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As filed with the Securities and Exchange Commission on December 23, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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PROVIDENT FINANCIAL GROUP, INC. OHIO 31-0982792
PROVIDENT CAPITAL TRUST III DELAWARE APPLIED FOR
PROVIDENT CAPITAL TRUST IV DELAWARE APPLIED FOR
(Exact name of each Registrant as (State or other jurisdiction (I.R.S. Employer
specified in its charter) of incorporation or organization) Identification Number)
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ONE EAST FOURTH STREET
CINCINNATI, OHIO 45202
(513) 579-2000
(Address, including zip code, and telephone number,
including area code, of Registrants' principal
executive offices)
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MARK E. MAGEE, ESQ.
GENERAL COUNSEL
PROVIDENT FINANCIAL GROUP, INC.
ONE EAST FOURTH STREET
CINCINNATI, OHIO 45202
(513) 579-2861
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
WITH COPIES TO:
MARK A. WEISS, ESQ.
KEATING, MUETHING & KLEKAMP, P.L.L.
1800 PROVIDENT TOWER
CINCINNATI, OHIO 45202
(513) 579-6599
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to
time after the effective date of this Registration Statement as determined by
market conditions and other factors.
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If the only securities being registered on this form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. [ ]
If any of the securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box. [X]
If this form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]______
If this form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]______
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
(Cover continued on next page)
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CALCULATION OF REGISTRATION FEE
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Proposed Maximum
Aggregate Offering Proposed Maximum Amount of
Title of each Class of Amount to be Price Per Share Aggregate Offering Registration
Securities to be Registered Registered (1) (2) (3) Price (2) (3) Fee (4)
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Debt Securities of
Provident Financial Group,
Inc. (3) (3) (3)
Debt Warrants of Provident
Financial Group, Inc. (3) (3) (3)
Preferred Stock of Provident
Financial Group, Inc. (3) (3) (3)
Preferred Stock Warrants of
Provident Financial Group,
Inc. (3) (3) (3)
Depository Shares of
Provident Financial Group,
Inc. (3) (3) (3)
Common Stock of Provident
Financial Group, Inc.(4)
Common Stock Warrants of (3) (3) (3)
Provident Financial Group,
Inc.
Stock Purchase Contracts of (3) (3) (3)
Provident Financial Group,
Inc.
Stock Purchase Units of (3) (3) (3)
Provident Financial Group,
Inc.
Preferred Securities of (3) (3) (3)
Provident Capital Trust
III, and/or Provident
Capital Trust IV
(collectively the "Trusts")
Guarantees of Provident (3) (3) (3)
Financial Group with
respect to Preferred
Securities of the Trusts (5) (3) (3) (3)
Warrant Units(6) (3) (3) (3)
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Total (3)(7) (3)(7) $425,000,000(8)(9) 112,200(10)(11)
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(1) This Registration Statement also covers contracts which may be issued by
Provident Financial Group, Inc. under which the counterparty may be
required to purchase Common Stock, Debt Securities, or Preferred Stock.
Such contracts would be issued with the Common Stock, Debt Securities,
Preferred Securities, Securities Warrants, and/or preferred securities of
the Trusts. In addition, any other securities registered hereunder may be
sold separately or as units with other securities hereunder.
(2) If any Debt Securities are issued at original issue discount, the amount to
be registered may be such greater amount as will result in the initial
offering price for such securities.
(3) Omitted pursuant to General Instruction II.D of Form S-3 under the
Securities Act of 1933.
(4) Associated with the Common Stock are Stock Purchase Rights that will not be
exercisable or evidenced separately from the Common Stock prior to the
occurrence of certain events.
(5) No separate consideration will be received for the Guarantees of the
preferred securities of the Trusts (the "Guarantees"). The Guarantees
include the right of holders of trust preferred securities under the
Guarantees and certain back-up undertakings, as described in the
Registration Statement.
(6) A Warrant Unit may consist of any warrant of Provident Financial Group,
Inc. and any other security registered hereunder, including Preferred
Securities of a Trust.
(7) The securities registered also include such indeterminate number of shares
of Preferred Stock and Common Stock as may be issued in exchange for, or
upon conversion of, Debt Securities, other Preferred Stock and/or preferred
securities of the Trusts registered hereunder.
(8) Or the equivalent thereof in one or more foreign currencies or composite
currencies, including European Monetary Units.
(9) No separate consideration will be received for Common Stock or Preferred
Stock that is issued in exchange for or upon conversion of the Debt
Securities or upon conversion of Preferred Stock, and/or preferred
securities of the Trusts.
(10) Determined pursuant to Rule 457(o). In no event will the aggregate initial
offering price (excluding accrued interest or dividends) of Common Stock,
Debt Securities, Preferred Stock, Securities Warrants, Depositary Shares,
securities of the Trusts issued under this Registration Statement exceed
$500,000,000.
(11) A filing fee of $20,850 was previously paid in connection with $75,000,000
of Capital Securities of Provident Financial Capital Trust III registered
under the Registration Statement on Form S-3 (No. 333-80231).
Pursuant to Rule 429 of the Securities Act of 1933, the Prospectus
contained in this Registration Statement also relates to $75,000,000 of unissued
Capital Securities of Provident Financial Capital Trust III registered pursuant
to the Registrants'
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Registration Statement on Form S-3 (No. 333-80231). This Registration Statement,
which is a new registration statement, also constitutes a post-effective
amendment to Registration Statement No. 333-80231. Such post-effective amendment
shall become effective concurrently with the effectiveness of this Registration
Statement in accordance with Section 8(a) of the Securities Act of 1933.
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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INTRODUCTORY NOTE
This Registration Statement contains a form of base prospectus relating to
common stock and common stock warrants, preferred stock and preferred stock
warrants, depositary shares, debt securities and debt warrants, stock purchase
contracts and stock purchase units of Provident Financial Group, Inc.; the
preferred securities of Provident Capital Trust III and Provident Capital Trust
IV (which we refer to as the Trusts); and units consisting of any combination of
securities of a Trust and of Provident Financial Group, Inc.
The information in the prospectus, including financial information, will be
updated at the time of each offering. Upon each such offering, a prospectus
supplement to the base prospectus will be filed.
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PROSPECTUS
$500,000,000
PROVIDENT FINANCIAL GROUP, INC.
May Offer --
Common Stock
Common Stock Warrants
Preferred Stock
Preferred Stock Warrants
Depositary Shares
Debt Securities
Debt Warrants
Stock Purchase Contracts
Stock Purchase Units
Warrant Units
THE TRUSTS
May Offer --
Trust Preferred Securities
Warrant Units
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We and, in the case of an offering of trust preferred securities, the
applicable Trust, will provide the specific terms of these securities in
supplements to this prospectus. We and the Trusts may also offer units
consisting of combinations of these securities. You should read this prospectus
and the accompanying prospectus supplement carefully before you invest.
We or the Trusts may use this prospectus to offer up to $500,000,000 of
securities. Our common stock is traded on the NASDAQ National Market under the
symbol "PFGI."
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS OR ANY ACCOMPANYING PROSPECTUS SUPPLEMENT IS TRUTHFUL OR COMPLETE.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
________ __, 1999
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TABLE OF CONTENTS
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Page
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PROSPECTUS SUMMARY...............................................................................................4
PROVIDENT FINANCIAL GROUP, INC...................................................................................4
THE SECURITIES WE MAY OFFER......................................................................................5
THE TRUSTS.......................................................................................................5
THE SECURITIES THE TRUSTS MAY OFFER..............................................................................6
WHERE YOU CAN FIND MORE INFORMATION..............................................................................7
FORWARD-LOOKING STATEMENTS.......................................................................................8
USE OF PROCEEDS..................................................................................................9
RATIO OF EARNINGS TO FIXED CHARGES AND RATIO OF EARNINGS TO COMBINED FIXED
CHARGES AND PREFERRED STOCK DIVIDENDS............................................................................9
DESCRIPTION OF COMMON STOCK.....................................................................................10
DESCRIPTION OF PREFERRED STOCK..................................................................................10
DESCRIPTION OF DEPOSITARY SHARES................................................................................13
DESCRIPTION OF DEBT SECURITIES..................................................................................16
DESCRIPTION OF WARRANTS.........................................................................................24
WARRANT UNITS...................................................................................................27
STOCK PURCHASE CONTRACTS AND STOCK PURCHASE UNITS...............................................................27
DESCRIPTION OF THE TRUST PREFERRED SECURITIES...................................................................28
DESCRIPTION OF THE GUARANTEES...................................................................................37
DESCRIPTION OF CAPITAL SECURITIES...............................................................................41
CERTAIN TAX CONSIDERATIONS......................................................................................42
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PLAN OF DISTRIBUTION............................................................................................42
ERISA CONSIDERATIONS............................................................................................45
LEGAL MATTERS...................................................................................................45
EXPERTS.........................................................................................................45
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PROSPECTUS SUMMARY
This is a brief overview of key aspects about us and the Trusts and all
material terms of the offered securities that are known as of the date of this
prospectus. For more complete information on us and the Trusts and a more
complete understanding of the terms of the offered securities, before making
your investment decision, you should carefully read:
- this prospectus, which explains the general terms of the
securities that we and the Trusts may offer;
- the accompanying prospectus supplement, which (1) explains the
specific terms of the securities being offered and (2) updates and
changes information in this prospectus; and
- the documents referred to in the section of this prospectus
entitled, "Where You Can Find More Information" on page 7 for
information about Provident Financial Group, including our
financial statements.
PROVIDENT FINANCIAL GROUP, INC.
We are a Cincinnati-based commercial banking and financial services
company with full service banking operations in Ohio, northern Kentucky and
southwestern Florida. At September 30, 1999, we had total assets of
$8.991 billion, loans and leases of $5.894 billion, deposits of $6.330 billion
and shareholders' equity of $741.8 million. We also service an additional
$5.287 billion of loans and leases.
We have expanded our franchise in recent years through internal growth
and acquisitions. Business units that have been expanded to operate at a
national level include Provident Capital Corp (a middle-market structured
finance products division), Provident Commercial Group and Information Leasing
Corporation (commercial leasing divisions) and Provident Consumer Financial
Services (a mortgage loan division). We have also expanded by acquisitions of
Florida Gulfcoast Bancorp, Inc. located in Sarasota, Florida and South
Hillsborough Community Bank located in Hillsborough County, Florida.
Effective December 3, 1999, we completed our acquisition of OHSL
Financial Corp. and its subsidiary Oak Hills Savings & Loan Company, F.A. We
expect to complete the acquisition of Fidelity Financial of Ohio, Inc.
during the first quarter of 2000.
We conduct our banking operations through The Provident Bank and
Provident Bank of Florida.
At September 30, 1999, we and our subsidiaries employed approximately
2,600 full-time-equivalent employees.
Our principal executive offices are located at One East Fourth Street,
Cincinnati, Ohio 45202. Our Investors Relations telephone number is (513)
345-7102 or (800) 851-9521.
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THE SECURITIES WE MAY OFFER
We may use this prospectus to offer up to $500,000,000 of:
- common stock;
- common stock warrants;
- preferred stock;
- preferred stock warrants;
- depositary shares;
- debt securities;
- debt warrants;
- stock purchase contracts;
- stock purchase units; and
- units consisting of combinations of these securities, which may
include trust preferred securities, that may be offered by the
Trusts.
A prospectus supplement will describe the specific types, amounts,
prices, and detailed terms of any of these offered securities.
THE TRUSTS
Each Trust is a statutory business trust formed under Delaware law
pursuant to a separate Declaration of Trust (a "Declaration") executed by us, as
sponsor for such Trust, and the trustees of such Trust and the filing of a
Certificate of Trust with the Delaware Secretary of State.
Unless an accompanying prospectus supplement provides otherwise, each
Trust exists for the sole purposes of:
- issuing the trust preferred securities and trust common
securities;
- investing the gross proceeds of the sale of the trust preferred
securities and trust common securities in a specific series of
subordinated debt securities; and
- engaging in only those other activities necessary or incidental
thereto.
We will own all of the common securities of the Trusts. The trust
common securities will rank on a parity, and payments will be made thereon pro
rata, with the trust preferred securities.
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However, if an event of default under the applicable Declaration occurs, the
rights of the holders of the applicable trust common securities to payment of
distributions upon liquidation, redemption and otherwise will be subordinated to
the rights of the holders of the applicable trust preferred securities.
We will acquire trust common securities having an aggregate liquidation
amount equal to a minimum of 3% of the total capital of each Trust. Each Trust
will have a term of at least 20 but not more than 50 years, but may dissolve
earlier. Each Trust will be operated by the trustees. The holder of the trust
common securities will be entitled to appoint or replace any of, or increase or
reduce the number of, the Trustees of each Trust. The duties and obligations of
the Trustees shall be governed by the Declaration of such Trust. At least one of
the trustees of each Trust will be a person who is an employee or officer of
ours or who is affiliated with us (a "Regular Trustee"). One trustee of each
Trust will be a financial institution that is not affiliated with us and which
shall act as property trustee and as indenture trustee for the purposes of the
Trust Indenture Act of 1939 pursuant to the terms set forth in a prospectus
supplement. In addition, unless the property trustee maintains a principal place
of business in Delaware and otherwise meets the requirements of applicable law,
one trustee of each Trust will be a legal entity having a principal place of
business in, or an individual resident of, Delaware.
We will pay all fees and expenses related to each Trust and the
offering of the trust preferred securities. Unless otherwise set forth in the
prospectus supplement, the property trustee will be The Chase Manhattan Bank,
and the Delaware trustee will be Chase Manhattan Bank Delaware. The executive
officer of each Trust is c/o Provident Financial Group, Inc., One East Fourth
Street, Cincinnati, Ohio 45202, Attention: General Counsel, and its telephone
number is (513) 579-2861.
THE SECURITIES THE TRUSTS MAY OFFER
Each Trust may use this prospectus to offer up to $500,000,000 of trust
preferred securities. Each Trust may also offer units consisting of trust
preferred securities and securities that we will issue.
A prospectus supplement will describe the specific types, amounts,
prices and detailed terms of any of the trust preferred securities and units
consisting of trust preferred securities and securities that we issue.
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WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and
other information with the SEC. You may read and copy any document we file at
the SEC's public reference rooms in Washington, D.C., New York, New York and
Chicago, Illinois. You can also request copies of the documents, upon payment of
a duplicating fee, by writing the Public Reference Section of the SEC. Please
call the SEC at 1-800-SEC-0330 for further information on the public reference
rooms. These SEC filings are also available to the public from the SEC's web
site at http://www.sec.gov.
The SEC allows us to "incorporate by reference" the information we file
with the SEC, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
an important part of this prospectus. Information that we file later with the
SEC will automatically update and supersede, as relevant, information in this
prospectus. In all cases, you should rely on the later information over
different information included in this prospectus or the prospectus supplement.
We incorporate by reference the documents listed below and any future filings
made with the SEC under Section 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934 before the later of (1) the completion of the offering of
the securities described in this prospectus and (2) the date we stop offering
securities pursuant to this prospectus:
- Annual Report on Form 10-K for the year ended December 31, 1998;
- Quarterly Reports on Form 10-Q for the quarters ended March 31,
1999, June 30, 1999 and September 30, 1999;
- Current Reports on Form 8-K dated January 28, 1999, June 23, 1999
and November 24, 1999; and
- The description of our common stock contained in SEC Registration
Statement No. 333-32423.
You may request a copy of these filings, in most cases without
exhibits, at no cost, by writing or telephoning us at the following address:
Provident Financial Group, Inc.
One East Fourth Street
Cincinnati, Ohio 45202
Attn: Mark E. Magee, Esq.
(513) 579-2000
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This prospectus does not contain or incorporate by reference any
separate financial statements of the Trusts. We do not consider such financial
statements material to holders of trust preferred securities because:
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- all of the voting securities of each Trust will be owned, directly
or indirectly, by us, a reporting company under the Exchange Act;
- no Trust has independent operations but rather each exists only to
issue securities representing undivided beneficial interests in
the assets of such Trust and investing the proceeds thereof in
debt securities; and
- the obligations of the Trusts under the trust preferred securities
are fully and unconditionally guaranteed by us to the extent set
forth in this prospectus.
You should rely only on the information provided in this prospectus and
the prospectus supplement, as well as the information incorporated by reference.
We have not authorized anyone to provide you with different information. We are
not making an offer of these securities in any jurisdiction where the offer is
not permitted. You should not assume that the information in this prospectus,
the prospectus supplement or any documents incorporated by reference is accurate
as of any date other than the date of the applicable document.
FORWARD-LOOKING STATEMENTS
The Private Securities Litigation Reform Act of 1995 provides a safe
harbor from civil litigation for certain forward-looking statements.
Forward-looking statements include those preceded by, followed by or that
otherwise include the statements "should," "believe," "expect," "anticipate,"
"intend," "may," "will," "continue," "estimate" and other expressions that
indicate future events and trends. Although we believe that in making such
statements their expectations are based on reasonable assumptions, such
statements may be influenced by risks and uncertainties which could cause actual
results and trends to be materially different from historical results or those
anticipated depending on a variety of factors. These factors include, without
limitation:
- competitive pressures among depository and other financial
services companies may increase significantly;
- costs or difficulties related to the integration of the businesses
that we acquire may be greater than expected;
- changes in the interest rate environment may reduce our interest
margins, cause an increase in the prepayment rate on mortgages we
hold and securitized and other loans or reduce the demand for new
loans;
- general economic or business conditions, either internationally or
nationally or in the states in which we do business, may be less
favorable than expected, resulting in, among other things, a
deterioration in credit quality or a reduced demand for credit;
- legislation or regulatory requirements or changes may adversely
affect the businesses in which we are engaged;
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- technology-related changes may be harder to make or more expensive
than expected; and
- changes in the securities markets.
You should understand that these factors, in addition to those
discussed elsewhere in this document and in documents which have been
incorporated by reference, could affect our future results and could cause those
results to be materially different from those expressed in their forward-looking
statements. We do not undertake any obligation to update any forward looking
statements to reflect events or circumstances arising after the date of this
document.
USE OF PROCEEDS
Each Trust will invest all of the net proceeds from the sale of any
preferred securities in our junior subordinated debentures.
Except as otherwise described in any prospectus supplement, we will use
the net proceeds from the sale of the offered securities for general corporate
purposes, which may include working capital, capital expenditures, repayment of
existing indebtedness, financing possible future acquisitions and providing
advances to or investments in our subsidiary banks. The amounts and timing of
our application of the proceeds will depend upon many factors, including the
funding requirements of, the availability of other funds, and the existence of
acquisition opportunities. Pending these uses, we expect to invest the net
proceeds in short-term, interest-bearing securities.
RATIO OF EARNINGS TO FIXED CHARGES
AND RATIO OF EARNINGS TO COMBINED FIXED CHARGES
AND PREFERRED STOCK DIVIDENDS
Our consolidated ratios of earnings to fixed charges and consolidated
ratios of earnings to combined fixed charges and preferred stock dividend
requirements for each of the periods indicated are set forth below:
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Nine Months
Ended Year Ended
September 30, December 31,
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1999 1998 1998 1997 1996 1995 1994
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Earnings to Fixed Charges:
Excluding interest on deposits 2.80x 2.55x 2.37x 2.82x 2.33x 2.55x 3.13x
Including interest on deposits 1.62x 1.56x 1.50x 1.53x 1.42x 1.41x 1.53x
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Earnings to Combined Fixed Charges and
Preferred Stock Dividend Requirements:
Excluding interest on deposits 2.77x 2.52x 2.35x 2.78x 2.31x 2.42x 2.82x
Including interest on deposits 1.62x 1.56x 1.50x 1.52x 1.42x 1.39x 1.49x
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For purposes of computing the ratios of both earnings to fixed charges
and earnings to combined fixed charges and preferred stock dividend
requirements, earnings represent net
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income plus applicable income taxes and fixed charges. Fixed charges, excluding
interest on deposits, represent interest expense (except interest on deposits),
capitalized interest and the interest factor included in rents. Fixed charges,
including interest on deposits, represent all interest expense, capitalized
interest and the interest factor included in rents. Combined fixed charges and
preferred stock dividend requirements, excluding interest on deposits, represent
interest expense (except interest paid on deposits), capitalized interest, an
amount equal to the pre-tax earnings required to meet applicable preferred stock
dividend requirements and the interest factor included in rents. Combined fixed
charges and preferred stock dividend requirements, including interest on
deposits, represent all interest expense, capitalized interest, an amount equal
to the pre-tax earnings required to meet applicable preferred stock dividend
requirements and the interest factor included in rents.
DESCRIPTION OF COMMON STOCK
We may issue, either separately or in units together with other
securities, shares of common stock. We are authorized to issue up to 110,000,000
shares of common stock. A prospectus supplement relating to an offering of
common stock, or other securities convertible or exchangeable for, or
exercisable into, common stock, will describe the relevant terms, including the
number of shares offered, any initial offering price and market price and
dividend information, as well as, if applicable, information on other related
securities. See the section of this prospectus entitled, "Description of Capital
Securities" on page 41.
DESCRIPTION OF PREFERRED STOCK
The following briefly summarizes the material terms of our preferred
stock, other than pricing and related terms disclosed in a prospectus
supplement. You should read the particular terms of any series of preferred
stock that we offer which we will describe in more detail in any prospectus
supplement relating to such series. You should also read the more detailed
provisions of our articles of incorporation and the statement with respect to
shares relating to each particular series of preferred stock for provisions that
may be important to you. The statement with respect to shares relating to each
particular series of preferred stock offered by the accompanying prospectus
supplement and this prospectus will be filed as an exhibit to a document
incorporated by reference in the registration statement. The prospectus
supplement will also state whether any of the terms summarized below do not
apply to the series of preferred stock being offered.
GENERAL
Our board of directors is authorized to issue up to 5,000,000 shares of
preferred stock in one or more series and to specify the following terms for
each series:
- the number of shares;
- the designation, powers, preferences and rights of the shares; and
- the qualifications, limitations or restrictions, except as
otherwise stated in the articles of incorporation.
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Before issuing any series of preferred stock, our board of directors
will adopt resolutions creating and designating the series as a series of
preferred stock, and the resolutions will be filed in a statement with respect
to shares as an amendment to the articles of incorporation.
The rights of holders of the preferred stock offered may be adversely
affected by the rights of holders of any shares of preferred stock that may be
issued in the future. Our board of directors may cause shares of preferred stock
to be issued in public or private transactions for any proper corporate purpose.
Examples include issuances to obtain additional financing in connection with
acquisitions or otherwise, and issuances to our officers, directors and
employees and our subsidiaries pursuant to benefit plans or otherwise. Shares of
preferred stock that we issue may have the effect of rendering more difficult or
discouraging an acquisition of us deemed undesirable by our board of directors.
Unless the particular prospectus supplement states otherwise, holders
of each series of preferred stock will not have any preemptive or subscription
rights to acquire more of our stock.
The transfer agent, registrar, dividend disbursing agent and redemption
agent for shares of each series of preferred stock will be named in the
prospectus supplement relating to such series.
RANK
Unless otherwise specified in the prospectus supplement relating to the
shares of any series of preferred stock, the shares will rank on an equal basis
with each other series of preferred stock and prior to the common stock as to
dividends and distributions of assets.
DIVIDENDS
Unless the particular prospectus supplement states otherwise, holders
of each series of preferred stock will be entitled to receive cash dividends,
when, as and if declared by our board of directors out of funds legally
available for dividends. The rates and dates of payment of dividends will be set
forth in the prospectus supplement relating to each series of preferred stock.
Dividends will be payable to holders of record of preferred stock as they appear
on our books or, if applicable, the records of the depositary referred to in the
section of this prospectus entitled, "Description of Depositary Shares" on page
13, on the record dates fixed by the board of directors. Dividends on any series
of preferred stock may be cumulative or noncumulative.
We may not declare, pay or set apart for payment dividends on the
preferred stock unless full dividends on any other series of preferred stock
that ranks on an equal or senior basis have been paid or sufficient funds have
been set apart for payment for:
- all prior dividend periods of the other series of preferred stock
that pay dividends on a cumulative basis; or
- the immediately preceding dividend period of the other series of
preferred stock that pay dividends on a noncumulative basis.
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Partial dividends declared on shares of preferred stock and any other
series of preferred stock ranking on an equal basis as to dividends will be
declared pro rata. A pro rata declaration means that the ratio of dividends
declared per share to accrued dividends per share will be the same for all such
series of preferred stock.
Similarly, we may not declare, pay or set apart for payment non-stock
dividends or make other payments on the common stock or any other stock of ours
ranking junior to the preferred stock unless full dividends on all series of
preferred stock have been paid or set apart for payment for:
- all prior dividend periods if the preferred stock pays dividends
on a cumulative basis; or
- the immediately preceding dividend period if the preferred stock
pays dividends on a noncumulative basis.
CONVERSION AND EXCHANGE
The prospectus supplement for any series of preferred stock will state
the terms, if any, on which shares of that series are convertible into or
exchangeable for shares of our common stock.
REDEMPTION
If so specified in the applicable prospectus supplement, a series of
preferred stock may be redeemable at any time, in whole or in part, at our
option or at the option of the holders, or may be mandatorily redeemed.
Any partial redemptions of preferred stock will be made in a way that
our board of directors decides is equitable.
Unless we default in the payment of the redemption price, dividends
will cease to accrue after the redemption date on shares of preferred stock
called for redemption and all rights of holders of such shares will terminate
except for the right to receive the redemption price.
LIQUIDATION PREFERENCE
Upon our voluntary or involuntary liquidation, dissolution or winding
up, holders of each series of preferred stock will be entitled to receive
distributions upon liquidation in the amount set forth in the prospectus
supplement relating to such series of preferred stock, plus an amount equal to
any accrued and unpaid dividends. Such distributions will be made before any
distribution is made on any securities ranking junior to the preferred stock
with respect to liquidation, including common stock.
If the liquidation amounts payable relating to the preferred stock of
any series and any other securities ranking on a parity regarding liquidation
rights are not paid in full, the holders of the preferred stock of such series
and such other securities will share in any such distribution of
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our available assets on a ratable basis in proportion to the full liquidation
preferences. Holders of such series of preferred stock will not be entitled to
any other amounts from us after they have received their full liquidation
preference.
VOTING RIGHTS
The holders of shares of preferred stock will have no voting rights,
except:
- as otherwise stated in the prospectus supplement;
- as otherwise stated in the resolutions establishing such series;
or
- as required by applicable law.
DESCRIPTION OF DEPOSITARY SHARES
The following briefly summarizes the material provisions of the deposit
agreement and of the depositary shares and depositary receipts, other than
pricing and related terms disclosed in a prospectus supplement. This summary is
qualified in its entirety by reference to, all provisions of the deposit
agreement, depositary shares and depositary receipts. You should read the
particular terms of any depositary shares and any depositary receipts that we
offer and any deposit agreement relating to a particular series of preferred
stock which will be described in more detail in a prospectus supplement. The
prospectus supplement will also state whether any of the generalized provisions
summarized below do not apply to the depositary shares or depositary receipts
being offered. A copy of the form of deposit agreement, including the form of
depositary receipt, will be filed as an exhibit to a document incorporated by
reference in the registration statement. You should read the more detailed
provisions of the deposit agreement and the form of depositary receipt for
provisions that may be important to you.
GENERAL
We may, at our option, offer fractional rather than full shares of
preferred stock. In such event, we will issue receipts for depositary shares,
which will represent a fraction of a share of a particular series of preferred
stock.
The shares of any series of preferred stock represented by depositary
shares will be deposited under a deposit agreement between us and a bank or
trust company that we select that has its principal office in the United States
and having a combined capital and surplus of at least $50,000,000, as preferred
stock depositary. Each owner of a depositary share will be entitled to all the
rights and preferences of the underlying preferred stock, including any
dividend, voting, redemption, conversion and liquidation rights described in the
particular prospectus supplement, in proportion to the applicable fraction of a
share of preferred stock represented by such depositary share.
The depositary shares will be evidenced by depositary receipts issued
pursuant to the deposit agreement. Depositary receipts will be distributed to
those persons purchasing the
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fractional shares of preferred stock in accordance with the terms of the
applicable prospectus supplement.
DIVIDENDS AND OTHER DISTRIBUTIONS
The preferred stock depositary will distribute all cash dividends or
other cash distributions received in respect of the deposited preferred stock to
the record holders of depositary shares relating to such preferred stock in
proportion to the number of such depositary shares owned by such holders.
The preferred stock depositary will distribute any property received by
it other than cash to the record holders of depositary shares entitled thereto.
If the preferred stock depositary determines that it is not feasible to make
such distribution, it may, with our approval, sell such property and distribute
the net proceeds from such sale to such holders.
REDEMPTION OF PREFERRED STOCK
If a series of preferred stock represented by depositary shares is to
be redeemed, the depositary shares will be redeemed from the proceeds received
by the preferred stock depositary resulting from the redemption, in whole or in
part, of such series of preferred stock. The depositary shares will be redeemed
by the preferred stock depositary at a price per depositary share equal to the
applicable fraction of the redemption price per share payable in respect of the
shares of preferred stock so redeemed.
Whenever we redeem shares of preferred stock held by the preferred
stock depositary, the preferred stock depositary will redeem as of the same date
the number of depositary shares representing shares of preferred stock so
redeemed. If fewer than all the depositary shares are to be redeemed, the
depositary shares to be redeemed will be selected by the preferred stock
depositary by lot or ratably or by any other equitable method as the preferred
stock depositary may decide.
VOTING DEPOSITED PREFERRED STOCK
Upon receipt of notice of any meeting at which the holders of any
series of deposited preferred stock are entitled to vote, the preferred stock
depositary will mail the information contained in such notice of meeting to the
record holders of the depositary shares relating to such series of preferred
stock. Each record holder of such depositary shares on the record date will be
entitled to instruct the preferred stock depositary to vote the amount of the
preferred stock represented by such holder's depositary shares. The preferred
stock depositary will try to vote the amount of such series of preferred stock
represented by such depositary shares in accordance with such instructions.
We will agree to take all actions that the preferred stock depositary
determines are necessary to enable the preferred stock depositary to vote as
instructed. The preferred stock depositary will not vote shares of any series of
preferred stock held by it for which it does not receive specific instructions
from the holders of depositary shares representing such preferred stock.
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AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT
The form of depositary receipt evidencing the depositary shares and any
provision of the deposit agreement may at any time be amended by agreement
between us and the preferred stock depositary. However, any amendment that
materially and adversely alters any existing right of the holders of depositary
shares will not be effective unless such amendment has been approved by the
holders of at least a majority of the depositary shares then outstanding. Every
holder of an outstanding depositary receipt at the time any such amendment
becomes effective shall be deemed, by continuing to hold such depositary
receipt, to consent and agree to such amendment and to be bound by the deposit
agreement, which has been amended thereby. The deposit agreement may be
terminated only if:
- all outstanding depositary shares have been redeemed; or
- a final distribution in respect of the preferred stock has been
made to the holders of depositary shares in connection with our
liquidation, dissolution or winding up.
CHARGES OF PREFERRED STOCK DEPOSITARY; TAXES AND OTHER GOVERNMENTAL CHARGES
We will pay all transfer and other taxes and governmental charges
arising solely from the existence of the depositary arrangements. We also will
pay charges of the depositary in connection with the initial deposit of
preferred stock and any redemption of preferred stock. Holders of depositary
receipts will pay other transfer and other taxes and governmental charges and
such other charges, including a fee for the withdrawal of shares of preferred
stock upon surrender of depositary receipts, as are expressly provided in the
deposit agreement to be for their accounts.
Prospective purchasers of depositary shares should be aware that
special tax, accounting and other issues may be applicable to instruments such
as depositary shares.
RESIGNATION AND REMOVAL OF DEPOSITARY
The preferred stock depositary may resign at any time by delivering to
us notice of its intent to do so. We may at any time remove the preferred stock
depositary effective upon the appointment of a successor depositary and its
acceptance of such appointment. Any successor must be appointed within 60 days
after delivery of the notice of resignation or removal and must be a bank or
trust company having its principal office in the United States and having a
combined capital and surplus of at least $50,000,000.
MISCELLANEOUS
The preferred stock depositary will forward all reports and
communications from us which are delivered to it and which we are required to
furnish to the holders of the deposited preferred stock.
Neither we nor the preferred stock depositary will be liable if the
depositary is prevented or delayed by law or any circumstances beyond its
control in performing its obligations under the
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deposit agreement. Our obligations and the obligations of the preferred stock
depositary under the deposit agreement will be limited to performance in good
faith of enumerated duties. Neither us nor the preferred stock depositary will
be obligated to prosecute or defend any legal proceeding in respect of any
depositary shares, depositary receipts or shares of preferred stock unless
satisfactory indemnity is furnished. We and the preferred stock depositary may
rely upon written advice of counsel or accountants, or upon information provided
by holders of depositary receipts or other persons believed to be competent and
on documents believed to be genuine.
DESCRIPTION OF DEBT SECURITIES
GENERAL
As required by Federal law for all bonds and notes of companies that
are publicly offered, the debt securities are governed by documents called
"indentures." The indenture is a contract between us and the trustee named in
the applicable prospectus supplement which acts as trustee for the debt
securities. There may be more than one trustee under each indenture for
different series of debt securities. The trustee has two main roles. First, the
trustee can enforce your rights against us if we default. There are some
limitations on the extent to which the trustee acts on your behalf, described
later on page 18 under "Remedies If An Event of Default Occurs." Second, the
trustee may perform administrative duties for us, such as sending you interest
payments, transferring your debt securities to a new buyer if you sell, and
sending you notices.
The debt securities will be secured or unsecured obligations of ours
and may include:
- senior debt securities, to be issued under the senior indenture;
- subordinated debt securities, to be issued under the subordinated
indenture; and
- junior subordinated debt securities, to be issued under the junior
subordinated indenture.
If issued, the junior subordinated debt securities will be purchased by a Trust
using proceeds from issuances of trust preferred securities. When we refer to
the indenture, we mean the senior indenture, the subordinated indenture and the
junior subordinated indenture collectively, unless we indicate otherwise. When
we refer to the trustee we mean the senior trustee, the subordinated trustee and
the junior subordinated trustee collectively, unless we indicate otherwise.
This section summarizes the general terms of the debt securities we may
offer. The prospectus supplement relating to any particular debt securities
offered will indicate whether the debt securities are secured or unsecured, are
senior debt securities, subordinated debt securities or junior subordinated debt
securities. The supplement also will describe the interest and other terms of
the debt securities, which may be in addition to or different from the general
terms summarized in this section. The summary in this section and in any
prospectus supplement does not describe every aspect of the senior, subordinated
or junior subordinated indenture or the debt securities, and is qualified in its
entirety by reference to all the provisions of the applicable indenture and the
debt securities. The forms of the senior indenture, subordinated indenture and
junior subordinated indenture and the forms of the debt securities are or will
be filed as exhibits
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to or incorporated by reference in the registration statement. See the section
of this prospectus entitled "Where You Can Find More Information" on page 7 for
information on how to obtain a copy.
The prospectus supplement relating to your debt securities will
describe the following specific financial, legal and other terms particular to
your debt securities:
- the title of your debt securities;
- any limit on the aggregate principal amount of your debt
securities;
- the date or dates on which your debt securities will mature;
- the annual rate or rates (which may be fixed or variable) at which
your debt securities will bear interest, if any, and the date or
dates from which the interest will accrue;
- the dates on which interest on your debt securities will be
payable and the regular record dates for those interest payment
dates;
- any mandatory or optional sinking funds or analogous provisions or
provisions for redemption at your option;
- the date, if any, after which and the price or prices at which
your debt securities may, in accordance with any option or
mandatory redemption provisions, be redeemed and the other
detailed terms and provisions of any such optional or mandatory
redemption provision;
- if other than denominations of $1,000 and any integral multiple
thereof, the denomination in which your debt securities will be
issuable;
- if other than the principal amount thereof, the portion of the
principal amount of your debt securities which will be payable
upon the declaration of acceleration of the maturity of those debt
securities;
- any index or formula used to determine the amount of payment of
principal of, premium, if any, and interest on your debt
securities;
- whether the debt securities are secured or unsecured or are
senior, subordinated or junior subordinated debt securities;
- provisions, if any, under which the debt securities may be
converted into our common stock or preferred stock;
- the subordination provisions applicable to the subordinated debt
securities or junior subordinated debt securities; and
- any other material terms of your debt securities.
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The prospectus supplement relating to your debt securities will be
attached to the front of this prospectus.
The indenture and its associated documents contain the full legal text
of the matters described in this section. The indenture and the debt securities
are governed by New York law.
EVENTS OF DEFAULT
General.
You will have special rights if an "event of default" occurs and is not
cured, as described later in this subsection. Under the indentures, the term
"event of default" means any of the following:
- We do not pay the principal or any premium on a debt security on
its due date;
- We do not pay interest on a debt security within 30 days of its
due date;
- We remain in breach of any restrictive covenant or warranty
described in the indenture for 90 days after receiving a notice
stating it is in breach. The notice must be sent by either the
trustee or direct holders of at least 25% of the principal amount
of outstanding debt securities of the affected series; or
- Certain events of bankruptcy, insolvency or reorganization of us.
Remedies if an Event of Default Occurs.
If an event of default (with the exception of an event of default
involving our bankruptcy, insolvency or reorganization) has occurred and has not
been cured, the trustee or the direct holders of 25% in principal amount of the
outstanding debt securities of the affected series may declare the entire
principal amount of all the debt securities of that series to be due and
immediately payable. This is called a "declaration of acceleration of maturity."
Except in cases of default, where a trustee has some special duties, a
trustee is not required to take any action under the indenture at the request of
any direct holders unless the direct holders offer the trustee reasonable
protection from expenses and liability (called an "indemnity"). If reasonable
indemnity is provided, the direct holders of a majority in principal amount of
the outstanding debt securities of the relevant series may direct the time,
method and place of conducting any lawsuit or other formal legal action seeking
any remedy available to the trustee. These majority direct holders may also
direct the trustee in performing any other action under the indenture.
In general, before you bypass the trustee and bring your own lawsuit or
other formal legal action or take other steps to enforce your rights or protect
your interests relating to the debt securities, the following must occur:
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- You must give the trustee written notice that an event of default
has occurred and remains uncured;
- The direct holders of 25% in principal amount of all outstanding
debt securities of the relevant series must make a written request
that the trustee take action because of the default and must offer
reasonable indemnity to the trustee against the cost and other
liabilities of taking that action;
- The trustee must have not taken action for 60 days after receipt
of the above notice and offer of indemnity; and
- The trustee must not have received from direct holders of a
majority in principal amount of the outstanding debt securities of
that series a direction inconsistent with the written notice
during the 60 day period after receipt of the above notice.
However, you are entitled at any time to bring a lawsuit for the
payment of money due on your debt security on or after its due date.
MODIFICATION
There are three types of changes we can make to the indentures and the
debt securities.
Changes Requiring Your Approval.
The following are changes that cannot be made to your debt securities
without your specific approval:
- except with respect to deferrals of interest of junior
subordinated debentures as provided in the junior subordinated
indenture, change the payment due date of the principal or
interest on a debt security;
- reduce any amounts due on a debt security;
- reduce the amount of principal payable upon acceleration of the
maturity of a debt security following a default;
- change the place of payment on a debt security;
- impair your right to sue for payment;
- reduce the percentage of direct holders of debt securities whose
consent is needed to modify or amend the indenture;
- reduce the percentage of direct holders of debt securities whose
consent is needed to waive compliance with certain provisions of
the indenture or to waive certain defaults; and
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- change or modification to the subordination or conversion
provisions (if any) of the debt securities in any manner adverse
to the holders; and
- modify any other aspect of the provisions dealing with
modification and waiver of the indenture.
Changes Requiring a Majority Vote.
Some changes to the indentures and the debt securities require a vote
in favor by holders owning a majority of the principal amount of the particular
series affected. The same majority vote would be required for us to obtain a
waiver of a past default. However, we cannot obtain a waiver of a payment
default or any other aspect of the indenture or the debt securities listed in
the first category described previously under "Changes Requiring Your Approval"
unless we obtain your individual consent to the waiver.
Changes Not Requiring Approval.
The third type of change does not require any vote by direct holders of
debt securities. This type is limited to clarifications and similar changes that
would not adversely affect holders of the debt securities.
SUBORDINATION
Our obligations under the subordinated debentures or junior
subordinated debentures, as applicable, will be subordinate, to the extent set
forth in the applicable indenture, to all our existing and future senior debt.
In addition, the subordinated debentures and junior subordinated debentures will
be effectively subordinated to all existing and future obligations of our
subsidiaries. In addition, our obligations under the guarantees are subordinated
to the same extent as the junior subordinated securities. This means we cannot
make any payments on the junior subordinated debentures or the guarantees if we
are in default on any of our senior debt.
Also, in the event of our bankruptcy, liquidation or dissolution, our
assets must be used to pay off our senior obligations in full before any
payments may be made on the subordinated debentures and junior subordinated
debentures or the guarantees. The indentures, the guarantees and the
declarations of trust do not limit our ability to incur additional senior debt.
For more information, see below under the caption "Description of the
Guarantees--Ranking" on page 39 of this prospectus.
As a holding company, our assets primarily consist of the equity
securities of our subsidiaries. As a result, our cash flow and consequent
ability to service our debt, including the subordinated debentures and junior
subordinated debentures, are dependent upon the earnings of our subsidiaries and
the distribution of those earnings to us, or upon loans or other payments of
funds by those subsidiaries to us. Our subsidiaries are separate and distinct
legal entities and will have no obligation, contingent or otherwise, to pay any
interest or principal on the subordinated debentures and junior subordinated
debentures or to make any funds available therefor, whether by dividends, loans
or other payments. The payment of dividends by our subsidiaries is
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contingent upon their earnings and is subject to various business considerations
in addition to the requirements of federal and state bank and other regulators
and contractual restrictions.
In addition, since the subordinated debentures and junior subordinated
debentures will be obligations of a holding company, the ability of holders of
the subordinated debentures and junior subordinated debentures to benefit from
any distribution of assets of any subsidiary upon the liquidation or
reorganization of such subsidiary is subordinate to the prior claims of present
and future creditors of that subsidiary.
CONSOLIDATION, MERGER AND SALE OF ASSETS
We are generally permitted to consolidate or merge with another entity.
We are also permitted to sell or lease substantially all of our assets to
another company, or to buy or lease substantially all of the assets of another
entity. However, unless we survive the consolidation or merger, we may not take
any of these actions unless the following conditions, among others, are met:
- Where we merge out of existence or sell or lease substantially all
our assets, the other entity must be a corporation, partnership or
trust organized under the laws of a State or the District of
Columbia or under federal law, and it must agree to be legally
responsible for the debt securities; and
- The merger, sale of assets or other transaction must not cause a
default on the debt securities, and we must not already be in
default, unless the merger or other transaction would cure the
default. For purposes of this no-default test, an existence of an
event of default is deemed to be a default.
FORM, EXCHANGE, REGISTRATION AND TRANSFER
Debt securities will be issuable in definitive, registered form or in
temporary or permanent global form.
You may have your debt securities broken into more debt securities of
smaller denominations or combined into fewer debt securities of larger
denominations, as long as the total principal amount is not changed. This is
called an "exchange."
You may exchange or transfer debt securities at the office of the
trustee. The trustee acts as our agent for registering debt securities in the
names of holders and transferring debt securities. We may appoint another entity
or perform this role ourselves. The entity performing the role of maintaining
the list of registered direct holders is called the "security registrar." It
will also perform transfers. You will not be required to pay a service charge to
transfer or exchange debt securities, but you may be required to pay for any tax
or other governmental charge associated with the exchange or transfer. The
transfer or exchange will only be made if the security registrar is satisfied
with your proof of ownership.
If the debt securities are redeemable and we redeem less than all of
the debt securities of a particular series, we may block the transfer or
exchange of those debt securities during the period
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beginning 15 days before the day we mail the notice of redemption and ending on
the day of that mailing, in order to freeze the list of holders to prepare the
mailing. We may also refuse to register transfers or exchanges of debt
securities selected for redemption, except that we will continue to permit
transfers and exchanges of the unredeemed portion of any debt security being
partially redeemed.
TEMPORARY GLOBAL SECURITIES
If so specified in the applicable prospectus supplement, all or any
portion of the debt securities of a series which are issuable as bearer
securities will initially be represented by one or more temporary global
securities, without interest coupons, to be deposited with a common depositary
credit to designated accounts. On and after the date determined as provided in
any such temporary global security and described in the applicable prospectus
supplement, but within a reasonable time, each such temporary global security
will be exchangeable for definitive bearer securities, definitive registered
securities or all or a portion of a permanent global bearer security, or any
combination thereof, as specified in the prospectus supplement. No definitive
bearer security or permanent global bearer security delivered in exchange for a
portion of a temporary global security shall be mailed or otherwise delivered to
any location in the United States in connection with such exchange.
Additional information regarding restrictions on and special United
States federal income tax consequences relating to temporary global securities
will be set forth in the applicable prospectus supplement.
PERMANENT GLOBAL SECURITIES
If any debt securities of a series are issuable in permanent global
form, the applicable prospectus supplement will describe the circumstances, if
any, under which beneficial owners of interests in any such permanent global
security may exchange their interests for debt securities of such series and of
like tenor and principal amount of any authorized form and denomination.
Principal of and any premium and interest on a permanent global security will be
payable in the manner described in the applicable prospectus supplement.
