time or both would become an Event of Default.
SECTION 1006. RESTRICTED PAYMENTS ON CAPITAL STOCK.
The Issuer will not declare or pay dividends on, or purchase, redeem or
acquire its Capital Stock, return any capital to holders of Capital Stock, or
make any distribution of assets to holders of Capital Stock, except that the
Issuer (i) may declare and pay a dividend in Capital Stock of the Issuer and
(ii) declare and pay a dividend or make another distribution in cash or property
other than Capital Stock of the Issuer if the amount of such dividend or
distribution, together with the amount of all such previous dividends and
distributions after March 31, 1997, would not exceed the sum of (A) $2 million,
(B) 75% of the Issuer's Consolidated Net Income (or, in the event such aggregate
Consolidated Net Income shall be a loss, minus 100% of such loss) accrued on a
cumulative basis during the period beginning on April 1, 1997 and ending on the
last day of the Issuer's fiscal quarter immediately preceding such dividend or
distribution (treated as a single accounting period), and (C) 100% of the net
proceeds received by the Issuer from the issuance or sale (other than to a
Subsidiary) of Capital Stock of the Issuer, including any such shares issued
upon exercise of any warrants, options or similar rights (other than
Disqualified Stock), subsequent to March 31, 1997.
The foregoing provisions will not prevent the payment of any dividend or
distribution within 60 calendar days after the date of its declaration if the
dividend or distribution would have been permitted on the date of declaration.
The provisions of clause (ii) above shall not prevent (A) acquisitions of
Capital Stock from the Issuer by any Subsidiary and (B) the retirement,
redemption or exchange of any shares of the Issuer's Capital Stock by exchange
for, or out of the proceeds of the substantially concurrent sale of, other
shares of Capital Stock of the Issuer other than Disqualified Stock. For
purposes of calculating the aggregate amount of the dividends or distributions
made pursuant to clause (ii) of the immediately preceding paragraph, dividend
payments or distributions made under this paragraph shall be included in such
amount, provided that dividends or distributions paid within 60 calendar days of
the date of declaration shall be deemed to be paid at the date of declaration.
Prior to making any dividend or distribution under this Section 1006, the
Issuer shall deliver to the Trustee an Officers' Certificate setting forth the
computation by which the amount available for such dividend or distribution was
determined. The Trustee shall have no duty or responsibility to determine the
accuracy or correctness of this computation and shall be fully protected in
relying on such Officers' Certificate.
SECTION 1007 MAINTENANCE OF PROPERTIES; INSURANCE
44
The Issuer will:
(1) cause its properties and the properties of its Subsidiaries used
or useful in the conduct of the business of the Issuer and its Subsidiaries
to be maintained and kept in good condition, repair and working order and
supplied with all necessary facilities and equipment and will cause to be
made all necessary repairs, renewals, replacements, and improvements
thereof, all as in the judgment of the Issuer may be necessary so that the
business carried on in connection therewith may be properly and
advantageously conducted at all times; PROVIDED, HOWEVER, that the
foregoing shall not prevent the Issuer or a Subsidiary from discontinuing
the operation and maintenance of any of its properties if such
discontinuance is, in the judgment of the Issuer, desirable in the conduct
of its business and not disadvantageous in any material respect to any
Holder; and
(2) take all appropriate steps to preserve, protect and maintain the
trademarks, trade names, copyrights, licenses and permits used in the
conduct of the business of the Issuer and its Subsidiaries; PROVIDED,
HOWEVER, that the foregoing shall not prevent the Issuer or a Subsidiary
from selling, abandoning or otherwise disposing of any such trademark,
trade name, copyright, license or permit if such sale, abandonment or
disposition is, in the judgment of the Issuer, desirable in the conduct of
its business and not disadvantageous in any material respect to any Holder.
(3) The Issuer will maintain or cause to be maintained in effect,
with reputable insurers or associations of recognized responsibility, such
types and amounts of insurance as are customarily carried by persons
engaged in the same or similar businesses as the Issuer and may provide for
self-insurance, by way of retention or deductible, in such amounts as are
customary in the industry for persons engaged in the same or similar
businesses as the Issuer.
SECTION 1008. PAYMENT OF TAXES AND OTHER CLAIMS.