PAYMENT AND PAYING AGENTS
We will pay interest to you if you are a direct holder listed in the
trustee's records at the close of business on a particular day in advance of
each due date for interest, even if you no longer own the debt security on the
interest due date. That particular day, usually about two weeks in advance of
the interest due date, is called the "regular record date" and will be stated in
the prospectus supplement. Holders buying and selling debt securities must work
out between them how to compensate for the fact that we will pay all the
interest for an interest period to the one who is the registered holder on the
regular record date. The most common manner is to adjust the sales price of the
debt securities to prorate interest fairly between buyer and seller. This
prorated interest amount is called "accrued interest."
In the past, we have chosen to pay interest by mailing checks. We may
also choose to pay interest, principal and any other money due on the debt
securities at the corporate trust office
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of the trustee. You must make arrangements to have your payments picked up at or
wired from the trust office.
We may also arrange for additional payment offices, and may cancel or
change these offices, including its use of the trustee's corporate trust office.
These offices are called "paying agents." We may also choose to act as our own
paying agent. We must notify you of changes in the paying agents for any
particular series of debt securities.
INFORMATION CONCERNING THE TRUSTEES
The trustee serves as trustee under indentures for other debt of ours.
The trustee may, from time to time, make loans to us and perform other services
for us in the normal course of business. Under the provisions of the Trust
Indenture Act of 1939, upon the occurrence of a default under an indenture, if a
trustee has a conflicting interest (as defined in the Trust Indenture Act) the
trustee must, within 90 days, either eliminate such conflicting interest or
resign. Under the provisions of the Trust Indenture Act, an indenture trustee
shall be deemed to have a conflicting interest if the trustee is a creditor of
the obligor. If the trustee fails either to eliminate the conflicting interest
or to resign within 10 days after the expiration of such 90-day period, the
trustee is required to notify debt holders to this effect and any debt holder
who has been a bona fide holder for at least six months may petition a court to
remove the trustee and to appoint a successor trustee.
NOTICES
Notices to holders of debt securities will be given by mail to the
addresses of such holders as they appear in the security register.
PROVISIONS APPLICABLE TO JUNIOR SUBORDINATED DEBT SECURITIES
The following provisions apply only to the junior subordinated debt
securities:
Events of Default.
In addition to the events described above under "Description of Debt
Securities - Events of Default" applicable to all debt securities, the voluntary
or involuntary dissolution, winding up or termination of the Trust that owns the
series of junior subordinated debt securities will constitute an event of
default for any series of junior subordinated debt securities issued pursuant to
the junior subordinated indenture, except in connection with:
- the distribution of such junior subordinated debt securities to
holders of trust securities of the Trust;
- the redemption of all of the trust securities of the Trust; and
- mergers, consolidations or similar events permitted by the amended
declaration of the Trust.
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The holders of at least a majority in aggregate liquidation amount of
the trust preferred securities of the Trust may waive any default or event of
default with respect to such series and its consequences, except defaults or
events of default that:
- are not waivable under the junior subordinated indenture (such as
defaults regarding payment of principal, premium, if any, or
interest); or
- require the consent or vote of greater than a majority in
principal amount of the holders of junior subordinated debt
securities to be waived under the junior subordinated indenture,
in which case the event of default may only be waived by the
holders of the same "super-majority" in liquidation amount of the
trust preferred securities.
Any such waiver will cure such default or event of default. If, under
the amended declaration of the Trust, an event of default has occurred and is
attributable to our failure to pay principal, premium, if any, or interest on,
such junior subordinated debt securities, then each holder of the trust
preferred securities of the Trust may sue us or seek other remedies, to force
payment to such holder of the principal of, premium, if any, or interest on,
such junior subordinated debt securities having a principal amount equal to the
aggregate liquidation amount of the trust preferred securities held by such
holder.
Modification of Junior Subordinated Indenture.
Under the junior subordinated indenture, we and the indenture trustee
may change some rights of holders of a series of junior subordinated debt
securities with the written consent of the holders of a majority in principal
amount of the series of junior subordinated debt securities that are affected.
Any such change will be subject to the limitations described above under
"Modification" on page 19 applicable to the other debt securities. If the
property trustee of the Trust, as a holder of junior subordinated debt
securities, is required to consent to any amendment, modification or termination
of the junior subordinated indenture, the property trustee will request
directions from the holders of the trust securities of the Trust.
DESCRIPTION OF WARRANTS
We may issue warrants for the purchase of common stock, preferred stock
and debt securities. Warrants may be issued separately or together with common
stock, preferred stock, debt securities or trust preferred securities offered by
any prospectus supplement and may be attached to or separate from those
securities. Each series of warrants will be issued under a separate agreement to
be entered into between us and a bank or trust corporation, as warrant agent as
set forth in the prospectus supplement relating to the particular issue of
offered warrants. The warrant agent will act solely as our agent in connection
with the warrants and will not assume any obligation or relationship of agency
or trust for or with any holders of warrants or beneficial owners of warrants.
Copies of the forms of warrant agreements, including the forms of warrant
certificates representing the warrants, are or will be filed as exhibits to or
incorporated by reference in the registration statement. The following summaries
of certain provisions of the forms of warrant agreements and warrant
certificates do not purport to be complete and are
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qualified in their entirety by reference to, all the provisions of the warrant
agreements and the warrant certificates.
GENERAL
If warrants are offered, the applicable prospectus supplement will
describe the terms of such warrants, including, in the case of warrants for the
purchase of debt securities, the following where applicable:
- the offering price;
- the currencies in which the price for such warrants may be
payable;
- the designation, aggregate principal amount, currencies,
denominations and terms of the series of debt securities
purchasable upon exercise of such warrants;
- the designation and terms of any series of debt securities,
preferred stock or trust preferred securities with which the
warrants are being offered and the number of warrants being
offered with each such share of common stock or preferred stock,
debt security or trust preferred securities;
- if applicable, the date on and after which such warrants and the
related common stock, series of debt securities, preferred stock
or trust preferred securities will be transferable separately;
- the principal amount and series of debt securities purchasable
upon exercise of each such warrant and the price at which and
currencies in which such principal amount of debt securities of
such series may be purchased upon such exercise;
- the dates on which the right to exercise such warrants shall
commence and expire;
- whether the warrants will be issued in registered or bearer form;
- if applicable, a discussion of certain United States federal
income tax, accounting and other special considerations,
procedures and limitations; and
- any other terms of such warrants, including terms, procedures and
limitations relating to the exchange and exercise of such
warrants.
In the case of warrants for the purchase of common stock or preferred
stock, the applicable prospectus supplement will describe the terms of such
warrants, including the following where applicable:
- the offering price;
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- the number of shares purchasable upon exercise of such warrants
and, in the case of warrants for preferred stock, the designation,
number and terms of the series of preferred stock purchasable upon
exercise of such warrants;
- if applicable, the designation and terms of the series of common
stock, debt securities, preferred stock or trust preferred
securities with which such warrants are being offered and the
number of such warrants being offered with each share of common
stock or preferred stock, debt security or trust preferred
securities;
- if applicable, the date on and after which such warrants and the
related common stock or preferred stock series of debt securities
or trust preferred securities will be transferable separately;
- the number of shares of common stock or preferred stock
purchasable upon exercise of each such warrant and the price at
which such number of shares of common stock or preferred stock may
be purchased upon such exercise;
- the dates on which the right to exercise such warrants shall
commence and expire;
- any applicable anti-dilution provisions;
- any applicable redemption or call provisions;
- any United States federal income tax consequences; and
- any other terms of such warrants. Warrants for the purchase of
preferred stock or common stock will be offered and exercisable
for U.S. dollars only and will be in registered form only.
Warrant certificates may be exchanged for new warrant certificates of
different denominations, may be presented for registration of transfer, and may
be exercised at the corporate trust office of the warrant agent or any other
office indicated in the applicable prospectus supplement. Prior to the exercise
of any warrant to purchase debt securities, holders of such warrants will not
have any of the rights of holders of the debt securities purchasable upon such
exercise, including the right to receive payments of principal of, premium, if
any, or interest, if any, on the debt securities purchasable upon such exercise
or to enforce covenants in the applicable indenture. Before the exercise of any
warrants to purchase preferred stock or common stock, holders of such warrants
will not have any rights of holders of the preferred stock or common stock
purchasable upon such exercise, including the right to receive payments of
dividends, if any, on the preferred stock or common stock purchasable upon such
exercise or to exercise any applicable right to vote.
EXERCISE OF WARRANTS
Each warrant will entitle the holder thereof to purchase such principal
amount of debt securities, shares of common stock or preferred stock or trust
preferred securities, as the case may be, at such exercise price as shall in
each case be set forth in, or calculable from the
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prospectus supplement relating to the offered warrants. After the close of
business on the expiration date of the warrants, or such later date to which
such expiration date may be extended by us, unexercised warrants will become
void.
Warrants may be exercised by delivering to the warrant agent payment as
provided in the applicable prospectus supplement of the amount required to
purchase the debt securities, preferred stock or common stock, as the case may
be, purchasable upon such exercise together with certain information set forth
on the reverse side of the warrant certificate. Warrants will be deemed to have
been exercised upon receipt of payment of the exercise price, subject to the
receipt, within five business days, of the warrant certificate evidencing such
warrants. Upon receipt of such payment and the warrant certificate properly
completed and duly executed at the corporate trust office of the warrant agent
or any other office indicated in the applicable prospectus supplement, we will,
as soon as practicable, issue and deliver the debt securities, preferred stock
or common stock, as the case may be, purchasable upon such exercise. If fewer
than all of the warrants represented by the warrant certificate are exercised, a
new warrant certificate will be issued for the remaining amount of warrants.
AMENDMENTS AND SUPPLEMENTS TO WARRANT AGREEMENTS
The warrant agreements may be amended or supplemented without the
consent of the holders of the warrants issued thereunder to effect changes that
are not inconsistent with the provisions of the warrants and that do not
adversely affect the interests of the holders of the warrants.
WARRANT UNITS
We may issue warrants as a part of a warrant unit consisting of
warrants and another security described in this prospectus, including a trust
preferred security. The terms of a series of warrant units may be described in a
unit agreement between us (and the Trust if the warrant unit includes trust
preferred securities) and a bank or trust corporation, as unit agent. The
applicable prospectus supplement will describe the specific terms of any warrant
units.
STOCK PURCHASE CONTRACTS AND STOCK PURCHASE UNITS
We may issue stock purchase contracts, including contracts obligating
holders to purchase from us, and us to sell to the holders, a specified number
of shares of common stock at a future date or dates. The consideration per share
of common stock may be fixed at the time the stock purchase contracts are issued
or may be determined by reference to a specific formula described in the stock
purchase contracts. We may issue the stock purchase contracts separately or as a
part of stock purchase units consisting of a stock purchase contract and one or
more shares of our common stock, preferred stock or fractions thereof or a debt
security or a debt obligation of ours or a third party, including a U.S.
Treasury security. Our common stock, preferred stock or debt securities or the
debt obligation of a third party may serve as collateral to secure the holders'
obligations to purchase the shares of common stock under the stock purchase
contracts. The stock purchase contracts may require us to make periodic payments
to the holders of stock purchase contracts. These payments may be unsecured or
prefunded on some basis. The stock purchase contracts may require holders to
secure their obligations in a specified
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manner. The applicable prospectus supplement will describe the specific terms of
any stock purchase contracts or stock purchase units.
DESCRIPTION OF THE TRUST PREFERRED SECURITIES
The following description of the terms and provisions of trust
preferred securities summarizes certain general terms that will apply to each
series of trust preferred securities. This description is not complete, and we
refer you to the certificate of trust and the declaration of trust for each
Trust and the form of the amended and restated declaration of trust, copies of
which we filed as exhibits to the registration statement of which this
prospectus is a part.
DECLARATION OF TRUSTS
When a Trust issues a series of preferred securities, the declaration
of trust relating to that Trust will contain, and the prospectus supplement
relating to that series will summarize, the terms and other provisions relating
to that series of preferred securities. Each Trust will issue only one series of
preferred securities.
The declaration of trust of each Trust will be qualified as an
indenture under the Trust Indenture Act of 1939. Unless the applicable
prospectus supplement states otherwise, The Chase Manhattan Bank will act as
property trustee under each relevant declaration of trust.
Each series of preferred securities will represent undivided beneficial
ownership interests in the assets of the applicable Trust. The holders of the
preferred securities will be entitled to a preference in certain circumstances
regarding distributions from the applicable Trust and amounts payable on
redemption or liquidation over the corresponding series of common securities, as
well as other benefits as described in the relevant declaration of trust.
SPECIFIC TERMS OF EACH SERIES
Each time that a Trust issues a series of preferred securities, the
prospectus supplement relating to that new series will summarize the particular
amount, price and other terms and provisions of these preferred securities.
These terms may include the following:
- the distinctive designation of the preferred securities;
- the number of preferred securities issued by the applicable Trust
and the liquidation value of each such preferred security;
- the annual distribution rate (or method of determining such rate)
for preferred securities issued by the applicable Trust and the
date or dates upon which such distributions will be payable;
- whether distributions on preferred securities issued by the
applicable Trust may be deferred and, if so, what the maximum
number of distributions that may be deferred and the terms and
conditions of such deferrals will be;
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- whether distributions on preferred securities issued by the
applicable Trust will be cumulative, and, in the case of preferred
securities having such cumulative distribution rights, the date or
dates or method of determining the date or dates from which
distributions on preferred securities issued by each Trust will be
cumulative;
- the amount or amounts which will be paid out of the assets of the
applicable Trust to the holders of preferred securities of the
Trust upon voluntary or involuntary dissolution, winding up or
termination of the applicable Trust;
- any obligation of the applicable Trust to purchase or redeem
preferred securities issued by the applicable Trust and the price
or prices at which, the period or periods within which and the
terms and conditions upon which preferred securities issued by the
applicable Trust will be purchased or redeemed, in whole or in
part, pursuant to such obligation;
- any voting rights of preferred securities issued by the applicable
Trust in addition to those required by law, including the number
of votes per preferred security and any requirement for the
approval by the holders of preferred securities as a condition to
specified action or amendments to the relevant declaration of
trust; and
- any other relevant rights, preferences, privileges, limitations or
restrictions of preferred securities issued by the applicable
Trust, consistent with the declaration of the trust and with
applicable law.
All preferred securities that a Trust offers will be guaranteed by us
to the extent set forth in the section of this prospectus entitled "Description
of the Guarantees" on page 37. The applicable prospectus supplement will also
describe the United States federal income tax considerations applicable to each
offering of preferred securities.
ISSUANCE OF COMMON SECURITIES
In connection with the issuance of preferred securities, each Trust
will issue common securities to us. Except as described below under the caption
"--Subordination" in this prospectus, the terms of the common securities issued
by the applicable Trust will be substantially identical to the terms of the
preferred securities. These terms will be defined in the relevant declaration of
trust and will be summarized in the applicable prospectus supplement. These
terms will specify the following:
- the annual distribution rate (or method of determining that rate)
and the date or dates upon which the distributions will be
payable;
- the rights of the applicable Trust to redeem the common securities
and related provisions;
- the voting rights of holders of the common securities;
- any liquidation rights or similar restrictions;
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- and other specific terms of the common securities (not
inconsistent with the relevant declaration of trust).
SUBORDINATION
The common securities will rank on a par with, and payments will be
made on them on a proportionate basis with, the preferred securities issued by
the applicable Trust, except that upon a "trust enforcement event," the rights
of the holders of the common securities to payments of distributions and
payments upon liquidation, redemption and otherwise will be subordinated to the
rights of the holders of the preferred securities.
HOLDER OF COMMON SECURITIES
Except in some limited circumstances, the holder of the common
securities of the applicable Trust will have sole power to appoint, remove or
replace any of the trustees of the applicable Trust. We will, directly or
indirectly, own all of the common securities of the applicable Trust.
TRUST ENFORCEMENT EVENTS
An event of default under the indenture that has occurred and is
continuing constitutes a trust enforcement event under the relevant declaration
of trust.
REMEDIES OF HOLDERS OF PREFERRED SECURITIES AND THE PROPERTY TRUSTEE
If a trust enforcement event occurs, holders of preferred securities of
the applicable Trust would rely on the enforcement by the property trustee of
its rights as a holder of the junior subordinated debentures against us. In
addition, the holders of a majority in liquidation amount of the preferred
securities of the applicable Trust will have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
property trustee or to direct the exercise of any trust or power conferred upon
the property trustee under the relevant declaration of trust, including the
right to direct the property trustee to exercise the remedies available to it as
a holder of the junior subordinated debentures.
Upon the occurrence of a trust enforcement event, the property trustee,
as the holder of the junior subordinated debentures, will have the right under
the indenture to declare the principal of and premium, if any, and interest on
the junior subordinated debentures held by the applicable Trust to be
immediately due and payable.
If the property trustee fails to enforce its rights regarding the
junior subordinated debentures held by the applicable Trust, any holder of
preferred securities may, to the extent permitted by applicable law, institute a
legal proceeding directly against us to enforce the property trustee's rights
under these junior subordinated debentures without first instituting any legal
proceeding against the property trustee or any other person or entity. In
addition, if a trust enforcement event occurs and such event is attributable to
our failure to make any required payments on the junior subordinated debentures
when due, then a holder of preferred securities may, on or after the date that
such payment was due, institute a proceeding directly against us for
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enforcement of payment on the junior subordinated debentures having a principal
amount equal to the total liquidation amount of the preferred securities held by
that holder. We refer to such proceeding as a "direct action". In connection
with a direct action, we will have the right under the indenture to set off any
payment made to that holder by us. The holders of preferred securities will not
be able to exercise directly any other remedy available to the holders of junior
subordinated debentures.
REMEDIES OF HOLDERS OF COMMON SECURITIES
The holder of the common securities will be deemed to have waived any
trust enforcement event regarding the common securities until all trust
enforcement events regarding the preferred securities have been cured, waived or
otherwise eliminated. Until such a trust enforcement event has been cured,
waived or otherwise eliminated, the property trustee will be deemed to be acting
solely on behalf of the holders of the preferred securities and only the holders
of the preferred securities will have the right to direct the property trustee
regarding remedies under the relevant declaration of trust, and, therefore, the
indenture.
LIMITATION ON CONSOLIDATIONS, MERGERS AND SALE OF ASSETS
None of the Trusts may consolidate, merge with or into, or sell or
lease substantially all of its properties and assets to any corporation or other
entity, unless:
- a majority of the regular trustees consent to such a transaction;
- the successor assumes all of the obligations of the Trust
regarding the preferred securities, or substitutes other
securities for the preferred securities with substantially the
same terms and other provisions as the preferred securities (which
we refer to as "Successor Securities"), and regarding the
Trustees;
- if Successor Securities are issued, these securities are listed on
the same national securities exchange on which the preferred
securities were listed;
- the transaction does not cause the preferred securities or the
Successor Securities to be downgraded by a national ratings
organization;
- such transaction does not adversely affect the rights of the
holders of the preferred securities in any material respect;
- following the transaction, the Trust would not have to register as
an "investment company" under the Investment Company Act of 1940;
- we, or a successor which will own all of the common securities of
the Trust or its successor, will guarantee the preferred
securities, or the Successor Securities, to the same extent as the
preferred securities are guaranteed by the guarantee;
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- the Trust would continue to be classified as a grantor trust for
United States federal income tax purposes, unless each holder of
preferred securities consents to such a change; and
- the holders of the preferred securities would continue to be
treated as owning an undivided beneficial interest in the assets
of the Trust, unless each holder of the preferred securities
consents to such a change.
PAYING AGENT
Unless the applicable prospectus supplement states otherwise, if any
preferred securities are not in the form of global securities each Trust will
maintain in the Borough of Manhattan, The City of New York, an office or agency
where the preferred securities may be presented for payment by a paying agent.
Each Trust may appoint a paying agent and may appoint one or more
additional paying agents in such other locations as it may determine and change
any paying agent without prior notice to the holders of preferred securities.
Each Trust, or any of its affiliates, may act as paying agent regarding any
series of preferred securities. Unless the applicable prospectus supplement
states otherwise, the property trustee will act as paying agent for each series
of preferred securities. If the property trustee will no longer act as the
paying agent, the regular trustees may appoint a successor, which will be a bank
or trust company acceptable to us, to act as paying agent.
TRANSFER OF PREFERRED SECURITIES
For each issue of preferred securities, the property trustee will keep
a security register to provide for the transfer and registration of transfer of
preferred securities. The following provisions apply to the transfer of
preferred securities which are not issued in book-entry form:
- Holders of any issue of preferred securities may exchange their
securities for an equal principal amount of other preferred
securities of different authorized denominations of the same issue
and with the same terms.
- No service charge will be made for any registration of transfer or
exchange of securities, but the Trust 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.
- If the preferred securities are to be redeemed in part, the Trust
will not be required:
- to issue, register the transfer of or exchange any securities
during a period beginning at the opening of business 15 days
before the day of the mailing of a notice of redemption of any
such securities selected for redemption and ending at the
close of business on the day of such mailing; or
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- to register the transfer or exchange of any preferred security
so selected for redemption in whole or in part, except the
unredeemed portion of any security being redeemed in part.
GLOBAL SECURITIES
The preferred securities of any issue may be issued in the form of one
or more global securities. Preferred securities of any issue will no longer be
eligible to be represented in the form of a global security and will be
registered in definitive form if one of the following events occurs:
- if at any time the depositary notifies the applicable Trust that
it is unwilling or unable under the Securities Exchange Act of
1934 and other applicable law to continue as depositary or if at
any time it will no longer be eligible, in each case if a
successor depositary is not appointed within 90 days after the
applicable Trust receives notice or becomes aware of this
ineligibility; or
- the applicable Trust, in its sole discretion, may determine that
the preferred securities issued in the form of one or more global
securities will no longer be represented by a global security.
For more information regarding the issuance of global securities and
the depositary arrangements for them, see the applicable prospectus supplement.
REGISTRATION OF GLOBAL SECURITIES
If the preferred securities are to be issued in the form of one or more
global securities, then a regular trustee on behalf of the applicable Trust will
execute and the property trustee will cause the global securities to be
registered in the name of the depositary for these global securities or its
nominee.
REGISTRATION OF PREFERRED SECURITIES IN DEFINITIVE FORM
Preferred securities not represented by a global security which are
issued in exchange for all or a part of a global security will be registered in
such names and in such authorized denominations as the depositary, pursuant to
instructions from its direct or indirect participants or otherwise, will
instruct the property trustee. Upon execution and authentication, the property
trustee will deliver the preferred securities not represented by a global
security to the persons in whose names such definitive preferred securities are
so registered. The preferred securities that are not initially represented by a
global security may be exchanged or transferred for part of a global security
pursuant to the instructions and procedures of the depositary.
RELIANCE ON THE DEPOSITARY BY THE TRUSTS AND PROPERTY TRUSTEE
In connection with each issue of preferred securities, the applicable
Trust and property trustee may for all purposes, including the making of
payments due on these preferred securities, deal with the depositary as the
authorized representative of the holders of these preferred
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securities for the purpose of exercising the rights of these holders. The rights
of the owner of any beneficial interest in a global security will be limited to
those established by law and agreements between such owners and depository
participants or Euroclear and Cedel; provided that no such agreement will give
any rights to any person against the applicable Trust or property trustee
without the written consent of these parties.
TRANSFER OF BENEFICIAL INTERESTS IN GLOBAL SECURITIES
Global securities may not be transferred as a whole except under the
following circumstances:
- by the depositary to a nominee of the depositary;
- 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 or
a nominee of such successor depositary.
Interests of beneficial owners in a global security may be transferred
or exchanged for preferred securities not represented by a global security and
preferred securities not represented by a global security may be transferred or
exchanged for global securities in accordance with rules of the depositary.
AMENDMENTS
Amendments Without Consent of Holders of Preferred Securities
Each declaration of trust may be amended without the consent of the
holders of the preferred securities:
- to cure any ambiguity;
- to correct or supplement any provisions in the declaration of
trust that may be defective or inconsistent with any other
provision in the relevant declaration of trust;
- to add to our covenants, restrictions or obligations, as sponsor
of the Trusts;
- to conform to any change in Rule 3a-5 under the Investment Company
Act of 1940 or written change in interpretation or application of
Rule 3a-5 under the Investment Company Act of 1940 by any
legislative body, court, government agency or regulatory
authority; or
- to modify, eliminate or add to any provisions as necessary to the
relevant declaration of trust to ensure that the Trust will be
classified for United States federal income tax purposes as a
grantor trust at all times that any preferred securities or common
securities are outstanding or to ensure that the Trust will not be
required to register as
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an "investment company" under the Investment Company Act of 1940;
provided that any action described in this sentence may be taken
only if it does not adversely affect in any material respect the
rights of the holders of preferred securities or common
securities.
Amendment With Consent of Holders of Preferred Securities and Common Securities
Without the consent of each holder of the preferred securities and the
common securities, the relevant declaration of trust may not be amended to:
- change the amount or timing of any distribution of the preferred
securities and the common securities or otherwise adversely affect
the amount of any distribution required to be made on the
preferred securities and the common securities;
- restrict the right of a holder of preferred securities to
institute suit for the enforcement of any payment owed on these
securities; or
- change the voting requirements and other provisions relating to
amendments.
Without the consent of 66 2/3% of the holders of outstanding preferred
securities and common securities voting as a single class, the relevant
declaration of trust may not be amended to:
(1) adversely affect the powers, preferences or special rights of the
preferred securities and the common securities; or
(2) result in the dissolution, winding-up or termination of the
applicable Trust other than pursuant to the terms of the relevant
declaration of trust;
provided that, if any amendment or proposal referred to in clause (1) above
would adversely affect only the preferred securities or the common securities,
then only the affected class will be entitled to vote on such amendment or
proposal.
Amendments With Consent of Holders of Common Securities
Without the consent of the holders of a majority in liquidation amount
of the common securities, the relevant declaration of trust may not be amended
to change the rights of the holders of the common securities to increase or
decrease the number of, and appoint and remove trustees.
PROVISIONS THAT MAY NOT BE AMENDED
Under no circumstances may the following provisions of the relevant
declaration of trust be amended:
- to cause the applicable Trust to be classified other than as a
grantor trust for United States federal income tax purposes;
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- to reduce or otherwise adversely affect the powers of the property
trustee in contravention of the Trust Indenture Act of 1939; and
- to cause the applicable Trust to be deemed to be an "investment
company" required to be registered under the Investment Company
Act of 1940.
MEETINGS OF THE HOLDERS OF SECURITIES
Meetings
The regular trustees of a Trust may call a meeting of the holders of
the securities on any matter on which these securities are entitled to act under
the relevant declaration of trust. In addition, the holders of at least 10% in
liquidation amount of issue of preferred securities may direct the regular
trustees to call such a meeting. The regular trustees are required to give
notice of any such meeting at least 7 days but not more than 60 days before the
date of that meeting. The regular trustees, in their sole discretion, will
establish all other provisions relating to meetings of holders of preferred
securities not stated below.
Action by Written Consent
Whenever a vote, consent or approval of the holders of preferred
securities is permitted or required, that vote, consent or approval may be given
at the meeting. Any action that may be taken at a meeting of these holders may
be taken without a meeting and without prior notice if a consent in writing
setting forth the action so taken is signed by the holders owning not less than
the minimum amount of preferred securities in liquidation amount that would be
necessary to authorize or take such action at the meeting itself.
Proxies
Each holder of a preferred security may authorize any person to act for
it by proxy on all matters but proxies will not be valid after the expiration of
11 months from the date thereof unless otherwise provided in the proxy. Every
proxy will be revocable at the pleasure of the holder of preferred securities
executing the proxy. Except as otherwise provided herein, all matters relating
to the giving, voting or validity of proxies will be governed by the General
Corporation Law of the State of Delaware relating to proxies, and judicial
interpretations thereunder, as if the applicable Trust were a Delaware
corporation and the holders of the preferred securities were stockholders of a
Delaware corporation.
INFORMATION CONCERNING THE PROPERTY TRUSTEE
The property trustee serves as a trustee under indentures for other
debt of ours.
The trustee may, from time to time make loans to us and perform other
services for us in the normal course of business. Under the provisions of the
Trust Indenture Act of 1939, upon the occurrence of a default under an
indenture, if a trustee has a conflicting interest (as defined in the Trust
Indenture Act) the trustee must, within 90 days, either eliminate such
conflicting interest or resign. Under the provisions of the Trust Indenture Act,
an indenture trustee shall be deemed to
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have a conflicting interest if the trustee is a creditor of the obligor. If the
trustee fails either to eliminate the conflicting interest or to resign within
10 days after the expiration of such 90-day period, the trustee is required to
notify debt holders to this effect and any debt holder who has been a bona fide
holder for at least six months may petition a court to remove the trustee and to
appoint a successor trustee.
GOVERNING LAW
Each declaration of trust and the related preferred securities will be
governed by and construed in accordance with the laws of the State of Delaware.
DESCRIPTION OF THE GUARANTEES
The following description of the terms and provisions of the guarantees
summarizes certain general terms that will apply to each guarantee that we
deliver in connection with a series of preferred securities. This description is
not complete, and we refer you to the form of the guarantee agreement, a copy of
which we filed as an exhibit to the registration statement of which this
prospectus is a part.
When a Trust sells a series of its preferred securities, we will
execute and deliver a guarantee of that series of preferred securities under a
guarantee agreement for the benefit of the holders of these preferred
securities. Only one guarantee will be issued by us in connection with the
issuance of preferred securities by the applicable Trust. Each guarantee
agreement will be qualified as an indenture under the Trust Indenture Act of
1939. Unless the applicable prospectus supplement states otherwise, The Chase
Manhattan Bank will act as indenture trustee under each guarantee agreement.
The guarantee trustee will hold each guarantee for the benefit of the holders of
the preferred securities of the applicable Trust.
SPECIFIC TERMS OF THE GUARANTEES
Except as stated in the applicable prospectus supplement, we will
irrevocably and unconditionally agree to pay in full the following payments or
distributions on each corresponding series of preferred securities, to the
extent that they are not paid by, or on behalf of, the applicable Trust:
- any accumulated and unpaid distributions required to be paid on
the preferred securities, to the extent that the applicable Trust
has sufficient funds available for those payments at the time;
- the redemption price regarding any preferred securities called for
redemption, to the extent that the applicable Trust has sufficient
funds available for those redemption payments at such time; and
- upon a voluntary or involuntary dissolution, winding up or
liquidation of the applicable Trust, unless the corresponding
series of junior subordinated debentures are distributed to
holders of the preferred securities, the lesser of:
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- the total liquidation amount of the preferred securities and all
accumulated and unpaid distributions on them to the date of
payment; and
- the amount of assets of the applicable Trust remaining available
for distribution to holders of the preferred securities.
Our obligation to make the payments described above under the guarantee
may be satisfied by direct payment of the required amounts by us to the holders
of the applicable preferred securities or by causing the applicable Trust to pay
such amounts to these holders. In addition, our obligation to make the payments
described above will exist regardless of any defense, right of setoff or
counterclaim that the applicable Trust may have or assert.
Each guarantee will apply only to the extent that the applicable Trust
has sufficient funds available to make the required payments. If we do not make
interest payments on the junior subordinated debentures held by the applicable
Trust, then the Trust will not be able to pay distributions on the preferred
securities issued by the Trust and will not have funds legally available for
these payments.
NATURE OF THE GUARANTEE
We will, through the relevant declaration of trust, the guarantee, the
junior subordinated debentures and the indenture, taken together, fully and
unconditionally guarantee the applicable Trust's obligations under the preferred
securities. No single document standing alone or operating in conjunction with
fewer than all of the other documents constitutes this guarantee. It is only the
combined operation of these documents that has the effect of providing a full
and unconditional guarantee of the applicable Trust's obligations under the
preferred securities.
Each guarantee will constitute a guarantee of payment and not of
collection. This means that the guaranteed party may institute a legal
proceeding directly against us to enforce its rights under a guarantee without
first instituting a legal proceeding against any other person or entity. In
addition, each guarantee will not be discharged except by payment of the amounts
due under it in full to the extent they have not been paid by the applicable
Trust or upon distribution of junior subordinated debentures to the holders of
the preferred securities in exchange for all of these preferred securities.
SUBORDINATION OF COMMON SECURITIES
We also will irrevocably and unconditionally guarantee the obligations
of the applicable Trust regarding that Trust's common securities to the same
extent as our guarantee of the applicable preferred securities, except that upon
the occurrence and the continuation of a Trust Enforcement Event regarding the
applicable Trust, holders of these preferred securities will have priority over
holders of the common securities regarding distributions and payments on
liquidation, redemption or otherwise.
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RANKING
Each guarantee will constitute our unsecured obligation and will rank
subordinate and junior in right of payment to all of our other liabilities to
the same extent as the junior subordinated debentures.
The guarantees will not place a limitation on the amount of additional
senior debt that may be incurred by us.
CERTAIN COVENANTS OF PROVIDENT FINANCIAL GROUP
In general, we will covenant in each guarantee that, so long as any
preferred securities issued by a Trust remain outstanding, if
- there shall have occurred any event of default under the indenture
regarding the applicable series of junior subordinated debentures;
- we shall be in default regarding our payment of any obligations
under the related guarantee; or
- we shall have given notice of our election to defer interest
payments on the junior subordinated debentures, as described under
the caption "Description Debt Securities--Provisions Applicable to
Junior Subordinated Debt Securities--Option to Defer Interest
Payments" on page ? of this prospectus and we shall not have
rescinded that notice or begun making such payments,
then we will not, and will not permit any subsidiary to, do the following:
- to declare or pay any dividends or distributions on, or redeem,
purchase, acquire or make a liquidation payment regarding, any of
our capital stock; or
- make any payment of principal, interest or premium, if any, on or
repay, repurchase or redeem any of our debt securities that rank
on a par with or junior to the junior subordinated debentures or
make any payments regarding any guarantee by us of the debt
securities of any of our subsidiaries if such guarantee ranks on a
par with or junior to these junior subordinated debentures.
At any time, however, we may do the following:
- pay dividends or make distributions in our common stock;
- make payments under the applicable guarantee made by us regarding
preferred securities of the applicable Trust;
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- declare a dividend in connection with the implementation of a
shareholders' rights plan, or issue stock under any such plan in
the future, or redeem or repurchase any rights issued pursuant to
such a plan; and
- purchase common stock related to the issuance of common stock or
rights under any of our benefit plans.
AMENDMENTS
Unless otherwise specified in the applicable prospectus supplement,
each guarantee may be amended under the following circumstances:
- no consent of holders will be required regarding changes to the
guarantee that do not materially adversely affect the rights of
holders of the applicable preferred securities; and
- no other amendments to the guarantee may be made without the prior
approval of the holders of not less than a majority of the total
liquidation amount of the outstanding preferred securities to
which the guarantee relates.
The manner of obtaining the necessary approvals to amend a guarantee
are the same as for holders of the preferred securities, which are described
under "Description of the Preferred Securities--Meetings of the Holders of
Securities" on page 36 of this prospectus..
ASSIGNMENT
All guarantees and agreements contained in a guarantee will bind our
successors, assigns, receivers, trustees and representatives and will inure to
the benefit of the holders of the related preferred securities then outstanding.
EVENTS OF DEFAULT AND REMEDIES
An event of default under a guarantee will occur upon our failure to
make any of our payments or perform any of our other obligations under it.
The holders of not less than a majority in total liquidation amount of
the preferred securities to which a guarantee relates have the right to direct
the time, method and place of conducting any proceeding for any remedy available
to the guarantee trustee regarding the guarantee or to direct the exercise of
any trust or power conferred upon the guarantee trustee under such guarantee.
If the guarantee trustee fails to enforce a guarantee, then any holder
of the corresponding series of preferred securities may institute a legal
proceeding directly against us to enforce the guarantee trustee's rights under
that guarantee, without first instituting a legal proceeding against the
applicable Trust that issued the preferred securities, the guarantee trustee or
any other person or entity.
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INFORMATION CONCERNING THE GUARANTEE TRUSTEE
The guarantee trustee, other than during the occurrence and continuance
of a default by us in performance of a guarantee, undertakes to perform only
such duties as are specifically set forth in the guarantee. After a default
under the guarantee, which has not been cured or waived, that is actually known
to a responsible officer of the guarantee trustee, the guarantee trustee must
exercise the same degree of care and skill as a prudent person would exercise or
use under the circumstances in the conduct of his own affairs. Subject to this
provision, the guarantee trustee is under no obligation to exercise any of the
powers vested in it by a guarantee at the request of any holder of preferred
securities to which the guarantee relates unless it is offered reasonable
indemnity against the costs, expenses and liabilities that might be incurred by
such action.
TERMINATION OF THE GUARANTEES
Each guarantee will terminate upon any of the following events:
- full payment of the redemption price of all preferred securities
of the applicable Trust;
- full payment of the amounts payable upon liquidation of the
applicable Trust; or
- distribution of the junior subordinated debentures held by the
applicable Trust to the holders of the preferred securities of the
Trust in exchange for all of the preferred securities of the
Trust.
Each guarantee will continue to be effective or will be reinstated, if at any
time any holder of related preferred securities issued by the applicable Trust
is required to restore payment of any sums paid under the applicable preferred
securities or the guarantee.
GOVERNING LAW
The guarantees will be governed by the laws of the State of Ohio,
including any matters of interpretation under them.
DESCRIPTION OF CAPITAL SECURITIES
The following is a summary of the provisions of Ohio General
Corporation Law and Provident Financial=s Articles of Incorporation and Code of
Regulations which govern the terms of Provident Financial=s common stock.
COMMON STOCK
Our Articles of Incorporation authorize the issuance of 110,000,000
shares of common stock. At September 30, 1999 approximately 4,000 record holders
owned the 42,680,758 outstanding shares, all of which are fully paid, validly
issued and non-assessable.
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Holders of our common stock are entitled to one vote for each share
held of record on all matters submitted to a vote of shareholders. Shareholders
may cumulate their votes when electing directors.
Holders of our common stock are entitled to share in the dividends that
the board of directors validly declares from legally available funds. If we
liquidate, holders of our common stock also are entitled to participate ratably
in the assets remaining after we pay our liabilities and preferred stock
liquidation preferences.
Holders of our common stock do not have preemptive rights or other
rights to subscribe for purchase additional shares of any class of stock or any
other securities of ours. Our common stock has no redemption or sinking fund
provisions. Approving amendments to the Articles of Incorporation, mergers,
reorganizations and similar transactions requires the vote of the holders of
two-thirds of all outstanding shares of our common stock. The Provident Bank
serves as Registrar and Transfer Agent for our common stock.
PREFERRED STOCK
Our Articles of Incorporation authorize 5,000,000 shares of preferred
stock which may be issued from time to time in series that have been designated
preferences, rights, qualifications and limitations that the board of directors,
in its sole discretion, may determine. The board of directors can give preferred
stock both voting and conversion rights which would affect the voting power and
equity of holders of our common stock. Preferred stock could also have
preference to our common stock with respect to dividend and liquidation rights.
The preferred stock could have the effect of acting as an anti-takeover device
to prevent a change of control of us. We have 70,272 shares of preferred stock,
designated as our Series D Preferred Stock, outstanding. Each share has a stated
and liquidation value of $100, is convertible into 14.0625 shares of our common
stock, and pays an annual dividend equal to the dividend payable on 14.0625
shares of our common stock.
CERTAIN TAX CONSIDERATIONS
The applicable prospectus supplement with respect to each type of
security issued under this registration statement may contain a discussion of
certain tax consequences of an investment in the securities offered thereby.
PLAN OF DISTRIBUTION
We or the Trusts may offer the offered securities in one or more of the
following ways from time to time:
- to or through underwriters or dealers;
- by itself directly;
- through agents; or
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- through a combination of any of these methods of sale.
The prospectus supplement relating to an offering of offered securities
will set forth the terms of such offering, including:
- the name or names of any underwriters, dealers or agents;
- the purchase price of the offered securities and the proceeds to
us or the Trusts from such sale;
- any underwriting discounts and commissions or agency fees and
other items constituting underwriters' or agents' compensation;
- the initial public offering price;
- any discounts or concessions to be allowed or reallowed or paid to
dealers; and
- any securities exchanges on which such offered securities may be
listed.
Any initial public offering prices, discounts or concessions allowed or
reallowed or paid to dealers may be changed from time to time.
If underwriters are used in an offering of offered securities, such
offered securities will be acquired by the underwriters for their own account
and may be resold from time to time in one or more transactions, including
negotiated transactions, at a fixed public offering price or at varying prices
determined at the time of sale. The securities may be either offered to the
public through underwriting syndicates represented by one or more managing
underwriters or by one or more underwriters without a syndicate. Unless
otherwise set forth in the prospectus supplement, the underwriters will not be
obligated to purchase offered securities unless specified conditions are
satisfied, and if the underwriters do purchase any offered securities, they will
purchase all offered securities.
In connection with underwritten offerings of the offered securities and
in accordance with applicable law and industry practice, underwriters may
over-allot or effect transactions that stabilize, maintain or otherwise affect
the market price of the offered securities at levels above those that might
otherwise prevail in the open market, including by entering stabilizing bids,
effecting syndicate covering transactions or imposing penalty bids, each of
which is described below.
- A stabilizing bid means the placing of any bid, or the effecting
of any purchase, for the purpose of pegging, fixing or maintaining
the price of a security.
- A syndicate covering transaction means the placing of any bid on
behalf of the underwriting syndicate or the effecting of any
purchase to reduce a short position created in connection with the
offering.
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- A penalty bid means an arrangement that permits the managing
underwriter to reclaim a selling concession from a syndicate
member in connection with the offering when offered securities
originally sold by the syndicate member are purchased in syndicate
covering transactions.
These transactions may be effected through the Nasdaq National Market
system, or otherwise. Underwriters are not required to engage in any of these
activities, or to continue such activities if commenced.
If dealers are utilized in the sale of offered securities, we or the
Trusts will sell such offered securities to the dealers as principals. The
dealers may then resell such offered securities to the public at varying prices
to be determined by such dealers at the time of resale. The names of the dealers
and the terms of the transaction will be set forth in the prospectus supplement
relating to that transaction.
Offered securities may be sold directly by us or the Trusts to one or
more institutional purchasers, or through agents designated by us or the Trusts
from time to time, at a fixed price or prices, which may be changed, or at
varying prices determined at the time of sale. Any agent involved in the offer
or sale of the offered securities in respect of which this prospectus is
delivered will be named, and any commissions payable by us to such agent will be
set forth, in the prospectus supplement relating to that offering. Unless
otherwise indicated in such prospectus supplement, any such agent will be acting
on a best efforts basis for the period of its appointment.
If so indicated in the applicable prospectus supplement, we or the
Trusts will authorize agents, underwriters or dealers to solicit offers from
certain types of institutions to purchase offered securities from us or the
Trusts at the public offering price set forth in such prospectus supplement
pursuant to delayed delivery contracts providing for payment and delivery on a
specified date in the future. Such contracts will be subject only to those
conditions set forth in the prospectus supplement and the prospectus supplement
will set forth the commission payable for solicitation of such contracts.
Underwriters, dealers and agents may be entitled, under agreements with
us, to indemnification by us relating to material misstatements and omissions.
Underwriters, dealers and agents may be customers of, engage in transactions
with, or perform services for, us and our affiliates in the ordinary course of
business.
Each series of offered securities other than common stock will be a new
issue of securities and will have no established trading market. Any
underwriters to whom offered securities are sold for public offering and sale
may make a market in such offered securities, but such underwriters will not be
obligated to do so and may discontinue any market making at any time without
notice. The offered securities may or may not be listed on a national securities
exchange. No assurance can be given that there will be a market for the offered
securities.
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ERISA CONSIDERATIONS
Our subsidiaries provide services to several employee benefit plans.
Although the majority of these plans are employee-directed 401(k) plans, we and
any direct or indirect subsidiary of ours may each be considered a "party in
interest" within the meaning of the Employee Retirement Income Security Act of
1974, and a "disqualified person" under corresponding provisions of the Internal
Revenue Code of 1986, relating to some of these employee benefit plans.
"Prohibited transactions" within the meaning of ERISA and the Code may result if
any offered securities are acquired by an employee benefit plan to which we or
any direct or indirect subsidiary of ours is a party in interest, unless such
offered securities are acquired pursuant to an applicable exemption issued by
the U.S. Department of Labor. Any employee benefit plan or other entity to which
such provisions of ERISA or the Code apply proposing to acquire the offered
securities should consult with its legal counsel.
LEGAL MATTERS
Keating, Muething & Klekamp, P.L.L., Cincinnati, Ohio, will act as
legal counsel to us and will pass upon the validity of any securities offered by
this prospectus and any applicable prospectus supplement. Certain matters of
Delaware law relating to each Trust will be passed upon for the Trusts and us by
Richards, Layton & Finger, P.A., Wilmington, Delaware. Unless otherwise stated
in a prospectus supplement, United States federal income taxation matters will
also be passed upon for us and the Trusts by Keating, Muething & Klekamp, P.L.L.
Members of Keating, Muething & Klekamp, P.L.L. participating in this engagement
own approximately 115,000 shares of our common stock. Counsel identified in the
applicable prospectus supplement will act as legal counsel to the underwriters.
EXPERTS
The consolidated financial statements of Provident Financial
Group, Inc. appearing in Provident Financial's Annual Report (Form 10-K) for the
year ended December 31, 1998 have been audited by Ernst & Young LLP, independent
auditors, as set forth in their report thereon and incorporated herein by
reference in reliance upon such report given on the authority of such firm as
experts in accounting and auditing.
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II-1
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the expenses in connection with the
offering described in this Registration Statement:
Securities and Exchange Commission registration fee* $112,200
New York Stock Exchange listing fee 200,000
Legal fees and expenses 75,000
Accounting fees and expenses 10,000
Printing and engraving expenses 30,000
Trustee's fees and expenses 40,000
Rating Agencies' fees 100,000
Blue Sky fees and expenses 2,500
Miscellaneous 30,300
---------
TOTAL $ 600,000
=========
- ----------------
*Actual; other expenses are estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Ohio Revised Code, Section 1701.13(E), allows indemnification by
Provident Financial Group, Inc. to any person made or threatened to be made a
party to any proceedings, other than a proceeding by or in the right of the
Provident Financial Group, Inc., by reason of the fact that he is or was a
director, officer, employee or agent of the Provident Financial Group, Inc.,
against expenses, including judgment and fines, if he acted in good faith and in
a manner reasonably believed to be in or not opposed to the best interests of
the Provident Financial Group, Inc. and, with respect to criminal actions, in
which he had no reasonable cause to believe that his conduct was unlawful.
Similar provisions apply to actions brought by or in the right of the Provident
Financial Group, Inc., except that no indemnification shall be made in such
cases when the person shall have been adjudged to be liable for negligence or
misconduct to the Provident Financial Group, Inc. unless deemed otherwise by the
court. Indemnification may be authorized by a majority vote of a quorum of
disinterested directors or upon the written opinion of independent counsel or by
the shareholders or by court order. The Provident Financial Group, Inc.'s Code
of Regulations extends such indemnification.
The Declarations will provide that no Property Trustee or any of its
Affiliates, Delaware Trustee or any of its Affiliates, or any officer, director,
shareholder, member, partner, employee, representative, custodian, nominee or
agent of the Property Trustee or the Delaware Trustee (each a "Fiduciary
Indemnified Person"), and no Regular Trustee, Affiliate of any Regular Trustee,
or any officer, director, shareholder, member, partner, employee, representative
or agent
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of any regular Trustee or any Affiliate thereof, or any employee or agent of the
Trust or its Affiliates (each a "Company Indemnified Person") shall be liable,
responsible or accountable in damages or otherwise to the Trust or any officer,
director, shareholder, partner, member, representative, employee or agent of the
Trust or its Affiliates or to any holder of Preferred Securities for any loss,
damage or claim incurred by reason of any act or omission performed or omitted
by such Fiduciary Indemnified Person or Company Indemnified Person in good faith
on behalf of the Trust and in a manner such Fiduciary Indemnified Person or
Company Indemnified Person reasonably believed to be within the scope of the
authority conferred on such Fiduciary Indemnified Person or Company Indemnified
Person by such Declaration or by law, except that a Fiduciary Indemnified Person
or Company Indemnified Person shall be liable for any such loss, damage or claim
incurred by reason of such Fiduciary Indemnified Person's or Company Indemnified
Person's gross negligence or willful misconduct with respect to such acts or
omissions.
The Declaration will also provide that to the full extent permitted by
law, the Company shall indemnify any Company Indemnified Person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Trust) by reason
of the fact that he is or was a Company Indemnified Person against expense
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interest of the Trust, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful. The Declaration will also provide that to the full extent
permitted by law, the Company shall indemnify any Company Indemnified Person who
was or is a party or is threatened to be made a party to any threatened, pending
or completed action or suit by or in the right of the Trust to procure a
judgment in its favor by reason of the fact that he is or was a Company
Indemnified Person against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection with the defense or settlement of such
action or suit if he acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the Trust and except that no
such indemnification shall be made in respect of any claim, issue or manner as
to which such Company Indemnified Person shall have been adjudged to be liable
to the Trust unless and only to the extent that the Court of Chancery of
Delaware or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which Court of Chancery or such other court shall
deem proper. The Declaration will further provide that expenses (including
attorneys' fees) incurred by a Company Indemnified Person in defending a civil,
criminal, administrative or investigative action, suit or proceeding referred to
in the immediately preceding two sentences shall be paid by the Company in
advance of the final disposition of such action, suit or proceeding upon receipt
of an undertaking by or on behalf of such Company Indemnified Person to repay
such amount if it shall ultimately be determined that he is not entitled to be
indemnified by the Company as authorized in the Declaration.
The directors and officers of the Company and the Regular Trustees are
covered by insurance policies indemnifying them against certain liabilities,
including certain liabilities arising under the Securities Act of 1933 which
might be incurred by them in such capacities and
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against which they cannot be indemnified by the Company or the Trust. Any
agents, dealers or underwriters who execute any of the agreements filed as or
incorporated by reference as Exhibit 1 to this Registration Statement will agree
to indemnify the Company's directors and their officers and the Trustees who
signed the Registration Statement against certain liabilities that may arise
under the Securities Act of 1933 with respect to information furnished to the
Company or the Trust by or on behalf of any such indemnifying party.
The Declaration will also provide that the Company shall indemnify each
Fiduciary Indemnified Person against any loss, liability or expense incurred
with out negligence or bad faith on its part, arising out of or in connection
with the acceptance or administration of the trust or trusts under the Trust,
including the costs and expenses (including reasonable legal fees and expenses)
of defending itself against or investigating any claim or liability in
connection with the exercise or performance of any of its powers or duties
thereunder.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
Exhibit No. Description of Document
- ----------- -----------------------
1 Form of Underwriting Agreement**
4.1 Plan of Reorganization relating to Series D Non-Voting
Convertible Preferred Stock (incorporated by reference to
Exhibit No. 4 to Provident Financial's Form 10-K for the
fiscal year ended December 31, 1995)
4.2 Junior Subordinated Indenture dated as of November 27,
1996 between Provident Financial and The Bank of New
York, as Indenture Trustee (incorporated by reference to
Exhibit No. 4.1 to Provident Financial's Form 8-K dated
November 27, 1996)
4.3 Amended and Restated Declaration of Trust of Provident Capital
Trust I, dated as of November 27, 1996 (incorporated by
reference to Exhibit No. 4.3 to Provident Financial's Form 8-K
dated November 27, 1996)
4.4 Form of Guarantee Agreement to be entered into by Provident
Financial and The Bank of New York, as Guarantee Trustee
(incorporated by reference to Exhibit No. 4.8 to Registration
Statement No. 333-20769)
4.5 Form of Indenture relating to the Junior Subordinated
Debentures to be entered by and between Provident Financial
and The Chase Manhattan Bank, as Indenture Trustee
(incorporated by reference to Exhibit No. 4(a) to Registration
Statement No. 333-80231)
4.6 Form of Guarantee Agreement to be entered into by and
between Provident Financial, as Guarantor, and The Chase
Manhattan Bank, as Guarantor Trustee, for the benefit of
holders of Preferred Securities of Provident Capital
Trust III and Provident Capital Trust IV (incorporated by
reference to Exhibit No. 4(b) to Registration Statement
No. 333-80231)
4.7 Form of Junior Subordinated Debenture (incorporated by
reference to Exhibit No. 4(c) to Registration Statement No.
333-80231)
4.8 Certificate of Trust of Provident Capital Trust II
(incorporated by reference to Exhibit No. 4(d) to Registration
Statement No. 333-80231)
4.9 Certificate of Trust of Provident Capital Trust III
(incorporated by reference to Exhibit No. 4(e) to Registration
Statement No. 333-80231)
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4.10 Declaration of Trust of Provident Capital Trust II
(incorporated by reference to Exhibit No. 4(f) to Registration
Statement No. 333-80231)
4.11 Declaration of Trust of Provident Capital Trust III
(incorporated by reference to Exhibit No. 4(g) to Registration
Statement No. 333-80731)
4.12 Form of Preferred Security Certificate (incorporated by
reference to Exhibit No. 4(i) to Registration Statement No.
333-80231)
4.13 Form of Senior Indenture between Provident Financial and The
Chase Manhattan Bank, as Trustee
4.14 Form of Subordinated Indenture between Provident Financial and
The Chase Manhattan Bank, as Trustee
4.15 Form of Junior Subordinated Indenture between Provident
Financial and The Chase Manhattan Bank, as Trustee
4.16 Form of Debt Warrant Agreement (including form of Debt Warrant
certificate)**
4.17 Form of Preferred Stock Warrant Agreement (including form of
Preferred Stock Warrant Certificate)**
4.18 Form of Common Stock Warrant Agreement (including form of
Common Stock Warrant Certificate)**
4.19 Statement with Respect to Shares for the offered
Preferred Securities: Upon issuance of any such
securities, Provident Financial will file all necessary
Exhibits to a Current Report on Form 8-K and thereby
incorporates such Exhibits by reference.
4.20 Form of Deposit Agreement with respect to the Depositary
Shares (including the form of Depositary Receipt to be issued
thereunder)**
4.21 Form of Amended and Restated Declaration of Trust for
Provident Capital Trust III and Provident Capital Trust IV
(including the forms of Preferred Securities and Common Stock
to be issued thereunder)
4.22 Form of Certificate of Trust for Provident Capital Trust IV
4.23 Form of Declaration of Trust for Provident Capital Trust IV
4.24 Provident Financial has outstanding certain long-term
debt. None of such debt exceeds 10% of the total assets
of Provident Financial and its consolidated subsidiaries;
therefore, copies of the constituent instruments defining
the rights of the holders of such debt are not included
as exhibits to this Registration Statement. Provident
Financial agrees to furnish copies of such instruments to
the Commission upon request.
5.1 Opinion and Consent of Keating, Muething & Klekamp, P.L.L.
5.2 Opinion and Consent of Richards, Layton & Finger, P.A.
relating to Provident Capital Trust III
5.3 Opinion and Consent of Richards, Layton & Finger, P.A.
relating to Provident Capital Trust IV
12 Computation of Ratios of Earnings to Fixed Charges and
Combined Fixed Charges and Preferred Stock Dividends*
23.1 Consent of Ernst & Young, LLP
23.2 Consent of Keating, Muething & Klekamp, P.L.L. (Contained in
Exhibit 5.1)
23.3 Consent of Richards, Layton & Finger, P.A. (contained in
Exhibits 5.2 and 5.3)
24 Powers of Attorney of Directors and Officers (included on
signature page)
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<PAGE> 54
25.1 Form T-1 of The Chase Manhattan Bank as Trustee under the
Senior Indenture
25.2 Form T-1 of The Chase Manhattan Bank as Trustee under the
Subordinated Indenture
25.3 Form T-1 of The Chase Manhattan Bank as Trustee with respect
to the Preferred Securities of Provident Capital Trust II
(incorporated by reference to Exhibit No. 25(b) to
Registration Statement No. 333-80231)
25.4 Form T-1 of The Chase Manhattan Bank as Trustee with respect
to the Preferred Securities of Provident Capital Trust III
25.5 Form T-1 of The Chase Manhattan Bank as Trustee with respect
to the Preferred Securities of Provident Capital Trust IV
25.6 Form T-1 of The Chase Manhattan Bank as Trustee with respect
to the Guarantees of Provident Financial Group with respect to
Provident Capital Trust II (incorporated by reference to
Exhibit No. 25(d) to Registration Statement No. 333-80231)
25.7 Form T-1 of The Chase Manhattan Bank as Trustee with respect
to the Guarantees of Provident Financial Group with respect to
Provident Capital Trust III
25.8 Form T-1 of The Chase Manhattan Bank as Trustee with respect
to the Guarantees of Provident Financial Group with respect to
Provident Capital Trust IV
25.9 Form T-1 of The Chase Manhattan Bank as Trustee with respect
to the Junior Subordinated Debt Securities of Provident
Financial Group
* To be filed by amendment or as an exhibit to a Current Report on Form
8-K.
** To be incorporated by reference herein in connection with the offering
of each applicable class of securities.
ITEM 17. UNDERTAKINGS.
(a) The undersigned Registrants hereby undertake:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) under the Securities Act
if, in the aggregate, the changes in volume and price represent no
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more than a 20% change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the effective
Registration Statement.
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration
Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above do not apply
if the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the Registrants
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial BONA
FIDE offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) The undersigned Registrants hereby undertake that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrants' annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) If the securities to be registered are to be offered at competitive bidding,
the undersigned Registrants hereby undertake: (1) to use its best efforts to
distribute prior to the opening of bids, to prospective bidders, underwriters,
and dealers, a reasonable number of copies of a prospectus which at that time
meets the requirements of Section 10(a) of the Act, and relating to the
securities offered at competitive bidding, as contained in the Registration
Statement, together with any supplements thereto, and (2) to file an amendment
to the Registration Statement reflecting the results of bidding, the terms of
the reoffering and related matters to the extent required by the applicable
form, not later than the first use, authorized by the issuer after the opening
of bids, of a prospectus relating to the securities offered at competitive
bidding, unless no further public offering of such securities by the issuer and
no reoffering of such securities by the purchasers is proposed to be made.
(d) Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrants pursuant to the foregoing provisions, or otherwise, the Registrants
have been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with
II-6
<PAGE> 56
the securities being registered, the Registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Act and will be governed by the
final adjudication of such issue.
(e) The undersigned Registrant hereby undertakes that
(1) for purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part of
this Registration Statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this Registration
Statement as of the time it was declared effective; and
(2) for the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(f) The undersigned Registrant hereby undertakes to file, if necessary, an
application for the purpose of determining the eligibility of the Trustee to act
under subsection (a) of Section 310 of the Trust Indenture Act of 1939 in
accordance with the rules and regulations prescribed by the Securities and
Exchange Commission under Section 305(b)(2) of such Act.
II-7
<PAGE> 57
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Provident
Financial Group, Inc. certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized in the City of Cincinnati, State of Ohio, as of the 23rd day of
December, 1999.
PROVIDENT FINANCIAL GROUP, INC.
By: /s/Robert L. Hoverson
------------------------------------------
Robert L. Hoverson, President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated. The persons whose names appear with an
asterisk (*) below hereby designate Mark E. Magee or Christopher J. Carey, or
either of them, as attorney-in-fact to sign all amendments including any
post-effective amendments to this Registration Statement as well as any related
registration statement (or amendment thereto) filed pursuant to Rule 462(b)
promulgated under the Securities Act of 1933.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/Robert L. Hoverson President and Director (Principal December 23, 1999
- -------------------------------- Executive Officer)
*Robert L. Hoverson
/s/Jack M. Cook Director December 23, 1999
- ---------------------------------
*Jack M. Cook
/s/Thomas D. Grote, Jr. Director December 23, 1999
- ---------------------------------
*Thomas D. Grote, Jr.
/s/Philip R. Myers Director December 23, 1999
- ---------------------------------
*Philip R. Myers
/s/Joseph A. Pedoto Director December 23, 1999
- ---------------------------------
*Joseph A. Pedoto
/s/Sidney A. Peerless Director December 23, 1999
- ---------------------------------
*Sidney A. Peerless
</TABLE>
II-8
<PAGE> 58
<TABLE>
<CAPTION>
<S> <C> <C>
/s/Joseph A. Steger December 23, 1999
- ---------------------------------
*Joseph A. Steger Director
/s/Christopher J. Carey Executive Vice President and Chief Financial December 23, 1999
- --------------------------------- Officer (Principal Financial Officer and
*Christopher J. Carey Principal Accounting Officer)
</TABLE>
II-9
<PAGE> 59
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Provident
Capital Trust III certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized in the City of Cincinnati, State of Ohio, as of December __,
1999.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated. The persons whose names appear with an
asterisk (*) below hereby designate Mark E. Magee or Christopher J. Carey, or
either of them, as attorney-in-fact to sign all amendments including any
post-effective amendments to this Registration Statement as well as any related
registration statement (or amendment thereto) filed pursuant to Rule 462(b)
promulgated under the Securities Act of 1933.
PROVIDENT CAPITAL TRUST III
By: /s/Christopher J. Carey
------------------------------------
*Christopher J. Carey, as Trustee
By: /s/Mark E. Magee
------------------------------------
*Mark E. Magee, as Trustee
By: /s/Tayfun Tuzun
------------------------------------
*Tayfun Tuzun, as Trustee
II-10
<PAGE> 60
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Provident
Capital Trust IV certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized in the City of Cincinnati, State of Ohio, as of December __,
1999.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated. The persons whose names appear with an
asterisk (*) below hereby designate Mark E. Magee or Christopher J. Carey, or
either of them, as attorney-in-fact to sign all amendments including any
post-effective amendments to this Registration Statement as well as any related
registration statement (or amendment thereto) filed pursuant to Rule 462(b)
promulgated under the Securities Act of 1933.
PROVIDENT CAPITAL TRUST IV
By: /s/Christopher J. Carey
------------------------------------
*Christopher J. Carey, as Trustee
By: /s/Mark E. Magee
------------------------------------
*Mark E. Magee, as Trustee
By: /s/Tayfun Tuzun
------------------------------------
*Tayfun Tuzun, as Trustee
II-11
<PAGE> 1
EXHIBIT 4.13
===============================================================================
PROVIDENT FINANCIAL GROUP, INC.,
Issuer
and
THE CHASE MANHATTAN BANK
Trustee
INDENTURE
Dated as of __________, 1999
Senior Debt Securities
================================================================================
<PAGE> 2
<TABLE>
<CAPTION>
TABLE OF CONTENTS
-----------------
Page
----
<S> <C> <C>
ARTICLE 1. DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION...................................................................1
SECTION 1.1 Definitions...................................................................1
SECTION 1.2 Compliance Certificates and Opinions..........................................7
SECTION 1.3 Form of Documents Delivered to Trustee........................................8
SECTION 1.4 Acts of Holders...............................................................8
SECTION 1.5 Notices, Etc., to Trustee and Company.........................................9
SECTION 1.6 Notice to Holders; Waiver....................................................10
SECTION 1.7 Conflict with Trust Indenture Act............................................10
SECTION 1.8 Effect of Headings and Table of Contents.....................................10
SECTION 1.9 Successors and Assigns.......................................................11
SECTION 1.10 Separability Clause..........................................................11
SECTION 1.11 Benefits of Indenture........................................................11
SECTION 1.12 Governing Law................................................................11
SECTION 1.13 Non-Business Day.............................................................11
SECTION 1.14 Immunity of Incorporators, Shareholders,
Officers and Directors.......................................................12
ARTICLE 2. DEBT SECURITY FORM......................................................................12
SECTION 2.1 Form of Debt Securities......................................................12
SECTION 2.2 Form of Trustee's Certificate of Authentication..............................13
SECTION 2.3 Debt Securities in Global Form...............................................14
ARTICLE 3. THE DEBT SECURITIES.....................................................................14
SECTION 3.1 Title; Payment and Terms.....................................................14
SECTION 3.2 Denominations................................................................17
SECTION 3.3 Execution, Authentication, Delivery and Dating...............................17
SECTION 3.4 Temporary Debt Securities and Exchange of Debt Securities....................18
SECTION 3.5 Registration, Registration of Transfer and Exchange..........................19
SECTION 3.6 Mutilated, Destroyed, Lost and Stolen Debt Securities........................21
SECTION 3.7 Payment of Interest; Interest Rights Preserved...............................22
SECTION 3.8 Persons Deemed Owners........................................................24
SECTION 3.9 Cancellation.................................................................24
SECTION 3.10 Computation of Interest......................................................25
ARTICLE 4. SATISFACTION AND DISCHARGE..............................................................25
SECTION 4.1 Satisfaction and Discharge of Debt Securities of any Series..................25
SECTION 4.2 Application of Trust Money...................................................27
SECTION 4.3 Satisfaction and Discharge of Indenture......................................28
</TABLE>
<PAGE> 3
<TABLE>
- ii -
<S> <C> <C> <C>
SECTION 4.4 Reinstatement................................................................28
ARTICLE 5. REMEDIES................................................................................28
SECTION 5.1 Events of Default............................................................28
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment...........................31
SECTION 5.3 Collection of Indebtedness and Suits for
Enforcement by Trustee.......................................................32
SECTION 5.4 Trustee May File Proofs of Claim.............................................33
SECTION 5.5 Trustee May Enforce Claims Without Possession
of Debt Securities ...................................................34
SECTION 5.6 Application of Money Collected...............................................34
SECTION 5.7 Limitation on Suits..........................................................34
SECTION 5.8 Unconditional Right of Holders to Receive Principal
(and Premium, if any) and Interest, if any...................................35
SECTION 5.9 Restoration of Rights and Remedies...........................................35
SECTION 5.10 Rights and Remedies Cumulative...............................................36
SECTION 5.11 Delay or Omission Not Waiver.................................................36
SECTION 5.12 Control by Holders...........................................................36
SECTION 5.13 Waiver of Past Defaults......................................................37
SECTION 5.14 Waiver of Stay or Extension Laws.............................................37
SECTION 5.15 Undertaking for Costs........................................................37
ARTICLE 6. THE TRUSTEE.............................................................................38
SECTION 6.1 Certain Duties and Responsibilities..........................................38
SECTION 6.2 Notice of Defaults...........................................................39
SECTION 6.3 Certain Rights of Trustee....................................................39
SECTION 6.4 Not Responsible for Recitals or Issuance of Debt Securities..................41
SECTION 6.5 May Hold Debt Securities.....................................................41
SECTION 6.6 Money Held in Trust..........................................................41
SECTION 6.7 Compensation and Reimbursement...............................................41
SECTION 6.8 Disqualification; Conflicting Interests......................................42
SECTION 6.9 Corporate Trustee Required, Different Trustees for
Different Series; Eligibility................................................42
SECTION 6.10 Resignation and Removal; Appointment of Successor............................43
SECTION 6.11 Acceptance of Appointment by Successor.......................................45
SECTION 6.12 Merger, Conversion, Consolidation or Succession to Business..................46
SECTION 6.13 Preferential Collection of Claims Against Company............................46
SECTION 6.14 Authenticating Agents........................................................46
ARTICLE 7. HOLDERS' REPORTS BY TRUSTEE AND COMPANY.................................................48
SECTION 7.1 Preservation of Information; Company to Furnish
Trustee Names and Addresses of Holders.......................................48
</TABLE>
<PAGE> 4
- iii -
<TABLE>
<S> <C> <C> <C>
SECTION 7.2 Communications to Holders....................................................48
SECTION 7.3 Reports by Trustee...........................................................48
SECTION 7.4 Reports by Company...........................................................49
ARTICLE 8. CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER...........................................49
SECTION 8.1 Company May Consolidate, Etc., Only on Certain Terms.........................49
SECTION 8.2 Successor Corporation Substituted............................................50
SECTION 8.3 Opinion of Counsel to be Given to the Trustee................................50
ARTICLE 9. SUPPLEMENTAL INDENTURES.................................................................51
SECTION 9.1 Supplemental Indentures Without Consent of Holders...........................51
SECTION 9.2 Supplemental Indentures With Consent of Holders..............................52
SECTION 9.3 Execution of Supplemental Indentures.........................................53
SECTION 9.4 Effect of Supplemental Indentures............................................54
SECTION 9.5 Conformity With Trust Indenture Act..........................................54
SECTION 9.6 Reference in Debt Securities to Supplemental Indentures......................54
SECTION 9.7 Notice of Supplemental Indentures............................................54
ARTICLE 10. COVENANTS...............................................................................55
SECTION 10.1 Payment of Principal (and Premium, if any)
and Interest, if any.........................................................55
SECTION 10.2 Maintenance of Office or Agency..............................................55
SECTION 10.3 Money for Debt Securities Payments to Be Held in Trust.......................55
SECTION 10.4 Payment of Taxes and Other Claims............................................57
SECTION 10.5 Maintenance of Properties....................................................57
SECTION 10.6 Corporate Existence..........................................................58
SECTION 10.7 Waiver of Certain Covenants..................................................58
ARTICLE 11. REDEMPTION OF DEBT SECURITIES...........................................................58
SECTION 11.1 Applicability of this Article................................................58
SECTION 11.2 Election to Redeem; Notice to Trustee........................................58
SECTION 11.3 Selection by Debt Security Registrar of Debt Securities
to Be Redeemed...............................................................59
SECTION 11.4 Notice of Redemption.........................................................59
SECTION 11.5 Deposit of Redemption Price..................................................60
SECTION 11.6 Debt Securities Payable on Redemption Date. ................................60
SECTION 11.7 Debt Securities Redeemed in Part.............................................61
ARTICLE 12. SINKING FUNDS...........................................................................61
SECTION 12.1 Applicability of this Article................................................61
SECTION 12.2 Satisfaction of Sinking Fund Payments With Debt Securities...................62
SECTION 12.3 Redemption of Debt Securities for Sinking Fund...............................62
</TABLE>
<PAGE> 5
INDENTURE, dated as of ______________, 1999, among PROVIDENT FINANCIAL
GROUP, INC., an Ohio corporation, One East Fourth Street, Cincinnati, Ohio 45202
(the "Company"), and THE CHASE MANHATTAN BANK, a New York banking corporation,
as Trustee (the "Trustee").
RECITALS OF THE COMPANY
The Company deems it necessary to issue from time to time for its
lawful purposes securities (hereinafter called the "Debt Securities") evidencing
its unsecured indebtedness and has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of the Debt
Securities, unlimited as to principal amount, to have such titles, to bear such
rates of interest, to mature at such time or times and to have such other
provisions as shall be fixed as hereinafter provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done, and the Company proposes
to do all things necessary to make the Debt Securities, when executed by the
Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company, as hereinafter provided.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Debt
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Debt Securities or any
series thereof, as follows:
ARTICLE 1.
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.1 Definitions.
------------
For all purposes of this Indenture and all Debt Securities issued
hereunder, except as otherwise expressly provided or unless the context
otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles in
the United States, and the term
<PAGE> 6
- 2 -
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such generally accepted accounting
principles as in effect and as implemented by the Company at the time of their
application; and
(4) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally in Article 3 and Article 6, are defined
in those Articles.
"Act", when used with respect to any Holder, has the meaning specified
in Section 1.4.
"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 to authenticate and
deliver Debt Securities on behalf of the Trustee for the Debt Securities of any
series pursuant to Section 6.14.
"Board of Directors" means the board of directors of the Company or any
duly authorized committee of the board or any director or directors and/or
officer or officers of the Company to whom either of such boards or committees
shall have duly delegated its authority.
"Board Resolution" means (1) a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors or the Executive Committee of the Board of Directors and
to be in full force and effect on the date of such certification, or (2) a
certificate signed by the director or directors or officer or officers to whom
the Board of Directors shall have duly delegated its authority, and delivered to
the Trustee.
"Business Day", when used with respect to any particular Place of
Payment, means each Monday, Tuesday, Wednesday, Thursday and Friday which is not
a day on which banking institutions in that Place of Payment are authorized or
obligated by law to close.
"Certificate of a Firm of Independent Public Accountants" means a
certificate signed by any firm of independent public accountants of recognized
standing selected by the Company. The term "independent" when used with respect
to any specified firm of public accountants means such a firm which (1) is in
fact independent, (2) does not have any direct financial interest or any
material indirect financial interest in the Company or in any Affiliate of the
Company, and (3) is not connected with the Company or any Affiliate of the
Company as an officer, employee, promoter,
<PAGE> 7
- 3 -
underwriter, trustee, partner, director or person performing similar functions,
but such firm may be the regular auditors employed by the Company.
"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 on such date.
"Company Request" and "Company Order" mean, respectively, a written
request or order signed in the name of the Company by (1) the Chairman of the
Board, a Vice Chairman of the Board, Chief Executive Officer, the President or a
Vice President and by the Treasurer, an Assistant Treasurer, an Assistant
Controller, the Secretary or an Assistant Secretary of the Company, or (2) by
any two Persons designated in a Company Order previously delivered to the
Trustee for the Debt Securities of any series by any two of the foregoing
officers and delivered to the Trustee for the Debt Securities of such series.
"Corporate Trust Office" means the office designated by the Trustee for
Debt Securities of any series at which at any particular time its corporate
trust business shall be administered, which as of the date of this Indenture is
located at 250 West Huron Road, Suite 220, Cleveland, Ohio 44113, Attention:
Corporate Trust Department.
"Debt Securities" means securities evidencing unsecured indebtedness of
the Company authenticated and delivered under this Indenture.
"Debt Security Register" and "Debt Security Registrar" have the
respective meanings specified in Section 3.5.
"Defaulted Interest" has the meaning specified in Section 3.7.
"Discounted Debt Security" means any Debt Security which provides for
an amount (excluding any amounts attributable to accrued but unpaid interest
thereon) less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 5.2.
"Dollars" and the sign "$" mean the currency of the United States of
America as at the time of payment is legal tender for the payment of public and
private debts.
"Event of Default" has the meaning specified in Section 5.1.
"Exchange Act" means the Securities Exchange Act of 1934 and any
statute successor thereto, in each case as amended from time to time.
<PAGE> 8
- 4 -
"Global Security" means a Debt Security in global form established
pursuant to Section 2.3.
"Holder", when used with respect to any Debt Security, means the Person
in whose name a Debt Security is registered in the Debt Security Register.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of a particular series of Debt Securities
established as contemplated by Section 3.1.
"Interest", when used with respect to a Discounted Debt Security which
by its terms bears interest only after Maturity, means interest payable after
Maturity.
"Interest Payment Date", when used with respect to any Debt Security,
means the Stated Maturity of an installment of interest on such Debt Security.
"Maturity", when used with respect to any Debt Security, means the date
on which the principal of that Debt Security becomes due and payable as therein
or herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption, request for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, a Vice Chairman of the Board, a Co-President or a Vice President (any
reference to a Vice President of the Company herein shall be deemed to include
any Vice President of the Company whether or not designated by a number or a
word or words added before or after the title "Vice President"), and by the
Treasurer, an Assistant Treasurer, the Controller, an Assistant Controller, the
Secretary or an Assistant Secretary of the Company, and delivered to the Trustee
for the Debt Securities of any series.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of or counsel to the Company, or other counsel satisfactory to the
Trustee for the Debt Securities of any series. An Opinion of Counsel may rely on
certificates as to matters of fact.
"Outstanding", when used with respect to Debt Securities, means, as of
the date of determination, all Debt Securities theretofore authenticated and
delivered under this Indenture, except:
(1) Debt Securities theretofore canceled by the Trustee for such Debt
Securities or delivered to such Trustee for cancellation;
<PAGE> 9
- 5 -
(2) Debt Securities or portions thereof for whose payment or redemption
money in the necessary amount has been theretofore deposited with the Trustee
for such Debt Securities or any Paying Agent (other than the Company) in trust
or set aside and segregated in trust by the Company (if the Company shall act as
its own Paying Agent) for the Holders of such Debt Securities (including Debt
Securities with respect to which the Company has effected satisfaction and
discharged as provided in Article Four, except to the extent provided in such
Article); provided, however, that, if such Debt Securities or portions thereof
are to be redeemed, notice of such redemption has been duly given pursuant to
this Indenture, or provision therefor satisfactory to such Trustee has been
made; and
(3) Debt Securities which have been paid pursuant to Section 3.6 or in
exchange for or in lieu of which other Debt Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Debt Securities in
respect of which there shall have been presented proof satisfactory to the
Trustee for such Debt Securities that any such Debt Securities are held by
protected purchasers in whose hands the Debt Securities are valid obligations of
the Company; provided, however, that in determining whether the Holders of the
requisite principal amount of Outstanding Debt Securities have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
(a) Debt Securities owned by the Company or any Affiliate of the Company shall
be disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee for such Debt Securities shall be protected in relying upon
any such request, demand, authorization, direction, notice, consent or waiver,
only Debt Securities which such Trustee knows to be so owned shall be so
disregarded, provided, that Debt Securities so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of such Trustee the pledgee's right so to act with respect to such
Debt Securities and that the pledgee is not the Company or any Affiliate of the
Company and (b) the principal amount of a Discounted Debt Security that shall be
deemed to be Outstanding for such purposes shall be the amount of the principal
thereof that would be due and payable as of the date of such determination upon
a declaration of acceleration pursuant to Section 5.2.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest, if any, on any Debt Securities
on behalf of the Company. The Company may act as its own Paying Agent.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock or limited liability company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Debt Securities of
any particular series, means the place or places where the principal of (and
premium, if any) and interest, if any, on the Debt Securities of that series are
payable, as contemplated by Section 3.1.
<PAGE> 10
- 6 -
"Redemption Date", when used with respect to any Debt Security to be
redeemed in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price", when used with respect to any Debt Security to be
redeemed, means an amount equal to the principal amount thereof (and premium, if
any, thereon) together with accrued interest, if any, to the Redemption Date.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Debt Securities of any series, means the date, if any, specified for
that purpose as contemplated by Section 3.1.
"Responsible Officer", when used with respect to the Trustee for any
series of Debt Securities, means any officer of the Trustee with direct
responsibility for the administration of this Indenture and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of his knowledge of and familiarity with the
particular subject.
A "series" of Debt Securities means all Debt Securities denoted as part
of the same series authorized by or pursuant to a particular Board Resolution.
"Special Record Date" for the payment of any Defaulted Interest on the
Debt Securities of any series means a date fixed by the Trustee for such series
pursuant to Section 3.7.
"Stated Maturity", when used with respect to any security or any
installment of principal thereof or interest thereon, means the date specified
in such security representing such installment of interest as the fixed date on
which the principal of such security or such installment of principal or
interest is due and payable.
"Subsidiary" means any corporation of which at least a majority of all
outstanding stock having ordinary voting power in the election of directors of
such corporation is at the time, directly or indirectly, owned by the Company or
by one or more Subsidiaries or by the Company and one or more Subsidiaries.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument and, subject to the provisions of Article 6 hereof,
shall also include its successors and assigns as Trustee hereunder. If there
shall be at one time more than one Trustee hereunder, "Trustee" shall mean each
such Trustee and shall apply to each such Trustee only with respect to those
series of Debt Securities with respect to which it is serving as Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, and as in effect on the date as of which this Indenture was executed,
except as provided in Section 9.5 hereof.
<PAGE> 11
- 7 -
"U.S. Depositary" means a clearing agency registered under the Exchange
Act, or any successor thereto, which shall in either case be designated by the
Company pursuant to Section 3.1, until a successor U.S. Depositary shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter "U.S. Depositary" shall mean or include each Person who is then a
U.S. Depositary hereunder, and if at any time there is more than one such
Person, "U.S. Depositary" as used with respect to the Debt Securities of any
series shall mean the U.S. Depositary with respect to the Debt Securities of
that series.
"U.S. Government Obligations" means securities which are (i) direct
obligations of the government of the United States or (ii) obligations of a
Person controlled or supervised by and acting as an agency or instrumentality of
the government of the United States, the payment of which is unconditionally
guaranteed by such government, which, in either case, are full faith and credit
obligations of such government and are not callable or redeemable at the option
of the issuer thereof.
"United States" means the United States of America (including the
States and the District of Columbia), its territories, possessions and other
areas subject to its jurisdiction (including the Commonwealth of Puerto Rico).
"Yield to Maturity", when used with respect to any Discounted Debt
Security, means the yield to maturity, if any, set forth on the face thereof.
SECTION 1.2 Compliance Certificates and Opinions.
-------------------------------------
Upon any application or request by the Company to the Trustee for any
series of Debt Securities to take any action under any provision of this
Indenture, the Company shall furnish to such Trustee (i) an Officers'
Certificate stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with, (ii) an
Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, and (iii) if appropriate,
a Certificate of a Firm of Independent Public Accountants; provided, that in the
case of any such application or request as to which the furnishing of such
documents is specifically required by any provision of this Indenture relating
to such particular application or request, no additional certificate or opinion
need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate
or opinion has read such condition or covenant and the definitions
herein relating thereto;
<PAGE> 12
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(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such condition
or covenant has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.3 Form of Documents Delivered to Trustee.
--------------------------------------
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows that the certificate or
opinion or representations with respect to matters upon which his certificate or
opinion is based are erroneous.
Any such certificate or Opinion of Counsel may be based, insofar as it
relates to factual matters, upon a certificate or opinion of, or representations
by, an officer or officers of the Company stating that the information with
respect to such factual matters is in the possession of the Company, unless such
counsel knows that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.4 Acts of Holders.
----------------
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing. Except as herein otherwise expressly provided, such action
shall
<PAGE> 13
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become effective when such instrument or instruments are delivered to the
Trustee for the appropriate series of Debt Securities and, where it is hereby
expressly required, to the Company. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent, or
of the holding by any Person of a Debt Security, shall be sufficient for any
purpose of this Indenture and (subject to Section 6.1) conclusive in favor of
the Trustee for the appropriate series of Debt Securities and the Company and
any agent of such Trustee or the Company, if made in the manner provided in this
Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any 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 an officer of a corporation or association or a member of a
partnership, or an official of a public or governmental body, on behalf of such
corporation, association, partnership or public or governmental body or by a
fiduciary, such certificate or affidavit shall also constitute sufficient proof
of his authority.
(c) The fact and date of the execution by any Person of any such
instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner which the Trustee for the appropriate series
of Debt Securities deems sufficient.
(d) The principal amount and serial numbers of Debt Securities held by
any Person, and the date of holding the same, shall be proved by the Debt
Security Register.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Debt Security shall bind every
future Holder of the same Debt Security and the Holder of every Debt 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 for such Debt Securities, the Debt Security Registrar, any Paying Agent
or the Company in reliance thereon, whether or not notation of such action is
made upon such Debt Security.
SECTION 1.5 Notices, Etc., to Trustee and Company.
-------------------------------------
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other documents provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
<PAGE> 14
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(1) the Trustee for a series of Debt Securities by any Holder or by the
Company shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with such Trustee at its Corporate Trust
Office, Attention: Corporate Trustee Administration Department, or
(2) the Company by such Trustee or by any Holder shall be sufficient
for every purpose hereunder if in writing and mailed, first class postage
prepaid, to the Company addressed to it at the address of its principal office
specified in the first paragraph of this instrument or at any other address
previously furnished in writing to such Trustee by the Company (except as
provided in paragraphs (3), (4) and (5) of Section 5.1.
SECTION 1.6 Notice to Holders; Waiver.
--------------------------
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
to Holders if in writing and mailed, first class postage prepaid, to each Holder
affected by such event, at his address as it appears in the Debt Security
Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice.
In any case where notice to Holders of Debt Securities is given by
mail, neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder shall affect the sufficiency of such notice
with respect to other Holders. Any notice mailed in the manner prescribed by
this Indenture shall be deemed to have been given whether or not received by any
particular Holder. 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 to
Holders by mail, then such notification as shall be made with the approval of
the Trustee for such Debt Securities shall constitute a sufficient notification
for every purpose hereunder.
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 for such
Debt Securities, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
SECTION 1.7 Conflict with Trust Indenture Act.
----------------------------------
If any provision hereof limits, qualifies or conflicts with the duties
imposed by any of Sections 310 through 317, inclusive, of the Trust Indenture
Act through the operation of Section 318(c) thereof, such imposed duties shall
control.
SECTION 1.8 Effect of Headings and Table of Contents.
----------------------------------------
<PAGE> 15
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The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 1.9 Successors and Assigns.
-----------------------
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 1.10 Separability Clause.
--------------------
In any case any provision in this Indenture or in the Debt 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.
SECTION 1.11 Benefits of Indenture.
----------------------
Nothing in this Indenture or in the Debt Securities, expressed or
implied, shall give to any Person, other than the parties hereto, any Paying
Agent, any Debt Security Registrar and their successors hereunder and the
Holders of Debt Securities, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
SECTION 1.12 Governing Law.
--------------
THIS INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICTS OF LAW RULES
OF SUCH STATE. THIS INDENTURE IS SUBJECT TO THE PROVISIONS OF THE TRUST
INDENTURE ACT OF 1939, AS AMENDED, THAT ARE REQUIRED TO BE PART OF THIS
INDENTURE AND SHALL, TO THE EXTENT APPLICABLE, BE GOVERNED BY SUCH PROVISIONS.
SECTION 1.13 Non-Business Day.
-----------------
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of a Debt Security of any particular series shall not be a Business Day
at any Place of Payment with respect to Debt Securities of that series, then
(notwithstanding any other provision of this Indenture or of the Debt
Securities) payment of principal of (and premium, if any) and interest, if any,
with respect to such Debt Security need not be made at such Place of Payment on
such date, but may be made on the next succeeding Business Day at such Place of
Payment with the same force and effect as if made on the Interest Payment Date
or Redemption Date, or at the Stated Maturity, provided that no interest shall
accrue for the period from and after such Interest Payment Date, Redemption Date
or Stated Maturity, as the case may be.
<PAGE> 16
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SECTION 1.14 Immunity of Incorporators, Shareholders, Officers and
Directors.
-----------------------------------------------------
No recourse shall be had for the payment of the principal of (and
premium, if any), or the interest, if any, on any Debt Security of any series,
or for any claim based thereon, or upon any obligation, covenant or agreement of
this Indenture, against any incorporator, shareholder, officer or director, as
such, past, present or future, of the Company or of any successor corporation,
either directly or indirectly through the Company or any successor corporation,
whether by virtue of any constitution, statute or rule of law or by the
enforcement of any assessment of penalty or otherwise; it being expressly agreed
and understood that this Indenture and all the Debt Securities of each series
are solely corporate obligations, and that no personal liability whatever shall
attach to, or is incurred by, any incorporator, shareholder, officer or
director, past, present or future, of the Company or of any successor
corporation, either directly or indirectly through the Company or any successor
corporation, because of the incurring of the indebtedness hereby authorized or
under or by reason of any of the obligations, covenants or agreements contained
in this Indenture or in any of the Debt Securities of any series, or to be
implied herefrom or therefrom; and that all such personal liability is hereby
expressly released and waived as a condition of, and as part of the
consideration for, the execution of this Indenture and the issuance of the Debt
Securities of each series.
ARTICLE 2.
DEBT SECURITY FORM
SECTION 2.1 Form of Debt Securities.
------------------------
The Debt Securities of each series shall be in substantially the forms
set forth in this Article, or in such other form as shall be established by or
pursuant to a Board Resolution or in one or more indentures supplemental hereto,
in each case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Debt Securities, as evidenced by their execution of the
Debt Securities. If the form of Debt Securities of any series is established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 3.3 for the authentication and delivery of such
Securities.
Any form of Security approved by or pursuant to a Board Resolution must
be acceptable to the Trustee, such acceptance to be evidenced by the Trustee's
authentication of Securities in that form or a certificate signed by a
Responsible Officer of the Trustee and delivered to the Company.
<PAGE> 17
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Prior to the delivery of a Debt Security of any series in any such form
to the Trustee for the Debt Securities of such series for authentication, the
Company shall deliver to such Trustee the following:
(1) The Board Resolution by or pursuant to which such form of Debt
Security has been approved;
(2) An Officers' Certificate dated the date such Certificate is
delivered to such Trustee stating that all conditions precedent provided for in
this Indenture relating to the authentication and delivery of Debt Securities in
such form have been complied with; and
(3) An Opinion of Counsel stating that Debt Securities in such form,
when (a) completed by appropriate insertions and executed and delivered by the
Company to such Trustee in accordance with this Indenture, (b) authenticated and
delivered by such Trustee in accordance with this Indenture within the
authorization as to aggregate principal amount established from time to time by
the Board of Directors and (c) issued in the manner specified in such Opinion of
Counsel, will be the legal, valid and binding obligations of the Company,
subject to applicable bankruptcy, reorganization, insolvency and other similar
laws generally affecting creditors' rights, to general equitable principles and
to such other qualifications as such counsel shall conclude do not materially
affect the rights of Holders of such Debt Securities.
The definitive Debt Securities shall be printed, lithographed or
engraved or produced by any combination of these methods on a steel engraved
border or steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Debt Securities, as evidenced by their
execution thereof.
SECTION 2.2 Form of Trustee's Certificate of Authentication.
-------------------------------- --------------
The Certificate of Authentication on all Debt Securities shall be in
substantially the following form:
"This is one of the Debt Securities, of the series
designated herein, described in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By___________________________________
Authorized Officer"
<PAGE> 18
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SECTION 2.3 Debt Securities in Global Form.
------------------------------
If any Debt Security of a series is issuable in global form, such Debt
Security may provide that it shall represent the aggregate amount of Outstanding
Debt Securities from time to time endorsed thereon and may also provide that the
aggregate amount of Outstanding Debt Securities represented thereby may from
time to time be reduced to reflect exchanges. Any endorsement of a Global
Security to reflect the amount, or any increase or decrease in the amount, of
Outstanding Debt Securities represented thereby shall be made by the Trustee and
in such manner as shall be specified in such Global Security. Any instructions
by the Company with respect to a Global Security, after its initial issuance,
shall be in writing but need not comply with Section 1.2. Global Securities may
be issued in either temporary or permanent form.
None of the Company, the Trustee, any Paying Agent or the Debt 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.
ARTICLE 3.
THE DEBT SECURITIES
SECTION 3.1 Title; Payment and Terms.
-------------------------
The aggregate principal amount of Debt Securities which may be
authenticated and delivered and Outstanding under this Indenture is unlimited.
The Debt Securities may be issued up to the aggregate principal amount of Debt
Securities from time to time authorized by or pursuant to a Board Resolution.