The Issuer will pay or discharge or cause to be paid or discharged, before
the same shall become delinquent, (1) all taxes, assessments and governmental
charges levied or imposed upon the Issuer or any Subsidiary or upon the income,
profits or property of the Issuer or any Subsidiary and (2) all lawful claims
for labor, material and supplies which, if unpaid, might by law become a lien
upon the property of the Issuer or any Subsidiary; PROVIDED, HOWEVER, that the
Issuer shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount, applicability
or validity is being contested in good faith by appropriate proceedings and for
which disputed amounts adequate reserves have been established.
SECTION 1009. BOOKS AND RECORDS.
The Issuer shall, and shall cause each Subsidiary to, at all times keep
proper books of record and account in which proper entries shall be made in
accordance with GAAP and, to the extent applicable, regulatory accounting
principles.
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ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. RIGHT OF REDEMPTION.
The Securities may not be redeemed prior to May 31, 2000. On and after May
31, 2000, the Securities may be redeemed at the election of the Issuer, as a
whole or from time to time in part, at par together with accrued and unpaid
interest to the Redemption Date (subject to the right of the Holder of
Securities on a Regular Record Date for an interest payment to receive such
interest payment payable on the corresponding Interest Payment Date).
SECTION 1102. APPLICABILITY OF ARTICLE.
Redemption of Securities as permitted by any provision of this Indenture,
shall be made in accordance with such provisions and this Article.
SECTION 1103. ELECTION TO REDEEM; NOTICE OF TRUSTEE.
The election of the Issuer to redeem any Securities pursuant to Section
1101 shall be evidenced by a Board Resolution. In case of any redemption at the
election of the Issuer of less than all the Securities, the Issuer shall, at
least 60 days prior to the Redemption Date fixed by the Issuer (unless a shorter
notice shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date and of the principal amount of Securities to be redeemed.
SECTION 1104. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities are to be redeemed pursuant to Section
1101, the particular Securities to be redeemed shall be selected not more than
35 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities 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 $1,000 or any integral multiple thereof) of the
principal amount of Securities of a denomination larger than $1,000.
The Trustee shall promptly notify the Issuer and each Security Registrar in
writing of the Securities selected for redemption and, in the case of any
Securities selected for partial redemption, the principal amount thereof to be
redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
46
SECTION 1105. NOTICE OF REDEMPTION.
Notice of redemption of any Securities pursuant to Section 1101 shall be
given by first-class mail, postage prepaid, mailed not less than 30 days nor
more than 60 days prior to the Redemption Date, to each Holder of Securities to
be redeemed, at his address appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities are to be redeemed,
the identification (and, in the cases of partial redemption, the principal
amounts) of the particular Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and that interest
thereon will cease to accrue on and after said date,
(5) in case any Security is to be redeemed in part only, the notice
which relates to such Security shall state that on and after the Redemption
Date, upon surrender of such Security, the Holder of such Security will
receive, without charge to such Holder, a new Security or Securities of
authorized denominations for the principal amount thereof remaining
unredeemed;
(6) the place or places where such Securities are to be surrendered
for payment of the Redemption Price; and
(7) the CUSIP number of such Securities, if any (or any other numbers
used by a Depositary to identify such Securities).
Notice of redemption of Securities to be redeemed shall be given by the
Issuer or, at the Issuer's request, by the Trustee in the name and at the
expense of the Issuer.
SECTION 1106. DEPOSIT OF REDEMPTION PRICE.
On or before any Redemption Date relating to a redemption pursuant to
Section 1101, the Issuer shall deposit with the Trustee or with a Paying Agent
(or, if the Issuer is acting as its own Paying Agent, segregate and hold in a
trust as provided in Section 1003) 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 Securities which are to be redeemed
on that date.
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SECTION 1107. SECURITIES PAYABLE ON REDEMPTION DATE.
(a) Notice of redemption pursuant to Section 1105 having been given as
aforesaid, the Securities so to be redeemed shall, on the Redemption Date,
become due and payable at the Redemption Price therein specified, and from and
after such date (unless the Issuer shall default in the payment of the
Redemption Price and accrued interest) such Securities shall cease to bear
interest. Upon surrender of any such Security for redemption in accordance with
said notice, such Security shall be paid by the Issuer at the Redemption Price,
together with accrued and unpaid interest to the Redemption Date; PROVIDED,
HOWEVER, that installments of interest whose Stated Maturity is on or after the
Redemption Date shall be payable to the Holders of such Securities, or one or
more Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section
307.
(b) If any Security surrendered for redemption shall not be paid on the
Redemption Date therefor, the principal (and premium, if any) shall, until paid,
bear interest from the Redemption Date at the rate borne by the Security.
SECTION 1108. SECURITIES REDEEMED IN PART.
Any Security which is to be redeemed only in part shall be surrendered at
the Corporate Trust Office or at another office or agency of the Issuer
designated for that purpose pursuant to Section 1002 (with, if the Issuer or the
Trustee so requires, due endorsement by, or a written instrument of transfer in
form satisfactory to the Issuer and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing), and the Issuer shall
execute, and the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Security or Securities, of any authorized
denomination as requested by such Holder, in aggregate principal amount equal to
and in exchange for the unredeemed portion of the principal of the Security so
surrendered.
ARTICLE TWELVE
SUBORDINATION
SECTION 1201. AGREEMENT TO SUBORDINATE.
The Issuer covenants and agrees, and each Holder of a Security by his
acceptance thereof, likewise covenants and agrees, that all Securities shall be
issued subject to the provisions of this Article; and each Person holding any
Security, whether upon original issue or upon transfer, assignment or exchange
thereof, accepts and agrees that the principal of and interest on all Securities
shall, to the extent and in the manner herein set forth, be subordinated and
subject in right of payment to the prior payment in full of all Senior
Indebtedness, and that the subordination is for the benefit of the holders of
the Senior Indebtedness.
SECTION 1202. PAYMENT TO SECURITY HOLDERS.
48
In the event of the occurrence and continuation of the following: (i) the
Issuer shall commence any proceeding seeking to have an order for relief entered
on its behalf as a debtor or to adjudicate it a bankrupt or insolvent, or
seeking reorganization, arrangement, adjustment, liquidation, dissolution or
composition of the Issuer or its debts under any law relating to bankruptcy,
insolvency, reorganization or relief of debtors or seeking appointment of a
receiver, trustee, liquidator, custodian or other similar official for the
Issuer or for all or substantially all of its property or shall file an answer
or other pleading in any such proceeding admitting the material obligations of
any petition, complaint on similar pleading filed against it or consenting to
the relief sought therein; or shall take any action to authorize any of the
foregoing; (ii) any involuntary proceeding against the Issuer shall be commenced
seeking to have an order for relief entered on its behalf as a debtor or to
adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement,
adjustment, liquidation, dissolution or composition of the Issuer or its debts
under any law relating to bankruptcy, insolvency, reorganization or relief of
debtors or seeking appointment of a receiver, trustee, liquidator, custodian or
other similar official for the Issuer or for all or substantially all of its
property, (iii) the Issuer shall fail to pay the principal or interest on any
Senior Indebtedness when such amounts become due and payable, (iv) an event of
default relating to any Senior Indebtedness, as defined in the Senior
Indebtedness or in the mortgage, indenture or other instrument relating to or
under which the Senior Indebtedness is outstanding, permitting the holder or
holders thereof to accelerate the maturity thereof, and such default or event of
default shall not be cured or was continued beyond the period of grace, if any,
in respect thereof, and such default or event of default shall not have been
waived or shall not have ceased to exist, or (v) that the principal of and
accrued interest on the Securities shall have been declared due and payable
pursuant to Section 502 and such declaration shall not have been rescinded and
annulled as provided in Section 502, then the holders of all Senior Indebtedness
shall first be entitled to receive payment in full of all amounts due or to
become due thereon, or provision shall be made, in accordance with the terms of
such Senior Indebtedness, for such payment in money or money's worth, before the
Holders of the Securities entitled to receive a payment on account of the
principal of or interest on the indebtedness evidenced by the of Securities.