The Debt Securities may be issued in one or more series, each of which
shall be issued pursuant to a Board Resolution. With respect to any particular
series of Debt Securities, the Board Resolution relating thereto shall specify:
(1) the title of the Debt Securities of that series (which shall
distinguish the Debt Securities of that series from all other series of Debt
Securities);
(2) any limit upon the aggregate principal amount of the Debt
Securities of that series which may be authenticated and delivered under this
Indenture (except for Debt Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other Debt
Securities of that series pursuant to Section 3.4, 3.5, 3.6, 9.6 or 11.7 or
otherwise pursuant to any covenant permitting the purchase of a portion of the
Debt Securities of that series);
<PAGE> 19
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(3) the date or dates (or manner of determining the same) on which the
principal of the Debt Securities of that series is payable (which, if so
provided in such Board Resolution, may be determined by the Company from time to
time and set forth in the Debt Securities of the series issued from time to
time);
(4) the rate or rates (or the manner of calculation thereof) at which
the Debt Securities of that series shall bear interest (if any), the date or
dates from which such interest shall accrue (which, in either case or both, if
so provided in such Board Resolution, may be determined by the Company from time
to time and set forth in the Debt Securities of the series issued from time to
time), the Interest Payment Dates on which such interest shall be payable (or
manner of determining the same) and the Regular Record Date for the interest
payable on any Debt Securities on any Interest Payment Date;
(5) the place or places where, subject to the provisions of Section
10.2, the principal of (and premium, if any) and interest, if any, on Debt
Securities of that series shall be payable, any Debt Securities of that series
may be surrendered for registration of transfer, any Debt Securities of that
series may be surrendered for exchange, and notices and demands to or upon the
Company in respect of the Debt Securities of that series and this Indenture may
be served;
(6) the period or periods within which, the price or prices at which
and the terms and conditions upon which Debt Securities of that series may be
redeemed, in whole or in part, at the option of the Company;
(7) the obligation, if any, of the Company to redeem or purchase Debt
Securities of that series pursuant to any sinking fund or analogous provisions
or at the option of a Holder thereof, and the period or periods within which,
the price or prices at which and the terms and conditions upon which, Debt
Securities of that series shall be redeemed or purchased, in whole or in part,
pursuant to such obligation;
(8) the denominations in which any Debt Securities of that series shall
be issuable, if other than denominations of $1,000 and any integral multiple
thereof;
(9) if other than the principal amount thereof, the portion of the
principal amount of Debt Securities of that series which shall be payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 5.2;
(10) any addition to, or modification or deletion of, any Events of
Default or covenants of the Company with respect to the Debt Securities of that
series, whether or not such Events of Default or covenants are consistent with
the Events of Default or covenants set forth herein;
<PAGE> 20
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(11) if a Person other than The Chase Manhattan Bank is to act as
Trustee for the Debt Securities of that series, the name and location of the
Corporate Trust Office of such Trustee;
(12) if other than as set forth in Section 4.1, provisions for the
satisfaction and discharge of this Indenture with respect to the Debt Securities
of that series;
(13) any provision relating to the defeasance of the obligations of the
Company in connection with the Debt Securities of that series;
(14) any provisions regarding exchangeability or conversion of the Debt
Securities of that series;
(15) whether the Debt Securities of the series shall be issued in whole
or in part in the form of one or more Global Securities and, in such case, the
U.S. Depositary for such Global Security or Securities; whether such global form
shall be permanent or temporary; the manner in which and the circumstances under
which Global Securities representing Debt Securities of the series may be
exchanged for Debt Securities in definitive form, if other than, or in addition
to, the manner and circumstances specified in Section 3.5 hereof; the extent to
which, or the manner in which, any interest payable on any Global Security on
any Interest Payment Date will be paid, if other than in the manner provided in
Section 3.7; the manner in which the principal of, or premium, if any, on, any
Global Security will be paid, if other than as set forth elsewhere herein; and
(16) any other terms of that series (which terms shall not be
inconsistent with the provisions of this Indenture).
The Trustee shall not be required to authenticate such Securities if
the issue thereof will adversely affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture.
All Debt Securities of any particular series shall be substantially
identical except as to denomination, rate of interest, Stated Maturity and the
date from which interest, if any, shall accrue, and except as may otherwise be
provided in or pursuant to such Board Resolution relating thereto. The terms of
such Debt Securities, as set forth above, may be determined by the Company from
time to time if so provided in or established pursuant to the authority granted
in a Board Resolution. Any of the terms of the Debt Securities, as set forth
above, may be made dependent upon facts ascertainable outside the Board
Resolution provided that the manner in which said facts shall operate upon the
terms is set forth in the Board Resolution. All Debt Securities of any one
series need not be issued at the same time, and unless otherwise provided, a
series may be reopened for issuance of additional Debt Securities of such
series.
<PAGE> 21
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SECTION 3.2 Denominations.
--------------
Unless otherwise provided with respect to any series of Debt Securities
as contemplated by Section 3.1, all Debt Securities of a series shall be
issuable in denominations of $1,000 and any integral multiple thereof.
SECTION 3.3 Execution, Authentication, Delivery and Dating.
----------------------------------------------
The Debt Securities shall be executed on behalf of the Company by its
Chairman of the Board, a Vice Chairman of the Board, or its President, a
Co-President or one of its Vice Presidents. The Debt Securities shall be so
executed under the Company's corporate seal reproduced thereon and attested to
by its Secretary or any one of its Assistant Secretaries. The signature of any
of these officers on the Debt Securities may be manual or facsimile.
Debt Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Debt
Securities or did not hold such offices at the date of such Debt Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Debt Securities of any series executed
by the Company to the Trustee for the Debt Securities of such series for
authentication, together with a Company Order for the authentication and
delivery of such Debt Securities, and such Trustee, in accordance with the
Company Order, shall authenticate and deliver such Debt Securities. If all the
Debt Securities of any one series are not to be issued at one time and if a
Board Resolution relating to such Debt Securities shall so permit, such Company
Order may set forth procedures acceptable to the Trustee for the issuance of
such Debt Securities, including, without limitation, procedures with respect to
interest rate, Stated Maturity, date of issuance and date from which interest,
if any, shall accrue.
Notwithstanding any contrary provision herein, if all Debt Securities
of a series are not to be originally issued at one time, it shall not be
necessary to deliver the Board Resolution, Officers' Certificate and Opinion of
Counsel otherwise required pursuant to Sections 1.2 and 2.1 at or prior to the
time of authentication of each Debt Security of such series if such documents
are delivered at or prior to the authentication upon original issuance of the
first Debt Security of such series to be issued.
Each Debt Security shall be dated the date of its authentication.
No Debt Security shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Debt
Security a certificate of authentication
<PAGE> 22
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substantially in the form provided for herein manually executed by the Trustee
for such Debt Security or on its behalf pursuant to Section 6.14, and such
certificate upon any Debt Security shall be conclusive evidence, and the only
evidence, that such Debt Security has been duly authenticated and delivered
hereunder.
If the Company shall establish pursuant to Section 3.1 that the Debt
Securities of a series are to be issued in whole or in part in the form of one
or more Global Securities, then the Company shall execute and the Trustee shall,
in accordance with Section 3.3 and the Company Order with respect to such
series, authenticate and deliver one or more Global Securities in temporary or
permanent form that (i) shall represent and shall be denominated in an amount
equal to the aggregate principal amount of the Outstanding Debt Securities of
such series to be represented by one or more Global Securities, (ii) shall be
registered in the name of the U.S. Depositary for such Global Security or
Securities or the nominee of such depositary, and (iii) shall bear a legend
substantially to the following effect: "This Debt Security 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 or
a nominee of such successor Depositary, unless and until this Debt Security is
exchanged in whole or in part for Debt Securities in definitive form" and such
other legend as may be required by the U.S. Depositary.
SECTION 3.4 Temporary Debt Securities and Exchange of Debt
Securities.
---------------------------------------------
Pending the preparation of definitive Debt Securities of any particular
series, the Company may execute, and upon Company Order the Trustee for the Debt
Securities of such series shall authenticate and deliver, temporary Debt
Securities which are printed, lithographed, typewritten, photocopied or
otherwise produced, in any denomination, with like terms and conditions as the
definitive Debt Securities of like series in lieu of which they are issued, and
with such appropriate insertions, omissions, substitutions and other variations
as the officers executing such Debt Securities may determine, as evidenced by
their execution of such Debt Securities.
If temporary Debt Securities of any particular series are issued, the
Company will cause definitive Debt Securities of that series to be prepared
without unreasonable delay. After the preparation of such definitive Debt
Securities, the temporary Debt Securities of such series shall be exchangeable
for such definitive Debt Securities and of a like Stated Maturity and with like
terms and provisions upon surrender of the temporary Debt Securities of such
series at the office or agency of the Company in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Debt Securities of any particular series, the Company shall
execute and (in accordance with a Company Order delivered at or prior to the
authentication of the first definitive Debt Security of such series) the Trustee
for the Debt Securities of such series shall authenticate and deliver in
exchange therefor a like principal amount of definitive Debt Securities of
authorized denominations of the same series and of a like Stated Maturity and
with like
<PAGE> 23
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terms and provisions. Until exchanged as hereinabove provided, the temporary
Debt Securities of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Debt Securities of the same series
and with like terms and conditions authenticated and delivered hereunder.
SECTION 3.5 Registration, Registration of Transfer and Exchange.
---------------------------------------------------
The Company shall keep or cause to be kept for the Debt Securities of
each series a register (the register maintained in such office being herein
sometimes referred to as the "Debt Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration, registration of transfer and exchange of Debt Securities.
Securities Transfer Company is hereby initially appointed "Debt Security
Registrar" for such purposes.
Upon surrender for registration of transfer of any Debt Security of any
particular series at the office or agency of the Company in a Place of Payment
for that series, the Company shall execute, and the Trustee for the Debt
Securities of each series shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Debt Securities of any
authorized denominations, and of a like Stated Maturity and of a like series and
aggregate principal amount and with like terms and conditions.
Except as set forth below, at the option of the Holder, Debt Securities
of any particular series may be exchanged for other Debt Securities of any
authorized denominations, and of a like Stated Maturity and of a like series and
aggregate principal amount and with like terms and conditions, upon surrender of
the Debt Securities to be exchanged at such office or agency. Whenever any Debt
Securities are so surrendered for exchange, the Company shall execute, and the
Trustee for such Debt Securities shall authenticate and deliver, the Debt
Securities which the Holder making the exchange is entitled to receive.
All Debt Securities issued upon any registration of transfer or
exchange of Debt Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Debt Securities surrendered upon such registration of transfer
or exchange.
Every Debt Security presented or surrendered for registration of
transfer or exchange shall (if so required by the Company or the Trustee for
such Debt Security) be duly endorsed, or be accompanied by a written instrument
of transfer in form satisfactory to the Company and the Debt Security Registrar
for such series 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 Debt Securities, but the Company may require payment of a sum
sufficient to cover any tax or other
<PAGE> 24
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governmental charge that may be imposed in connection with any registration of
transfer or exchange of Debt Securities, other than exchanges pursuant to
Section 3.4, 9.6, 11.3 or 11.7 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange Debt Securities of any series during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of
redemption of Debt Securities of that series selected for redemption under
Section 11.5 and ending at the close of business on the day of the mailing of
the relevant notice of redemption, or (ii) to register the transfer of or
exchange any Debt Security so selected for redemption as a whole or in part,
except the unredeemed portion of any Debt Security being redeemed in part.
Notwithstanding any other provision of this Section, unless and until
it is exchanged in whole or in part for Debt Securities in definitive form, a
Global Security representing all or a portion of the Debt Securities of a series
may not be transferred except as a whole by the U.S. Depositary for such series
to a nominee of such U.S. Depositary or by a nominee of such U.S. Depositary to
such depositary or another nominee of such U.S. Depositary or by such U.S.
Depositary or any other such nominee to a successor U.S. Depositary for such
series or a nominee of such successor U.S.
Depositary.
If at any time the U.S. Depositary for the Debt Securities of a series
notifies the Company that it is unwilling or unable to continue as U.S.
Depositary for the Debt Securities of such series or if at any time the U.S.
Depositary for Debt Securities of such series shall no longer be a clearing
agency registered and in good standing under the Exchange Act or other
applicable statute or regulation, the Company shall appoint a successor U.S.
Depositary for the Debt Securities of such series. If a successor U.S.
Depositary for the Debt Securities is not appointed by the Company within 90
days after the Company receives such notice or becomes aware of such condition,
the Company will execute, and the Trustee, upon receipt of a Company Order for
the authentication and delivery of definitive Debt Securities of such series,
will authenticate and deliver, Debt Securities of such series in definitive form
in an aggregate principal amount equal to the principal amount of the Global
Security or Securities representing such series in exchange for such Global
Security or Securities.
The Company may at any time and in its sole discretion determine that
the Debt Securities of any series issued in the form of one or more Global
Securities shall no longer be represented by such Global Security or Securities.
In such event, the Company will execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of definitive Debt Securities
of such series, will authenticate and deliver, Debt Securities of such series in
definitive form and in an aggregate principal amount equal to the principal
amount of the Global Security or Securities representing such series in exchange
for such Global Security or Securities.
<PAGE> 25
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If the Debt Securities of any series shall have been issued in the form
of one or more Global Securities and if an Event of Default with respect to the
Debt Securities of such series shall have occurred and be continuing, the
Company will promptly execute, and the Trustee, upon receipt of a Company Order
for the authentication and delivery of definitive Debt Securities of such
series, will authenticate and deliver Debt Securities of such series in
definitive form and in an aggregate principal amount equal to the principal
amount of the Global Security or Securities representing such series in exchange
for such Global Security or Securities.
If specified by the Company pursuant to Section 3.1 with respect to the
Debt Securities of a series, the U.S. Depositary for such series of Debt
Securities may surrender a Global Security for such series of Debt Securities in
exchange in whole or in part for Debt Securities of such series of like tenor
and terms and in definitive form on such terms as are acceptable to the Company
and such U.S. Depositary. Thereupon, the Company shall execute and the Trustee
shall authenticate and deliver, without charge:
(i) to each Person specified by the U.S. Depositary a new Debt
Security or Securities of the same series, of like tenor and terms and
of any authorized denomination as requested by such Person in an
aggregate principal amount equal to and in exchange for such Person's
beneficial interest in the Global Security; and
(ii) to the U.S. Depositary a new Global Security in a
denomination equal to the difference, if any, between the principal
amount of the surrendered Global Security and the aggregate principal
amount of the Debt Securities delivered to Holders thereof.
Upon the exchange of a Global Security for Debt Securities in
definitive form, such Global Security shall be canceled by the Trustee.
Definitive Debt Securities issued in exchange for a Global Security pursuant to
this Section shall be registered in such names and in such authorized
denominations as the U.S. Depositary for such Global Security, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such definitive Debt Securities
to the Persons in whose names such Debt Securities are so registered.
SECTION 3.6 Mutilated, Destroyed, Lost and Stolen Debt Securities.
-----------------------------------------------------
If (i) any mutilated Debt Security is surrendered to the Trustee for
such Debt Security, or the Company and the Trustee for a Debt Security receive
evidence to their satisfaction of the destruction, loss or theft of any Debt
Security, and (ii) there is delivered to the Company, the Debt Security
Registrar and such Trustee such security or indemnity as may be required by them
to save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or such Trustee that such Debt Security has
been acquired by a protected purchaser, the Company shall execute and upon its
request such Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Debt Security or in exchange for such mutilated Debt
Security, a new Debt
<PAGE> 26
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Security of the same series and in a like principal amount and of a like Stated
Maturity and with like terms and conditions and bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Debt Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Debt Security, pay such Debt Security (without
surrender thereof except in the case of a mutilated Debt Security) if the
applicant for such payment shall furnish to the Company, the Debt Security
Registrar and the Trustee for such Debt Security such security or indemnity as
may be required by them to save each of them harmless, and in case of
destruction, loss or theft, evidence satisfactory to the Company and such
Trustee and any agent of either of them of the destruction, loss or theft of
such Debt Security and the ownership thereof.
Upon the issuance of any new Debt Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including all fees and expenses of the Trustee and the Debt Security
Registrar for such Debt Security) connected therewith.
Every new Debt Security of any series issued pursuant to this Section
in lieu of any destroyed, lost or stolen Debt Security or in exchange for any
mutilated Debt Security shall constitute an original additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Debt
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 Debt Securities of the same series, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) the assertion of any Holder of all other rights and remedies with
respect to the replacement or payment of mutilated, destroyed, lost or stolen
Debt Securities.
SECTION 3.7 Payment of Interest; Interest Rights Preserved.
----------------------------------------------
Interest on any Debt Security which is payable, and is punctually paid
or duly provided for, on any Interest Payment Date shall, if so provided in such
Debt Security, be paid to the Person in whose name that Debt Security (or one or
more Predecessor Debt Securities) is registered at the close of business on the
Regular Record Date for such interest payment.
Unless otherwise provided with respect to the Debt Securities of any
series, payment of interest may be made at the option of the Company by check
mailed or delivered to the address of the Person entitled thereto as such
address shall appear in the Debt Security Register or by transfer to an account
maintained by the payee with a bank located inside the United States.
<PAGE> 27
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Any interest on any Debt Security of any particular series 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 registered Holder on the relevant Regular Record Date by virtue
of having been such Holder; and such Defaulted Interest may be paid by the
Company, at its election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Debt Securities of that series (or their
respective Predecessor Debt Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which shall
be fixed in the following manner. The Company shall notify the Trustee for the
Debt Securities of such series in writing of the amount of Defaulted Interest
proposed to be paid on each Debt Security of that series and the date of the
proposed payment, and at the same time the Company shall deposit with such
Trustee an amount of money (except as otherwise specified pursuant to Section
3.1 for the Debt Securities of such series) equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to such 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 such Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest which shall not be 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 such Trustee of the notice of the proposed payment. Such
Trustee shall promptly notify the Company of such Special Record Date and, in
the name and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder of Debt Securities of that
series at such Holder's address as it appears in the Debt Security Register not
less than 10 days prior to such Special Record Date. Such Trustee may, in its
discretion, in the name and at the expense of the Company, cause a similar
notice to be published at least once in a newspaper published in the English
language customarily on each Business Day and of general circulation in New
York, New York, but such publication shall not be a condition precedent to the
establishment of such Special Record Date. Notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor having been mailed
as aforesaid, such Defaulted Interest shall be paid to the Persons in whose
names the Debt Securities of that series (or their respective Predecessor Debt
Securities) are registered on such Special Record Date and shall no longer be
payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on Debt
Securities of any particular series in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Debt Securities
may be listed, and upon such notice as may be required by such exchange, if,
after notice is given by the Company to the Trustee for the Debt Securities of
such series of the proposed manner of payment pursuant to this clause, such
manner of payment shall be deemed practicable by such Trustee.
<PAGE> 28
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Subject to the foregoing provisions of this Section and Section 3.5,
each Debt Security delivered under this Indenture upon registration of transfer
of or in exchange for or in lieu of any other Debt Security shall carry the
rights to interest accrued and unpaid, and to accrue, which were carried by such
other Debt Security.
SECTION 3.8 Persons Deemed Owners.
----------------------
Prior to due presentment of a Debt Security for registration of
transfer, the Company, the Trustee for such Debt Security and any agent of the
Company or such Trustee may treat the Person in whose name any such Debt
Security is registered as the owner of such Debt Security for the purpose of
receiving payment of principal of (and premium, if any) and (subject to Section
3.7) interest, if any, on such Debt Security and for all other purposes
whatsoever, whether or not such Debt Security be overdue, and neither the
Company, such Trustee nor any agent of the Company or such Trustee shall be
affected by notice to the contrary.
SECTION 3.9 Cancellation.
-------------
All Debt Securities surrendered for payment, redemption, registration
of transfer or exchange, or delivered in satisfaction of any sinking fund
payment, shall, if surrendered to any Person other than the Trustee for such
Debt Securities, be delivered to such Trustee and shall be promptly canceled by
the Trustee. The Company may at any time deliver to the Trustee for Debt
Securities of a series for cancellation any Debt Securities previously
authenticated and delivered hereunder which the Company may have acquired in any
manner whatsoever, and all Debt Securities so delivered shall be promptly
canceled by such Trustee. Notwithstanding any other provision of this Indenture
to the contrary, in the case of a series, all the Debt Securities of which are
not to be originally issued at one time, a Debt Security of such series shall
not be deemed to have been Outstanding at any time hereunder if and to the
extent that, subsequent to the authentication and delivery thereof, such Debt
Security is delivered to the Trustee for such Debt Security for cancellation by
the Company or any agent thereof upon the failure of the original purchaser
thereof to make payment therefor against delivery thereof, and any Debt Security
so delivered to such Trustee shall be promptly canceled by it. No Debt
Securities shall be authenticated in lieu of or in exchange for any Debt
Securities canceled as provided in this Section, except as expressly permitted
by this Indenture. All canceled Debt Securities held by the Trustee for such
Debt Securities shall be disposed of by such Trustee in accordance with its
standard procedures and, upon written request from the Company, a certificate of
disposition evidencing such disposition of Debt Securities shall be provided to
the Company by such Trustee.
<PAGE> 29
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SECTION 3.10 Computation of Interest.
------------------------
Except as otherwise specified as contemplated by Section 3.1 for Debt
Securities of any particular series, interest on the Debt Securities of each
series shall be computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE 4.
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Debt Securities of any
Series.
----------------------------------------------------
(a) The Company shall be deemed to have satisfied and
discharged the entire indebtedness on all the Debt Securities of any particular
series and, so long as no Event of Default shall be continuing, the Trustee for
the Debt Securities of such series, upon Company Request and at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of such indebtedness, when:
(1) either
(A) all Debt Securities of such series theretofore
authenticated and delivered (other than (i) any Debt Securities of such series
which have been destroyed, lost or stolen and which have been replaced or paid
as provided in Section 3.6 and (ii) Debt Securities of such series for whose
payment money has theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or discharged from
such trust, as provided in the last paragraph of Section 10.3) have been
delivered to such Trustee for cancellation; or
(B) with respect to all Outstanding Debt Securities of such
series described in (A) above not theretofore so delivered to the Trustee for
the Debt Securities of such series for cancellation:
(i) the Company has deposited or caused to
be deposited with such Trustee as trust funds in
trust an amount (except as otherwise specified
pursuant to Section 3.1 for the Debt Securities of
such series), sufficient to pay and discharge the
entire indebtedness on all such Outstanding Debt
Securities of such series for principal (and premium,
if any) and interest, if any, to the Stated Maturity
or any Redemption Date as contemplated by Section
4.2, as the case may be; or
<PAGE> 30
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(ii) the Company has deposited or caused to
be deposited with such Trustee as obligations in
trust such amount of U.S. Government Obligations as
will, as evidenced by a Certificate of a Firm of
Independent Public Accountants delivered to such
Trustee, together with the predetermined and certain
income to accrue thereon (without consideration of
any reinvestment thereof), be sufficient to pay and
discharge when due the entire indebtedness on all
such Outstanding Debt Securities of such series for
unpaid principal (and premium, if any) and interest,
if any, to the Stated Maturity or any Redemption Date
as contemplated by Section 4.2, as the case may be;
or
(iii) the Company has deposited or caused to
be deposited with such Trustee in trust an amount
equal to the amount referred to in clause (i) or (ii)
in any combination;
(2) the Company has paid or caused to be paid all other sums
payable with respect to the Debt Securities of such series;
(3) the Company has delivered to such 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 the
entire indebtedness on all Debt Securities of such series have been complied
with; and
(4) if the Debt Securities of such series are not to become
due and payable at their Stated Maturity within one year of the date of such
deposit or are not to be called for redemption within one year of the date of
such deposit under arrangements satisfactory to such Trustee as of the date of
such deposit, then the Company shall have given, not later than the date of such
deposit, notice of such deposit to the Holders of such Debt Securities.
(b) Upon the satisfaction of the conditions set forth in this
Section 4.1 with respect to all the Debt Securities of any series, the terms and
conditions of such series, including the terms and conditions with respect
thereto set forth in this Indenture, shall no longer be binding upon, or
applicable to, the Company, and the Holders of the Debt Securities of such
series shall look for payment only to the funds or obligations deposited with
the Trustee pursuant to Section 4.1(a)(1)(B); provided, however, that in no
event shall the Company be discharged from (i) any payment obligations in
respect of Debt Securities of such series which are deemed not to be Outstanding
under clause (3) of the definition thereof if such obligations continue to be
valid obligations of the Company under applicable law, (ii) from any obligations
under Sections 4.2(b), 6.7 and 6.10 and (iii) from any obligations under
Sections 3.5 and 3.6 (except that Debt Securities of such series issued upon
registration of transfer or exchange or in lieu of mutilated, destroyed, lost or
stolen Debt Securities shall not be obligations of the Company) and Sections 7.1
and 10.2; and provided, further,
<PAGE> 31
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that in the event a petition for relief under the Bankruptcy Act of 1978 or
Title 11 of the United States Code or a successor statute is filed and not
discharged with respect to the Company within 91 days after the deposit, the
entire indebtedness on all Debt Securities of such series shall not be
discharged, and in such event the Trustee shall return such deposited funds or
obligations as it is then holding to the Company upon Company Request.
SECTION 4.2 Application of Trust Money.
---------------------------
(a) All money and obligations deposited with the Trustee for any series
of Debt Securities pursuant to Section 4.1 shall be held irrevocably in trust
and shall be made under the terms of an escrow trust agreement in form
satisfactory to such Trustee. Such money and obligations shall be applied by
such Trustee, in accordance with the provisions of the Debt Securities, this
Indenture and such escrow trust agreement, to the payment, either directly or
through any Paying Agent (including the Company acting as its own Paying Agent)
as such Trustee may determine, to the Persons entitled thereto, of the principal
of (and premium, if any) and interest, if any, on the Debt Securities for the
payment of which such money and obligations have been deposited with such
Trustee. If Debt Securities of any series are to be redeemed prior to their
Stated Maturity, whether pursuant to any optional redemption provisions or in
accordance with any mandatory sinking fund requirement, the Company shall make
such arrangements as are satisfactory to the Trustee for such series of Debt
Securities for the giving of notice of redemption by such Trustee in the name,
and at the expense, of the Company.
(b) The Company shall pay and shall indemnify the Trustee for any
series of Debt Securities against any tax, fee or other charge imposed on or
assessed against U.S. Government Obligations deposited pursuant to Section 4.1
or the interest and principal received in respect of such U.S. Government
Obligations other than any such tax, fee or other charge which by law is payable
by or on behalf of Holders. The obligation of the Company under this Section
4.2(b) shall be deemed to be an obligation of the Company under Section 6.7(2).
(c) Anything in this Article Four to the contrary notwithstanding, the
Trustee for any series of Debt Securities shall deliver or pay to the Company
from time to time upon Company Request any money or U.S. Government Obligations
held by it as provided in Section 4.1 which, as expressed in a Certificate of a
Firm of Independent Public Accountants delivered to such Trustee, are in excess
of the amount thereof which would then have been required to be deposited for
the purpose for which such money or U.S. Government Obligations were deposited
or received provided such delivery can be made without liquidating any U.S.
Government Obligations.
<PAGE> 32
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SECTION 4.3 Satisfaction and Discharge of Indenture.
---------------------------------------
Upon compliance by the Company with the provisions of Section 4.1 as to
the satisfaction and discharge of each series of Debt Securities issued
hereunder, and if the Company has paid or caused to be paid all other sums
payable under this Indenture, this Indenture shall cease to be of any further
effect (except as otherwise provided herein). Upon Company Request and receipt
of an Opinion of Counsel and an Officers' Certificate complying with the
provisions of Section 1.2, the Trustees for all series of Debt Securities (at
the expense of the Company) shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture.
Notwithstanding the satisfaction and discharge of this Indenture, any
obligations of the Company under Sections 3.4, 3.5, 3.6, 4.2(b), 6.7, 6.10, 7.1
and 10.2 and the obligations of the Trustee for any series of Debt Securities
under Section 4.2 shall survive.
SECTION 4.4 Reinstatement.
--------------
If the Trustee for any series of Debt Securities is unable to apply any
of the amounts (for purposes of this Section 4.4, "Amounts") or U.S. Government
Obligations, as the case may be, described in Section 4.1(a)(1)(B)(i) or (ii),
respectively, in accordance with the provisions of Section 4.1 by reason of any
legal proceeding or any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the Company's
obligations under this Indenture and the Debt Securities of such series shall be
revived and reinstated as though no deposit had occurred pursuant to Section 4.1
until such time as the Trustee for such series is permitted to apply all such
Amounts or U.S. Government Obligations, as the case may be, in accordance with
the provisions of Section 4.1; provided, however, that if, due to the
reinstatement of its rights or obligations hereunder, the Company has made any
payment of principal of (or premium, if any) or interest, if any, on such Debt
Securities, the Company shall be subrogated to the rights of the Holders of such
Debt Securities to receive payment from such Amounts or U.S. Government
Obligations, as the case may be, held by the Trustee for such series.
ARTICLE 5.
REMEDIES
SECTION 5.1 Events of Default.
------------------
"Event of Default" wherever used herein with respect to any particular
series of Debt Securities, unless otherwise specified in the Debt Security or
the Board Resolution with respect to that series of Debt Securities, 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
<PAGE> 33
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pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(1) default in the payment of any installment of interest upon any Debt
Security of that series when it becomes due and payable, and continuance of such
default for a period of 30 days; or
(2) default in the payment of the principal of (or premium, if any, on)
any Debt Security of that series at its Maturity; or
(3) default in the performance of, or breach of, any covenant or
warranty of the Company in respect of any Debt Security of that series contained
in this Indenture or in such Debt Securities (other than a covenant or warranty
a default in whose performance or whose breach is elsewhere in this Section
specifically dealt with or which expressly has been included in this Indenture
solely for the benefit of Debt Securities of a series other than that series) or
in the applicable Board Resolution under which such series is issued as
contemplated by Section 3.1 and continuance of such default or breach for a
period of 60 days after there has been given, by registered or certified mail,
to the Company by the Trustee for the Debt Securities of such series or to the
Company and such Trustee by the Holders of at least 25% in principal amount of
the Outstanding Debt Securities of that series a written notice specifying such
default or breach and requiring it to be remedied and stating that such notice
is a "Notice of Default" hereunder; or
(4) if an event of default with respect to any other series of Debt
Securities or as defined in any mortgage, indenture, security agreement or other
instrument under which there may be issued, or by which there may be secured or
evidenced, any Indebtedness of the Company for money borrowed in excess of $10
million principal amount, whether such Indebtedness now exists or shall
hereafter be created, shall happen and, if such Indebtedness is not already
matured in accordance with its terms, shall result in such Indebtedness becoming
or being declared due and payable prior to the date on which it would otherwise
become due and payable, and such acceleration shall not have been rescinded or
annulled or such Indebtedness shall not have been discharged, in either case,
within a period of ten days after there has been given, by registered or
certified mail in the manner set forth in Section 1.5, to the Company by the
Trustee for the Debt Securities of that particular series referred to in the
first clause of this Section 5.1 or to the Company and such Trustee by the
Holders of at least 25% in principal amount of the Outstanding Debt Securities
of that particular series referred to in the first clause of this Section 5.1 a
written notice specifying such event of default and requiring the Company to
cause such acceleration to be rescinded or annulled or to cause such
Indebtedness to be discharged and stating that such notice is a "Notice of
Default" hereunder; provided, that if prior to the entry of judgment in favor of
the Trustee, such default under such indenture or instrument shall be remedied
or cured by the Company or waived by the holders of such Indebtedness, then the
Event of Default hereunder shall be deemed likewise to have been remedied, cured
or waived; and provided, further, that, if such default results from an action
of the United States government or a foreign government which prevents the
Company from performing its
<PAGE> 34
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obligations under such agreement, indenture or instrument, as evidenced by an
Officer's Certificate delivered to the Trustee, the occurrence of such default
will not be an Event of Default hereunder; and provided, further, however, that,
subject to the provisions of Sections 6.1 and 6.2, such Trustee shall not be
deemed to have knowledge of such default unless either (A) a Responsible Officer
of such Trustee assigned to its Corporate Trust Office shall have actual
knowledge of such default or (B) the Trustee shall have received written notice
thereof from the Company, from the Holders of 10% or more in principal amount of
the Outstanding Debt Securities of such other series, from the holder of any
such Indebtedness or from the trustee under any such mortgage, indenture,
security agreement or other instrument; or
(5) the entry against the Company of one or more judgments, decrees or
orders by a court having jurisdiction in the premises from which no appeal may
be or is taken for the payment of money, either individually or in the
aggregate, in excess of $10 million and the continuance of such judgment, decree
or order unsatisfied and in effect for any period of 60 consecutive days without
a stay of execution and there has been given, by registered or certified mail in
the manner set forth in Section 1.5, to the Company by the Trustee for the Debt
Securities of such series or to the Company and such Trustee by the Holders of
at least 25% in principal amount of the Outstanding Debt Securities of such
series a written notice specifying such entry and continuance of such judgment,
decree or order and stating that such notice is a "Notice of Default" hereunder;
provided, however, that subject to the provisions of Sections 6.1 and 6.2, such
Trustee shall not be deemed to have knowledge of such entry and continuance of
such judgment, decree or order unless either (A) a Responsible Officer of such
Trustee assigned to its Corporate Trust Office shall have actual knowledge
thereof or (B) the Trustee shall have received written notice thereof from the
Company or from the Holders of 10% or more in principal amount of the
Outstanding Debt Securities of such series; or
(6) the Company shall commence any case or proceeding seeking to have
an order for relief entered on its behalf as debtor or to adjudicate it as
bankrupt or insolvent or seeking reorganization, liquidation, dissolution,
winding-up, arrangement, composition or readjustment of its debts or any other
relief under any bankruptcy, insolvency, reorganization, liquidation,
dissolution, arrangement, composition, readjustment of debt or other similar act
or law of any jurisdiction, domestic or foreign, now or hereafter existing; or
the Company shall apply for a receiver, custodian or trustee (other than any
trustee appointed as a mortgagee or secured party in connection with the
issuance of indebtedness for borrowed money of the Company) of it or for all or
a substantial part of its property; or the Company shall make a general
assignment for the benefit of creditors; or the Company shall take any corporate
action in furtherance of any of the foregoing; or
(7) any case or proceeding against the Company shall be commenced
seeking to have an order for relief entered against it or to adjudicate it as
bankrupt or insolvent or seeking reorganization, liquidation, dissolution,
winding-up, arrangement, composition or readjustment of
<PAGE> 35
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its debts or any other relief under any bankruptcy, insolvency, reorganization,
liquidation, dissolution, arrangement, composition, readjustment of debt or
other similar act or law of any jurisdiction, domestic or foreign, now or
hereafter existing; or a receiver, custodian or trustee (other than any trustee
appointed as a mortgagee or secured party in connection with the issuance of
indebtedness for borrowed money of the Company) of the Company or for all or a
substantial part of its property shall be appointed in any such case or
proceeding; and such case or proceeding (A) results in the entry of an order for
relief or a similar order against it or (B) shall continue unstayed and in
effect for a period of 60 consecutive days.
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment.
--------------------------------------------------
If an Event of Default with respect to any particular series of Debt
Securities occurs and is continuing, then and in every such case either the
Trustee for the Debt Securities of such series or the Holders of not less than
25% in principal amount of the Outstanding Debt Securities of that series may
declare the entire principal amount (or, in the case of Discounted Debt
Securities, such lesser amount as may be provided for in the terms of that
series) of all the Debt Securities of that series to be due and payable
immediately, by a notice in writing to the Company (and to such Trustee if given
by Holders), and upon any such declaration of acceleration such principal or
such lesser amount, as the case may be, together with accrued interest and all
other amounts owing hereunder, shall become immediately due and payable, without
presentment, demand, protest or notice of any kind, all of which are hereby
expressly waived.
At any time after such a declaration of acceleration has been made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee for the Debt Securities of any series as hereinafter in this Article
provided, the Holders of a majority in principal amount of the Outstanding Debt
Securities of that series, by written notice to the Company and such Trustee,
may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with such Trustee a sum
sufficient to pay
(A) all overdue interest on all Debt Securities of that series;
(B) the principal of (and premium, if any, on) any Debt Securities of
that series which have become due otherwise than by such declaration of
acceleration and interest thereon from the date such principal became due at a
rate per annum equal to the rate borne by the Debt Securities of such series
(or, in the case of Discounted Debt Securities, the Debt Securities' Yield to
Maturity), to the extent that the payment of such interest shall be legally
enforceable;
(C) to the extent that payment of such interest is lawful, interest
upon overdue interest at a rate per annum equal to the rate borne by the Debt
Securities of such series (or, in the case of Discounted Debt Securities, the
Debt Securities' Yield to Maturity); and
<PAGE> 36
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(D) all sums paid or advanced by such Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of such Trustee,
its agents and counsel and all other amounts due to such Trustee under Section
6.7; and
(2) all Events of Default with respect to the Debt Securities of such
series, other than the nonpayment of the principal of Debt Securities of that
series which has become due solely by such acceleration, have been cured or
waived as provided in Section 5.13. No such rescission shall affect any
subsequent default or impair any right consequent thereon.
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement
by Trustee.
----------------------------------------------------
The Company covenants that if:
(1) default is made in the payment of any interest upon any Debt
Security of any series when such interest becomes due and payable and such
default continues for a period of 30 days; or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Debt Security of any series at its Maturity, the Company will, upon
demand of the Trustee for the Debt Securities of such series, pay to it, for the
benefit of the Holders of such Debt Securities, the whole amount then due and
payable on such Debt Securities for principal (and premium, if any) and
interest, if any, with interest upon the overdue principal (and premium, if any)
and, to the extent that payment of such interest shall be legally enforceable,
upon any overdue installments of interest at a rate per annum equal to the rate
borne by such Debt Securities (or, in the case of Discounted Debt Securities,
the Debt Securities' Yield to Maturity); and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
such Trustee, its agents and counsel and all other amounts due to such Trustee
under Section 6.7.
If the Company fails to pay such amounts forthwith upon such demand,
such Trustee, in its own name and as trustee of an express trust, may institute
a judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceedings to judgment or final decree, and may enforce the same
against the Company and collect the moneys adjudged or decreed to be payable in
the manner provided by law out of the property of the Company, wherever
situated.
If an Event of Default with respect to Debt Securities of any
particular series occurs and is continuing, the Trustee for the Debt Securities
of such series may in its discretion proceed to protect and enforce its rights
and the rights of the Holders of Debt Securities of that series by such
appropriate judicial proceedings as such 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.
<PAGE> 37
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SECTION 5.4 Trustee May File Proofs of Claim.
--------------------------------
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relating to the Company or the property of the Company or
its creditors, the Trustee for the Debt Securities of any series (irrespective
of whether the principal (or lesser amount in the case of Discounted Debt
Securities) of any Debt Security of such series shall then be due and payable as
therein expressed or by declaration or otherwise and irrespective of whether
such Trustee shall have made any demand on the Company for the payment of
overdue principal or interest) shall be entitled and empowered, by intervention
in such proceeding or otherwise
(i) to file and prove a claim for the whole amount of
principal (or lesser amount in the case of Discounted Debt
Securities) (and premium, if any) and interest, if any, owing
and unpaid in respect of the Debt Securities of such series
and to file such other papers or documents as may be necessary
or advisable in order to have the claims of such Trustee
(including any claim for the reasonable compensation,
expenses, disbursements and advances of such Trustee, its
agents and counsel and all other amounts due to such Trustee
under Section 6.7) and of the Holders of the Debt Securities
of such series allowed in such judicial proceeding;
(ii) to collect and receive any moneys or other
property payable or deliverable on any such claims and to
distribute the same; and
(iii) unless prohibited by law or applicable
regulations, to vote on behalf of the Holders of the Debt Securities of
such series in any election of a trustee in bankruptcy or other person
performing similar functions; and any receiver, assignee, trustee,
liquidator, sequestrator (or other similar official) in any such
judicial proceeding is hereby authorized by each Holder of Debt
Securities to make such payments to such Trustee, and in the event that
such Trustee shall consent to the making of such payments directly to
the Holders of Debt Securities, to pay to such Trustee any amount due
to it for the reasonable compensation, expenses, disbursements and
advances of such Trustee, its agents and counsel, and any other amounts
due such Trustee under Section 6.7.
Nothing herein contained shall be deemed to authorize the Trustee for
the Debt Securities of any series to authorize or consent to or accept or adopt
on behalf of any Holder of a Debt Security any plan of reorganization,
arrangement, adjustment or composition affecting the Debt Securities of such
series or the rights of any Holder thereof, or to authorize the Trustee for the
Debt Securities of any series to vote in respect of the claim of any Holder in
any such proceeding, except as aforesaid, for the election of a trustee in
bankruptcy or other person performing similar functions.
<PAGE> 38
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SECTION 5.5 Trustee May Enforce Claims Without Possession of Debt
Securities.
----------------------------------------------------
All rights of action and claims under this Indenture or the Debt
Securities of any series may be prosecuted and enforced by the Trustee for the
Debt Securities of any series without the possession of any of the Debt
Securities of such series or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by such 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 such Trustee, its agents and counsel and all other
amounts due to such Trustee under Section 6.7, be for the ratable benefit of the
Holders of the Debt Securities of such series in respect of which such judgment
has been recovered.
SECTION 5.6 Application of Money Collected.
------------------------------
Any money collected by the Trustee for the Debt Securities of any
series pursuant to this Article with respect to the Debt Securities of such
series shall be applied in the following order, at the date or dates fixed by
such Trustee and, in case of the distribution of such money on account of
principal (or premium, if any) or interest, if any, upon presentation of the
Debt Securities of such series 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 such Trustee under
Section 6.7;
Second: To the payment of the amounts then due and unpaid upon
the Debt Securities of such series for principal of (and premium, if
any) and interest, if any, on such Debt Securities in respect of which
or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts
due and payable on such Debt Securities for principal (and premium, if
any) and interest, if any, respectively; and
Third: The balance, if any, to the Person or Persons entitled
thereto.
SECTION 5.7 Limitation on Suits.
--------------------
No Holder of any Debt Security of any particular series shall have any
right to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
<PAGE> 39
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(1) an Event of Default with respect to that series shall have
occurred and be continuing and such Holder shall have previously given
written notice to the Trustee for the Debt Securities of such series of
such default and the continuance thereof;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Debt Securities of that series shall have made written
request to the Trustee for the Debt Securities of such series to
institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to such Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) such 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 such Trustee during such 60-day period by the Holders of
a majority in principal amount of the Outstanding Debt Securities of
that series; it being understood and intended that no Holder or Holders
of Debt Securities of that series 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 of Debt Securities of that series, 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 of Debt Securities of that
series.
SECTION 5.8 Unconditional Right of Holders to Receive Principal
(and Premium, if any) and Interest, if any.
----------------------------------------------------
Notwithstanding any other provision in this Indenture, the Holder of
any Debt 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 3.7) interest, if any, on such Debt Security on the respective Stated
Maturities expressed in such Debt Security (or, in the case of redemption, on
the Redemption Date) and to institute suit for the enforcement of any such
payment, and such right shall not be impaired without the consent of such
Holder.
SECTION 5.9 Restoration of Rights and Remedies.
----------------------------------
If the Trustee for the Debt Securities of any series or any Holder of a
Debt Security 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 such Trustee or to such Holder, then
and in every such case the Company, such Trustee and the Holders of Debt
Securities shall, subject to any determination in such proceeding, be restored
severally and
<PAGE> 40
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respectively to their former positions hereunder, and thereafter all rights and
remedies of such Trustee and such Holders shall continue as though no such
proceeding had been instituted.
SECTION 5.10 Rights and Remedies Cumulative.
-------------------------------
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Debt Securities in the last paragraph of
Section 3.6, no right or remedy herein conferred upon or reserved to the Trustee
for the Debt Securities of any series or to the Holders of Debt Securities is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 5.11 Delay or Omission Not Waiver.
-----------------------------
No delay or omission of the Trustee for the Debt Securities of any
series or of any Holder of any Debt Security of such series to exercise any
right or remedy accruing upon any Event of Default with respect to the Debt
Securities of such series shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein. Every right and
remedy given by this Article or by law to such Trustee for the Debt Securities
of any series or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by such Trustee or by the Holders, as the case may
be.
SECTION 5.12 Control by Holders.
-------------------
The Holders of a majority in principal amount of the Outstanding Debt
Securities of any particular series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee for the Debt Securities of such series with respect to the Debt
Securities of that series or exercising any trust or power conferred on such
Trustee with respect to such Debt Securities, provided that:
(1) such direction shall not be in conflict with any rule of law or
with this Indenture; and
(2) such Trustee may take any other action deemed proper by such
Trustee which is not inconsistent with such direction.
(3) subject to the provisions of Section 6.1, the Trustee shall have
the right to decline to follow such direction if a Responsible Officer or
Officers of the Trustee shall, in good faith, determine that the proceeding so
directed would be unjustly prejudicial to the Holders not joining in any such
direction or would involve the Trustee in personal liability.
<PAGE> 41
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SECTION 5.13 Waiver of Past Defaults.
------------------------
The Holders of not less than a majority in principal amount of the
Outstanding Debt Securities of any particular series may on behalf of the
Holders of all the Debt Securities of that series waive any past default
hereunder with respect to that series and its consequences, except:
(1) a default in the payment of the principal of (or premium, if any)
or interest, if any, on any Debt Security of that series; or
(2) a default with respect to a covenant or provision hereof which
under Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Debt Security of that series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture, and any such waiver shall be binding upon all
subsequent Holders of such Indebtedness; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 5.14 Waiver of Stay or Extension Laws.
---------------------------------
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law, wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee for any series of Debt Securities, but will
suffer and permit the execution of every such power as though no such law had
been enacted.
SECTION 5.15 Undertaking for Costs.
----------------------
All parties to this Indenture agree, and each Holder of any Debt
Security by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in principal
amount of the Outstanding Debt Securities of such series, or to any suit
<PAGE> 42
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instituted by any Holder for the enforcement of the payment of the principal of
(or premium, if any) or interest on any Debt Security on or after the Stated
Maturity or Maturities expressed in such Debt Security (or, in the case of
redemption, on or after the Redemption Date).