Upon any such proceeding referred to in clauses (i) or (ii) of the
immediately preceding paragraph, any payment or distribution of assets of the
Issuer of any kind or character, whether in cash, property or securities, to
which the Holders of the Securities or the Trustee under this Indenture would be
entitled, except for the provisions hereof, shall be paid by the Issuer or by
any receiver, trustee, custodian, liquidator or other Person making such payment
or distribution or, to the extent required by the next succeeding paragraph, by
the Holders of the Securities or the Trustee, if received by them or it,
directly to the holders of Senior Indebtedness (pro rata to such holders on the
basis of the respective amounts of Senior Indebtedness held by such holders) or
their respective representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing any of such Senior
Indebtedness may have been issued, as their respective interests may appear, to
the extent necessary to pay all Senior Indebtedness in full after giving effect
to any concurrent payment or distribution (or provision therefor) to or for the
holders of Senior Indebtedness, before any payment or distribution is made to
the Holders of the indebtedness evidenced by the Securities or to the Trustee
under this Indenture.
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In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Issuer of any kind or character, whether in cash,
property or securities, prohibited by the foregoing provisions of this Section,
shall be received by the Trustee under this Indenture or the Holders of the
Securities before all Senior Indebtedness is paid in full or provision is made
for such payment in accordance with its terms, and if such fact shall, at or
prior to the time of such payment or distribution, have been known to the
Trustee, then such payment or distribution shall be held in trust for the
benefit of and shall be paid over or delivered to the holders of such Senior
Indebtedness or their respective representatives, or to the trustee or trustees
under any indenture pursuant to which any instruments evidencing any of such
Senior Indebtedness may have been issued, as their respective interests may
appear, for application to the payment of all Senior Indebtedness remaining
unpaid until all such Senior Indebtedness shall have been paid in full in
accordance with its terms, after giving effect to any concurrent payment or
distribution to or for the holders of such Senior Indebtedness.
For purposes of this Article Twelve only, the words, "cash, property or
securities" shall not be deemed to include shares of Capital Stock of the Issuer
as reorganized or readjusted, or securities of the Issuer or any other
corporation provided for by a plan of arrangement, reorganization or
readjustment, the payment of which is subordinated (at least to the extent
provided in this Article Twelve with respect to the Securities) to the payment
of all Senior Indebtedness which may at the time be outstanding; PROVIDED that
(i) the Senior Indebtedness is assumed by the new corporation, if any, resulting
from any such arrangement, reorganization or readjustment, and (ii) the rights
of the holders of the Senior Indebtedness are not, without the consent of such
holders, altered by such arrangement, reorganization or readjustment. The
consolidation of the Issuer with, or the merger of the Issuer with or into,
another corporation or the liquidation or dissolution of the Issuer following
the conveyance or transfer of all or substantially all of its assets to another
corporation upon the terms and conditions provided in Article Eight shall not be
deemed a dissolution, winding-up, liquidation or reorganization for the purposes
of this Section Twelve if such other corporation shall, as a part of such
consolidation, merger, conveyance or transfer, comply with the conditions stated
in Article Eight. Nothing in this Section Twelve shall apply to claims of, or
payments to, the Trustee under or pursuant to Article Six, except as expressly
provided therein. This Section shall be subject to the further provisions of
Section 1205.
SECTION 1203. SUBROGATION.
Subject to the payment in full of all Senior Indebtedness, the Holders of
the Securities subject to the provisions of Section 1202 shall be subrogated
(equally and ratably with the holders of all obligations of the Issuer which by
their express terms are subordinated to Senior Indebtedness of the Issuer to the
same extent as the Securities are subordinated and which are entitled to like
rights of subrogation) to the rights of the holders of Senior Indebtedness to
receive payments or distributions of cash, property or securities of the Issuer
applicable to the Senior Indebtedness until all amounts owing on the Securities
shall be paid in full; and, for the purpose of such subrogation, no payments or
distributions to the holders of the Senior Indebtedness of any cash, property or
securities to which the Holders of the Securities or the Trustee on their behalf
would be entitled except for the provisions of this Article, and no payment over
pursuant to the provisions of this Article to the holders of Senior Indebtedness
by Holders of the Securities or the Trustee on their behalf shall, as
50
between the Issuer, its creditors other than holders of Senior Indebtedness
and the Holders of the Securities be deemed to be a payment by the Issuer to
or on account of the Senior Indebtedness; and no payments or distributions of
cash, property or securities to or for the benefit of the Holders pursuant to
the subrogation provision of this Article Twelve, which would otherwise have
been paid to the holders of Senior Indebtedness, shall be deemed to be a
payment by the Issuer to or for the account of the Securities. The
provisions of this Article Twelve are intended solely for the purpose of
defining the relative rights of the Holders of the Securities, on the one
hand, and the holders of the Senior Indebtedness, on the other hand.
Nothing contained in this Article Twelve or elsewhere in this Indenture or
in the Securities is intended to or shall impair, as between the Issuer, its
creditors other than the holders of Senior Indebtedness, and the Holders of the
Securities, the obligation of the Issuer, which is absolute and unconditional,
to pay to the Holders of the Securities the principal of and interest on the
Securities as and when the same shall become due and payable in accordance with
their terms, or is intended to or shall affect the relative rights against the
Issuer of the Holders of the Securities and creditors of the Issuer other than
the holders of Senior Indebtedness, nor shall anything herein or therein prevent
the Holder of any Security or the Trustee on his behalf from exercising all
remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article Twelve of the
holders of Senior Indebtedness in respect of cash, property or securities of the
Issuer received upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Issuer referred to in
this Article Twelve, the Trustee, subject to the provisions of Sections 601 and
603, and the Holders of the Securities shall be entitled to rely upon any order
or decree made by any court of competent jurisdiction in which such insolvency,
bankruptcy, dissolution, winding-up, liquidation, arrangement or reorganization
proceedings are pending, or a certificate of the receiver, trustee in
bankruptcy, liquidating trustee, agent or other Person making such payment or
distribution, delivered to the Trustee or to the Holders of the Securities for
the purpose of ascertaining the Persons entitled to participate in such
distribution, the holders of the Senior Indebtedness and other indebtedness of
the Issuer, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article
Twelve.
SECTION 1204. AUTHORIZATION BY HOLDERS.
Each Holder of a Security by his acceptance thereof authorizes the Trustee
on his behalf to take such action as may be necessary or appropriate to
effectuate the subordination provided in this Article Twelve and appoints the
Trustee his attorney-in-fact for any and all such purposes.
SECTION 1205. NOTICE TO TRUSTEE.
The Issuer shall give prompt written notice to the Trustee and to any
Paying Agent of any fact known to the Issuer which would prohibit the making of
any payment of monies to or by the Trustee or any Paying Agent in respect of the
Securities pursuant to the provisions of this Article Twelve. Regardless of
anything to the contrary contained in this Article Twelve or elsewhere in this
Indenture, the Trustee shall not be charged with knowledge of the existence of
any Senior
51
Indebtedness or of any default or event of default with respect to any Senior
Indebtedness or of any other facts which would prohibit the making of any
payment of monies to or by the Trustee in respect of the Securities, unless
and until the Trustee shall have received notice in writing (which may be by
telegram, telecopy or other similar writing) at its Corporate Trust Office to
that effect signed by an officer of the Issuer, or by a holder or agent of a
holder of Senior Indebtedness who shall have been certified by the Issuer or
otherwise established to the reasonable satisfaction of the Trustee to be
such holder or agent, or by the trustee under any indenture pursuant to which
Senior Indebtedness shall be outstanding, and, prior to the receipt of any
such written notice, the Trustee shall, subject to Sections 601 and 603, be
entitled to assume that no such facts exist; PROVIDED that if on a date at
least two Business Days prior to the date upon which by the terms hereof any
such monies shall become payable for any purpose (including, without
limitation, the payment of the principal of or interest on any Security) the
Trustee shall not have received with respect to such monies the notice
provided for in this Section 1205, then, regardless of anything herein to the
contrary, 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 prior date.
Regardless of anything to the contrary herein (but subject, in the case of
clause (a) of this paragraph, to the second paragraph of Section 1302), nothing
shall prevent (a) any payment by the Issuer or the Trustee to the Holders of
amounts in connection with a redemption of Securities if (i) notice of such
redemption has been given pursuant to Article Eleven prior to the receipt by the
Trustee of written notice as aforesaid, and (ii) such notice of redemption is
given not earlier than 60 days before the Redemption Date, or (b) any payment by
the Trustee to the Holders of amounts deposited with it pursuant to Section 401
or 402, provided, that, in the case of Section 402, the Securities are deemed to
have been paid and discharged, and in the case of Section 401, the Trustee shall
not have received, by at least two Business Days prior to the date of execution
of instruments acknowledging the satisfaction of and discharge of this Indenture
with respect to the Securities, the notice provided in the preceding paragraph.