ARTICLE 6.
THE TRUSTEE
SECTION 6.1 Certain Duties and Responsibilities.
------------------------------------
(a) Except during the continuance of an Event of Default with
respect to the Debt Securities of any series for which the Trustee is serving as
such,
(1) such Trustee undertakes to perform such duties
and only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be
read into this Indenture against such Trustee; and
(2) in the absence of bad faith on its part, such
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to such
Trustee and conforming to the requirements of this Indenture;
but in the case of any such certificates or opinions which by
any provisions hereof are specifically required to be
furnished to such Trustee, such Trustee shall be under a duty
to examine the same to determine whether or not they conform
to the requirements of this Indenture.
(b) In case an Event of Default with respect to a series of
Debt Securities has occurred and is continuing, the Trustee for the Debt
Securities of such series shall exercise such of the rights and powers vested in
it by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent person would exercise or use under the circumstances in
the conduct of his or her own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee for Debt Securities of any series from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that no provision of this Indenture shall require the Trustee
for any series of Debt Securities 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.
(1) this Subsection shall not be construed to limit
the effect of Subsection (a) of this Section;
<PAGE> 43
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(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless
it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith
and in accordance with the direction of Holders pursuant to
Section 5.12 relating to the time, method and place of
conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the
Trustee, under this Indenture with respect to the Securities
of such series.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee for any series of Debt Securities
shall be subject to the provisions of this Section.
SECTION 6.2 Notice of Defaults.
-------------------
Within 90 days after the occurrence of any default hereunder with
respect to Debt Securities of any particular series, the Trustee for the Debt
Securities of such series shall give to Holders of Debt Securities of that
series, in the manner set forth in Section 1.6, notice of such default known to
such Trustee, unless such default shall have been cured or waived; provided,
however, that, except in the case of a default in the payment of the principal
of (or premium, if any) or interest, if any, on any Debt Security of that
series, or in the deposit of any sinking fund payment with respect to Debt
Securities of that series, such Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee or a
trust committee of directors and/or Responsible Officers of such Trustee in good
faith determines that the withholding of such notice is in the interest of the
Holders of Debt Securities of that series; and provided, further, that in the
case of any default of the character specified in Section 5.1(3) with respect to
Debt Securities of that series no such notice to Holders shall be given until at
least 60 days after the occurrence thereof. For the purpose of this Section, the
term "default" means any event which is, or after notice or lapse of time or
both would become, an Event of Default with respect to Debt Securities of that
series.
SECTION 6.3 Certain Rights of Trustee.
--------------------------
Except as otherwise provided in Section 6.1:
(a) the Trustee for any series of Debt Securities may rely and
shall be protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or parties;
<PAGE> 44
- 40 -
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture such
Trustee shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, such Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith on
its part, rely upon an Officers' Certificate;
(d) such 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) such Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders of Debt Securities of any series pursuant to
this Indenture for which it is acting as Trustee, unless such Holders shall have
offered to such Trustee security or indemnity reasonably satisfactory to such
Trustee against the costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction;
(f) such 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 or other paper or document, but such Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters at it may
see fit, and, if such Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises
of the Company, personally or by agent or attorney; and
(g) such 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 such 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.
(h) such 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 such 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.
(i) the Trustee shall not be liable for any action taken,
suffered, or omitted to be taken by it in good faith and reasonably believed by
it to be authorized or within the discretion or rights or powers conferred upon
it by this Indenture.
<PAGE> 45
- 41 -
(j) the Trustee shall not be charged with knowledge of any
default or Event of Default with respect to the Securities unless either (i) a
Responsible Officer assigned to the Corporate Trust Department of the Trustee
(or any successor division or department of the Trustee) shall have actual
knowledge of such default or Event of Default or (ii) written notice of such
default or Event of Default shall have been given to the Trustee by the Company
or by any Holder of the Securities.
SECTION 6.4 Not Responsible for Recitals or Issuance of Debt
Securities.
------------------------------------------------
The recitals contained herein and in the Debt Securities, except the
Trustee's certificates of authentication thereof, shall be taken as the
statements of the Company, and neither the Trustee for any series of Debt
Securities, nor any Authenticating Agent assumes any responsibility for their
correctness. The Trustee for any series of Debt Securities makes no
representations as to the validity or sufficiency of this Indenture or of the
Debt Securities of any series. Neither the Trustee for any series of Debt
Securities nor any Authenticating Agent shall be accountable for the use or
application by the Company of Debt Securities or the proceeds thereof.
SECTION 6.5 May Hold Debt Securities.
-------------------------
The Trustee for any series of Debt Securities, any Authenticating
Agent, Paying Agent, Debt Security Registrar or any other agent of the Company
or such Trustee, in its individual or any other capacity, may become the owner
or pledgee of Debt Securities and, subject to Sections 6.8 and 6.13, may
otherwise deal with the Company with the same rights it would have if it were
not such Trustee, Authenticating Agent, Paying Agent, Debt Security Registrar or
other agent.
SECTION 6.6 Money Held in Trust.
--------------------
Money held by the Trustee for any series of Debt Securities in trust
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee for any series of Debt Securities shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed with the Company.
SECTION 6.7 Compensation and Reimbursement.
-------------------------------
The Company agrees:
(1) to pay to the Trustee for any series of Debt Securities
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);
<PAGE> 46
- 42 -
(2) except as otherwise expressly provided herein, to
reimburse the Trustee for any series of Debt Securities upon its
request for all reasonable expenses, disbursements and advances
incurred or made by such 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 such Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or
bad faith on its part, arising out of or in connection with the
acceptance or administration of this trust, including the costs and
expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or
duties hereunder. This indemnification shall survive the resignation or
removal of the Trustee and the termination of this Agreement.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 5.1(4) or (5) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under the Bankruptcy Reform Act of 1978 or any successor statute.
As security for the performance of the obligations of the Company under
this Section the Trustee for any series of Debt Securities shall have a lien
prior to the Debt Securities upon all property and funds held or collected by
such Trustee as such, except funds held in trust for the payment of principal of
(and premium, if any) or interest, if any, on any particular series Debt
Securities. Such lien shall survive satisfaction and discharge of this
Indenture.
SECTION 6.8 Disqualification; Conflicting Interests.
----------------------------------------
The Trustee for any series of Debt Securities shall be subject to and
comply with the provisions of Section 310(b) of the Trust Indenture Act during
the period of time required thereby. Nothing herein shall prevent the Trustee
for any series of Debt Securities from filing with the Commission the
application referred to in the penultimate paragraph of Section 310(b) of the
Trust Indenture Act. In determining whether the Trustee for any series of Debt
Securities has a conflicting interest as defined in Section 310(b) of the Trust
Indenture Act, the Debt Securities of any other series of Debt Securities shall
be excluded.
SECTION 6.9 Corporate Trustee Required, Different Trustees for
Different Series; Eligibility.
---------------------------------------------------
There shall at all times be a Trustee hereunder for the Debt Securities
of each series which satisfies the requirements of Trust Indenture Act Sections
310(a)(1), 310(a)(2) and 310(a)(5), has a combined capital and surplus of at
least $50,000,000 and is subject to supervision or examination
<PAGE> 47
- 43 -
by Federal, State or District of Columbia authority. A different Trustee may be
appointed by the Company for each series of Debt Securities prior to the
issuance of such Debt Securities. If the initial Trustee for any series of Debt
Securities is to be other than The Chase Manhattan Bank, the Company and such
Trustee shall, prior to the issuance of such Debt Securities, execute and
deliver an indenture supplemental hereto, which shall provide for the
appointment of such Trustee as Trustee for the Debt Securities of such series
and shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee. If at any time the Trustee for the Debt Securities of
any series shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 6.10 Resignation and Removal; Appointment of Successor.
-------------------------------------------------
(a) No resignation or removal of the Trustee for the Debt
Securities of any series and no appointment of a successor Trustee pursuant to
this Article shall become effective until the acceptance of appointment by the
successor Trustee in accordance with the applicable requirements of Section
6.11.
(b) The Trustee for the Debt Securities of any series may
resign at any time with respect to the Debt Securities of such series by giving
written notice thereof to the Company. If the instrument of acceptance by a
successor Trustee required by Section 6.11 shall not have been delivered to the
Trustee for the Debt Securities of such series within 30 days after the giving
of such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Debt Securities of such series.
(c) The Trustee for the Debt Securities of any series may be
removed at any time with respect to the Debt Securities of such series by Act of
the Holders of a majority in principal amount of the Outstanding Debt Securities
of such series, delivered to such Trustee and to the Company. If an instrument
of acceptance by a successor Trustee shall not have been delivered to the
Trustee within 30 days after such removal, the Trustee being removed may
petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
(d) If at any time:
(1) the Trustee for the Debt Securities of any series shall
fail to comply with Section 310(b) of the Trust Indenture Act pursuant
to Section 6.8 after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Debt
<PAGE> 48
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Security of such series for at least six months unless the Trustee's
duty to resign is stayed in accordance with Section 310(b) of the Trust
Indenture Act, or
(2) such Trustee shall cease to be eligible under Section 6.9
and shall fail to resign after written request therefor by the Company
or by any such Holder, or
(3) such Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of such Trustee or of
its property shall be appointed or any public officer shall take charge
or control of such Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may
remove such Trustee or (ii) any Holder who has been a bona fide Holder
of a Debt Security of such series for at least six months may, on
behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of such Trustee and the
appointment of a successor Trustee.
(e) If the Trustee for the Debt Securities of any series shall
resign, be removed or become incapable of acting, or if a vacancy shall occur in
the office of Trustee for the Debt Securities of any series for any cause, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee with
respect to the Debt Securities of such series and shall comply with the
applicable requirements of Section 6.11. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Debt Securities of such series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Debt Securities of such series delivered to the Company and the
retiring Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable requirements of
Section 6.11, become the successor Trustee for the Debt Securities of such
series and supersede the successor Trustee appointed by the Company. If no
successor Trustee for the Debt Securities of such series shall have been so
appointed by the Company or the Holders and shall have accepted appointment in
the manner required by Section 6.11, and if such Trustee is still incapable of
acting, any Holder who has been a bona fide Holder of a Debt Security of such
series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Debt Securities of such
series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Debt Securities of any series and
each appointment of a successor Trustee with respect to the Debt Securities of
any series in the manner and to the extent provided in Section 1.6. Each notice
shall include the name of the successor Trustee with respect to the Debt
Securities of that series and the address of its Corporate Trust Office.
<PAGE> 49
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SECTION 6.11 Acceptance of Appointment by Successor.
---------------------------------------
(a) Every such successor Trustee appointed hereunder with respect to
the Debt Securities of any series shall execute, acknowledge and deliver to the
Company and to the retiring Trustee an instrument accepting such appointment,
and thereupon the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee; but, on the request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder, subject to the lien provided for in Section 6.7.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Debt Securities of one or more (but not all) series, the Company,
the retiring Trustee and each successor Trustee with respect to the Debt
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment
and which (1) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Debt Securities of that or those series to which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not retiring with
respect to all Debt Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Debt Securities of that or those
series as to which the retiring Trustee is not retiring shall continue to be
vested in the retiring Trustee and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and each Trustee shall be
trustee of a trust or trusts hereunder separate and apart from any trust or
trusts hereunder administered by any other such Trustee; and upon the execution
and delivery of such supplemental indenture the resignation or removal of the
retiring Trustee shall become effective to the extent provided therein and each
such successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Debt Securities of that or those series to which the
appointment of such successor Trustee relates; but, on request of the Company or
any successor Trustee, such retiring Trustee shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder with respect to the Debt Securities of that or those series to
which the appointment of such successor Trustee relates.
<PAGE> 50
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(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in Subsections (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee for the Debt Securities of any
series shall be qualified and eligible under this Article.
(e) Notwithstanding replacement of the Trustee pursuant to Section
6.10, the Company's obligations under Section 6.7 shall continue for the benefit
of the retiring Trustee with respect to expenses, losses and liabilities
incurred by it prior to such replacement.
SECTION 6.12 Merger, Conversion, Consolidation or Succession to
Business.
--------------------------------------------------
Any corporation into which the Trustee or the Authenticating Agent, as
the case may be, for the Debt Securities of any series 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 Trustee or such
Authenticating Agent, as the case may be, shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of such
Trustee, shall be the successor of such Trustee or such Authenticating Agent, as
the case may be, hereunder, provided such successor 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
or the Trustee, the Authenticating Agent or their respective successor
corporations. In case any Debt Securities shall have been authenticated, but not
delivered, by the Trustee or the Authenticating Agent for such series then in
office, any successor by merger, conversion or consolidation to such
authenticating Trustee or Authenticating Agent, as the case may be, may adopt
such authentication and deliver the Debt Securities so authenticated with the
same effect as if such successor Trustee or successor Authenticating Agent had
itself authenticated such Debt Securities.
SECTION 6.13 Preferential Collection of Claims Against Company.
--------------------------------------------------
The Trustee for any particular series of Debt Securities shall comply
with Section 311(a) of the Trust Indenture Act for that particular series of
Debt Securities, excluding any creditor relationship listed in Section 311(b) of
that Act. If the Trustee for any particular series of Debt Securities shall
resign or be removed as Trustee for that particular series of Debt Securities,
it shall be subject to Section 311(a) of the Trust Indenture Act to the extent
provided therein.
SECTION 6.14 Authenticating Agents.
---------------------
From time to time the Trustee for the Debt Securities of any series
may, subject to its sole discretion, appoint one or more Authenticating Agents
with respect to the Debt Securities of such
<PAGE> 51
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series, which may include the Company or any Affiliate of the Company, with
power to act on the Trustee's behalf and subject to its discretion in the
authentication and delivery of Debt Securities of such series in connection with
transfers and exchanges hereunder, including but not limited to those pursuant
to Sections 3.4, 3.5, 3.6 and 11.7, as fully to all intents and purposes as
though such Authenticating Agent had been expressly authorized by those Sections
of this Indenture to authenticate and deliver Debt Securities of such series.
For all purposes of this Indenture, the authentication and delivery of Debt
Securities of such series by an Authenticating Agent for such Debt Securities
pursuant to this Section shall be deemed to be authentication and delivery of
such Debt Securities "by the Trustee" for the Debt Securities of such series.
Any such Authenticating Agent shall at all times be a corporation organized and
doing business under the laws of the United States or of any State, authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of at least $50,000,000 and subject to supervision or examination by
Federal, State or District of Columbia authority. If such Authenticating Agent
publishes reports of condition at least annually pursuant to law or the
requirements of such 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 an Authenticating Agent for any
series of Debt Securities 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 Authenticating Agent for any series of Debt Securities may resign
at any time by giving written notice of resignation to the Trustee for such
series and to the Company. The Trustee for any series of Debt Securities may at
any time terminate the agency of any Authenticating Agent by giving written
notice of termination to such Authenticating Agent and to the Company in the
manner set forth in Section 1.5. Upon receiving such a notice of resignation or
upon such a termination, or in case at any time any Authenticating Agent for any
series of Debt Securities shall cease to be eligible under this Section, the
Trustee for such series may appoint a successor Authenticating Agent, shall give
written notice of such appointment to the Company and shall give written notice
of such appointment to all Holders of Debt Securities of such series in the
manner set forth in Section 1.6. Any successor Authenticating Agent, upon
acceptance of its appointment hereunder, shall become vested with all the
rights, powers and duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent. No successor Authenticating Agent
shall be appointed unless eligible under the provisions of this Section.
The Company agrees to pay to any Authenticating Agent for such series
from time to time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series of Debt Securities
is made pursuant to this Section, the Debt Securities of such series may have
endorsed thereon, in addition to the Trustee's certification of authentication,
an alternate certificate of authentication in the following form:
<PAGE> 52
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"This is one of the Debt Securities, of the series designated herein, described
in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK
By:_________________________________
As Authenticating Agent
By: ________________________________
Authorized Officer
ARTICLE 7.
HOLDERS' REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1 Preservation of Information; Company to Furnish
Trustee Names and Addresses of Holders.
-----------------------------------------------
The Trustee for any particular series of Debt Securities shall preserve
in as current a form as is reasonably practicable the most recent list available
to it of the names and addresses of Holders of the Debt Securities of that
series. Neither the Company nor such Trustee shall be under any responsibility
with regard to the accuracy of such list. With respect to each series of Debt
Securities, the Company, in furnishing information regarding such Holders to
such Trustee, and such Trustee, will satisfy the requirements imposed upon each
of them by Section 312(a) of the Trust Indenture Act.
SECTION 7.2 Communications to Holders.
-------------------------
Holders of any particular series of Debt Securities may communicate
with other Holders of Debt Securities of that series with respect to their
rights under this Indenture or under such series of Debt Securities pursuant to
Section 312(b) of the Trust Indenture Act. The Company and the Trustee for any
particular series of Debt Securities and any and all other Persons benefitted by
this Indenture shall have the protection afforded by Section 312(c) of the Trust
Indenture Act.
SECTION 7.3 Reports by Trustee.
------------------
Within 60 days after May 15 of each year commencing with the year
following the first issuance of Debt Securities, the Trustee for the Debt
Securities of each series shall transmit by mail to all Holders of the Debt
Securities of such series a brief report dated as of such date that complies
with Section 313(a) of the Trust Indenture Act, but only if such report is
required in any year under such Section 313(a) of the Trust Indenture Act. With
respect to each series of Debt Securities, the Trustee shall also comply with
Sections 313(b) and 313(c) of the Trust Indenture Act. At any time
<PAGE> 53
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a report is mailed to the Holders of any particular series of Debt Securities, a
copy of such report shall be filed with the Commission and with each securities
exchange, if any, on which the Debt Securities of such series are listed. With
respect to each series of Debt Securities, the Company will notify the
applicable Trustee when such series of Debt Securities is listed on any
securities exchange.
SECTION 7.4 Reports by Company
------------------
The Company shall file such annual (within 120 days after the end of
each calendar year) and/or periodic reports and certificates with the Trustees
for each series of Debt Securities and/or with the Commission and/or with the
Holders of each series of Debt Securities as are required by the provisions of
Section 314(a) of the Trust Indenture Act.
ARTICLE 8.
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 8.1 Company May Consolidate, Etc., Only on Certain Terms.
----------------------------------------------------
The Company shall not consolidate with or merge into any other Person
or sell, convey, assign, transfer, lease or otherwise dispose of all or
substantially all of its properties and assets as an entirety to any Person
unless:
(1) either (i) the Company shall be the continuing corporation
or (ii) the Person (if other than the Company) formed by such
consolidation or into which the Company is merged or the Person which
acquires by sale, assignment, conveyance, transfer, lease or
disposition all or substantially all of the properties and assets of
the Company as an entirety (x) shall be a corporation, partnership or
trust organized and validly existing under the laws of the United
States or any State thereof or the District of Columbia and (y) 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, if any, on all the Debt Securities and the performance and
observance of every covenant of this Indenture on the part of the
Company to be performed or observed;
(2) immediately after giving effect to such transaction (and
treating any Indebtedness not previously an obligation of the Company
or a Subsidiary which becomes the obligation of the Company or any of
its Subsidiaries in connection with or as a result of such transaction
as having been incurred at the time of such transaction), no Event of
Default, and no event which, after notice or lapse of time, or both,
would become an Event of Default, shall have occurred and be
continuing;
<PAGE> 54
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(3) such other conditions, if any, as may be set forth in the
Board Resolution establishing the Debt Securities of that particular
series are met or complied with; and
(4) the Company has delivered to the Trustee for each series
of Debt Securities an Officers' Certificate and an Opinion of Counsel
each stating that such consolidation, merger, conveyance or transfer
and such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction
have been complied with and the Trustee may rely upon such Officers'
Certificate and Opinion of Counsel as conclusive evidence that such
transaction complies with this Section 8.1.
SECTION 8.2 Successor Corporation Substituted.
----------------------------------
Upon any consolidation or merger, or any conveyance or transfer of the
properties and assets of the Company substantially as an entirety in accordance
with Section 8.1, the successor Person formed by such consolidation or into
which the Company is merged or to which such conveyance or transfer is made
shall succeed to, and be substituted for, and may exercise every right and power
of, the Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein and thereafter the predecessor
corporation shall be relieved of all obligations and covenants under this
Indenture and the Debt Securities and, in the event of any such consolidation,
merger, conveyance or transfer, the Company as the predecessor corporation may
thereupon or at any time thereafter be dissolved, wound up, or liquidated.
Such successor Person may cause to be signed, and may issue either in
its own name or in the name of the Company, any or all of the Securities
issuable hereunder which theretofore shall not have been signed by the Company
and delivered to the Trustee; and, upon the written order of such successor
Person instead of the Company and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and
shall make available for delivery any Securities which previously shall have
been signed and delivered by the officers of the Company to the Trustee for
authentication pursuant to such provisions and any Securities which such
successor Person thereafter shall cause to be signed and delivered to the
Trustee on its behalf for the purpose pursuant to such provisions. All the
Securities theretofore or thereafter issued in accordance with the terms of this
Indenture as though all of such Securities had been issued at the date of the
execution hereof.
In case of any consolidation, merger, sale, conveyance or lease, such
changes in phraseology and form may be made in the Securities thereafter to be
issued as may be appropriate.
SECTION 8.3 Opinion of Counsel to be Given to the Trustee.
----------------------------------------------
The Trustee shall be entitled to receive and, subject to Sections 6.1
and 6.2, shall be fully protected in relying upon an Opinion of Counsel as
conclusive evidence that any such consolidation,
<PAGE> 55
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merger, sale, conveyance or lease and any such assumption complies with the
provisions of this Article 8.
ARTICLE 9.
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures Without Consent of Holders.
--------------------------------------------------
Without the consent of any Holders of Debt Securities, the Company,
when authorized by a Board Resolution, and the Trustee for the Debt Securities
of any or all series, at any time and from time to time, may enter into one or
more indentures supplemental hereto, in form satisfactory to such Trustee, for
any of the following purposes:
(1) to evidence the succession of another Person to the
Company pursuant to Article 8, and the assumption by any such successor
of the covenants of the Company herein and in the Debt Securities
contained; or
(2) to add to the covenants of the Company, for the benefit of
the Holders of all or any particular series of Debt Securities (and, if
such covenants are to be for the benefit of fewer than all series of
Debt Securities, stating that such covenants are being included solely
for the benefit of such series), or to surrender any right or power
herein conferred upon the Company; or
(3) to add any additional Events of Default with respect to
any or all series of Debt Securities (and, if any such Event of Default
applies to fewer than all series of Debt Securities, stating each
series to which such Event of Default applies); or
(4) to add to, change or eliminate any of the provisions of
this Indenture, provided, however, that any such addition, change or
elimination shall become effective only when there is no Debt Security
Outstanding of any series created prior to the execution of such
supplemental indenture which is entitled to the benefit of such
provision and as to which such supplemental indenture would apply; or
(5) to evidence and provide for the acceptance of appointment
hereunder of a Trustee other than The Chase Manhattan Bank as Trustee
for a series of Debt Securities and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 6.9; or
<PAGE> 56
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(6) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Debt Securities of
one or more series and to add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 6.11(b); or
(7) to establish the conditions, limitations and restrictions
on the authorized amount, form, terms or purposes of issue,
authentication and delivery of Debt Securities, as herein set forth,
and other conditions, limitations and restrictions thereafter to be
observed; or
(8) to supplement any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the
satisfaction and discharge of any series of Debt Securities pursuant to
Section 4.1; provided, however, that any such action shall not
adversely affect the interests of the Holders of Debt Securities of
such series or any other series of Debt Securities in any material
respect; or
(9) to add to or change or eliminate any provisions of this
Indenture as shall be necessary or desirable in accordance with any
amendments to the Trust Indenture Act; or
(10) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, to convey, transfer, assign, mortgage or pledge any property to
or with the Trustee for the Debt Securities of any series or to
surrender any right or power herein conferred upon the Company, or to
make any other provisions with respect to matters or questions arising
under this Indenture, provided such action shall not adversely affect
the rights of the Holders of Debt Securities of any particular series
in any material respect.
SECTION 9.2 Supplemental Indentures With Consent of Holders.
-----------------------------------------------
The Company, when authorized by a Board Resolution, and the Trustee for
the Debt Securities of any or all series may enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
of modifying in any manner the rights of the Holders of such Debt Securities
under this Indenture, but only with the consent of the Holders of more than 50%
in aggregate principal amount of the Outstanding Debt Securities of each series
of Debt Securities then Outstanding affected thereby, in each case by Act of
said Holders of Debt Securities of each such series delivered to the Company and
the Trustee for Debt Securities of each such series; provided, however, that no
such supplemental indenture shall, without the consent of the Holder of each
Outstanding Debt Security affected thereby:
<PAGE> 57
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(1) change the Stated Maturity of the principal of, or any installment
of principal of or interest on, any Debt Security, or reduce the principal
amount thereof or the rate of interest thereon, if any, or any premium payable
upon the redemption thereof, or reduce the amount of the principal of a
Discounted Debt Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 5.2, or change the
Place of Payment, 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 Debt
Securities of any particular series, the consent of whose Holders is required
for any such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture; or
(3) modify any of the provisions of this Section or Section 5.13 or
10.7, 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 Debt Security affected thereby; provided, however, that this
clause shall not be deemed to require the consent of any Holder of a Debt
Security with respect to changes in the references to "the Trustee" and
concomitant changes in this Section and Section 10.7, or the deletion of this
proviso, in accordance with the requirements of Sections 6.9, 6.11(b), 9.1(6)
and 9.1(7).
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Debt Securities, or which
modifies the rights of the Holders of Debt Securities of such series with
respect to such covenant or other provision, shall be deemed not to affect the
rights under this Indenture of the Holders of Debt Securities of any other
series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 9.3 Execution of Supplemental Indentures.
-------------------------------------
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee for any series of Debt
Securities shall be entitled to receive, and (subject to Section 6.1) shall be
fully protected in relying upon, in addition to the documents required by
Section 1.2, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The Trustee
for any series of Debt Securities may, but shall not be obligated to, enter
<PAGE> 58
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into any such supplemental indenture which affects such Trustee's own rights,
liabilities, duties or immunities under this Indenture or otherwise.
SECTION 9.4 Effect of Supplemental Indentures.
---------------------------------
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Debt Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
SECTION 9.5 Conformity With Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 9.6 Reference in Debt Securities to Supplemental
Indentures.
--------------------------------------------
Debt Securities of any particular series authenticated and delivered
after the execution of any supplemental indenture pursuant to this Article may,
and shall if required by the Trustee for the Debt Securities of such series,
bear a notation in form approved by such Trustee as to any matter provided for
in such supplemental indenture. If the Company shall so determine, new Debt
Securities of any series so modified as to conform, in the opinion of the
Trustee for the Debt Securities of such series and the Board of Directors, to
any such supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by such Trustee in exchange for Outstanding Debt
Securities of such series.
SECTION 9.7 Notice of Supplemental Indentures.
---------------------------------
Promptly after the execution by the Company and the appropriate Trustee
of any supplemental indenture pursuant to Section 9.2, the Company shall
transmit by mail to all Holders of any series of the securities affected
thereby, as their name and addresses appear in the Securities Register, a notice
setting forth in general terms the substance of each supplemental indenture.
<PAGE> 59
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ARTICLE 10.
COVENANTS
SECTION 10.1 Payment of Principal (and Premium, if any) and
Interest, if any.
----------------------------------------------
The Company agrees, for the benefit of each particular series of Debt
Securities, that it will duly and punctually pay (except as otherwise specified
pursuant to Section 3.1 for the Debt Securities of such series) the principal of
(and premium, if any) and interest, if any, on that series of Debt Securities in
accordance with the terms of the Debt Securities of such series and this
Indenture.
SECTION 10.2 Maintenance of Office or Agency.
-------------------------------
The Company will maintain in each Place of Payment for a series of Debt
Securities an office or agency where Debt Securities of that series may be
presented or surrendered for payment, where Debt Securities of that series may
be surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company with respect to the Debt Securities of that
series and this Indenture may be served. The Company will give prompt written
notice to the Trustee for the Debt Securities of that series of the location,
and any change in the location, of any such office or agency. If at any time the
Company shall fail to maintain any such required office or agency in respect of
any series of Debt Securities or shall fail to furnish the Trustee for the Debt
Securities of that series with the address thereof, such presentations (to the
extent permitted by law) and surrenders of Debt Securities of that series may be
made and notices and demands may be made or served at the Corporate Trust Office
of such Trustee, and the Company hereby appoints the same as its agent to
receive such respective presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies (in or outside the Place of Payment) where the Debt
Securities of one or more series may be presented or surrendered for any or all
of the purposes specified above in this Section and may from time to time
rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain
an office or agency in each Place of Payment for such purpose. The Company will
give prompt written notice to the Trustee for the Debt Securities of each series
so affected of any such designation or rescission and of any change in the
location of any such office or agency.
SECTION 10.3 Money for Debt Securities Payments to Be Held in
Trust.
------------------------------------------------
If the Company shall at any time act as its own Paying Agent with
respect to any particular series of Debt Securities, it will, on or not more
than one Business Day before each due date of the
<PAGE> 60
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principal of (and premium, if any) or interest, if any, on any of the Debt
Securities of that series, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum (except as otherwise specified pursuant to
Section 3.1 for the Debt Securities of such series) sufficient to pay the
principal (and premium, if any) and interest, if any, so becoming due until such
sums shall be paid to such Persons or otherwise disposed of as herein provided,
and will promptly notify the Trustee for the Debt Securities of such series of
its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
particular series of Debt Securities, it will, prior to each due date of the
principal of (and premium, if any) or interest, if any, on any such Debt
Securities, deposit with a Paying Agent for the Debt Securities of such series a
sum sufficient to pay the principal (and premium, if any) and interest, if any,
so becoming due, such sum to be held in trust for the benefit of the Persons
entitled thereto, and (unless such Paying Agent is the Trustee for the Debt
Securities of such series) the Company will promptly notify such Trustee of its
action or failure so to act.
The Company will cause each Paying Agent for any particular series of
Debt Securities other than the Trustee for the Debt Securities of such series to
execute and deliver to such Trustee an instrument in which such Paying Agent
shall agree with such Trustee, subject to the provisions of this Section, that
such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest, if any, on Debt Securities of that series in trust
for the benefit of the Persons entitled thereto until such sums shall be paid to
such Persons or otherwise disposed of as herein provided;
(2) give such Trustee notice of any default by the Company in the
making of any payment of principal (or premium, if any) and interest, if any, on
Debt Securities of that series;
(3) at any time during the continuation of any such default, upon the
written request of such Trustee, forthwith pay to such Trustee all sums so held
in trust by such Paying Agent; and
(4) acknowledge, accept and agree to comply in all respects with the
provisions of this Indenture relating to the duties, rights and disabilities of
such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee for the Debt
Securities of any series all sums held in trust by the Company or such Paying
Agent, such sums to be held by such Trustee upon the same trusts as those upon
which such sums were held by the Company or such Paying Agent; and, upon such
payment by any Paying Agent to such Trustee, such Paying Agent shall be released
from all further liability with respect to such money.
<PAGE> 61
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Any money deposited with the Trustee for the Debt Securities of any
series or any Paying Agent, or then held by the Company, in trust for the
payment of the principal of (and premium, if any) and interest, if any, on any
Debt Security of any particular series and remaining unclaimed for two years
after such principal (and premium, if any) and interest, if any, has become due
and payable shall, unless otherwise required by mandatory provisions of
applicable escheat, abandoned or unclaimed property law, be paid to the Company
on Company Request, or (if then held by the Company) shall be discharged from
such trusts; and the Holder of such Debt Security shall, thereafter, as an
unsecured general creditor, look only to the Company for payment thereof, and
all liability of such Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that such Trustee or such Paying Agent, before being
required to make any such repayment may mail written notice to each such Holder
of such Debt Security in the manner set forth in Section 1.5, or may, in its
discretion, in the name and at the expense of the Company, cause to be published
at least once in a newspaper published in the English language customarily on
each Business Day and of general circulation in the Borough of Manhattan, the
City of New York, notice, that such money remains unclaimed and that, after a
date specified therein, which shall not be less than 30 days from the date of
such mailing or publication, any unclaimed balance of such money then remaining
will, unless otherwise required by mandatory provisions of applicable escheat,
abandoned or unclaimed property law, be repaid to the Company.
SECTION 10.4 Payment of Taxes and Other Claims.
----------------------------------
The Company shall 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 it or upon its income, profits or
property, and (2) all lawful claims for labor, materials and supplies which, if
unpaid, might by law become a lien upon its property; provided, however, that
the Company 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.
SECTION 10.5 Maintenance of Properties.
--------------------------
The Company shall cause all its properties used or useful in the
conduct of its business to be maintained and kept in good condition, repair and
working order and supplied with all necessary equipment and will cause to be
made all necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Company may be necessary so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times; provided, however, that nothing in this Section shall
prevent the Company from discontinuing the operation and maintenance of any of
its properties if such discontinuance is, in the judgment of the Company,
desirable in the conduct of its business and not disadvantageous in any material
respect to the Holders.
<PAGE> 62
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SECTION 10.6 Corporate Existence.
--------------------
Subject to Article 8, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence, rights (charter and statutory) and franchises; provided, however,
that the Company shall not be required to preserve any right or franchise if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Holders; and
provided, further, however, that the foregoing shall not prohibit a sale,
transfer or conveyance of a Subsidiary or any of its assets in compliance with
the terms of this Indenture.
SECTION 10.7 Waiver of Certain Covenants.
---------------------------
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Sections 10.4 to 10.7, inclusive, or set
forth in any Board Resolution establishing the Debt Securities of a series, if
before or after the time for such compliance the Holders of more than 50% in
principal amount of the Outstanding Debt Securities of each series of Debt
Securities affected by the omission shall, in each case by Act of such Holders,
either waive such compliance in such instance or generally waive compliance with
such covenant or condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee for the Debt Securities of each series with respect to any such
covenant or condition shall remain in full force and effect.
ARTICLE 11.
REDEMPTION OF DEBT SECURITIES
SECTION 11.1 Applicability of this Article.
------------------------------
Redemption of Debt Securities of any series (whether by operation of a
sinking fund or otherwise) as permitted or required by any form of Debt Security
issued pursuant to this Indenture shall be made in accordance with such form of
Debt Security and this Article; provided, however, that if any provision of any
such form of Debt Security shall conflict with any provision of this Article,
the provision of such form of Debt Security shall govern.
SECTION 11.2 Election to Redeem; Notice to Trustee.
--------------------------------------
The election of the Company to redeem any Debt Securities of any series
shall be evidenced by or pursuant to a Board Resolution. In case of any
redemption at the election of the Company of
<PAGE> 63
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less than all of the Debt Securities of any particular series, the Company
shall, at least 60 days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee for the Debt
Securities of such series) notify such Trustee by Company Request of such
Redemption Date and of the principal amount of Debt Securities of that series to
be redeemed and shall deliver to such Trustee such documentation and records as
shall enable such Trustee to authorize the Debt Security Registrar to select the
Debt Securities to be redeemed pursuant to Section 11.3. In the case of any
redemption of Debt Securities of any series prior to the expiration of any
restriction on such redemption provided in the terms of such Debt Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee for Debt
Securities of such series with an Officers' Certificate and an Opinion of
Counsel evidencing compliance with such restriction.
SECTION 11.3 Selection by Debt Security Registrar of Debt
Securities to Be Redeemed.
--------------------------------------------
If less than all the Debt Securities are to be redeemed, the Company
may select the series to be redeemed, and if less than all the Debt Securities
of any series are to be redeemed, the particular Debt Securities of that series
to be redeemed shall be selected not more than 30 days prior to the Redemption
Date by the Debt Security Registrar for the Debt Securities of such series, from
the Outstanding Debt Securities of that series not previously called for
redemption, by such method as such Debt Security Registrar shall deem fair and
appropriate and which may provide for the selection for redemption of portions
(equal to the minimum authorized denomination for Debt Securities of that
series, or any integral multiple thereof) of the principal amount of Debt
Securities of that series of a denomination larger than the minimum authorized
denomination for Debt Securities of that series pursuant to Section 3.2.
The Debt Security Registrar for the Debt Securities of any series to be
redeemed shall promptly notify the Company in writing of the Debt Securities of
such series selected for redemption and, in the case of any Debt 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 Debt Securities shall
relate, in the case of any Debt Security redeemed or to be redeemed only in
part, to the portion of the principal amount of such Debt Securities which has
been or is to be redeemed.
SECTION 11.4 Notice of Redemption.
---------------------
Notice of redemption shall be given in the manner provided in Section
1.6 not later than the thirtieth day and not earlier than the sixtieth day prior
to the Redemption Date, to each Holder of Debt Securities to be redeemed.
<PAGE> 64
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All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all Outstanding Debt Securities of a
particular series are to be redeemed, the identification (and, in the case of
partial redemption, the respective principal amounts) of the particular Debt
Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Debt Security or portion thereof, and that
interest thereon, if any, shall cease to accrue on and after said date,
(5) the place or places where such Debt Securities, are to be
surrendered for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the
case.
Notice of redemption of Debt Securities to be redeemed at the election
of the Company shall be given by the Company or, at the Company's request, by
the Trustee for such Debt Securities in the name and at the expense of the
Company.
SECTION 11.5 Deposit of Redemption Price.
----------------------------
Prior to the opening of business on any Redemption Date, the Company
shall deposit with the Trustee for the Debt Securities to be redeemed or with a
Paying Agent for such Debt Securities (or, if the Company is acting as its own
Paying Agent for such Debt Securities, segregate and hold in trust as provided
in Section 10.3) an amount of money (except as otherwise specified pursuant to
Section 3.1 for the Debt Securities of such Series) sufficient to pay the
principal amount of (and premium, if any, thereon), and (except if the
Redemption Date shall be an Interest Payment Date) any accrued interest on, all
the Debt Securities which are to be redeemed on that date.
SECTION 11.6 Debt Securities Payable on Redemption Date.
-------------------------------------------
Notice of redemption having been given as aforesaid, the Debt
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified (except as otherwise provided
pursuant to Section 3.1 for the Debt Securities of such series) and from and
after such date (unless the Company shall default in the payment of the
Redemption Price) such Debt Securities shall cease to bear interest. Upon
surrender of such Debt Security for redemption in accordance with said notice,
such Debt Security or specified portions thereof shall be
<PAGE> 65
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paid by the Company at the Redemption Price; provided, however, that unless
otherwise specified as contemplated by Section 3.1, installments of interest on
Debt Securities whose Stated Maturity is on or prior to the Redemption Date
shall be payable to the Holders of such Debt Securities, or one or more
Predecessor Debt Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section
3.7.
If any Debt Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal thereof (and premium, if any,
thereon) shall, until paid, bear interest from the Redemption Date at a rate per
annum equal to the rate borne by the Debt Security (or, in the case of
Discounted Debt Securities, the Debt Security's Yield to Maturity).
SECTION 11.7 Debt Securities Redeemed in Part.
---------------------------------
Any Debt Security which is to be redeemed only in part shall be
surrendered at the Place of Payment (with, if the Company or the Trustee for
such Debt Security so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company and the Debt Security Registrar for
such Debt Security duly executed by, the Holder thereof or his attorney duly
authorized in writing), and the Company shall execute and such Trustee shall
authenticate and deliver to the Holder of such Debt Security without service
charge, a new Debt Security or Debt Securities, of any authorized denomination
as requested by such Holder, of the same series and having the same terms and
provisions and in an aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Debt Security so surrendered.
ARTICLE 12.
SINKING FUNDS
SECTION 12.1 Applicability of this Article.
------------------------------
Redemption of Debt Securities through operation of a sinking fund as
permitted or required by any form of Debt Security issued pursuant to this
Indenture shall be made in accordance with such form of Debt Security and this
Article; provided, however, that if any provision of any such form of Debt
Security shall conflict with any provision of this Article, the provision of
such form of Debt Security shall govern.
The minimum amount of any sinking fund payment provided for by the
terms of Debt Securities of any particular series is herein referred to as a
"mandatory sinking fund payment", and any payment in excess of such minimum
amount provided for by the terms of Debt Securities of any particular series is
herein referred to as an "optional sinking fund payment". If provided for by the
terms of Debt Securities of any particular series, the cash amount of any
sinking fund payment may be subject to reduction as provided in Section 12.2.
Each sinking fund payment shall be applied to
<PAGE> 66
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the redemption of Debt Securities of any particular series as provided for by
the terms of Debt Securities of that series.
SECTION 12.2 Satisfaction of Sinking Fund Payments With Debt
Securities.
-----------------------------------------------
The Company (1) may deliver Outstanding Debt Securities of a series
(other than any previously called for redemption), and (2) may apply as a credit
Debt Securities of a series which have been redeemed either at the election of
the Company pursuant to the terms of such Debt Securities or through the
application of permitted optional sinking fund payments pursuant to the terms of
such Debt Securities, in each case in satisfaction of all or any part of any
sinking fund payment with respect to the Debt Securities of such series required
to be made pursuant to the terms of such Debt Securities as provided for by the
terms of such series; provided, however, that such Debt Securities have not been
previously so credited. Such Debt Securities shall be received and credited for
such purpose by the Trustee for such Debt Securities at the principal amount
thereof and the amount of such sinking fund payment shall be reduced
accordingly.
SECTION 12.3 Redemption of Debt Securities for Sinking Fund.
-----------------------------------------------
Not less than 60 days prior to each sinking fund payment date for any
particular series of Debt Securities, the Company will deliver to the Trustee
for the Debt Securities of such series an Officers' Certificate specifying the
amount of the next ensuing mandatory sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash (except as otherwise specified pursuant to
Section 3.1 for the Debt Securities of that series) and the portion thereof, if
any, which is to be satisfied by delivering and crediting Debt Securities of
that series pursuant to Section 12.2 and shall state the basis for such credit
and that such Debt Securities have not previously been so credited and will also
deliver to such Trustee any Debt Securities to be so delivered. Such Trustee
shall select the Debt Securities to be redeemed upon such sinking fund payment
date in the manner specified in Section 11.3 and cause notice of the redemption
thereof to be given in the name of and at the expense of the Company in the
manner provided in Section 11.4. Such notice having been duly given, the
redemption of such Debt Securities shall be made upon the terms and in the
manner stated in Sections 11.5, 11.6 and 11.7.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
<PAGE> 67
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture dated
as of ___________, 1999 to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, all as of the ____ day of ________,
1999.
PROVIDENT FINANCIAL GROUP, INC.