Subject to Sections 601 and 603, the Trustee shall be entitled to rely on
the delivery to it of a written notice by a Person representing himself to be a
holder of Senior Indebtedness (or a trustee on behalf of such holder) to
establish that such notice has been given by a holder of Senior Indebtedness or
a trustee on behalf of any such holder. In the event that the Trustee
determines in good faith that further evidence is required with respect to the
right of any Person as a holder of Senior Indebtedness to participate in any
payment or distribution pursuant to this Article Twelve, the Trustee may request
such Person to furnish evidence to the reasonable satisfaction of the Trustee as
to the amount of Senior Indebtedness held by such Person, the extent to which
such Person is entitled to participate in such payment or distribution and any
other facts pertinent to the rights of such Person under this Article Twelve,
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.
52
SECTION 1206. TRUSTEE'S RELATION TO SENIOR INDEBTEDNESS.
The Trustee and any agent of the Issuer or the Trustee shall be entitled to
all the rights set forth in this Article Twelve with respect to any Senior
Indebtedness which may at any time be held by it in its individual or any other
capacity to the same extent as any other holder of Senior Indebtedness and
nothing in Section 614 or elsewhere in this Indenture shall deprive the Trustee
or any such agent of any of its rights as such holder. Nothing in this Article
Twelve shall apply to claims of, or payments to, the Trustee under or pursuant
to Section 607.
With respect to the holders of Senior Indebtedness, the Trustee undertakes
to perform or to observe only such of its covenants and obligations as are
specifically set forth in this Article Twelve, and no implied covenants or
obligations with respect to the holders of Senior Indebtedness shall be read
into this Indenture against the Trustee. The Trustee shall not be deemed to owe
any fiduciary duty to the holders of Senior Indebtedness and, subject to the
provisions of Sections 601 and 603, the Trustee shall not be liable to any
holder of Senior Indebtedness if it shall in good faith pay over or deliver to
Holders of Securities, the Issuer or any other Person monies or assets to which
any holder of Senior Indebtedness shall be entitled by virtue of this Article
Twelve or otherwise.
SECTION 1207. NO IMPAIRMENT OF SUBORDINATION.
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Issuer or
by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Issuer with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof which any such holder may have or
otherwise be charged with.
53
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
Address for Notices: BNCCORP, INC.
Issuer
▇▇▇ ▇▇▇▇ ▇▇▇▇
▇. ▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By:______________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
President
Attest:
______________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Secretary
Address for Notices: FIRSTAR TRUST COMPANY
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Trustee
Fourth Floor
P. O. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Securities Processing
Corporate Trust
By:______________________________
Name:
Title:
Attest:
______________________________
Trust Officer
54
SCHEDULE A
FORM OF FACE OF SECURITY.
(The immediate following legend shall be included on a Global Security only)
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Issuer or its
agent for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
required by an authorized representative of DTC (and any payment is made to Cede
& Co. or to such other entity as is required by an authorized representative of
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has
an interest herein.
THIS SECURITY IS NOT A SAVINGS ACCOUNT OR A DEPOSIT AND IS NOT INSURED BY
THE UNITED STATES OR ANY AGENCY OF THE UNITED STATES.
BNCCORP, INC.
No. ________ $________
________% Subordinated Note due 2004
BNCCORP, Inc., a corporation duly organized and existing under the laws of
Delaware (herein called the "Issuer", which term includes any successor Person
under the Indenture hereinafter referred to), for value received, hereby
promises to pay to ________, or registered assigns, the principal sum of
________ Dollars on May 31, 2004 and to pay interest thereon from the date of
issuance or from the most recent Interest Payment Date to which interest has
been paid or duly provided for, monthly on the first Business Day of each month,
commencing July 1, 1997, at the rate of ________% per annum, until the principal
hereof is paid or made available for payment. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in such Indenture, be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest, which shall be the 15th day
(whether or not a Business Day), of the calendar month, next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in whose name this Security (or
one or more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice whereof shall be given to Holders of Securities not less
than 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 Securities may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and interest on this Security
will be made at the Corporate Trust Office or at another office or agency of the
Issuer maintained for that purpose in the Borough of Manhattan, The City of New
York, New York 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 Issuer payment of interest may be
made by check mailed on or before the Stated Maturity to the address of the
Person entitled thereto as such address shall appear in the Security Register.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
1
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed under its corporate seal.
Dated:
BNCCORP, INC.
By:__________________________
Attest:
______________________________
2
FORM OF REVERSE OF SECURITY.
BNCCORP, INC.
________% Subordinated Note due 2004
This Security is one of a duly authorized issue of Securities of the Issuer
designated as its ________% Subordinated Notes due 2004 (herein called the
"Securities"), limited in aggregate principal amount to $15,000,000, issued and
to be issued under an Indenture, dated as of May ____, 1997, (herein called the
"Indenture"), between BNCCORP, INC. (the "Issuer"), and Firstar Trust Company,
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 Issuer, the
Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered.
The Securities are general unsecured obligations of the Issuer. The
Indenture imposes certain limitations on the ability of the Issuer to, among
other things, make payments in respect of its Capital Stock, merge or
consolidate with any other Person or sell, lease, transfer or otherwise dispose
of substantially all of its properties or assets. All such covenants and
limitations are subject to a number of important qualifications and exceptions.
The Issuer must report periodically to the Trustee on compliance with the
covenants in the Indenture.
An Event of Default is: (i) failure by the Issuer or any successor thereto
to pay the principal on any Security when due at Maturity or upon a redemption
of such Security when and as due by the terms of the Indenture; (ii) failure by
the Issuer or any successor thereto to pay the interest on any Security for a
period of 10 days after such interest shall have become due and payable; (iii)
failure to perform any other covenant set forth in the Indenture and continuance
of such failure for a period of 30 days after there has been given by registered
or certified mail, to the Issuer by the Trustee or to the Issuer and the Trustee
by the Holders of at least 25% in aggregate principal amount of the outstanding
Securities a written notice specifying such default and requiring such default
to be remedied and stating that such notice is a "Notice of Default" under the
Indenture; (iv) a default in any payment at Stated Maturity of Indebtedness of
the Issuer or a Subsidiary having an outstanding principal amount due at Stated
Maturity greater than $2.0 million and such default shall have continued without
being cured, waived or consented to or without such Indebtedness being
discharged for a period of 30 days beyond any applicable grace period; (v) an
event of default as defined in any mortgage, indenture or instrument of the
Issuer or any Subsidiary shall have happened and resulted in the acceleration of
Indebtedness which together with the principal amount of any other Indebtedness
so accelerated, aggregates $2.0 million or more at any time, and such default
shall not have been cured or waived and such acceleration shall not have been
rescinded or annulled; (vi) entry of a final judgment, decree or order against
the Issuer or any Subsidiary for the payment of money in excess of $1.0 million
and such judgment, decree or order continues unsatisfied for 60 days from the
entry thereof unless vacated, discharged or stayed pending appeal within such
60-day period; (vii) the entry by a court or agency or supervisory authority
having competent jurisdiction of: (a) a decree or order for relief in respect of
the Issuer or any of its Subsidiaries in an involuntary proceeding under any
applicable bankruptcy, insolvency, reorganization or other similar law and such
decree or order shall remain unstayed and in effect for a period of 60
consecutive days; or (b) a decree or order adjudging the Issuer or any of its
Subsidiaries to be insolvent, or approving a petition seeking reorganization,
arrangement, adjustment or composition of the Issuer or its Subsidiaries and
such decree or order shall remain unstayed and in effect for a period of 60
consecutive days; or (c) a decree or order appointing the Federal Deposit
Insurance Corporation (the "FDIC") or any other Person to act as a custodian,
receiver, liquidation, assignee, trustee or other similar official of the
Issuer, any of its Subsidiaries or of any substantial part of the property of
the Issuer or its Subsidiaries, as the case may be, or ordering the winding up
or liquidation of the affairs of the Issuer or its Subsidiaries and such decree
or order shall remain unstayed and in effect for a period of 60 consecutive
days; or (d) the commencement by the Issuer or any of its Subsidiaries of a
voluntary proceeding under any applicable bankruptcy, insolvency, reorganization
or other similar law or of a voluntary proceeding seeking to be adjudicated
insolvent or the consent by the Issuer or any of its Subsidiaries to the entry
of a decree or order for relief in an involuntary proceeding under any
applicable bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any insolvency proceedings against it, or the filing by the
Issuer or any of its Subsidiaries of a petition or answer or consent seeking
reorganization or relief under any applicable law, or the consent by the Issuer
or any of its Subsidiaries to the filing of such petition or to the appointment
of or taking possession by a custodian, receiver, liquidator, assignee, trustee
or similar official of the Issuer or any of its Subsidiaries or any substantial
part of the property of the Issuer or any of its Subsidiaries or the making by
the Issuer or any of its Subsidiaries of an assignment for the benefit of
creditors, or the taking of corporate action by the Issuer or any of its
Subsidiaries in furtherance of any such action. If an Event of
3
Default described in clause (vii) above occurs and is continuing, then and in
every such case the Trustee or the Holders of not less than 25% in aggregate
principal amount of the Outstanding Securities may declare the principal of
all the Securities to be due and payable immediately and, upon such
declaration, the Securities will become immediately due and payable in the
manner and with the effect provided in the Indenture.