[SEAL]
By:_____________________________
Title:_____________________
[SEAL] THE CHASE MANHATTAN BANK, Trustee
By:_____________________________
Title______________________
<PAGE> 1
EXHIBIT 4.14
================================================================================
PROVIDENT FINANCIAL GROUP, INC.,
Issuer
and
THE CHASE MANHATTAN BANK
Trustee
INDENTURE
Dated as of _____________, 1999
Subordinated Debt Securities
================================================================================
<PAGE> 2
<TABLE>
<CAPTION>
TABLE OF CONTENTS
<S> <C> <C>
ARTICLE 1. DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION......................................................1
SECTION 1.1 Definitions.........................................................1
SECTION 1.2 Compliance Certificates and Opinions................................8
SECTION 1.3 Form of Documents Delivered to Trustee..............................9
SECTION 1.4 Acts of Holders.....................................................9
SECTION 1.5 Notices, Etc., to Trustee and Company..............................10
SECTION 1.6 Notice to Holders; Waiver..........................................11
SECTION 1.7 Conflict with Trust Indenture Act..................................11
SECTION 1.8 Effect of Headings and Table of Contents...........................11
SECTION 1.9 Successors and Assigns.............................................12
SECTION 1.10 Separability Clause................................................12
SECTION 1.11 Benefits of Indenture..............................................12
SECTION 1.12 Governing Law......................................................12
SECTION 1.13 Non-Business Day...................................................12
SECTION 1.14 Immunity of Incorporators, Shareholders,
Officers and Directors.............................................13
ARTICLE 2. DEBT SECURITY FORM.........................................................13
SECTION 2.1 Form of Debt Securities............................................13
SECTION 2.2 Form of Trustee's Certificate of Authentication....................14
SECTION 2.3 Debt Securities in Global Form.....................................15
ARTICLE 3. THE DEBT SECURITIES........................................................15
SECTION 3.1 Title; Payment and Terms...........................................15
SECTION 3.2 Denominations......................................................17
SECTION 3.3 Execution, Authentication, Delivery and Dating.....................18
SECTION 3.4 Temporary Debt Securities and Exchange of Debt Securities..........19
SECTION 3.5 Registration, Registration of Transfer and Exchange................20
SECTION 3.6 Mutilated, Destroyed, Lost and Stolen Debt Securities..............22
SECTION 3.7 Payment of Interest; Interest Rights Preserved.....................23
SECTION 3.8 Persons Deemed Owners..............................................25
SECTION 3.9 Cancellation.......................................................25
SECTION 3.10 Computation of Interest............................................26
ARTICLE 4. SATISFACTION AND DISCHARGE.................................................26
SECTION 4.1 Satisfaction and Discharge of Debt Securities of any Series........26
SECTION 4.2 Application of Trust Money.........................................28
SECTION 4.3 Satisfaction and Discharge of Indenture............................29
SECTION 4.4 Reinstatement......................................................29
</TABLE>
<PAGE> 3
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<TABLE>
<S> <C> <C>
ARTICLE 5. REMEDIES...................................................................29
SECTION 5.1 Events of Default..................................................29
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment.................32
SECTION 5.3 Collection of Indebtedness and Suits for
Enforcement by Trustee.............................................33
SECTION 5.4 Trustee May File Proofs of Claim...................................34
SECTION 5.5 Trustee May Enforce Claims Without Possession
of Debt Securities.................................................35
SECTION 5.6 Application of Money Collected.....................................35
SECTION 5.7 Limitation on Suits................................................35
SECTION 5.8 Unconditional Right of Holders to Receive Principal
(and Premium, if any) and Interest, if any.........................36
SECTION 5.9 Restoration of Rights and Remedies.................................36
SECTION 5.10 Rights and Remedies Cumulative.....................................37
SECTION 5.11 Delay or Omission Not Waiver.......................................37
SECTION 5.12 Control by Holders.................................................37
SECTION 5.13 Waiver of Past Defaults............................................38
SECTION 5.14 Waiver of Stay or Extension Laws...................................38
SECTION 5.15 Undertaking for Costs..............................................38
ARTICLE 6. THE TRUSTEE................................................................39
SECTION 6.1 Certain Duties and Responsibilities................................39
SECTION 6.2 Notice of Defaults.................................................40
SECTION 6.3 Certain Rights of Trustee..........................................40
SECTION 6.4 Not Responsible for Recitals or Issuance of Debt Securities........42
SECTION 6.5 May Hold Debt Securities...........................................42
SECTION 6.6 Money Held in Trust................................................42
SECTION 6.7 Compensation and Reimbursement.....................................42
SECTION 6.8 Disqualification; Conflicting Interests............................43
SECTION 6.9 Corporate Trustee Required, Different Trustees
for Different Series; Eligibility..................................43
SECTION 6.10 Resignation and Removal; Appointment of Successor..................44
SECTION 6.11 Acceptance of Appointment by Successor.............................46
SECTION 6.12 Merger, Conversion, Consolidation or Succession to Business........47
SECTION 6.13 Preferential Collection of Claims Against Company..................47
SECTION 6.14 Authenticating Agents..............................................48
ARTICLE 7. HOLDERS' REPORTS BY TRUSTEE AND COMPANY....................................49
SECTION 7.1 Preservation of Information; Company to Furnish Trustee
Names and Addresses of Holders.....................................49
SECTION 7.2 Communications to Holders..........................................49
</TABLE>
<PAGE> 4
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<TABLE>
<S> <C> <C>
SECTION 7.3 Reports by Trustee.................................................50
SECTION 7.4 Reports by Company.................................................50
ARTICLE 8. CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER..............................50
SECTION 8.1 Company May Consolidate, Etc., Only on Certain Terms...............50
SECTION 8.2 Successor Corporation Substituted..................................51
SECTION 8.3 Opinion of Counsel to be Given to the Trustee......................52
ARTICLE 9. SUPPLEMENTAL INDENTURES....................................................52
SECTION 9.1 Supplemental Indentures Without Consent of Holders.................52
SECTION 9.2 Supplemental Indentures With Consent of Holders....................53
SECTION 9.3 Execution of Supplemental Indentures...............................55
SECTION 9.4 Effect of Supplemental Indentures..................................55
SECTION 9.5 Conformity With Trust Indenture Act................................55
SECTION 9.6 Reference in Debt Securities to Supplemental Indentures............55
SECTION 9.7 Notice of Supplemental Indentures..................................56
ARTICLE 10. COVENANTS..................................................................56
SECTION 10.1 Payment of Principal (and Premium, if any)
and Interest, if any...............................................56
SECTION 10.2 Maintenance of Office or Agency....................................56
SECTION 10.3 Money for Debt Securities Payments to Be Held in Trust.............57
SECTION 10.4 Payment of Taxes and Other Claims..................................58
SECTION 10.5 Maintenance of Properties..........................................59
SECTION 10.6 Corporate Existence................................................59
SECTION 10.7 Waiver of Certain Covenants........................................59
ARTICLE 11. REDEMPTION OF DEBT SECURITIES.............................................60
SECTION 11.1 Applicability of this Article......................................60
SECTION 11.2 Election to Redeem; Notice to Trustee..............................60
SECTION 11.3 Selection by Debt Security Registrar of
Debt Securities to Be Redeemed.....................................60
SECTION 11.4 Notice of Redemption...............................................61
SECTION 11.5 Deposit of Redemption Price........................................62
SECTION 11.6 Debt Securities Payable on Redemption Date. ......................62
SECTION 11.7 Debt Securities Redeemed in Part...................................62
ARTICLE 12. SINKING FUNDS.............................................................63
SECTION 12.1 Applicability of this Article......................................63
SECTION 12.2 Satisfaction of Sinking Fund Payments With Debt Securities.........63
SECTION 12.3 Redemption of Debt Securities for Sinking Fund.....................63
</TABLE>
<PAGE> 5
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<TABLE>
<S> <C> <C>
ARTICLE 13. SUBORDINATION OF SECURITIES...............................................64
SECTION 13.1 Debt Securities to Senior Indebtedness.............................64
SECTION 13.2 Default on Senior Indebtedness.....................................64
SECTION 13.3 Liquidation; Dissolution; Bankruptcy...............................65
SECTION 13.4 Subrogation........................................................66
SECTION 13.5 Trustee to Effectuate Subordination................................67
SECTION 13.6 Notice by the Company..............................................67
SECTION 13.7 Rights of the Trustee; Holders of Senior Indebtedness..............68
SECTION 13.8 Subordination May Not be Impaired..................................68
</TABLE>
<PAGE> 6
INDENTURE, dated as of ______________, 1999, among PROVIDENT FINANCIAL
GROUP, INC., an Ohio corporation, One East Fourth Street, Cincinnati, Ohio 45202
(the "Company"), and THE CHASE MANHATTAN BANK, a New York banking corporation,
as Trustee (the "Trustee").
RECITALS OF THE COMPANY
The Company deems it necessary to issue from time to time for its
lawful purposes securities (hereinafter called the "Debt Securities") evidencing
its unsecured subordinated indebtedness and has duly authorized the execution
and delivery of this Indenture to provide for the issuance from time to time of
the Debt Securities, unlimited as to principal amount, to have such titles, to
bear such rates of interest, to mature at such time or times and to have such
other provisions as shall be fixed as hereinafter provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done, and the Company proposes
to do all things necessary to make the Debt Securities, when executed by the
Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company, as hereinafter provided.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Debt
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Debt Securities or any
series thereof, as follows:
ARTICLE 1.
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.1 Definitions.
------------
For all purposes of this Indenture and all Debt Securities issued
hereunder, except as otherwise expressly provided or unless the context
otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles in
the United States, and the term
<PAGE> 7
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"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such generally accepted accounting
principles as in effect and as implemented by the Company at the time of their
application; and
(4) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally in Article 3 and Article 6, are defined
in those Articles.
"Act", when used with respect to any Holder, has the meaning specified
in Section 1.4.
"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 to authenticate and
deliver Debt Securities on behalf of the Trustee for the Debt Securities of any
series pursuant to Section 6.14.
"Banking Subsidiary" means any Subsidiary organized under the laws of
the United States or of any state, commonwealth, territory or possession thereof
and which conducts a commercial, merchant or other banking business, or a trust
business.
"Board of Directors" means the board of directors of the Company or any
duly authorized committee of the board or any director or directors and/or
officer or officers of the Company to whom that either of such boards or
committees shall have duly delegated its authority.
"Board Resolution" means (1) a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors or the Executive Committee of the Board of Directors and
to be in full force and effect on the date of such certification, or (2) a
certificate signed by the director or directors or officer or officers to whom
the Board of Directors shall have duly delegated its authority, and delivered to
the Trustee.
"Business Day", when used with respect to any particular Place of
Payment, means each Monday, Tuesday, Wednesday, Thursday and Friday which is not
a day on which banking institutions in that Place of Payment are authorized or
obligated by law to close.
"Capitalized Lease Obligation" means any obligation to pay rent or
other amounts under a lease of (or other agreement conveying the right to use)
real or personal property that is required to
<PAGE> 8
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be classified and accounted for as a capital lease obligation under generally
accepted accounting principles consistently applied, and, for the purposes of
this Indenture, the amount of such obligation at any date shall be the
capitalized amount thereof at such date, determined in accordance with such
principles.
"Certificate of a Firm of Independent Public Accountants" means a
certificate signed by any firm of independent public accountants of recognized
standing selected by the Company. The term "independent" when used with respect
to any specified firm of public accountants means such a firm which (1) is in
fact independent, (2) does not have any direct financial interest or any
material indirect financial interest in the Company or in any Affiliate of the
Company, and (3) is not connected with the Company or any Affiliate of the
Company as an officer, employee, promoter, underwriter, trustee, partner,
director or person performing similar functions, but such firm may be the
regular auditors employed by the Company.
"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 on such date.
"Company Request" and "Company Order" mean, respectively, a written
request or order signed in the name of the Company by (1) the Chairman of the
Board, a Vice Chairman of the Board, Chief Executive Officer, the President or a
Vice President and by the Treasurer, an Assistant Treasurer, an Assistant
Controller, the Secretary or an Assistant Secretary of the Company, or (2) by
any two Persons designated in a Company Order previously delivered to the
Trustee for the Debt Securities of any series by any two of the foregoing
officers and delivered to the Trustee for the Debt Securities of such series.
"Corporate Trust Office" means the office designated by the Trustee for
Debt Securities of any series at which at any particular time its corporate
trust business shall be administered, which as of the date of this Indenture is
located at 250 West Huron Road, Suite 220, Cleveland, Ohio 44113, Attention:
Corporate Trust Department.
"Debt Securities" means securities evidencing unsecured indebtedness of
the Company authenticated and delivered under this Indenture.
"Debt Security Register" and "Debt Security Registrar" have the
respective meanings specified in Section 3.5.
"Defaulted Interest" has the meaning specified in Section 3.7.
<PAGE> 9
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"Discounted Debt Security" means any Debt Security which provides for
an amount (excluding any amounts attributable to accrued but unpaid interest
thereon) less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 5.2.
"Dollars" and the sign "$" mean the currency of the United States of
America as at the time of payment is legal tender for the payment of public and
private debts.
"Event of Default" has the meaning specified in Section 5.1.
"Exchange Act" means the Securities Exchange Act of 1934.
"Global Security" means a Debt Security in global form established
pursuant to Section 2.3.
"Holder", when used with respect to any Debt Security, means the Person
in whose name a Debt Security is registered in the Debt Security Register.
"Indebtedness" means (a) any liability of any Person (1) for borrowed
money, or under any reimbursement obligation relating to a letter of credit
(other than letters of credit obtained in the ordinary course of business), or
(2) evidenced by a bond, note, debenture or similar instrument (including a
purchase money obligation) given in connection with the acquisition of any
businesses, properties or assets of any kind or with services incurred in
connection with capital expenditures (other than accounts payable or other
indebtedness to trade creditors arising in the ordinary course of business), or
(3) for the payment of money relating to a Capitalized Lease Obligation; (b) any
liability of others described in the preceding clause (a) that the Person has
guaranteed or that is otherwise its legal liability; and (c) any amendment,
supplement, modification, deferral, renewal, extension or refunding of any
liability of the types referred to in clauses (a) and (b) above.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of a particular series of Debt Securities
established as contemplated by Section 3.1.
"Interest", when used with respect to a Discounted Debt Security which
by its terms bears interest only after Maturity, means interest payable after
Maturity.
"Interest Payment Date", when used with respect to any Debt Security,
means the Stated Maturity of an installment of interest on such Debt Security.
<PAGE> 10
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"Maturity", when used with respect to any Debt Security, means the date
on which the principal of that Debt Security becomes due and payable as therein
or herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption, request for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, a Vice Chairman of the Board, a Co-President or a Vice President (any
reference to a Vice President of the Company herein shall be deemed to include
any Vice President of the Company whether or not designated by a number or a
word or words added before or after the title "Vice President"), and by the
Treasurer, an Assistant Treasurer, the Controller, an Assistant Controller, the
Secretary or an Assistant Secretary of the Company, and delivered to the Trustee
for the Debt Securities of any series.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of or counsel to the Company, or other counsel satisfactory to the
Trustee for the Debt Securities of any series. An Opinion of Counsel may rely on
certificates as to matters of fact.
"Outstanding", when used with respect to Debt Securities, means, as of
the date of determination, all Debt Securities theretofore authenticated and
delivered under this Indenture, except:
(1) Debt Securities theretofore canceled by the Trustee for such Debt
Securities or delivered to such Trustee for cancellation;
(2) Debt Securities or portions thereof for whose payment or redemption
money in the necessary amount has been theretofore deposited with the Trustee
for such Debt Securities or any Paying Agent (other than the Company) in trust
or set aside and segregated in trust by the Company (if the Company shall act as
its own Paying Agent) for the Holders of such Debt Securities (including Debt
Securities with respect to which the Company has effected satisfaction and
discharged as provided in Article Four, except to the extent provided in such
Article); provided, however, that, if such Debt Securities or portions thereof
are to be redeemed, notice of such redemption has been duly given pursuant to
this Indenture, or provision therefor satisfactory to such Trustee has been
made; and
(3) Debt Securities which have been paid pursuant to Section 3.6 or in
exchange for or in lieu of which other Debt Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Debt Securities in
respect of which there shall have been presented proof satisfactory to the
Trustee for such Debt Securities that any such Debt Securities are held by
protected purchasers in whose hands the Debt Securities are valid obligations of
the Company; provided, however, that in determining whether the Holders of the
requisite principal amount of Outstanding Debt Securities have given any
request, demand, authorization, direction, notice,
<PAGE> 11
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consent or waiver hereunder, (a) Debt Securities owned by the Company or any
Affiliate of the Company shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee for such Debt Securities shall
be protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Debt Securities which such Trustee knows to be
so owned shall be so disregarded, provided, that Debt Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of such Trustee the pledgee's right so to act
with respect to such Debt Securities and that the pledgee is not the Company or
any Affiliate of the Company and (b) the principal amount of a Discounted Debt
Security that shall be deemed to be Outstanding for such purposes shall be the
amount of the principal thereof that would be due and payable as of the date of
such determination upon a declaration of acceleration pursuant to Section 5.2.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest, if any, on any Debt Securities
on behalf of the Company. The Company may act as its own Paying Agent.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock or limited liability company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Debt Securities of
any particular series, means the place or places where the principal of (and
premium, if any) and interest, if any, on the Debt Securities of that series are
payable, as contemplated by Section 3.1.
"Redemption Date", when used with respect to any Debt Security to be
redeemed in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price", when used with respect to any Debt Security to be
redeemed, means an amount equal to the principal amount thereof (and premium, if
any, thereon) together with accrued interest, if any, to the Redemption Date.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Debt Securities of any series, means the date, if any, specified for
that purpose as contemplated by Section 3.1.
"Responsible Officer", when used with respect to the Trustee for any
series of Debt Securities, means any officer of the Trustee with direct
responsibility for the administration of this Indenture and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of his knowledge of and familiarity with the
particular subject.
<PAGE> 12
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"Senior Indebtedness" means, with respect to the Company, (i) the
principal, premium, if any, and interest in respect of (A) Indebtedness of the
Company for money borrowed, and (B) Indebtedness evidenced by securities,
debentures, bonds or other similar instruments issued by the Company, (ii) all
capital lease obligations of the Company, (iii) all obligations of the Company
issued or assumed as the deferred purchase price of property, all conditional
sale obligations of the Company and all obligations of the Company under any
title retention agreement (but excluding trade accounts payable arising in the
ordinary course of business), (iv) all obligations of the Company for the
reimbursement on any letter of credit, banker's acceptance, security purchase
facility or similar credit transaction, (v) all obligations of the type referred
to in clauses (i) through (iv) above of other Persons for the payment of which
the Company is responsible or liable as obligor, guarantor or otherwise; and
(vi) all obligations of the type referred to in clauses (i) through (v) above of
other persons secured by any lien on any property or asset of the Company
(whether or not such obligation is assumed by the Company), except in each case
for (1) any such Indebtedness that is by its terms subordinated to or pari passu
with the Debt Securities, and (2) any Indebtedness in respect of debt
securities, issued to any trust or a trustee of such trust, partnership or other
entity affiliated with the Company that is a financing entity for the Company (a
"financing entity") in connection with the issuance by such financing entity of
securities. Such Senior Indebtedness shall continue to be Senior Indebtedness
and be entitled to the benefits of the subordination provisions irrespective of
any amendment, modification or waiver of any term of such Senior Indebtedness.
A "series" of Debt Securities means all Debt Securities denoted as part
of the same series authorized by or pursuant to a particular Board Resolution.
"Special Record Date" for the payment of any Defaulted Interest on the
Debt Securities of any series means a date fixed by the Trustee for such series
pursuant to Section 3.7.
"Stated Maturity", when used with respect to any security or any
installment of principal thereof or interest thereon, means the date specified
in such security representing such installment of interest as the fixed date on
which the principal of such security or such installment of principal or
interest is due and payable.
"Subsidiary" means any corporation of which at least a majority of all
outstanding stock having ordinary voting power in the election of directors of
such corporation is at the time, directly or indirectly, owned by the Company or
by one or more Subsidiaries or by the Company and one or more Subsidiaries.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument and, subject to the provisions of Article 6 hereof,
shall also include its successors and assigns as Trustee hereunder. If there
shall be at one time more than one Trustee hereunder, "Trustee" shall mean each
such Trustee and shall apply to each such Trustee only with respect to those
series of Debt Securities with respect to which it is serving as Trustee.
<PAGE> 13
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"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, and as in effect on the date as of which this Indenture was executed,
except as provided in Section 9.5 hereof.
"U.S. Depositary" means a clearing agency registered under the Exchange
Act, or any successor thereto, which shall in either case be designated by the
Company pursuant to Section 3.1, until a successor U.S. Depositary shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter "U.S. Depositary" shall mean or include each Person who is then a
U.S. Depositary hereunder, and if at any time there is more than one such
Person, "U.S. Depositary" as used with respect to the Debt Securities of any
series shall mean the U.S.
Depositary with respect to the Debt Securities of that series.
"U.S. Government Obligations" means securities which are (i) direct
obligations of the government of the United States or (ii) obligations of a
Person controlled or supervised by and acting as an agency or instrumentality of
the government of the United States, the payment of which is unconditionally
guaranteed by such government, which, in either case, are full faith and credit
obligations of such government and are not callable or redeemable at the option
of the issuer thereof.
"United States" means the United States of America (including the
States and the District of Columbia), its territories, possessions and other
areas subject to its jurisdiction (including the Commonwealth of Puerto Rico).
"Yield to Maturity", when used with respect to any Discounted Debt
Security, means the yield to maturity, if any, set forth on the face thereof.
SECTION 1.2 Compliance Certificates and Opinions.
-------------------------------------
Upon any application or request by the Company to the Trustee for any
series of Debt Securities to take any action under any provision of this
Indenture, the Company shall furnish to such Trustee (i) an Officers'
Certificate stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with, (ii) an
Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, and (iii) if appropriate,
a Certificate of a Firm of Independent Public Accountants; provided, that in the
case of any such application or request as to which the furnishing of such
documents is specifically required by any provision of this Indenture relating
to such particular application or request, no additional certificate or opinion
need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate
or opinion has read such condition or covenant and the definitions
herein relating thereto;
<PAGE> 14
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(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such condition
or covenant has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.3 Form of Documents Delivered to Trustee.
--------------------------------------
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows that the certificate or
opinion or representations with respect to matters upon which his certificate or
opinion is based are erroneous.
Any such certificate or Opinion of Counsel may be based, insofar as it
relates to factual matters, upon a certificate or opinion of, or representations
by, an officer or officers of the Company stating that the information with
respect to such factual matters is in the possession of the Company, unless such
counsel knows that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.4 Acts of Holders.
----------------
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an
<PAGE> 15
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agent duly appointed in writing. Except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments are
delivered to the Trustee for the appropriate series of Debt Securities and,
where it is hereby expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent, or of the holding by any Person of a Debt Security,
shall be sufficient for any purpose of this Indenture and (subject to Section
6.1) conclusive in favor of the Trustee for the appropriate series of Debt
Securities and the Company and any agent of such Trustee or the Company, if made
in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any 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 an officer of a corporation or association or a member of a
partnership, or an official of a public or governmental body, on behalf of such
corporation, association, partnership or public or governmental body or by a
fiduciary, such certificate or affidavit shall also constitute sufficient proof
of his authority.
(c) The fact and date of the execution by any Person of any such
instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner which the Trustee for the appropriate series
of Debt Securities deems sufficient.
(d) The principal amount and serial numbers of Debt Securities held by
any Person, and the date of holding the same, shall be proved by the Debt
Security Register.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Debt Security shall bind every
future Holder of the same Debt Security and the Holder of every Debt 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 for such Debt Securities, the Debt Security Registrar, any Paying Agent
or the Company in reliance thereon, whether or not notation of such action is
made upon such Debt Security.
SECTION 1.5 Notices, Etc., to Trustee and Company.
-------------------------------------
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other documents provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
<PAGE> 16
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(1) the Trustee for a series of Debt Securities by any Holder or by the
Company shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with such Trustee at its Corporate Trust
Office, Attention: Corporate Trustee Administration Department, or
(2) the Company by such Trustee or by any Holder shall be sufficient
for every purpose hereunder if in writing and mailed, first class postage
prepaid, to the Company addressed to it at the address of its principal office
specified in the first paragraph of this instrument or at any other address
previously furnished in writing to such Trustee by the Company (except as
provided in paragraphs (3), (4) and (5) of Section 5.1.
SECTION 1.6 Notice to Holders; Waiver.
--------------------------
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
to Holders if in writing and mailed, first class postage prepaid, to each Holder
affected by such event, at his address as it appears in the Debt Security
Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice.
In any case where notice to Holders of Debt Securities is given by
mail, neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder shall affect the sufficiency of such notice
with respect to other Holders. Any notice mailed in the manner prescribed by
this Indenture shall be deemed to have been given whether or not received by any
particular Holder. 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 to
Holders by mail, then such notification as shall be made with the approval of
the Trustee for such Debt Securities shall constitute a sufficient notification
for every purpose hereunder.
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 for such
Debt Securities, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
SECTION 1.7 Conflict with Trust Indenture Act.
---------------------------------
If any provision hereof limits, qualifies or conflicts with the duties
imposed by any of Sections 310 through 317, inclusive, of the Trust Indenture
Act through the operation of Section 318(c) thereof, such imposed duties shall
control.
SECTION 1.8 Effect of Headings and Table of Contents.
----------------------------------------
<PAGE> 17
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The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 1.9 Successors and Assigns.
----------------------
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 1.10 Separability Clause.
-------------------
In any case any provision in this Indenture or in the Debt 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.
SECTION 1.11 Benefits of Indenture.
----------------------
Nothing in this Indenture or in the Debt Securities, expressed or
implied, shall give to any Person, other than the parties hereto, any Paying
Agent, any Debt Security Registrar and their successors hereunder and the
Holders of Debt Securities, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
SECTION 1.12 Governing Law.
--------------
THIS INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICTS OF LAW RULES
OF SUCH STATE. THIS INDENTURE IS SUBJECT TO THE PROVISIONS OF THE TRUST
INDENTURE ACT OF 1939, AS AMENDED, THAT ARE REQUIRED TO BE PART OF THIS
INDENTURE AND SHALL, TO THE EXTENT APPLICABLE, BE GOVERNED BY SUCH PROVISIONS.
SECTION 1.13 Non-Business Day.
-----------------
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of a Debt Security of any particular series shall not be a Business Day
at any Place of Payment with respect to Debt Securities of that series, then
(notwithstanding any other provision of this Indenture or of the Debt
Securities) payment of principal of (and premium, if any) and interest, if any,
with respect to such Debt Security need not be made at such Place of Payment on
such date, but may be made on the next succeeding Business Day at such Place of
Payment with the same force and effect as if made on the Interest Payment Date
or Redemption Date, or at the Stated Maturity, provided that no interest shall
accrue for the period from and after such Interest Payment Date, Redemption Date
or Stated Maturity, as the case may be.
<PAGE> 18
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SECTION 1.14 Immunity of Incorporators, Shareholders, Officers and
Directors.
-----------------------------------------------------
No recourse shall be had for the payment of the principal of (and
premium, if any), or the interest, if any, on any Debt Security of any series,
or for any claim based thereon, or upon any obligation, covenant or agreement of
this Indenture, against any incorporator, shareholder, officer or director, as
such, past, present or future, of the Company or of any successor corporation,
either directly or indirectly through the Company or any successor corporation,
whether by virtue of any constitution, statute or rule of law or by the
enforcement of any assessment of penalty or otherwise; it being expressly agreed
and understood that this Indenture and all the Debt Securities of each series
are solely corporate obligations, and that no personal liability whatever shall
attach to, or is incurred by, any incorporator, shareholder, officer or
director, past, present or future, of the Company or of any successor
corporation, either directly or indirectly through the Company or any successor
corporation, because of the incurring of the indebtedness hereby authorized or
under or by reason of any of the obligations, covenants or agreements contained
in this Indenture or in any of the Debt Securities of any series, or to be
implied herefrom or therefrom; and that all such personal liability is hereby
expressly released and waived as a condition of, and as part of the
consideration for, the execution of this Indenture and the issuance of the Debt
Securities of each series.
ARTICLE 2.
DEBT SECURITY FORM
SECTION 2.1 Form of Debt Securities.
------------------------
The Debt Securities of each series shall be in substantially the forms
set forth in this Article, or in such other form as shall be established by or
pursuant to a Board Resolution or in one or more indentures supplemental hereto,
in each case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Debt Securities, as evidenced by their execution of the
Debt Securities. If the form of Debt Securities of any series is established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 3.3 for the authentication and delivery of such
Securities.
Any form of Security approved by or pursuant to a Board Resolution must
be acceptable to the Trustee, such acceptance to be evidenced by the Trustee's
authentication of Securities in that form or a certificate signed by a
Responsible Officer of the Trustee and delivered to the Company.
<PAGE> 19
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Prior to the delivery of a Debt Security of any series in any such form
to the Trustee for the Debt Securities of such series for authentication, the
Company shall deliver to such Trustee the following:
(1) The Board Resolution by or pursuant to which such form of Debt
Security has been approved;
(2) An Officers' Certificate dated the date such Certificate is
delivered to such Trustee stating that all conditions precedent provided for in
this Indenture relating to the authentication and delivery of Debt Securities in
such form have been complied with; and
(3) An Opinion of Counsel stating that Debt Securities in such form,
when (a) completed by appropriate insertions and executed and delivered by the
Company to such Trustee in accordance with this Indenture, (b) authenticated and
delivered by such Trustee in accordance with this Indenture within the
authorization as to aggregate principal amount established from time to time by
the Board of Directors and (c) issued in the manner specified in such Opinion of
Counsel, will be the legal, valid and binding obligations of the Company,
subject to applicable bankruptcy, reorganization, insolvency and other similar
laws generally affecting creditors' rights, to general equitable principles and
to such other qualifications as such counsel shall conclude do not materially
affect the rights of Holders of such Debt Securities.
The definitive Debt Securities shall be printed, lithographed or
engraved or produced by any combination of these methods on a steel engraved
border or steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Debt Securities, as evidenced by their
execution thereof.
SECTION 2.2 Form of Trustee's Certificate of Authentication.
-------------------------------- --------------
The Certificate of Authentication on all Debt Securities shall be in
substantially the following form:
"This is one of the Debt Securities, of the series
designated herein, described in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By___________________________
Authorized Officer"
<PAGE> 20
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SECTION 2.3 Debt Securities in Global Form.
------------------------------
If any Debt Security of a series is issuable in global form, such Debt
Security may provide that it shall represent the aggregate amount of Outstanding
Debt Securities from time to time endorsed thereon and may also provide that the
aggregate amount of Outstanding Debt Securities represented thereby may from
time to time be reduced to reflect exchanges. Any endorsement of a Global
Security to reflect the amount, or any increase or decrease in the amount, of
Outstanding Debt Securities represented thereby shall be made by the Trustee and
in such manner as shall be specified in such Global Security. Any instructions
by the Company with respect to a Global Security, after its initial issuance,
shall be in writing but need not comply with Section 1.2. Global Securities may
be issued in either temporary or permanent form.
None of the Company, the Trustee, any Paying Agent or the Debt 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.
ARTICLE 3.
THE DEBT SECURITIES
SECTION 3.1 Title; Payment and Terms.
-------------------------
The aggregate principal amount of Debt Securities which may be
authenticated and delivered and Outstanding under this Indenture is unlimited.
The Debt Securities may be issued up to the aggregate principal amount of Debt
Securities from time to time authorized by or pursuant to a Board Resolution.
The Debt Securities may be issued in one or more series, each of which
shall be issued pursuant to a Board Resolution. With respect to any particular
series of Debt Securities, the Board Resolution relating thereto shall specify:
(1) the title of the Debt Securities of that series (which shall
distinguish the Debt Securities of that series from all other series of Debt
Securities);
(2) any limit upon the aggregate principal amount of the Debt
Securities of that series which may be authenticated and delivered under this
Indenture (except for Debt Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other Debt
Securities of that series pursuant to Section 3.4, 3.5, 3.6, 9.6 or 11.7 or
otherwise pursuant to any covenant permitting the purchase of a portion of the
Debt Securities of that series);
<PAGE> 21
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(3) the date or dates (or manner of determining the same) on which the
principal of the Debt Securities of that series is payable (which, if so
provided in such Board Resolution, may be determined by the Company from time to
time and set forth in the Debt Securities of the series issued from time to
time);
(4) the rate or rates (or the manner of calculation thereof) at which
the Debt Securities of that series shall bear interest (if any), the date or
dates from which such interest shall accrue (which, in either case or both, if
so provided in such Board Resolution, may be determined by the Company from time
to time and set forth in the Debt Securities of the series issued from time to
time), the Interest Payment Dates on which such interest shall be payable (or
manner of determining the same) and the Regular Record Date for the interest
payable on any Debt Securities on any Interest Payment Date;
(5) the place or places where, subject to the provisions of Section
10.2, the principal of (and premium, if any) and interest, if any, on Debt
Securities of that series shall be payable, any Debt Securities of that series
may be surrendered for registration of transfer, any Debt Securities of that
series may be surrendered for exchange, and notices and demands to or upon the
Company in respect of the Debt Securities of that series and this Indenture may
be served;
(6) the period or periods within which, the price or prices at which
and the terms and conditions upon which Debt Securities of that series may be
redeemed, in whole or in part, at the option of the Company;
(7) the obligation, if any, of the Company to redeem or purchase Debt
Securities of that series pursuant to any sinking fund or analogous provisions
or at the option of a Holder thereof, and the period or periods within which,
the price or prices at which and the terms and conditions upon which, Debt
Securities of that series shall be redeemed or purchased, in whole or in part,
pursuant to such obligation;
(8) the denominations in which any Debt Securities of that series shall
be issuable, if other than denominations of $1,000 and any integral multiple
thereof;
(9) if other than the principal amount thereof, the portion of the
principal amount of Debt Securities of that series which shall be payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 5.2;
(10) any addition to, or modification or deletion of, any Events of
Default or covenants of the Company with respect to the Debt Securities of that
series, whether or not such Events of Default or covenants are consistent with
the Events of Default or covenants set forth herein;
<PAGE> 22
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(11) if a Person other than The Chase Manhattan Bank is to act as
Trustee for the Debt Securities of that series, the name and location of the
Corporate Trust Office of such Trustee;
(12) if other than as set forth in Section 4.1, provisions for the
satisfaction and discharge of this Indenture with respect to the Debt Securities
of that series;
(13) any provision relating to the defeasance of the obligations of the
Company in connection with the Debt Securities of that series;
(14) any provisions regarding exchangeability or conversion of the Debt
Securities of that series;
(15) whether the Debt Securities of the series shall be issued in whole
or in part in the form of one or more Global Securities and, in such case, the
U.S. Depositary for such Global Security or Securities; whether such global form
shall be permanent or temporary; the manner in which and the circumstances under
which Global Securities representing Debt Securities of the series may be
exchanged for Debt Securities in definitive form, if other than, or in addition
to, the manner and circumstances specified in Section 3.5 hereof; the extent to
which, or the manner in which, any interest payable on any Global Security on
any Interest Payment Date will be paid, if other than in the manner provided in
Section 3.7; the manner in which the principal of, or premium, if any, on, any
Global Security will be paid, if other than as set forth elsewhere herein; and
(16) any other terms of that series (which terms shall not be
inconsistent with the provisions of this Indenture).
The Trustee shall not be required to authenticate such Securities if
the issue thereof will adversely affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture.
All Debt Securities of any particular series shall be substantially
identical except as to denomination, rate of interest, Stated Maturity and the
date from which interest, if any, shall accrue, and except as may otherwise be
provided in or pursuant to such Board Resolution relating thereto. The terms of
such Debt Securities, as set forth above, may be determined by the Company from
time to time if so provided in or established pursuant to the authority granted
in a Board Resolution. Any of the terms of the Debt Securities, as set forth
above, may be made dependent upon facts ascertainable outside the Board
Resolution provided that the manner in which said facts shall operate upon the
terms is set forth in the Board Resolution. All Debt Securities of any one
series need not be issued at the same time, and unless otherwise provided, a
series may be reopened for issuance of additional Debt Securities of such
series.
SECTION 3.2 Denominations.
--------------
<PAGE> 23
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Unless otherwise provided with respect to any series of Debt Securities
as contemplated by Section 3.1, all Debt Securities of a series shall be
issuable in denominations of $1,000 and any integral multiple thereof.
SECTION 3.3 Execution, Authentication, Delivery and Dating.
----------------------------------------------
The Debt Securities shall be executed on behalf of the Company by its
Chairman of the Board, a Vice Chairman of the Board, or its President, a
Co-President or one of its Vice Presidents. The Debt Securities shall be so
executed under the Company's corporate seal reproduced thereon and attested to
by its Secretary or any one of its Assistant Secretaries. The signature of any
of these officers on the Debt Securities may be manual or facsimile.
Debt Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Debt
Securities or did not hold such offices at the date of such Debt Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Debt Securities of any series executed
by the Company to the Trustee for the Debt Securities of such series for
authentication, together with a Company Order for the authentication and
delivery of such Debt Securities, and such Trustee, in accordance with the
Company Order, shall authenticate and deliver such Debt Securities. If all the
Debt Securities of any one series are not to be issued at one time and if a
Board Resolution relating to such Debt Securities shall so permit, such Company
Order may set forth procedures acceptable to the Trustee for the issuance of
such Debt Securities, including, without limitation, procedures with respect to
interest rate, Stated Maturity, date of issuance and date from which interest,
if any, shall accrue.
Notwithstanding any contrary provision herein, if all Debt Securities
of a series are not to be originally issued at one time, it shall not be
necessary to deliver the Board Resolution, Officers' Certificate and Opinion of
Counsel otherwise required pursuant to Sections 1.2 and 2.1 at or prior to the
time of authentication of each Debt Security of such series if such documents
are delivered at or prior to the authentication upon original issuance of the
first Debt Security of such series to be issued.
Each Debt Security shall be dated the date of its authentication.
No Debt Security shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Debt
Security a certificate of authentication substantially in the form provided for
herein manually executed by the Trustee for such Debt Security or on its behalf
pursuant to Section 6.14, and such certificate upon any Debt Security shall
<PAGE> 24
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be conclusive evidence, and the only evidence, that such Debt Security has been
duly authenticated and delivered hereunder.
If the Company shall establish pursuant to Section 3.1 that the Debt
Securities of a series are to be issued in whole or in part in the form of one
or more Global Securities, then the Company shall execute and the Trustee shall,
in accordance with Section 3.3 and the Company Order with respect to such
series, authenticate and deliver one or more Global Securities in temporary or
permanent form that (i) shall represent and shall be denominated in an amount
equal to the aggregate principal amount of the Outstanding Debt Securities of
such series to be represented by one or more Global Securities, (ii) shall be
registered in the name of the U.S. Depositary for such Global Security or
Securities or the nominee of such depositary, and (iii) shall bear a legend
substantially to the following effect: "This Debt Security 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 or
a nominee of such successor Depositary, unless and until this Debt Security is
exchanged in whole or in part for Debt Securities in definitive form" and such
other legend as may be required by the U.S. Depositary.
SECTION 3.4 Temporary Debt Securities and Exchange of Debt
Securities.
----------------------------------------------
Pending the preparation of definitive Debt Securities of any particular
series, the Company may execute, and upon Company Order the Trustee for the Debt
Securities of such series shall authenticate and deliver, temporary Debt
Securities which are printed, lithographed, typewritten, photocopied or
otherwise produced, in any denomination, with like terms and conditions as the
definitive Debt Securities of like series in lieu of which they are issued, and
with such appropriate insertions, omissions, substitutions and other variations
as the officers executing such Debt Securities may determine, as evidenced by
their execution of such Debt Securities.
If temporary Debt Securities of any particular series are issued, the
Company will cause definitive Debt Securities of that series to be prepared
without unreasonable delay. After the preparation of such definitive Debt
Securities, the temporary Debt Securities of such series shall be exchangeable
for such definitive Debt Securities and of a like Stated Maturity and with like
terms and provisions upon surrender of the temporary Debt Securities of such
series at the office or agency of the Company in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Debt Securities of any particular series, the Company shall
execute and (in accordance with a Company Order delivered at or prior to the
authentication of the first definitive Debt Security of such series) the Trustee
for the Debt Securities of such series shall authenticate and deliver in
exchange therefor a like principal amount of definitive Debt Securities of
authorized denominations of the same series and of a like Stated Maturity and
with like terms and provisions. Until exchanged as hereinabove provided, the
temporary Debt Securities of any series shall in all respects be entitled to the
same benefits under this Indenture as definitive Debt
<PAGE> 25
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Securities of the same series and with like terms and conditions authenticated
and delivered hereunder.
SECTION 3.5 Registration, Registration of Transfer and Exchange.
---------------------------------------------------
The Company shall keep or cause to be kept for the Debt Securities of
each series a register (the register maintained in such office being herein
sometimes referred to as the "Debt Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration, registration of transfer and exchange of Debt Securities.
Securities Transfer Company is hereby initially appointed "Debt Security
Registrar" for such purposes.
Upon surrender for registration of transfer of any Debt Security of any
particular series at the office or agency of the Company in a Place of Payment
for that series, the Company shall execute, and the Trustee for the Debt
Securities of each series shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Debt Securities of any
authorized denominations, and of a like Stated Maturity and of a like series and
aggregate principal amount and with like terms and conditions.
Except as set forth below, at the option of the Holder, Debt Securities
of any particular series may be exchanged for other Debt Securities of any
authorized denominations, and of a like Stated Maturity and of a like series and
aggregate principal amount and with like terms and conditions, upon surrender of
the Debt Securities to be exchanged at such office or agency. Whenever any Debt
Securities are so surrendered for exchange, the Company shall execute, and the
Trustee for such Debt Securities shall authenticate and deliver, the Debt
Securities which the Holder making the exchange is entitled to receive.
All Debt Securities issued upon any registration of transfer or
exchange of Debt Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Debt Securities surrendered upon such registration of transfer
or exchange.
Every Debt Security presented or surrendered for registration of
transfer or exchange shall (if so required by the Company or the Trustee for
such Debt Security) be duly endorsed, or be accompanied by a written instrument
of transfer in form satisfactory to the Company and the Debt Security Registrar
for such series 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 Debt Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or
<PAGE> 26
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exchange of Debt Securities, other than exchanges pursuant to Section 3.4, 9.6,
11.3 or 11.7 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange Debt Securities of any series during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of
redemption of Debt Securities of that series selected for redemption under
Section 11.5 and ending at the close of business on the day of the mailing of
the relevant notice of redemption, or (ii) to register the transfer of or
exchange any Debt Security so selected for redemption as a whole or in part,
except the unredeemed portion of any Debt Security being redeemed in part.
Notwithstanding any other provision of this Section, unless and until
it is exchanged in whole or in part for Debt Securities in definitive form, a
Global Security representing all or a portion of the Debt Securities of a series
may not be transferred except as a whole by the U.S. Depositary for such series
to a nominee of such U.S. Depositary or by a nominee of such U.S. Depositary to
such depositary or another nominee of such U.S. Depositary or by such U.S.
Depositary or any other such nominee to a successor U.S. Depositary for such
series or a nominee of such successor U.S.
Depositary.
If at any time the U.S. Depositary for the Debt Securities of a series
notifies the Company that it is unwilling or unable to continue as U.S.
Depositary for the Debt Securities of such series or if at any time the U.S.
Depositary for Debt Securities of such series shall no longer be a clearing
agency registered and in good standing under the Exchange Act or other
applicable statute or regulation, the Company shall appoint a successor U.S.
Depositary for the Debt Securities of such series. If a successor U.S.
Depositary for the Debt Securities is not appointed by the Company within 90
days after the Company receives such notice or becomes aware of such condition,
the Company will execute, and the Trustee, upon receipt of a Company Order for
the authentication and delivery of definitive Debt Securities of such series,
will authenticate and deliver, Debt Securities of such series in definitive form
in an aggregate principal amount equal to the principal amount of the Global
Security or Securities representing such series in exchange for such Global
Security or Securities.
The Company may at any time and in its sole discretion determine that
the Debt Securities of any series issued in the form of one or more Global
Securities shall no longer be represented by such Global Security or Securities.
In such event, the Company will execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of definitive Debt Securities
of such series, will authenticate and deliver, Debt Securities of such series in
definitive form and in an aggregate principal amount equal to the principal
amount of the Global Security or Securities representing such series in exchange
for such Global Security or Securities.
<PAGE> 27
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If the Debt Securities of any series shall have been issued in the form
of one or more Global Securities and if an Event of Default with respect to the
Debt Securities of such series shall have occurred and be continuing, the
Company will promptly execute, and the Trustee, upon receipt of a Company Order
for the authentication and delivery of definitive Debt Securities of such
series, will authenticate and deliver Debt Securities of such series in
definitive form and in an aggregate principal amount equal to the principal
amount of the Global Security or Securities representing such series in exchange
for such Global Security or Securities.
If specified by the Company pursuant to Section 3.1 with respect to the
Debt Securities of a series, the U.S. Depositary for such series of Debt
Securities may surrender a Global Security for such series of Debt Securities in
exchange in whole or in part for Debt Securities of such series of like tenor
and terms and in definitive form on such terms as are acceptable to the Company
and such U.S. Depositary. Thereupon, the Company shall execute and the Trustee
shall authenticate and deliver, without charge:
(i) to each Person specified by the U.S. Depositary a new Debt
Security or Securities of the same series, of like tenor and terms and
of any authorized denomination as requested by such Person in an
aggregate principal amount equal to and in exchange for such Person's
beneficial interest in the Global Security; and
(ii) to the U.S. Depositary a new Global Security in a
denomination equal to the difference, if any, between the principal
amount of the surrendered Global Security and the aggregate principal
amount of the Debt Securities delivered to Holders thereof.
Upon the exchange of a Global Security for Debt Securities in
definitive form, such Global Security shall be canceled by the Trustee.
Definitive Debt Securities issued in exchange for a Global Security pursuant to
this Section shall be registered in such names and in such authorized
denominations as the U.S. Depositary for such Global Security, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such definitive Debt Securities
to the Persons in whose names such Debt Securities are so registered.
SECTION 3.6 Mutilated, Destroyed, Lost and Stolen Debt
Securities.
------------------------------------------
If (i) any mutilated Debt Security is surrendered to the Trustee for
such Debt Security, or the Company and the Trustee for a Debt Security receive
evidence to their satisfaction of the destruction, loss or theft of any Debt
Security, and (ii) there is delivered to the Company, the Debt Security
Registrar and such Trustee such security or indemnity as may be required by them
to save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or such Trustee that such Debt Security has
been acquired by a protected purchaser, the Company shall execute and upon its
request such Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Debt Security or in exchange for such mutilated Debt
Security, a new Debt
<PAGE> 28
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Security of the same series and in a like principal amount and of a like Stated
Maturity and with like terms and conditions and bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Debt Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Debt Security, pay such Debt Security (without
surrender thereof except in the case of a mutilated Debt Security) if the
applicant for such payment shall furnish to the Company, the Debt Security
Registrar and the Trustee for such Debt Security such security or indemnity as
may be required by them to save each of them harmless, and in case of
destruction, loss or theft, evidence satisfactory to the Company and such
Trustee and any agent of either of them of the destruction, loss or theft of
such Debt Security and the ownership thereof.
Upon the issuance of any new Debt Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including all fees and expenses of the Trustee and the Debt Security
Registrar for such Debt Security) connected therewith.
Every new Debt Security of any series issued pursuant to this Section
in lieu of any destroyed, lost or stolen Debt Security or in exchange for any
mutilated Debt Security shall constitute an original additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Debt
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 Debt Securities of the same series, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) the assertion of any Holder of all other rights and remedies with
respect to the replacement or payment of mutilated, destroyed, lost or stolen
Debt Securities.
SECTION 3.7 Payment of Interest; Interest Rights Preserved.
----------------------------------------------
Interest on any Debt Security which is payable, and is punctually paid
or duly provided for, on any Interest Payment Date shall, if so provided in such
Debt Security, be paid to the Person in whose name that Debt Security (or one or
more Predecessor Debt Securities) is registered at the close of business on the
Regular Record Date for such interest payment.
Unless otherwise provided with respect to the Debt Securities of any
series, payment of interest may be made at the option of the Company by check
mailed or delivered to the address of the Person entitled thereto as such
address shall appear in the Debt Security Register or by transfer to an account
maintained by the payee with a bank located inside the United States.
<PAGE> 29
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Any interest on any Debt Security of any particular series 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 registered Holder on the relevant Regular Record Date by virtue
of having been such Holder; and such Defaulted Interest may be paid by the
Company, at its election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Debt Securities of that series (or their
respective Predecessor Debt Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which shall
be fixed in the following manner. The Company shall notify the Trustee for the
Debt Securities of such series in writing of the amount of Defaulted Interest
proposed to be paid on each Debt Security of that series and the date of the
proposed payment, and at the same time the Company shall deposit with such
Trustee an amount of money (except as otherwise specified pursuant to Section
3.1 for the Debt Securities of such series) equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to such 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 such Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest which shall not be 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 such Trustee of the notice of the proposed payment. Such
Trustee shall promptly notify the Company of such Special Record Date and, in
the name and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder of Debt Securities of that
series at such Holder's address as it appears in the Debt Security Register not
less than 10 days prior to such Special Record Date. Such Trustee may, in its
discretion, in the name and at the expense of the Company, cause a similar
notice to be published at least once in a newspaper published in the English
language customarily on each Business Day and of general circulation in New
York, New York, but such publication shall not be a condition precedent to the
establishment of such Special Record Date. Notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor having been mailed
as aforesaid, such Defaulted Interest shall be paid to the Persons in whose
names the Debt Securities of that series (or their respective Predecessor Debt
Securities) are registered on such Special Record Date and shall no longer be
payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on Debt
Securities of any particular series in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Debt Securities
may be listed, and upon such notice as may be required by such exchange, if,
after notice is given by the Company to the Trustee for the Debt Securities of
such series of the proposed manner of payment pursuant to this clause, such
manner of payment shall be deemed practicable by such Trustee.
<PAGE> 30
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Subject to the foregoing provisions of this Section and Section 3.5,
each Debt Security delivered under this Indenture upon registration of transfer
of or in exchange for or in lieu of any other Debt Security shall carry the
rights to interest accrued and unpaid, and to accrue, which were carried by such
other Debt Security.
SECTION 3.8 Persons Deemed Owners.
----------------------
Prior to due presentment of a Debt Security for registration of
transfer, the Company, the Trustee for such Debt Security and any agent of the
Company or such Trustee may treat the Person in whose name any such Debt
Security is registered as the owner of such Debt Security for the purpose of
receiving payment of principal of (and premium, if any) and (subject to Section
3.7) interest, if any, on such Debt Security and for all other purposes
whatsoever, whether or not such Debt Security be overdue, and neither the
Company, such Trustee nor any agent of the Company or such Trustee shall be
affected by notice to the contrary.
SECTION 3.9 Cancellation.
------------
All Debt Securities surrendered for payment, redemption, registration
of transfer or exchange, or delivered in satisfaction of any sinking fund
payment, shall, if surrendered to any Person other than the Trustee for such
Debt Securities, be delivered to such Trustee and shall be promptly canceled by
the Trustee. The Company may at any time deliver to the Trustee for Debt
Securities of a series for cancellation any Debt Securities previously
authenticated and delivered hereunder which the Company may have acquired in any
manner whatsoever, and all Debt Securities so delivered shall be promptly
canceled by such Trustee. Notwithstanding any other provision of this Indenture
to the contrary, in the case of a series, all the Debt Securities of which are
not to be originally issued at one time, a Debt Security of such series shall
not be deemed to have been Outstanding at any time hereunder if and to the
extent that, subsequent to the authentication and delivery thereof, such Debt
Security is delivered to the Trustee for such Debt Security for cancellation by
the Company or any agent thereof upon the failure of the original purchaser
thereof to make payment therefor against delivery thereof, and any Debt Security
so delivered to such Trustee shall be promptly canceled by it. No Debt
Securities shall be authenticated in lieu of or in exchange for any Debt
Securities canceled as provided in this Section, except as expressly permitted
by this Indenture. All canceled Debt Securities held by the Trustee for such
Debt Securities shall be disposed of by such Trustee in accordance with its
standard procedures and, upon written request from the Company, a certificate of
disposition evidencing such disposition of Debt Securities shall be provided to
the Company by such Trustee.
<PAGE> 31
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SECTION 3.10 Computation of Interest.
------------------------
Except as otherwise specified as contemplated by Section 3.1 for Debt
Securities of any particular series, interest on the Debt Securities of each
series shall be computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE 4.
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Debt Securities of any
Series.
----------------------------------------------------
(a) The Company shall be deemed to have satisfied and
discharged the entire indebtedness on all the Debt Securities of any particular
series and, so long as no Event of Default shall be continuing, the Trustee for
the Debt Securities of such series, upon Company Request and at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of such indebtedness, when:
(1) either
(A) all Debt Securities of such series theretofore
authenticated and delivered (other than (i) any Debt Securities of such series
which have been destroyed, lost or stolen and which have been replaced or paid
as provided in Section 3.6 and (ii) Debt Securities of such series for whose
payment money has theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or discharged from
such trust, as provided in the last paragraph of Section 10.3) have been
delivered to such Trustee for cancellation; or
(B) with respect to all Outstanding Debt Securities of such
series described in (A) above not theretofore so delivered to the Trustee for
the Debt Securities of such series for cancellation:
(i) the Company has deposited or caused to
be deposited with such Trustee as trust funds in
trust an amount (except as otherwise specified
pursuant to Section 3.1 for the Debt Securities of
such series), sufficient to pay and discharge the
entire indebtedness on all such Outstanding Debt
Securities of such series for principal (and premium,
if any) and interest, if any, to the Stated Maturity
or any Redemption Date as contemplated by Section
4.2, as the case may be; or
<PAGE> 32
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(ii) the Company has deposited or caused to
be deposited with such Trustee as obligations in
trust such amount of U.S. Government Obligations as
will, as evidenced by a Certificate of a Firm of
Independent Public Accountants delivered to such
Trustee, together with the predetermined and certain
income to accrue thereon (without consideration of
any reinvestment thereof), be sufficient to pay and
discharge when due the entire indebtedness on all
such Outstanding Debt Securities of such series for
unpaid principal (and premium, if any) and interest,
if any, to the Stated Maturity or any Redemption Date
as contemplated by Section 4.2, as the case may be;
or
(iii) the Company has deposited or caused to
be deposited with such Trustee in trust an amount
equal to the amount referred to in clause (i) or (ii)
in any combination;
(2) the Company has paid or caused to be paid all other sums
payable with respect to the Debt Securities of such series;
(3) the Company has delivered to such 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 the
entire indebtedness on all Debt Securities of such series have been complied
with; and
(4) if the Debt Securities of such series are not to become
due and payable at their Stated Maturity within one year of the date of such
deposit or are not to be called for redemption within one year of the date of
such deposit under arrangements satisfactory to such Trustee as of the date of
such deposit, then the Company shall have given, not later than the date of such
deposit, notice of such deposit to the Holders of such Debt Securities.
(b) Upon the satisfaction of the conditions set forth in this
Section 4.1 with respect to all the Debt Securities of any series, the terms and
conditions of such series, including the terms and conditions with respect
thereto set forth in this Indenture, shall no longer be binding upon, or
applicable to, the Company, and the Holders of the Debt Securities of such
series shall look for payment only to the funds or obligations deposited with
the Trustee pursuant to Section 4.1(a)(1)(B); provided, however, that in no
event shall the Company be discharged from (i) any payment obligations in
respect of Debt Securities of such series which are deemed not to be Outstanding
under clause (3) of the definition thereof if such obligations continue to be
valid obligations of the Company under applicable law, (ii) from any obligations
under Sections 4.2(b), 6.7 and 6.10 and (iii) from any obligations under
Sections 3.5 and 3.6 (except that Debt Securities of such series issued upon
registration of transfer or exchange or in lieu of mutilated, destroyed, lost or
stolen Debt Securities shall not be obligations of the Company) and Sections 7.1
and 10.2; and provided, further,
<PAGE> 33
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that in the event a petition for relief under the Bankruptcy Act of 1978 or
Title 11 of the United States Code or a successor statute is filed and not
discharged with respect to the Company within 91 days after the deposit, the
entire indebtedness on all Debt Securities of such series shall not be
discharged, and in such event the Trustee shall return such deposited funds or
obligations as it is then holding to the Company upon Company Request.
SECTION 4.2 Application of Trust Money.
--------------------------
(a) All money and obligations deposited with the Trustee for any series
of Debt Securities pursuant to Section 4.1 shall be held irrevocably in trust
and shall be made under the terms of an escrow trust agreement in form
satisfactory to such Trustee. Such money and obligations shall be applied by
such Trustee, in accordance with the provisions of the Debt Securities, this
Indenture and such escrow trust agreement, to the payment, either directly or
through any Paying Agent (including the Company acting as its own Paying Agent)
as such Trustee may determine, to the Persons entitled thereto, of the principal
of (and premium, if any) and interest, if any, on the Debt Securities for the
payment of which such money and obligations have been deposited with such
Trustee. If Debt Securities of any series are to be redeemed prior to their
Stated Maturity, whether pursuant to any optional redemption provisions or in
accordance with any mandatory sinking fund requirement, the Company shall make
such arrangements as are satisfactory to the Trustee for such series of Debt
Securities for the giving of notice of redemption by such Trustee in the name,
and at the expense, of the Company.
(b) The Company shall pay and shall indemnify the Trustee for any
series of Debt Securities against any tax, fee or other charge imposed on or
assessed against U.S. Government Obligations deposited pursuant to Section 4.1
or the interest and principal received in respect of such U.S. Government
Obligations other than any such tax, fee or other charge which by law is payable
by or on behalf of Holders. The obligation of the Company under this Section
4.2(b) shall be deemed to be an obligation of the Company under Section 6.7(2).
(c) Anything in this Article Four to the contrary notwithstanding, the
Trustee for any series of Debt Securities shall deliver or pay to the Company
from time to time upon Company Request any money or U.S. Government Obligations
held by it as provided in Section 4.1 which, as expressed in a Certificate of a
Firm of Independent Public Accountants delivered to such Trustee, are in excess
of the amount thereof which would then have been required to be deposited for
the purpose for which such money or U.S. Government Obligations were deposited
or received provided such delivery can be made without liquidating any U.S.
Government Obligations.
<PAGE> 34
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SECTION 4.3 Satisfaction and Discharge of Indenture.
---------------------------------------
Upon compliance by the Company with the provisions of Section 4.1 as to
the satisfaction and discharge of each series of Debt Securities issued
hereunder, and if the Company has paid or caused to be paid all other sums
payable under this Indenture, this Indenture shall cease to be of any further
effect (except as otherwise provided herein). Upon Company Request and receipt
of an Opinion of Counsel and an Officers' Certificate complying with the
provisions of Section 1.2, the Trustees for all series of Debt Securities (at
the expense of the Company) shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture.
Notwithstanding the satisfaction and discharge of this Indenture, any
obligations of the Company under Sections 3.4, 3.5, 3.6, 4.2(b), 6.7, 6.10, 7.1
and 10.2 and the obligations of the Trustee for any series of Debt Securities
under Section 4.2 shall survive.
SECTION 4.4 Reinstatement.
--------------
If the Trustee for any series of Debt Securities is unable to apply any
of the amounts (for purposes of this Section 4.4, "Amounts") or U.S. Government
Obligations, as the case may be, described in Section 4.1(a)(1)(B)(i) or (ii),
respectively, in accordance with the provisions of Section 4.1 by reason of any
legal proceeding or any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the Company's
obligations under this Indenture and the Debt Securities of such series shall be
revived and reinstated as though no deposit had occurred pursuant to Section 4.1
until such time as the Trustee for such series is permitted to apply all such
Amounts or U.S. Government Obligations, as the case may be, in accordance with
the provisions of Section 4.1; provided, however, that if, due to the
reinstatement of its rights or obligations hereunder, the Company has made any
payment of principal of (or premium, if any) or interest, if any, on such Debt
Securities, the Company shall be subrogated to the rights of the Holders of such
Debt Securities to receive payment from such Amounts or U.S. Government
Obligations, as the case may be, held by the Trustee for such series.
ARTICLE 5.
REMEDIES
SECTION 5.1 Events of Default.
-----------------
"Event of Default" wherever used herein with respect to any particular
series of Debt Securities, unless otherwise specified in the Debt Security or
the Board Resolution with respect to that series of Debt Securities, 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
<PAGE> 35
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pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(1) default in the payment of any installment of interest upon any Debt
Security of that series when it becomes due and payable, and continuance of such
default for a period of 30 days; or
(2) default in the payment of the principal of (or premium, if any, on)
any Debt Security of that series at its Maturity; or
(3) default in the performance of, or breach of, any covenant or
warranty of the Company in respect of any Debt Security of that series contained
in this Indenture or in such Debt Securities (other than a covenant or warranty
a default in whose performance or whose breach is elsewhere in this Section
specifically dealt with or which expressly has been included in this Indenture
solely for the benefit of Debt Securities of a series other than that series) or
in the applicable Board Resolution under which such series is issued as
contemplated by Section 3.1 and continuance of such default or breach for a
period of 60 days after there has been given, by registered or certified mail,
to the Company by the Trustee for the Debt Securities of such series or to the
Company and such Trustee by the Holders of at least 25% in principal amount of
the Outstanding Debt Securities of that series a written notice specifying such
default or breach and requiring it to be remedied and stating that such notice
is a "Notice of Default" hereunder; or
(4) if an event of default with respect to any other series of Debt
Securities or as defined in any mortgage, indenture, security agreement or other
instrument under which there may be issued, or by which there may be secured or
evidenced, any Indebtedness of the Company for money borrowed in excess of $10
million principal amount, whether such Indebtedness now exists or shall
hereafter be created, shall happen and, if such Indebtedness is not already
matured in accordance with its terms, shall result in such Indebtedness becoming
or being declared due and payable prior to the date on which it would otherwise
become due and payable, and such acceleration shall not have been rescinded or
annulled or such Indebtedness shall not have been discharged, in either case,
within a period of ten days after there has been given, by registered or
certified mail in the manner set forth in Section 1.5, to the Company by the
Trustee for the Debt Securities of that particular series referred to in the
first clause of this Section 5.1 or to the Company and such Trustee by the
Holders of at least 25% in principal amount of the Outstanding Debt Securities
of that particular series referred to in the first clause of this Section 5.1 a
written notice specifying such event of default and requiring the Company to
cause such acceleration to be rescinded or annulled or to cause such
Indebtedness to be discharged and stating that such notice is a "Notice of
Default" hereunder; provided, that if prior to the entry of judgment in favor of
the Trustee, such default under such indenture or instrument shall be remedied
or cured by the Company or waived by the holders of such Indebtedness, then the
Event of Default hereunder shall be deemed likewise to have been remedied, cured
or waived; and provided, further, that, if such default results from an action
of the United States government or a foreign government which prevents the
Company from performing its
<PAGE> 36
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obligations under such agreement, indenture or instrument, as evidenced by an
Officer's Certificate delivered to the Trustee, the occurrence of such default
will not be an Event of Default hereunder; and provided, further, however, that,
subject to the provisions of Sections 6.1 and 6.2, such Trustee shall not be
deemed to have knowledge of such default unless either (A) a Responsible Officer
of such Trustee assigned to its Corporate Trust Office shall have actual
knowledge of such default or (B) the Trustee shall have received written notice
thereof from the Company, from the Holders of 10% or more in principal amount of
the Outstanding Debt Securities of such other series, from the holder of any
such Indebtedness or from the trustee under any such mortgage, indenture,
security agreement or other instrument; or
(5) the entry against the Company of one or more judgments, decrees or
orders by a court having jurisdiction in the premises from which no appeal may
be or is taken for the payment of money, either individually or in the
aggregate, in excess of $10 million and the continuance of such judgment, decree
or order unsatisfied and in effect for any period of 60 consecutive days without
a stay of execution and there has been given, by registered or certified mail in
the manner set forth in Section 1.5, to the Company by the Trustee for the Debt
Securities of such series or to the Company and such Trustee by the Holders of
at least 25% in principal amount of the Outstanding Debt Securities of such
series a written notice specifying such entry and continuance of such judgment,
decree or order and stating that such notice is a "Notice of Default" hereunder;
provided, however, that subject to the provisions of Sections 6.1 and 6.2, such
Trustee shall not be deemed to have knowledge of such entry and continuance of
such judgment, decree or order unless either (A) a Responsible Officer of such
Trustee assigned to its Corporate Trust Office shall have actual knowledge
thereof or (B) the Trustee shall have received written notice thereof from the
Company or from the Holders of 10% or more in principal amount of the
Outstanding Debt Securities of such series; or
(6) the Company shall commence any case or proceeding seeking to have
an order for relief entered on its behalf as debtor or to adjudicate it as
bankrupt or insolvent or seeking reorganization, liquidation, dissolution,
winding-up, arrangement, composition or readjustment of its debts or any other
relief under any bankruptcy, insolvency, reorganization, liquidation,
dissolution, arrangement, composition, readjustment of debt or other similar act
or law of any jurisdiction, domestic or foreign, now or hereafter existing; or
the Company shall apply for a receiver, custodian or trustee (other than any
trustee appointed as a mortgagee or secured party in connection with the
issuance of indebtedness for borrowed money of the Company) of it or for all or
a substantial part of its property; or the Company shall make a general
assignment for the benefit of creditors; or the Company shall take any corporate
action in furtherance of any of the foregoing; or
(7) any case or proceeding against the Company shall be commenced
seeking to have an order for relief entered against it or to adjudicate it as
bankrupt or insolvent or seeking reorganization, liquidation, dissolution,
winding-up, arrangement, composition or readjustment of
<PAGE> 37
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its debts or any other relief under any bankruptcy, insolvency, reorganization,
liquidation, dissolution, arrangement, composition, readjustment of debt or
other similar act or law of any jurisdiction, domestic or foreign, now or
hereafter existing; or a receiver, custodian or trustee (other than any trustee
appointed as a mortgagee or secured party in connection with the issuance of
indebtedness for borrowed money of the Company) of the Company or for all or a
substantial part of its property shall be appointed in any such case or
proceeding; and such case or proceeding (A) results in the entry of an order for
relief or a similar order against it or (B) shall continue unstayed and in
effect for a period of 60 consecutive days.
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment.
--------------------------------------------------
If an Event of Default with respect to any particular series of Debt
Securities occurs and is continuing, then and in every such case either the
Trustee for the Debt Securities of such series or the Holders of not less than
25% in principal amount of the Outstanding Debt Securities of that series may
declare the entire principal amount (or, in the case of Discounted Debt
Securities, such lesser amount as may be provided for in the terms of that
series) of all the Debt Securities of that series to be due and payable
immediately, by a notice in writing to the Company (and to such Trustee if given
by Holders), and upon any such declaration of acceleration such principal or
such lesser amount, as the case may be, together with accrued interest and all
other amounts owing hereunder, shall become immediately due and payable, without
presentment, demand, protest or notice of any kind, all of which are hereby
expressly waived.
At any time after such a declaration of acceleration has been made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee for the Debt Securities of any series as hereinafter in this Article
provided, the Holders of a majority in principal amount of the Outstanding Debt
Securities of that series, by written notice to the Company and such Trustee,
may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with such Trustee a sum
sufficient to pay
(A) all overdue interest on all Debt Securities of that series;
(B) the principal of (and premium, if any, on) any Debt Securities of
that series which have become due otherwise than by such declaration of
acceleration and interest thereon from the date such principal became due at a
rate per annum equal to the rate borne by the Debt Securities of such series
(or, in the case of Discounted Debt Securities, the Debt Securities' Yield to
Maturity), to the extent that the payment of such interest shall be legally
enforceable;
(C) to the extent that payment of such interest is lawful, interest
upon overdue interest at a rate per annum equal to the rate borne by the Debt
Securities of such series (or, in the case of Discounted Debt Securities, the
Debt Securities' Yield to Maturity); and
<PAGE> 38
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(D) all sums paid or advanced by such Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of such Trustee,
its agents and counsel and all other amounts due to such Trustee under Section
6.7; and
(2) all Events of Default with respect to the Debt Securities of such
series, other than the nonpayment of the principal of Debt Securities of that
series which has become due solely by such acceleration, have been cured or
waived as provided in Section 5.13. No such rescission shall affect any
subsequent default or impair any right consequent thereon.
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement
by Trustee.
----------------------------------------------------
The Company covenants that if:
(1) default is made in the payment of any interest upon any Debt
Security of any series when such interest becomes due and payable and such
default continues for a period of 30 days; or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Debt Security of any series at its Maturity, the Company will, upon
demand of the Trustee for the Debt Securities of such series, pay to it, for the
benefit of the Holders of such Debt Securities, the whole amount then due and
payable on such Debt Securities for principal (and premium, if any) and
interest, if any, with interest upon the overdue principal (and premium, if any)
and, to the extent that payment of such interest shall be legally enforceable,
upon any overdue installments of interest at a rate per annum equal to the rate
borne by such Debt Securities (or, in the case of Discounted Debt Securities,
the Debt Securities' Yield to Maturity); and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
such Trustee, its agents and counsel and all other amounts due to such Trustee
under Section 6.7.
If the Company fails to pay such amounts forthwith upon such demand,
such Trustee, in its own name and as trustee of an express trust, may institute
a judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceedings to judgment or final decree, and may enforce the same
against the Company and collect the moneys adjudged or decreed to be payable in
the manner provided by law out of the property of the Company, wherever
situated.
If an Event of Default with respect to Debt Securities of any
particular series occurs and is continuing, the Trustee for the Debt Securities
of such series may in its discretion proceed to protect and enforce its rights
and the rights of the Holders of Debt Securities of that series by such
appropriate judicial proceedings as such 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.
<PAGE> 39
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SECTION 5.4 Trustee May File Proofs of Claim.
--------------------------------
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relating to the Company or the property of the Company or
its creditors, the Trustee for the Debt Securities of any series (irrespective
of whether the principal (or lesser amount in the case of Discounted Debt
Securities) of any Debt Security of such series shall then be due and payable as
therein expressed or by declaration or otherwise and irrespective of whether
such Trustee shall have made any demand on the Company for the payment of
overdue principal or interest) shall be entitled and empowered, by intervention
in such proceeding or otherwise
(i) to file and prove a claim for the whole amount of
principal (or lesser amount in the case of Discounted Debt
Securities) (and premium, if any) and interest, if any, owing
and unpaid in respect of the Debt Securities of such series
and to file such other papers or documents as may be necessary
or advisable in order to have the claims of such Trustee
(including any claim for the reasonable compensation,
expenses, disbursements and advances of such Trustee, its
agents and counsel and all other amounts due to such Trustee
under Section 6.7) and of the Holders of the Debt Securities
of such series allowed in such judicial proceeding;
(ii) to collect and receive any moneys or other
property payable or deliverable on any such claims and to
distribute the same; and
(iii) unless prohibited by law or applicable
regulations, to vote on behalf of the Holders of the Debt Securities of
such series in any election of a trustee in bankruptcy or other person
performing similar functions; and any receiver, assignee, trustee,
liquidator, sequestrator (or other similar official) in any such
judicial proceeding is hereby authorized by each Holder of Debt
Securities to make such payments to such Trustee, and in the event that
such Trustee shall consent to the making of such payments directly to
the Holders of Debt Securities, to pay to such Trustee any amount due
to it for the reasonable compensation, expenses, disbursements and
advances of such Trustee, its agents and counsel, and any other amounts
due such Trustee under Section 6.7.
Nothing herein contained shall be deemed to authorize the Trustee for
the Debt Securities of any series to authorize or consent to or accept or adopt
on behalf of any Holder of a Debt Security any plan of reorganization,
arrangement, adjustment or composition affecting the Debt Securities of such
series or the rights of any Holder thereof, or to authorize the Trustee for the
Debt Securities of any series to vote in respect of the claim of any Holder in
any such proceeding, except as aforesaid, for the election of a trustee in
bankruptcy or other person performing similar functions.
<PAGE> 40
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SECTION 5.5 Trustee May Enforce Claims Without Possession of
Debt Securities.
------------------------------------------------
All rights of action and claims under this Indenture or the Debt
Securities of any series may be prosecuted and enforced by the Trustee for the
Debt Securities of any series without the possession of any of the Debt
Securities of such series or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by such 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 such Trustee, its agents and counsel and all other
amounts due to such Trustee under Section 6.7, be for the ratable benefit of the
Holders of the Debt Securities of such series in respect of which such judgment
has been recovered.
SECTION 5.6 Application of Money Collected.
-------------------------------
Any money collected by the Trustee for the Debt Securities of any
series pursuant to this Article with respect to the Debt Securities of such
series shall be applied in the following order, at the date or dates fixed by
such Trustee and, in case of the distribution of such money on account of
principal (or premium, if any) or interest, if any, upon presentation of the
Debt Securities of such series 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 such Trustee under
Section 6.7;
Second: To the payment of the amounts then due and unpaid upon
the Debt Securities of such series for principal of (and premium, if
any) and interest, if any, on such Debt Securities in respect of which
or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts
due and payable on such Debt Securities for principal (and premium, if
any) and interest, if any, respectively; and
Third: The balance, if any, to the Person or Persons entitled
thereto.
SECTION 5.7 Limitation on Suits.
--------------------
No Holder of any Debt Security of any particular series shall have any
right to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
<PAGE> 41
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(1) an Event of Default with respect to that series shall have
occurred and be continuing and such Holder shall have previously given
written notice to the Trustee for the Debt Securities of such series of
such default and the continuance thereof;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Debt Securities of that series shall have made written
request to the Trustee for the Debt Securities of such series to
institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to such Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) such 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 such Trustee during such 60-day period by the Holders of
a majority in principal amount of the Outstanding Debt Securities of
that series; it being understood and intended that no Holder or Holders
of Debt Securities of that series 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 of Debt Securities of that series, 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 of Debt Securities of that
series.
SECTION 5.8 Unconditional Right of Holders to Receive Principal
(and Premium, if any) and Interest, if any.
---------------------------------------------------
Notwithstanding any other provision in this Indenture, the Holder of
any Debt 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 3.7) interest, if any, on such Debt Security on the respective Stated
Maturities expressed in such Debt Security (or, in the case of redemption, on
the Redemption Date) and to institute suit for the enforcement of any such
payment, and such right shall not be impaired without the consent of such
Holder.
SECTION 5.9 Restoration of Rights and Remedies.
----------------------------------
If the Trustee for the Debt Securities of any series or any Holder of a
Debt Security 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 such Trustee or to such Holder, then
and in every such case the Company, such Trustee and the Holders
<PAGE> 42
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of Debt Securities shall, subject to any determination in such proceeding, be
restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of such Trustee and such Holders shall
continue as though no such proceeding had been instituted.
SECTION 5.10 Rights and Remedies Cumulative.
-------------------------------
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Debt Securities in the last paragraph of
Section 3.6, no right or remedy herein conferred upon or reserved to the Trustee
for the Debt Securities of any series or to the Holders of Debt Securities is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 5.11 Delay or Omission Not Waiver.
-----------------------------
No delay or omission of the Trustee for the Debt Securities of any
series or of any Holder of any Debt Security of such series to exercise any
right or remedy accruing upon any Event of Default with respect to the Debt
Securities of such series shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein. Every right and
remedy given by this Article or by law to such Trustee for the Debt Securities
of any series or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by such Trustee or by the Holders, as the case may
be.
SECTION 5.12 Control by Holders.
-------------------
The Holders of a majority in principal amount of the Outstanding Debt
Securities of any particular series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee for the Debt Securities of such series with respect to the Debt
Securities of that series or exercising any trust or power conferred on such
Trustee with respect to such Debt Securities, provided that:
(1) such direction shall not be in conflict with any rule of law or
with this Indenture; and
(2) such Trustee may take any other action deemed proper by such
Trustee which is not inconsistent with such direction.
(3) subject to the provisions of Section 6.1, the Trustee shall have
the right to decline to follow such direction if a Responsible Officer or
Officers of the Trustee shall, in good faith,
<PAGE> 43
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determine that the proceeding so directed would be unjustly prejudicial to the
Holders not joining in any such direction or would involve the Trustee in
personal liability.
SECTION 5.13 Waiver of Past Defaults.
------------------------
The Holders of not less than a majority in principal amount of the
Outstanding Debt Securities of any particular series may on behalf of the
Holders of all the Debt Securities of that series waive any past default
hereunder with respect to that series and its consequences, except:
(1) a default in the payment of the principal of (or premium, if any)
or interest, if any, on any Debt Security of that series; or
(2) a default with respect to a covenant or provision hereof which
under Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Debt Security of that series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture, and any such waiver shall be binding upon all
subsequent Holders of such Indebtedness; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 5.14 Waiver of Stay or Extension Laws.
---------------------------------
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law, wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee for any series of Debt Securities, but will
suffer and permit the execution of every such power as though no such law had
been enacted.
SECTION 5.15 Undertaking for Costs.
----------------------
All parties to this Indenture agree, and each Holder of any Debt
Security by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party litigant;
but the
<PAGE> 44
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provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in principal
amount of the Outstanding Debt Securities of such series, or to any suit
instituted by any Holder for the enforcement of the payment of the principal of
(or premium, if any) or interest on any Debt Security on or after the Stated
Maturity or Maturities expressed in such Debt Security (or, in the case of
redemption, on or after the Redemption Date).
ARTICLE 6.
THE TRUSTEE
SECTION 6.1 Certain Duties and Responsibilities.
------------------------------------
(a) Except during the continuance of an Event of Default with
respect to the Debt Securities of any series for which the Trustee is serving as
such,
(1) such Trustee undertakes to perform such duties
and only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be
read into this Indenture against such Trustee; and
(2) in the absence of bad faith on its part, such
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to such
Trustee and conforming to the requirements of this Indenture;
but in the case of any such certificates or opinions which by
any provisions hereof are specifically required to be
furnished to such Trustee, such Trustee shall be under a duty
to examine the same to determine whether or not they conform
to the requirements of this Indenture.
(b) In case an Event of Default with respect to a series of
Debt Securities has occurred and is continuing, the Trustee for the Debt
Securities of such series shall exercise such of the rights and powers vested in
it by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent person would exercise or use under the circumstances in
the conduct of his or her own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee for Debt Securities of any series from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that no provision of this Indenture shall require the Trustee
for any series of Debt Securities 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.
<PAGE> 45
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(1) this Subsection shall not be construed to limit
the effect of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless
it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith
and in accordance with the direction of Holders pursuant to
Section 5.12 relating to the time, method and place of
conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the
Trustee, under this Indenture with respect to the Securities
of such series.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee for any series of Debt Securities
shall be subject to the provisions of this Section.
SECTION 6.2 Notice of Defaults.
-------------------
Within 90 days after the occurrence of any default hereunder with
respect to Debt Securities of any particular series, the Trustee for the Debt
Securities of such series shall give to Holders of Debt Securities of that
series, in the manner set forth in Section 1.6, notice of such default known to
such Trustee, unless such default shall have been cured or waived; provided,
however, that, except in the case of a default in the payment of the principal
of (or premium, if any) or interest, if any, on any Debt Security of that
series, or in the deposit of any sinking fund payment with respect to Debt
Securities of that series, such Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee or a
trust committee of directors and/or Responsible Officers of such Trustee in good
faith determines that the withholding of such notice is in the interest of the
Holders of Debt Securities of that series; and provided, further, that in the
case of any default of the character specified in Section 5.1(3) with respect to
Debt Securities of that series no such notice to Holders shall be given until at
least 60 days after the occurrence thereof. For the purpose of this Section, the
term "default" means any event which is, or after notice or lapse of time or
both would become, an Event of Default with respect to Debt Securities of that
series.
SECTION 6.3 Certain Rights of Trustee.
--------------------------
Except as otherwise provided in Section 6.1:
<PAGE> 46
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(a) the Trustee for any series of Debt Securities may rely and
shall be protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture such
Trustee shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, such Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith on
its part, rely upon an Officers' Certificate;
(d) such 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) such Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders of Debt Securities of any series pursuant to
this Indenture for which it is acting as Trustee, unless such Holders shall have
offered to such Trustee security or indemnity reasonably satisfactory to such
Trustee against the costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction;
(f) such 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 or other paper or document, but such Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters at it may
see fit, and, if such Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises
of the Company, personally or by agent or attorney; and
(g) such 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 such 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.
(h) the Trustee shall not be liable for any action taken,
suffered, or omitted to be taken by it in good faith and reasonably believed by
it to be authorized or within the discretion or rights or powers conferred upon
it by this Indenture.
<PAGE> 47
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(i) the Trustee shall not be charged with knowledge of any
default or Event of Default with respect to the Securities unless either (i) a
Responsible Officer assigned to the Corporate Trust Department of the Trustee
(or any successor division or department of the Trustee) shall have actual
knowledge of such default or Event of Default or (ii) written notice of such
default or Event of Default shall have been given to the Trustee by the Company
or by any Holder of the Securities.
SECTION 6.4 Not Responsible for Recitals or Issuance of Debt
Securities.
------------------------------------------------
The recitals contained herein and in the Debt Securities, except the
Trustee's certificates of authentication thereof, shall be taken as the
statements of the Company, and neither the Trustee for any series of Debt
Securities, nor any Authenticating Agent assumes any responsibility for their
correctness. The Trustee for any series of Debt Securities makes no
representations as to the validity or sufficiency of this Indenture or of the
Debt Securities of any series. Neither the Trustee for any series of Debt
Securities nor any Authenticating Agent shall be accountable for the use or
application by the Company of Debt Securities or the proceeds thereof.
SECTION 6.5 May Hold Debt Securities.
-------------------------
The Trustee for any series of Debt Securities, any Authenticating
Agent, Paying Agent, Debt Security Registrar or any other agent of the Company
or such Trustee, in its individual or any other capacity, may become the owner
or pledgee of Debt Securities and, subject to Sections 6.8 and 6.13, may
otherwise deal with the Company with the same rights it would have if it were
not such Trustee, Authenticating Agent, Paying Agent, Debt Security Registrar or
other agent.
SECTION 6.6 Money Held in Trust.
--------------------
Money held by the Trustee for any series of Debt Securities in trust
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee for any series of Debt Securities shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed with the Company.
SECTION 6.7 Compensation and Reimbursement.
-------------------------------
The Company agrees:
(1) to pay to the Trustee for any series of Debt Securities
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);
<PAGE> 48
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(2) except as otherwise expressly provided herein, to
reimburse the Trustee for any series of Debt Securities upon its
request for all reasonable expenses, disbursements and advances
incurred or made by such 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 such Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or
bad faith on its part, arising out of or in connection with the
acceptance or administration of this trust, including the costs and
expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or
duties hereunder. This indemnification shall survive the resignation or
removal of the Trustee and the termination of this Agreement.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 5.1(4) or (5) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under the Bankruptcy Reform Act of 1978 or any successor statute.
As security for the performance of the obligations of the Company under
this Section the Trustee for any series of Debt Securities shall have a lien
prior to the Debt Securities upon all property and funds held or collected by
such Trustee as such, except funds held in trust for the payment of principal of
(and premium, if any) or interest, if any, on any particular series Debt
Securities. Such lien shall survive satisfaction and discharge of this
Indenture.
SECTION 6.8 Disqualification; Conflicting Interests.
----------------------------------------
The Trustee for any series of Debt Securities shall be subject to and
comply with the provisions of Section 310(b) of the Trust Indenture Act during
the period of time required thereby. Nothing herein shall prevent the Trustee
for any series of Debt Securities from filing with the Commission the
application referred to in the penultimate paragraph of Section 310(b) of the
Trust Indenture Act. In determining whether the Trustee for any series of Debt
Securities has a conflicting interest as defined in Section 310(b) of the Trust
Indenture Act, the Debt Securities of any other series of Debt Securities shall
be excluded.
SECTION 6.9 Corporate Trustee Required, Different Trustees for
Different Series; Eligibility.
--------------------------------------------------
There shall at all times be a Trustee hereunder for the Debt Securities
of each series which satisfies the requirements of Trust Indenture Act Sections
310(a)(1), 310(a)(2) and 310(a)(5), has a combined capital and surplus of at
least $50,000,000 and is subject to supervision or examination
<PAGE> 49
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by Federal, State or District of Columbia authority. A different Trustee may be
appointed by the Company for each series of Debt Securities prior to the
issuance of such Debt Securities. If the initial Trustee for any series of Debt
Securities is to be other than The Chase Manhattan Bank, the Company and such
Trustee shall, prior to the issuance of such Debt Securities, execute and
deliver an indenture supplemental hereto, which shall provide for the
appointment of such Trustee as Trustee for the Debt Securities of such series
and shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee. If at any time the Trustee for the Debt Securities of
any series shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 6.10 Resignation and Removal; Appointment of Successor.
--------------------------------------------------
(a) No resignation or removal of the Trustee for the Debt
Securities of any series and no appointment of a successor Trustee pursuant to
this Article shall become effective until the acceptance of appointment by the
successor Trustee in accordance with the applicable requirements of Section
6.11.
(b) The Trustee for the Debt Securities of any series may
resign at any time with respect to the Debt Securities of such series by giving
written notice thereof to the Company. If the instrument of acceptance by a
successor Trustee required by Section 6.11 shall not have been delivered to the
Trustee for the Debt Securities of such series within 30 days after the giving
of such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Debt Securities of such series.
(c) The Trustee for the Debt Securities of any series may be
removed at any time with respect to the Debt Securities of such series by Act of
the Holders of a majority in principal amount of the Outstanding Debt Securities
of such series, delivered to such Trustee and to the Company. If an instrument
of acceptance by a successor Trustee shall not have been delivered to the
Trustee within 30 days after such removal, the Trustee being removed may
petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
(d) If at any time:
(1) the Trustee for the Debt Securities of any series shall
fail to comply with Section 310(b) of the Trust Indenture Act pursuant
to Section 6.8 after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Debt
<PAGE> 50
- 45 -
Security of such series for at least six months unless the Trustee's
duty to resign is stayed in accordance with Section 310(b) of the Trust
Indenture Act, or
(2) such Trustee shall cease to be eligible under Section 6.9
and shall fail to resign after written request therefor by the Company
or by any such Holder, or
(3) such Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of such Trustee or of
its property shall be appointed or any public officer shall take charge
or control of such Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may
remove such Trustee or (ii) any Holder who has been a bona fide Holder
of a Debt Security of such series for at least six months may, on
behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of such Trustee and the
appointment of a successor Trustee.
(e) If the Trustee for the Debt Securities of any series shall
resign, be removed or become incapable of acting, or if a vacancy shall occur in
the office of Trustee for the Debt Securities of any series for any cause, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee with
respect to the Debt Securities of such series and shall comply with the
applicable requirements of Section 6.11. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Debt Securities of such series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Debt Securities of such series delivered to the Company and the
retiring Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable requirements of
Section 6.11, become the successor Trustee for the Debt Securities of such
series and supersede the successor Trustee appointed by the Company. If no
successor Trustee for the Debt Securities of such series shall have been so
appointed by the Company or the Holders and shall have accepted appointment in
the manner required by Section 6.11, and if such Trustee is still incapable of
acting, any Holder who has been a bona fide Holder of a Debt Security of such
series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Debt Securities of such
series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Debt Securities of any series and
each appointment of a successor Trustee with respect to the Debt Securities of
any series in the manner and to the extent provided in Section 1.6. Each notice
shall include the name of the successor Trustee with respect to the Debt
Securities of that series and the address of its Corporate Trust Office.
<PAGE> 51
- 46 -
SECTION 6.11 Acceptance of Appointment by Successor.
--------------------------------------
(a) Every such successor Trustee appointed hereunder with respect to
the Debt Securities of any series shall execute, acknowledge and deliver to the
Company and to the retiring Trustee an instrument accepting such appointment,
and thereupon the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee; but, on the request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder, subject to the lien provided for in Section 6.7.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Debt Securities of one or more (but not all) series, the Company,
the retiring Trustee and each successor Trustee with respect to the Debt
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment
and which (1) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Debt Securities of that or those series to which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not retiring with
respect to all Debt Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Debt Securities of that or those
series as to which the retiring Trustee is not retiring shall continue to be
vested in the retiring Trustee and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and each Trustee shall be
trustee of a trust or trusts hereunder separate and apart from any trust or
trusts hereunder administered by any other such Trustee; and upon the execution
and delivery of such supplemental indenture the resignation or removal of the
retiring Trustee shall become effective to the extent provided therein and each
such successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Debt Securities of that or those series to which the
appointment of such successor Trustee relates; but, on request of the Company or
any successor Trustee, such retiring Trustee shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder with respect to the Debt Securities of that or those series to
which the appointment of such successor Trustee relates.
<PAGE> 52
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(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in Subsections (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee for the Debt Securities of any
series shall be qualified and eligible under this Article.
(e) Notwithstanding replacement of the Trustee pursuant to Section
6.10, the Company's obligations under Section 6.7 shall continue for the benefit
of the retiring Trustee with respect to expenses, losses and liabilities
incurred by it prior to such replacement.
SECTION 6.12 Merger, Conversion, Consolidation or Succession to
Business.
--------------------------------------------------
Any corporation into which the Trustee or the Authenticating Agent, as
the case may be, for the Debt Securities of any series 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 Trustee or such
Authenticating Agent, as the case may be, shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of such
Trustee, shall be the successor of such Trustee or such Authenticating Agent, as
the case may be, hereunder, provided such successor 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
or the Trustee, the Authenticating Agent or their respective successor
corporations. In case any Debt Securities shall have been authenticated, but not
delivered, by the Trustee or the Authenticating Agent for such series then in
office, any successor by merger, conversion or consolidation to such
authenticating Trustee or Authenticating Agent, as the case may be, may adopt
such authentication and deliver the Debt Securities so authenticated with the
same effect as if such successor Trustee or successor Authenticating Agent had
itself authenticated such Debt Securities.
SECTION 6.13 Preferential Collection of Claims Against Company.
--------------------------------------------------
The Trustee for any particular series of Debt Securities shall comply
with Section 311(a) of the Trust Indenture Act for that particular series of
Debt Securities, excluding any creditor relationship listed in Section 311(b) of
that Act. If the Trustee for any particular series of Debt Securities shall
resign or be removed as Trustee for that particular series of Debt Securities,
it shall be subject to Section 311(a) of the Trust Indenture Act to the extent
provided therein.
<PAGE> 53
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SECTION 6.14 Authenticating Agents.
----------------------
From time to time the Trustee for the Debt Securities of any series
may, subject to its sole discretion, appoint one or more Authenticating Agents
with respect to the Debt Securities of such series, which may include the
Company or any Affiliate of the Company, with power to act on the Trustee's
behalf and subject to its discretion in the authentication and delivery of Debt
Securities of such series in connection with transfers and exchanges hereunder,
including but not limited to those pursuant to Sections 3.4, 3.5, 3.6 and 11.7,
as fully to all intents and purposes as though such Authenticating Agent had
been expressly authorized by those Sections of this Indenture to authenticate
and deliver Debt Securities of such series. For all purposes of this Indenture,
the authentication and delivery of Debt Securities of such series by an
Authenticating Agent for such Debt Securities pursuant to this Section shall be
deemed to be authentication and delivery of such Debt Securities "by the
Trustee" for the Debt Securities of such series. Any such Authenticating Agent
shall at all times be a corporation organized and doing business under the laws
of the United States or of any State, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of at least
$50,000,000 and subject to supervision or examination by Federal, State or
District of Columbia authority. If such Authenticating Agent publishes reports
of condition at least annually pursuant to law or the requirements of such
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 an Authenticating Agent for any series of Debt
Securities 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 Authenticating Agent for any series of Debt Securities may resign
at any time by giving written notice of resignation to the Trustee for such
series and to the Company. The Trustee for any series of Debt Securities may at
any time terminate the agency of any Authenticating Agent by giving written
notice of termination to such Authenticating Agent and to the Company in the
manner set forth in Section 1.5. Upon receiving such a notice of resignation or
upon such a termination, or in case at any time any Authenticating Agent for any
series of Debt Securities shall cease to be eligible under this Section, the
Trustee for such series may appoint a successor Authenticating Agent, shall give
written notice of such appointment to the Company and shall give written notice
of such appointment to all Holders of Debt Securities of such series in the
manner set forth in Section 1.6. Any successor Authenticating Agent, upon
acceptance of its appointment hereunder, shall become vested with all the
rights, powers and duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent. No successor Authenticating Agent
shall be appointed unless eligible under the provisions of this Section.
The Company agrees to pay to any Authenticating Agent for such series
from time to time reasonable compensation for its services under this Section.
<PAGE> 54
- 49 -
If an appointment with respect to one or more series of Debt Securities
is made pursuant to this Section, the Debt Securities of such series may have
endorsed thereon, in addition to the Trustee's certification of authentication,
an alternate certificate of authentication in the following form:
"This is one of the Debt Securities, of the series designated herein, described
in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK
By:___________________________________
As Authenticating Agent
By:___________________________________
Authorized Officer
ARTICLE 7.
HOLDERS' REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1 Preservation of Information; Company to Furnish
Trustee Names and Addresses of Holders.
-----------------------------------------------
The Trustee for any particular series of Debt Securities shall preserve
in as current a form as is reasonably practicable the most recent list available
to it of the names and addresses of Holders of the Debt Securities of that
series. Neither the Company nor such Trustee shall be under any responsibility
with regard to the accuracy of such list. With respect to each series of Debt
Securities, the Company, in furnishing information regarding such Holders to
such Trustee, and such Trustee, will satisfy the requirements imposed upon each
of them by Section 312(a) of the Trust Indenture Act.
SECTION 7.2 Communications to Holders.