The indebtedness of the Issuer evidenced by the Securities, including the
principal thereof and interest thereon (including post-default interest), (1) is
expressly subordinated, to the extent and to the manner set forth in the
Indenture, in right of payment to the prior payment in full of all of the
Issuer's obligations to holders of Senior Indebtedness and (2) is unsecured by
any collateral, including the assets of the Issuer or any of its Subsidiaries or
affiliates. Each Holder of Securities, by acceptance thereof, (a) agrees to and
shall be bound by such provisions of the Indenture and all other provisions of
the Indenture; (b) authorizes and directs the Trustee to take such action on
such Holder's behalf as may be necessary or appropriate to effectuate the
subordination of the Securities as provided in the Indenture; and (c) appoints
the Trustee as such Holder's attorney-in-fact for any and all such purposes.
The Securities are not subject to any sinking fund.
The Securities will not be redeemable at the option of the Issuer prior to
May 31, 2000. On and after May 31, 2000, the Securities are subject to
redemption upon not less than 30 days' nor more than 60 days' notice by mail, at
any time as a whole or in part, at the election of the Issuer, at par together
in the case of any such redemption with accrued and unpaid interest to the
Redemption Date, but interest installments whose Stated Maturity is on or after
such Redemption Date will be payable to the Holders of such Securities, or one
or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture. If less than all Securities are redeemed, the Trustee will select
the Securities to be redeemed by such method as the Trustee may deem fair and
appropriate.
Interest installments whose Stated Maturity is on the Redemption Date will
be payable to the Holders of such Securities, or one or more Predecessor
Securities, of record at the close of business on the relevant Regular Record
Date referred to on the face hereof; all as provided in the Indenture. In the
event of redemption or repayment of this Security in part only, a new Security
or Securities for the unredeemed or unrepaid portion hereof shall be issued in
the name of the Holder hereof upon the surrender hereof.
In the event of redemption of this Security in part only, a new Security or
Securities for the unredeemed portion hereof will be issued in the name of the
Holder hereof upon the cancellation hereof.
The Indenture permits, with certain exceptions, as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Securities under the Indenture at
any time by the Issuer and the Trustee with the consent of the Holders of a
majority in aggregate principal amount of the Securities at the time
Outstanding. The Indenture also contains provisions permitting the Holders of
specified percentages in aggregate principal amount of the Securities at the
time Outstanding on behalf of the Holders of all the Securities, to waive
compliance by the Issuer with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any Security issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Security.
No provision of this Security or of the Indenture shall alter or impair the
obligation of the Issuer, which is absolute and unconditional, to pay the
principal of (and premium, if any) and interest on this Security 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 Security is registrable in the Security Register,
upon surrender of this Security for registration at the Corporate Trust Office
or at another office or agency of the Issuer in the Borough of Manhattan, The
City of New York, New York duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Issuer and the Security
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Securities, of authorized denominations
and for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
4
The Securities are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Securities are
exchangeable for a like aggregate principal amount of Securities of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Issuer may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentation of this Security for registration of transfer,
the Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the
Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Issuer, the
Trustee nor any such agent shall be affected by notice to the contrary.
All capitalized terms used in this Security and not specifically defined
herein are defined in the Indenture and shall have the meanings assigned to them
in the Indenture.
This is one of the Securities referred to in the within mentioned
Indenture.
FIRSTAR TRUST COMPANY
as Trustee
By:
----------------------
Authorized Signatory