--------------------------
Holders of any particular series of Debt Securities may communicate
with other Holders of Debt Securities of that series with respect to their
rights under this Indenture or under such series of Debt Securities pursuant to
Section 312(b) of the Trust Indenture Act. The Company and the Trustee for any
particular series of Debt Securities and any and all other Persons benefitted by
this Indenture shall have the protection afforded by Section 312(c) of the Trust
Indenture Act.
<PAGE> 55
- 50 -
SECTION 7.3 Reports by Trustee.
-------------------
Within 60 days after May of each year commencing with the year
following the first issuance of Debt Securities, the Trustee for the Debt
Securities of each series shall transmit by mail to all Holders of the Debt
Securities of such series a brief report dated as of such date that complies
with Section 313(a) of the Trust Indenture Act, but only if such report is
required in any year under such Section 313(a) of the Trust Indenture Act. With
respect to each series of Debt Securities, the Trustee shall also comply with
Sections 313(b) and 313(c) of the Trust Indenture Act. At any time a report is
mailed to the Holders of any particular series of Debt Securities, a copy of
such report shall be filed with the Commission and with each securities
exchange, if any, on which the Debt Securities of such series are listed. With
respect to each series of Debt Securities, the Company will notify the
applicable Trustee when such series of Debt Securities is listed on any
securities exchange.
SECTION 7.4 Reports by Company
------------------
The Company shall file such annual (within 120 days after the end of
each calendar year) and/or periodic reports and certificates with the Trustees
for each series of Debt Securities and/or with the Commission and/or with the
Holders of each series of Debt Securities as are required by the provisions of
Section 314(a) of the Trust Indenture Act.
ARTICLE 8.
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 8.1 Company May Consolidate, Etc., Only on Certain Terms.
----------------------------------------------------
The Company shall not consolidate with or merge into any other Person
or sell, convey, assign, transfer, lease or otherwise dispose of all or
substantially all of its properties and assets as an entirety to any Person
unless:
(1) either (i) the Company shall be the continuing corporation
or (ii) the Person (if other than the Company) formed by such
consolidation or into which the Company is merged or the Person which
acquires by sale, assignment, conveyance, transfer, lease or
disposition all or substantially all of the properties and assets of
the Company as an entirety (x) shall be a corporation, partnership or
trust organized and validly existing under the laws of the United
States or any State thereof or the District of Columbia and (y) 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, if any, on all the Debt Securities and the performance and
observance of every covenant of this Indenture on the part of the
Company to be performed or observed;
<PAGE> 56
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(2) immediately after giving effect to such transaction (and
treating any Indebtedness not previously an obligation of the Company
or a Subsidiary which becomes the obligation of the Company or any of
its Subsidiaries in connection with or as a result of such transaction
as having been incurred at the time of such transaction), no Event of
Default, and no event which, after notice or lapse of time, or both,
would become an Event of Default, shall have occurred and be
continuing;
(3) such other conditions, if any, as may be set forth in the
Board Resolution establishing the Debt Securities of that particular
series are met or complied with; and
(4) the Company has delivered to the Trustee for each series
of Debt Securities an Officers' Certificate and an Opinion of Counsel
each stating that such consolidation, merger, conveyance or transfer
and such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction
have been complied with and the Trustee may rely upon such Officers'
Certificate and Opinion of Counsel as conclusive evidence that such
transaction complies with this Section 8.1.
SECTION 8.2 Successor Corporation Substituted.
----------------------------------
Upon any consolidation or merger, or any conveyance or transfer of the
properties and assets of the Company substantially as an entirety in accordance
with Section 8.1, the successor Person formed by such consolidation or into
which the Company is merged or to which such conveyance or transfer is made
shall succeed to, and be substituted for, and may exercise every right and power
of, the Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein and thereafter the predecessor
corporation shall be relieved of all obligations and covenants under this
Indenture and the Debt Securities and, in the event of any such consolidation,
merger, conveyance or transfer, the Company as the predecessor corporation may
thereupon or at any time thereafter be dissolved, wound up, or liquidated.
Such successor Person may cause to be signed, and may issue either in
its own name or in the name of the Company, any or all of the Securities
issuable hereunder which theretofore shall not have been signed by the Company
and delivered to the Trustee; and, upon the written order of such successor
Person instead of the Company and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and
shall make available for delivery any Securities which previously shall have
been signed and delivered by the officers of the Company to the Trustee for
authentication pursuant to such provisions and any Securities which such
successor Person thereafter shall cause to be signed and delivered to the
Trustee on its behalf for the purpose pursuant to such provisions. All the
Securities theretofore or thereafter issued in accordance with the terms of this
Indenture as though all of such Securities had been issued at the date of the
execution hereof.
<PAGE> 57
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In case of any consolidation, merger, sale, conveyance or lease, such
changes in phraseology and form may be made in the Securities thereafter to be
issued as may be appropriate.
SECTION 8.3 Opinion of Counsel to be Given to the Trustee.
----------------------------------------------
The Trustee shall be entitled to receive and, subject to Sections 6.1
and 6.2, shall be fully protected in relying upon an Opinion of Counsel as
conclusive evidence that any such consolidation, merger, sale, conveyance or
lease and any such assumption complies with the provisions of this Article 8.
ARTICLE 9.
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures Without Consent of Holders.
--------------------------------------------------
Without the consent of any Holders of Debt Securities, the Company,
when authorized by a Board Resolution, and the Trustee for the Debt Securities
of any or all series, at any time and from time to time, may enter into one or
more indentures supplemental hereto, in form satisfactory to such Trustee, for
any of the following purposes:
(1) to evidence the succession of another Person to the
Company pursuant to Article 8, and the assumption by any such successor
of the covenants of the Company herein and in the Debt Securities
contained; or
(2) to add to the covenants of the Company, for the benefit of
the Holders of all or any particular series of Debt Securities (and, if
such covenants are to be for the benefit of fewer than all series of
Debt Securities, stating that such covenants are being included solely
for the benefit of such series), or to surrender any right or power
herein conferred upon the Company; or
(3) to add any additional Events of Default with respect to
any or all series of Debt Securities (and, if any such Event of Default
applies to fewer than all series of Debt Securities, stating each
series to which such Event of Default applies); or
(4) to add to, change or eliminate any of the provisions of
this Indenture, provided, however, that any such addition, change or
elimination shall become effective only when there is no Debt Security
Outstanding of any series created prior to the execution of such
supplemental indenture which is entitled to the benefit of such
provision and as to which such supplemental indenture would apply; or
<PAGE> 58
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(5) to evidence and provide for the acceptance of appointment
hereunder of a Trustee other than The Chase Manhattan Bank as Trustee
for a series of Debt Securities and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 6.9; or
(6) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Debt Securities of
one or more series and to add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 6.11(b); or
(7) to establish the conditions, limitations and restrictions
on the authorized amount, form, terms or purposes of issue,
authentication and delivery of Debt Securities, as herein set forth,
and other conditions, limitations and restrictions thereafter to be
observed; or
(8) to supplement any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the
satisfaction and discharge of any series of Debt Securities pursuant to
Section 4.1; provided, however, that any such action shall not
adversely affect the interests of the Holders of Debt Securities of
such series or any other series of Debt Securities in any material
respect; or
(9) to add to or change or eliminate any provisions of this
Indenture as shall be necessary or desirable in accordance with any
amendments to the Trust Indenture Act; or
(10) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, to convey, transfer, assign, mortgage or pledge any property to
or with the Trustee for the Debt Securities of any series or to
surrender any right or power herein conferred upon the Company, or to
make any other provisions with respect to matters or questions arising
under this Indenture, provided such action shall not adversely affect
the rights of the Holders of Debt Securities of any particular series
in any material respect.
SECTION 9.2 Supplemental Indentures With Consent of Holders.
-----------------------------------------------
The Company, when authorized by a Board Resolution, and the Trustee for
the Debt Securities of any or all series may enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
of modifying in any manner the rights of the Holders of such Debt Securities
under this Indenture, but only with the consent of the Holders of more than 50%
in aggregate
<PAGE> 59
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principal amount of the Outstanding Debt Securities of each series of Debt
Securities then Outstanding affected thereby, in each case by Act of said
Holders of Debt Securities of each such series delivered to the Company and the
Trustee for Debt Securities of each such series; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Debt Security affected thereby:
(1) change the Stated Maturity of the principal of, or any installment
of principal of or interest on, any Debt Security, or reduce the principal
amount thereof or the rate of interest thereon, if any, or any premium payable
upon the redemption thereof, or reduce the amount of the principal of a
Discounted Debt Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 5.2, or change the
Place of Payment, 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 Debt
Securities of any particular series, the consent of whose Holders is required
for any such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture; or
(3) modify any of the provisions of this Section or Section 5.13 or
10.7, 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 Debt Security affected thereby; provided, however, that this
clause shall not be deemed to require the consent of any Holder of a Debt
Security with respect to changes in the references to "the Trustee" and
concomitant changes in this Section and Section 10.7, or the deletion of this
proviso, in accordance with the requirements of Sections 6.9, 6.11(b), 9.1(6)
and 9.1(7).
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Debt Securities, or which
modifies the rights of the Holders of Debt Securities of such series with
respect to such covenant or other provision, shall be deemed not to affect the
rights under this Indenture of the Holders of Debt Securities of any other
series.
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.
<PAGE> 60
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SECTION 9.3 Execution of Supplemental Indentures.
-------------------------------------
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee for any series of Debt
Securities shall be entitled to receive, and (subject to Section 6.1) shall be
fully protected in relying upon, in addition to the documents required by
Section 1.2, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The Trustee
for any series of Debt Securities may, but shall not be obligated to, enter into
any such supplemental indenture which affects such Trustee's own rights,
liabilities, duties or immunities under this Indenture or otherwise.
SECTION 9.4 Effect of Supplemental Indentures.
----------------------------------
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Debt Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
SECTION 9.5 Conformity With Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 9.6 Reference in Debt Securities to Supplemental
Indentures.
--------------------------------------------
Debt Securities of any particular series authenticated and delivered
after the execution of any supplemental indenture pursuant to this Article may,
and shall if required by the Trustee for the Debt Securities of such series,
bear a notation in form approved by such Trustee as to any matter provided for
in such supplemental indenture. If the Company shall so determine, new Debt
Securities of any series so modified as to conform, in the opinion of the
Trustee for the Debt Securities of such series and the Board of Directors, to
any such supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by such Trustee in exchange for Outstanding Debt
Securities of such series.
<PAGE> 61
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SECTION 9.7 Notice of Supplemental Indentures.
----------------------------------
Promptly after the execution by the Company and the appropriate Trustee
of any supplemental indenture pursuant to Section 9.2, the Company shall
transmit by mail to all Holders of any series of the securities affected
thereby, as their name and addresses appear in the Securities Register, a notice
setting forth in general terms the substance of each supplemental indenture.
ARTICLE 10.
COVENANTS
SECTION 10.1 Payment of Principal (and Premium, if any) and
Interest, if any.
----------------------------------------------
The Company agrees, for the benefit of each particular series of Debt
Securities, that it will duly and punctually pay (except as otherwise specified
pursuant to Section 3.1 for the Debt Securities of such series) the principal of
(and premium, if any) and interest, if any, on that series of Debt Securities in
accordance with the terms of the Debt Securities of such series and this
Indenture.
SECTION 10.2 Maintenance of Office or Agency.
--------------------------------
The Company will maintain in each Place of Payment for a series of Debt
Securities an office or agency where Debt Securities of that series may be
presented or surrendered for payment, where Debt Securities of that series may
be surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company with respect to the Debt Securities of that
series and this Indenture may be served. The Company will give prompt written
notice to the Trustee for the Debt Securities of that series of the location,
and any change in the location, of any such office or agency. If at any time the
Company shall fail to maintain any such required office or agency in respect of
any series of Debt Securities or shall fail to furnish the Trustee for the Debt
Securities of that series with the address thereof, such presentations (to the
extent permitted by law) and surrenders of Debt Securities of that series may be
made and notices and demands may be made or served at the Corporate Trust Office
of such Trustee, and the Company hereby appoints the same as its agent to
receive such respective presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies (in or outside the Place of Payment) where the Debt
Securities of one or more series may be presented or surrendered for any or all
of the purposes specified above in this Section and may from time to time
rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain
an office or agency in each Place of Payment for such purpose. The Company will
give prompt written notice to the Trustee
<PAGE> 62
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for the Debt Securities of each series so affected of any such designation or
rescission and of any change in the location of any such office or agency.
SECTION 10.3 Money for Debt Securities Payments to Be Held in
Trust.
------------------------------------------------
If the Company shall at any time act as its own Paying Agent with
respect to any particular series of Debt Securities, it will, on or not more
than one Business Day before each due date of the principal of (and premium, if
any) or interest, if any, on any of the Debt Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum (except as otherwise specified pursuant to Section 3.1 for the Debt
Securities of such series) sufficient to pay the principal (and premium, if any)
and interest, if any, so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided, and will promptly notify
the Trustee for the Debt Securities of such series of its action or failure so
to act.
Whenever the Company shall have one or more Paying Agents for any
particular series of Debt Securities, it will, prior to each due date of the
principal of (and premium, if any) or interest, if any, on any such Debt
Securities, deposit with a Paying Agent for the Debt Securities of such series a
sum sufficient to pay the principal (and premium, if any) and interest, if any,
so becoming due, such sum to be held in trust for the benefit of the Persons
entitled thereto, and (unless such Paying Agent is the Trustee for the Debt
Securities of such series) the Company will promptly notify such Trustee of its
action or failure so to act.
The Company will cause each Paying Agent for any particular series of
Debt Securities other than the Trustee for the Debt Securities of such series to
execute and deliver to such Trustee an instrument in which such Paying Agent
shall agree with such Trustee, subject to the provisions of this Section, that
such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest, if any, on Debt Securities of that series in trust
for the benefit of the Persons entitled thereto until such sums shall be paid to
such Persons or otherwise disposed of as herein provided;
(2) give such Trustee notice of any default by the Company in the
making of any payment of principal (or premium, if any) and interest, if any, on
Debt Securities of that series;
(3) at any time during the continuation of any such default, upon the
written request of such Trustee, forthwith pay to such Trustee all sums so held
in trust by such Paying Agent; and
(4) acknowledge, accept and agree to comply in all respects with the
provisions of this Indenture relating to the duties, rights and disabilities of
such Paying Agent.
<PAGE> 63
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The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee for the Debt
Securities of any series all sums held in trust by the Company or such Paying
Agent, such sums to be held by such Trustee upon the same trusts as those upon
which such sums were held by the Company or such Paying Agent; and, upon such
payment by any Paying Agent to such Trustee, such Paying Agent shall be released
from all further liability with respect to such money.
Any money deposited with the Trustee for the Debt Securities of any
series or any Paying Agent, or then held by the Company, in trust for the
payment of the principal of (and premium, if any) and interest, if any, on any
Debt Security of any particular series and remaining unclaimed for two years
after such principal (and premium, if any) and interest, if any, has become due
and payable shall, unless otherwise required by mandatory provisions of
applicable escheat, abandoned or unclaimed property law, be paid to the Company
on Company Request, or (if then held by the Company) shall be discharged from
such trusts; and the Holder of such Debt Security shall, thereafter, as an
unsecured general creditor, look only to the Company for payment thereof, and
all liability of such Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that such Trustee or such Paying Agent, before being
required to make any such repayment may mail written notice to each such Holder
of such Debt Security in the manner set forth in Section 1.5, or may, in its
discretion, in the name and at the expense of the Company, cause to be published
at least once in a newspaper published in the English language customarily on
each Business Day and of general circulation in the Borough of Manhattan, the
City of New York, notice, that such money remains unclaimed and that, after a
date specified therein, which shall not be less than 30 days from the date of
such mailing or publication, any unclaimed balance of such money then remaining
will, unless otherwise required by mandatory provisions of applicable escheat,
abandoned or unclaimed property law, be repaid to the Company.
SECTION 10.4 Payment of Taxes and Other Claims.
----------------------------------
The Company shall 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 it or upon its income, profits or
property, and (2) all lawful claims for labor, materials and supplies which, if
unpaid, might by law become a lien upon its property; provided, however, that
the Company 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.
<PAGE> 64
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SECTION 10.5 Maintenance of Properties.
--------------------------
The Company shall cause all its properties used or useful in the
conduct of its business to be maintained and kept in good condition, repair and
working order and supplied with all necessary equipment and will cause to be
made all necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Company may be necessary so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times; provided, however, that nothing in this Section shall
prevent the Company from discontinuing the operation and maintenance of any of
its properties if such discontinuance is, in the judgment of the Company,
desirable in the conduct of its business and not disadvantageous in any material
respect to the Holders.
SECTION 10.6 Corporate Existence.
--------------------
Subject to Article 8, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence, rights (charter and statutory) and franchises; provided, however,
that the Company shall not be required to preserve any right or franchise if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Holders; and
provided, further, however, that the foregoing shall not prohibit a sale,
transfer or conveyance of a Subsidiary or any of its assets in compliance with
the terms of this Indenture.
SECTION 10.7 Waiver of Certain Covenants.
----------------------------
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Sections 10.4 to 10.7, inclusive, or set
forth in any Board Resolution establishing the Debt Securities of a series, if
before or after the time for such compliance the Holders of more than 50% in
principal amount of the Outstanding Debt Securities of each series of Debt
Securities affected by the omission shall, in each case by Act of such Holders,
either waive such compliance in such instance or generally waive compliance with
such covenant or condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee for the Debt Securities of each series with respect to any such
covenant or condition shall remain in full force and effect.
<PAGE> 65
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ARTICLE 11.
REDEMPTION OF DEBT SECURITIES
SECTION 11.1 Applicability of this Article.
------------------------------
Redemption of Debt Securities of any series (whether by operation of a
sinking fund or otherwise) as permitted or required by any form of Debt Security
issued pursuant to this Indenture shall be made in accordance with such form of
Debt Security and this Article; provided, however, that if any provision of any
such form of Debt Security shall conflict with any provision of this Article,
the provision of such form of Debt Security shall govern.
SECTION 11.2 Election to Redeem; Notice to Trustee.
--------------------------------------
The election of the Company to redeem any Debt Securities of any series
shall be evidenced by or pursuant to a Board Resolution. In case of any
redemption at the election of the Company of less than all of the Debt
Securities of any particular series, the Company shall, at least 60 days prior
to the Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee for the Debt Securities of such series) notify such
Trustee by Company Request of such Redemption Date and of the principal amount
of Debt Securities of that series to be redeemed and shall deliver to such
Trustee such documentation and records as shall enable such Trustee to authorize
the Debt Security Registrar to select the Debt Securities to be redeemed
pursuant to Section 11.3. In the case of any redemption of Debt Securities of
any series prior to the expiration of any restriction on such redemption
provided in the terms of such Debt Securities or elsewhere in this Indenture,
the Company shall furnish the Trustee for Debt Securities of such series with an
Officers' Certificate and an Opinion of Counsel evidencing compliance with such
restriction.
SECTION 11.3 Selection by Debt Security Registrar of Debt
Securities to Be Redeemed.
--------------------------------------------
If less than all the Debt Securities are to be redeemed, the Company
may select the series to be redeemed, and if less than all the Debt Securities
of any series are to be redeemed, the particular Debt Securities of that series
to be redeemed shall be selected not more than 30 days prior to the Redemption
Date by the Debt Security Registrar for the Debt Securities of such series, from
the Outstanding Debt Securities of that series not previously called for
redemption, by such method as such Debt Security Registrar shall deem fair and
appropriate and which may provide for the selection for redemption of portions
(equal to the minimum authorized denomination for Debt Securities of that
series, or any integral multiple thereof) of the principal amount of Debt
Securities of that series of a denomination larger than the minimum authorized
denomination for Debt Securities of that series pursuant to Section 3.2.
<PAGE> 66
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The Debt Security Registrar for the Debt Securities of any series to be
redeemed shall promptly notify the Company in writing of the Debt Securities of
such series selected for redemption and, in the case of any Debt 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 Debt Securities shall
relate, in the case of any Debt Security redeemed or to be redeemed only in
part, to the portion of the principal amount of such Debt Securities which has
been or is to be redeemed.
SECTION 11.4 Notice of Redemption.
---------------------
Notice of redemption shall be given in the manner provided in Section
1.6 not later than the thirtieth day and not earlier than the sixtieth day prior
to the Redemption Date, to each Holder of Debt Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all Outstanding Debt Securities of a
particular series are to be redeemed, the identification (and, in the case of
partial redemption, the respective principal amounts) of the particular Debt
Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Debt Security or portion thereof, and that
interest thereon, if any, shall cease to accrue on and after said date,
(5) the place or places where such Debt Securities, are to be
surrendered for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the
case.
Notice of redemption of Debt Securities to be redeemed at the election
of the Company shall be given by the Company or, at the Company's request, by
the Trustee for such Debt Securities in the name and at the expense of the
Company.
<PAGE> 67
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SECTION 11.5 Deposit of Redemption Price.
----------------------------
Prior to the opening of business on any Redemption Date, the Company
shall deposit with the Trustee for the Debt Securities to be redeemed or with a
Paying Agent for such Debt Securities (or, if the Company is acting as its own
Paying Agent for such Debt Securities, segregate and hold in trust as provided
in Section 10.3) an amount of money (except as otherwise specified pursuant to
Section 3.1 for the Debt Securities of such Series) sufficient to pay the
principal amount of (and premium, if any, thereon), and (except if the
Redemption Date shall be an Interest Payment Date) any accrued interest on, all
the Debt Securities which are to be redeemed on that date.
SECTION 11.6 Debt Securities Payable on Redemption Date.
-------------------------------------------
Notice of redemption having been given as aforesaid, the Debt
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified (except as otherwise provided
pursuant to Section 3.1 for the Debt Securities of such series) and from and
after such date (unless the Company shall default in the payment of the
Redemption Price) such Debt Securities shall cease to bear interest. Upon
surrender of such Debt Security for redemption in accordance with said notice,
such Debt Security or specified portions thereof shall be paid by the Company at
the Redemption Price; provided, however, that unless otherwise specified as
contemplated by Section 3.1, installments of interest on Debt Securities whose
Stated Maturity is on or prior to the Redemption Date shall be payable to the
Holders of such Debt Securities, or one or more Predecessor Debt Securities,
registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 3.7.
If any Debt Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal thereof (and premium, if any,
thereon) shall, until paid, bear interest from the Redemption Date at a rate per
annum equal to the rate borne by the Debt Security (or, in the case of
Discounted Debt Securities, the Debt Security's Yield to Maturity).
SECTION 11.7 Debt Securities Redeemed in Part.
---------------------------------
Any Debt Security which is to be redeemed only in part shall be
surrendered at the Place of Payment (with, if the Company or the Trustee for
such Debt Security so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company and the Debt Security Registrar for
such Debt Security duly executed by, the Holder thereof or his attorney duly
authorized in writing), and the Company shall execute and such Trustee shall
authenticate and deliver to the Holder of such Debt Security without service
charge, a new Debt Security or Debt Securities, of any authorized denomination
as requested by such Holder, of the same series and having the same terms and
provisions and in an aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Debt Security so surrendered.
<PAGE> 68
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ARTICLE 12.
SINKING FUNDS
SECTION 12.1 Applicability of this Article.
------------------------------
Redemption of Debt Securities through operation of a sinking fund as
permitted or required by any form of Debt Security issued pursuant to this
Indenture shall be made in accordance with such form of Debt Security and this
Article; provided, however, that if any provision of any such form of Debt
Security shall conflict with any provision of this Article, the provision of
such form of Debt Security shall govern.
The minimum amount of any sinking fund payment provided for by the
terms of Debt Securities of any particular series is herein referred to as a
"mandatory sinking fund payment", and any payment in excess of such minimum
amount provided for by the terms of Debt Securities of any particular series is
herein referred to as an "optional sinking fund payment". If provided for by the
terms of Debt Securities of any particular series, the cash amount of any
sinking fund payment may be subject to reduction as provided in Section 12.2.
Each sinking fund payment shall be applied to the redemption of Debt Securities
of any particular series as provided for by the terms of Debt Securities of that
series.
SECTION 12.2 Satisfaction of Sinking Fund Payments With Debt
Securities.
-----------------------------------------------
The Company (1) may deliver Outstanding Debt Securities of a series
(other than any previously called for redemption), and (2) may apply as a credit
Debt Securities of a series which have been redeemed either at the election of
the Company pursuant to the terms of such Debt Securities or through the
application of permitted optional sinking fund payments pursuant to the terms of
such Debt Securities, in each case in satisfaction of all or any part of any
sinking fund payment with respect to the Debt Securities of such series required
to be made pursuant to the terms of such Debt Securities as provided for by the
terms of such series; provided, however, that such Debt Securities have not been
previously so credited. Such Debt Securities shall be received and credited for
such purpose by the Trustee for such Debt Securities at the principal amount
thereof and the amount of such sinking fund payment shall be reduced
accordingly.
SECTION 12.3 Redemption of Debt Securities for Sinking Fund.
-----------------------------------------------
Not less than 60 days prior to each sinking fund payment date for any
particular series of Debt Securities, the Company will deliver to the Trustee
for the Debt Securities of such series an Officers' Certificate specifying the
amount of the next ensuing mandatory sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by
<PAGE> 69
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payment of cash (except as otherwise specified pursuant to Section 3.1 for the
Debt Securities of that series) and the portion thereof, if any, which is to be
satisfied by delivering and crediting Debt Securities of that series pursuant to
Section 12.2 and shall state the basis for such credit and that such Debt
Securities have not previously been so credited and will also deliver to such
Trustee any Debt Securities to be so delivered. Such Trustee shall select the
Debt Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 11.3 and cause notice of the redemption thereof to be given
in the name of and at the expense of the Company in the manner provided in
Section 11.4. Such notice having been duly given, the redemption of such Debt
Securities shall be made upon the terms and in the manner stated in Sections
11.5, 11.6 and 11.7.
ARTICLE 13.
SUBORDINATION OF SECURITIES
SECTION 13.1 Debt Securities to Senior Indebtedness.
---------------------------------------
The Company covenants and agrees, and each Holder of a Debt Security,
by his acceptance thereof, likewise covenants and agrees, that, to the extent
and in the manner hereinafter set forth in this Article (subject to Article 4),
the payment of the principal of and interest on each and all of the Debt
Securities are hereby expressly made subordinate and subject in right of payment
to the prior payment in full in cash of all Senior Indebtedness.
This Article 13 shall constitute a continuing offer to all Persons who
become holders of, or continue to hold, Senior Indebtedness, and such provisions
are made for the benefit of the holders of Senior Indebtedness and such holders
are made obligees hereunder and any one or more of them may enforce such
provisions. Holders of Senior Indebtedness need not provide reliance on the
subordinated provisions hereof.
SECTION 13.2 Default on Senior Indebtedness.
-------------------------------
In the event and during the continuation of any default in the payment
of principal, premium, interest or any other payment due on any Senior
Indebtedness (and any applicable grace period with respect to such default has
ended and such default has not been cured or waived) or in the event that the
maturity of any Senior Indebtedness has been accelerated because of a default,
then, in either case, no payment shall be made by the Company with respect to
the principal (including redemption payments) of, or interest on, the
Securities.
In the event that, notwithstanding the foregoing, any payment shall be
received by the Trustee or any Holder when such payment is prohibited by the
preceding paragraph of this Section 13.2, such payment shall be held in trust
for the benefit of, and shall be paid over or delivered to, the holders of
Senior Indebtedness or their respective representatives, or to the trustee or
trustees under any indenture pursuant to which any of such Senior Indebtedness
may have been issued, as their respective interests may appear, but only to the
extent that the holders of the Senior Indebtedness (or their representative or
representatives or a trustee) notify the Trustee within 90 days
<PAGE> 70
- 65 -
of such payment of the amounts then due and owing on the Senior Indebtedness and
only the amounts specified in such notice to the Trustee shall be paid to the
holders of Senior Indebtedness.
SECTION 13.3 Liquidation; Dissolution; Bankruptcy.
-------------------------------------
Upon any payment by the Company, or distribution of assets of the
Company of any kind or character, whether in cash, property or securities, to
creditors upon any dissolution or winding-up or liquidation or reorganization of
the Company, whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other proceedings, all principal of, and premium, if any, and
interest due or to become due upon all Senior Indebtedness (including interest
after the commencement of any bankruptcy, insolvency, receivership or other
proceedings at the rate specified in the applicable Senior Indebtedness, whether
or not such interest is an allowable claim in any such proceeding) shall first
be paid in full, or payment thereof provided for in money in accordance with its
terms, before any payment is made on account of the principal or interest on the
Securities; and upon any such dissolution or winding-up or liquidation or
reorganization any payment by the Company, or distribution of substantially all
of the assets of the Company of any kind or character, whether in cash, property
or securities, to which the Holders of the Security or the Trustee would be
entitled, except for the provisions of this Article 13, shall be paid by the
Company or by any receiver, trustee in bankruptcy, liquidating trustee, agent or
other Person making such payment or distribution, or by the Holders of the
Securities or by the Trustee under this Indenture if received by them or it,
directly to the holders of Senior Indebtedness (pro rata to such holders on the
basis of the respective amounts of Senior Indebtedness held by such holders, as
calculated by the Company) or their representative or representatives, or to the
trustee or trustees under any indenture pursuant to which any instruments
evidencing any Senior Indebtedness may have been issued, as their respective
interests may appear, to the extent necessary to pay all Senior Indebtedness in
full (including interest after the commencement of any bankruptcy, insolvency,
receivership or other proceedings at the rate specified in the applicable Senior
Indebtedness, whether or not such interest is an allowable claim in any such
proceeding) or to provide for such payment in money in accordance with its
terms, after giving effect to any concurrent payment or distribution to or for
the holders of Senior Indebtedness, before any payment or distribution is made
to the Holders of Securities or to the Trustee. In the event that the Securities
are declared due and payable before the Maturity, then all amounts due on all
Senior Indebtedness shall have been paid in full (including interest after the
commencement of any bankruptcy, insolvency, receivership or other proceeding at
the rate specified in the applicable Senior Indebtedness, whether or not such
interest is an allowable claim in any such proceeding) before holders of the
Securities are entitled to receive or retain any payment.
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, prohibited by the foregoing, shall be received by the
Trustee or the Holders of the Securities before all Senior Indebtedness is paid
in full (including interest after the commencement of any bankruptcy,
insolvency, receivership or other proceedings at the rate specified in the
applicable Senior Indebtedness, whether or not such interest is an allowable
claim in any such proceeding), or provision is made for such payment in money in
accordance with its terms, such payment or distribution shall be held in trust
for the benefit of and shall be paid over or delivered to the holders
<PAGE> 71
- 66 -
of Senior Indebtedness or their representative or representatives, or to the
trustee or trustees under any indenture pursuant to which any instruments
evidencing any Senior Indebtedness may have been issued, as their respective
interests may appear, as calculated by the Company, for application to the
payment of all Senior Indebtedness remaining unpaid to the extent necessary to
pay all Senior Indebtedness in full in money in accordance with its terms, after
giving effect to any concurrent payment or distribution to or for the holders of
such Senior Indebtedness.
Any holder of Senior Indebtedness may file any proof of claim or
similar instrument on behalf of the Trustee and the Holders if such instrument
has not been filed by the date which is 30 days prior to the date specified for
filing thereof.
For purposes of this Article 13, the words "cash, property or
securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other Person
provided for by a plan of reorganization or readjustment, the payment of which
is subordinated at least to the extent provided in this Article 13 with respect
to the Securities to the payment of all Senior Indebtedness that may, at the
time, be outstanding, provided, however, that (i) the Senior Indebtedness is
assumed by the new Person, if any, resulting from any such reorganization or
readjustment, and (ii) the rights of the holders of the Senior Indebtedness are
not, without the consent of such holders, altered by such reorganization or
readjustment. The consolidation of the Company with, or the merger of the
Company into, another Person or the liquidation or dissolution of the Company
following the conveyance or transfer of its property as an entirety, or
substantially as an entirety, to another Person upon the terms and conditions
provided for in Article 8 hereof shall not be deemed a dissolution, winding-up,
liquidation or reorganization for the purposes of this Section 8 if such other
Person shall, as a part of such consolidation, merger, conveyance or transfer,
comply with the conditions stated in Article 8 hereof. Nothing in Section 13.2
or in this Section 13.3 shall apply to claims of, or payments to, the Trustee
under or pursuant to Section 6.7.
SECTION 13.4 Subrogation.
------------
Subject to the payment in full of all Senior Indebtedness, the rights
of the Holders of the Securities shall be subrogated to the rights of the
holders of Senior Indebtedness to receive payments or distributions of cash,
property or securities of the Company applicable to the Senior Indebtedness
until the principal of (and premium, if any) and interest on the Securities
shall be paid in full; and, for the purposes of such subrogation, no payments or
distributions to the holders of the Senior Indebtedness of any cash, property or
securities to which the Holders of the Securities or the Trustee would be
entitled except for the provisions of this Article 13, and no payment over
pursuant to the provisions of this Article 13, to or for the benefit of the
holders of Senior Indebtedness by Holders of the Securities or the Trustee,
shall, as between the Company, its creditors other than holders of Senior
Indebtedness, and the Holders of the Securities, be deemed to be a payment by
the Company to or on account of the Senior Indebtedness. It is understood that
the provisions of this Article 13 are and are intended solely for the purposes
of defining the relative rights of the Holders of the Securities, on the one
hand, and the holders of the Senior Indebtedness, on the other hand.
<PAGE> 72
- 67 -
Nothing contained in this Article 13 or elsewhere in this Indenture or
in the Securities is intended to or shall impair, as between the Company, its
creditors other than the holders of Senior Indebtedness, and the Holders of the
Securities, the obligation of the Company, which is absolute and unconditional,
to pay to the Holders of the Securities the principal of (and premium, if any)
and interest on the Securities as and when the same shall become due and payable
in accordance with their terms, or is intended to or shall affect the relative
rights of the Holders of the Securities and creditors of the Company other than
the holders of the Senior Indebtedness, nor shall anything herein or therein
prevent the Trustee or the Holder of any Security from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture, subject
to the rights, if any, under this Article 13 of the holders of Senior
Indebtedness in respect of cash, property or securities of the Company received
upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Company referred to
in this Article 13, the Trustee, subject to the provisions of Section 6.1, and
the Holders of the Securities, shall be entitled to rely upon any order or
decree made by any court of competent jurisdiction in which such dissolution,
winding-up, liquidation or reorganization proceedings are pending, or a
certificate of the receiver, trustee in bankruptcy, liquidation trustee, agent
or other Person making such payment or distribution, delivered to the Trustee or
to the Holders of the Securities, for the purposes of ascertaining the Persons
entitled to participate in such distribution, the holders of the Senior
Indebtedness and other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article 13.
SECTION 13.5 Trustee to Effectuate Subordination.
------------------------------------
Each Holder of a Security by acceptance thereof authorizes and directs
the Trustee on such Holder's behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article 13 and
appoints the Trustee such Holder's attorney-in-fact for any and all such
purposes.
SECTION 13.6 Notice by the Company.
----------------------
The Company shall give prompt written notice to a Responsible Officer
of the Trustee of any fact known to the Company that would prohibit the making
of any payment of monies to or by the Trustee in respect of the Securities
pursuant to the provisions of this Article 13. Notwithstanding the provisions
of this Article 13 or any other provision of this Indenture, the Trustee shall
not be charged with knowledge of the existence of any facts that would prohibit
the making of any payment of monies to or by the Trustee in respect of the
Securities pursuant to the provisions of this Article 13, unless and until a
Responsible Officer of the Trustee shall have received written notice thereof
at the Corporate Trust Office of the Trustee from the Company or a holder or
holders of Senior Indebtedness or from any trustee therefor; and before the
receipt of any such written notice, the Trustee, subject to the provisions of
Section 6.1, shall be entitled, in all respects, to assume that no such facts
exist; PROVIDED, HOWEVER, that if the Trustee shall not have received the
notice provided in this Section 13.6 at least two Business Days prior to the
date upon which by the terms hereof any money may become payable for any
purpose (including, without limitation, the payment of the
<PAGE> 73
- 68 -
principal of (or premium, if any) or interest on any Security), then, anything
herein contained to the contrary notwithstanding, the Trustee shall have full
power and authority to receive such money and to apply the same to the purposes
for which they were received, and shall not be affected by any notice to the
contrary that may be received by it within two Business Days prior to such
date.
The Trustee, subject to the provisions of Section 6.1, shall be
entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Indebtedness (or a trustee on
behalf of such holder) to establish that such notice has been given by a holder
of Senior Indebtedness or a trustee on behalf of any such holder or holders. In
the event that the Trustee determines, in good faith, that further evidence is
required with respect to the right of any Person as a holder of Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article 13, 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 13, and if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.
SECTION 13.7 Rights of the Trustee; Holders of Senior Indebtedness.
------------------------------------------------------
The Trustee, in its individual capacity, shall be entitled to all the
rights set forth in this Article 13 in respect of any Senior Indebtedness at any
time held by it, to the same extent as any other holder of Senior Indebtedness,
and nothing in this Indenture shall deprive the Trustee of any of its rights as
such holder. Nothing in this Article 13 shall apply to claims of, or payments
to, the Trustee under or pursuant to Section 6.7.
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 13, 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 Section 6.1, the Trustee shall not be liable to any holder of
Senior Indebtedness if it shall pay over or deliver to holders of Securities,
the Company or any other Person money or assets to which any holder of Senior
Indebtedness shall be entitled by virtue of this Article 13 or otherwise.
SECTION 13.8 Subordination May Not be Impaired.
----------------------------------
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall, at any time, in any way, be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by an
non-compliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof that any such holder may have or
otherwise be charged with.
Without, in any way, limiting the generality of the foregoing
paragraph, the holders of Senior Indebtedness may, at any time and from time to
time, without the consent of or notice to the Trustee
<PAGE> 74
- 69 -
or the Holders of the Securities, without incurring responsibility to the
Holders of the Securities and without impairing or releasing the subordination
provided in this Article or the obligations hereunder of the Holders of the
Securities to the holders of Senior Indebtedness, do any one or more of the
following: (i) change the manner, place or terms of payment or extend the time
of payment of, or renew or alter, Senior Indebtedness or otherwise amend or
supplement in any manner Senior Indebtedness or any instrument evidencing the
same or any agreement under which Senior Indebtedness is outstanding; (ii) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing Senior Indebtedness; (iii) release any Person liable in any
manner for the collection of Senior Indebtedness; and (iv) exercise or refrain
from exercising any rights against the Company and any other Person.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture dated
as of ___________, 1999 to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, all as of the ____ day of ________,
1999.
PROVIDENT FINANCIAL GROUP, INC.
[SEAL]
By:_____________________________
Title:_______________________
[SEAL] THE CHASE MANHATTAN BANK, Trustee
By:____________________________
Title________________________
<PAGE> 1
EXHIBIT 4.15
================================================================================
INDENTURE
DATED AS OF _______ __, 1999
BY AND BETWEEN
PROVIDENT FINANCIAL GROUP, INC.
AND
THE CHASE MANHATTAN BANK,
AS TRUSTEE
================================================================================
<PAGE> 2
Reconciliation and tie between the Trust Indenture Act of 1939
(including cross-references to provisions of Sections 310 to and including 317
which, pursuant to Section 318(c) of the Trust Indenture Act of 1939, as amended
by the Trust Reform Act of 1990, are a part of and govern the Indenture whether
or not physically contained therein) and this Indenture.
TRUST INDENTURE INDENTURE
ACT SECTION SECTION
- ----------- -------
Section 310 (a)(1), (2) and (5)............................6.9
(a)(3).........................................Not Applicable
(a)(4).........................................Not Applicable
(b)............................................6.8
............................................6.10
(c)............................................Not Applicable
Section 311 (a)............................................6.13(a)
(b)............................................6.13(b)
(b)(2).........................................7.3(a)(2)
............................................7.3(a)(2)
Section 312 (a)............................................7.1
............................................7.2(a)
(b)............................................7.2(b)
(c)............................................7.2(c)
Section 313 (a)............................................7.3(a)
(b)............................................7.3(b)
(c)............................................7.3(a), 7.3(b)
(d)............................................7.3(c)
Section 314 (a)(1), (2) and (3)............................7.4
(a)(4).........................................10.5
(b)............................................Not Applicable
(c)(1).........................................1.2
(c)(2).........................................1.2
(c)(3).........................................Not Applicable
(d)............................................Not Applicable
(e)............................................1.2
(f)............................................Not Applicable
Section 315 (a)............................................6.1(a)
(b)............................................6.2
............................................7.3(a)(6)
i
<PAGE> 3
TRUST INDENTURE INDENTURE
ACT SECTION SECTION
- ----------- -------
(c)............................................6.1(b)
(d)............................................6.1(c)
(d)(1).........................................6.1(a) (1)
(d)(2).........................................6.1(c) (2)
(d)(3).........................................6.1(c) (3)
(e)............................................5.14
Section 316 (a)............................................1.1
(a)(1)(A)......................................5.12
(a)(1)(B)......................................5.13
(a)(2).........................................Not Applicable
(b)............................................5.8
(c)............................................1.4(f)
Section 317 (a)(1).........................................5.3
(a)(2).........................................5.4
(b)............................................10.3
Section 318 (a)............................................1.7
- -------------
Note: This reconciliation and tie shall not, for any purpose, be deemed
to be a part of the Indenture.
ii
<PAGE> 4
TABLE OF CONTENTS
<TABLE>
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ARTICLE 1 DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION.................................................1
SECTION 1.1 Definitions.................................................................................1
SECTION 1.2 Compliance Certificate and Opinions........................................................10
SECTION 1.3 Forms of Documents Delivered to Trustee....................................................11
SECTION 1.4 Acts of Holders............................................................................11
SECTION 1.5 Notices, Etc. to Trustee and Company. .....................................................14
SECTION 1.6 Notice to Holders; Waiver..................................................................14
SECTION 1.7 Conflict with Trust Indenture Act..........................................................14
SECTION 1.8 Effect of Headings and Table of Contents...................................................15
SECTION 1.9 Successors and Assigns.....................................................................15
SECTION 1.10 Separability Clause.......................................................................15
SECTION 1.11 Benefits of Indenture.....................................................................15
SECTION 1.12 Governing Law.............................................................................15
SECTION 1.13 Non-Business Days.........................................................................15
ARTICLE 2 SECURITY FORMS.........................................................................................16
SECTION 2.1 Forms Generally............................................................................16
SECTION 2.2 Form of Face of Security...................................................................16
SECTION 2.3 Form of Reverse of Security................................................................20
SECTION 2.4 Additional Provisions Required in Global Security..........................................22
SECTION 2.5 Form of Trustee's Certificate of Authentication............................................23
ARTICLE 3 THE SECURITIES.........................................................................................23
SECTION 3.1 Title and Terms............................................................................23
SECTION 3.2 Denominations..............................................................................26
SECTION 3.3 Execution, Authentication, Delivery and Dating.............................................26
SECTION 3.4 Temporary Securities.......................................................................28
SECTION 3.5 Registration, Transfer and Exchange........................................................28
SECTION 3.6 Mutilated, Destroyed, Lost and Stolen Securities...........................................30
SECTION 3.7 Payment of Interest; Interest Rights Preserved.............................................31
SECTION 3.8 Persons Deemed Owners......................................................................33
SECTION 3.9 Cancellation...............................................................................33
SECTION 3.10 Computation of Interest...................................................................33
SECTION 3.11 Deferrals of Interest Payment Dates.......................................................33
SECTION 3.12 Right of Set-Off..........................................................................35
SECTION 3.13 Agreed Tax Treatment......................................................................35
SECTION 3.14 Shortening or Extension of Stated Maturity................................................35
SECTION 3.15 CUSIP Numbers.............................................................................35
</TABLE>
iii
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ARTICLE 4 SATISFACTION AND DISCHARGE ............................................................................36
SECTION 4.1 Satisfaction and Discharge of Indenture....................................................36
SECTION 4.2 Application of Trust Money.................................................................37
ARTICLE 5 REMEDIES ..............................................................................................37
SECTION 5.1 Events of Default..........................................................................37
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment.........................................38
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by Trustee............................40
SECTION 5.4 Trustee May File Proofs of Claim...........................................................41
SECTION 5.5 Trustee May Enforce Claims Without Possession of Securities................................42
SECTION 5.6 Application of Money Collected.............................................................42
SECTION 5.7 Limitation on Suits........................................................................42
SECTION 5.8 Unconditional Right of Holders to Receive Principal,
Premium and Interest; Direct Action by Holders of Capital Securities..................43
SECTION 5.9 Restoration of Rights and Remedies.........................................................43
SECTION 5.10 Rights and Remedies Cumulative............................................................44
SECTION 5.11 Delay or Omission Not Waiver..............................................................44
SECTION 5.12 Control by Holders........................................................................44
SECTION 5.13 Waiver of Past Defaults...................................................................45
SECTION 5.14 Undertaking for Costs.....................................................................45
SECTION 5.15 Waiver of Usury, Stay or Extension Laws...................................................46
ARTICLE 6 THE TRUSTEE ...........................................................................................46
SECTION 6.1 Certain Duties and Responsibilities........................................................46
SECTION 6.2 Notice of Defaults.........................................................................47
SECTION 6.3 Certain Rights of Trustee..................................................................48
SECTION 6.4 Not Responsible for Recitals or Issuance of Securities.....................................49
SECTION 6.5 May Hold Securities........................................................................49
SECTION 6.6 Money Held in Trust........................................................................49
SECTION 6.7 Compensation and Reimbursement.............................................................49
SECTION 6.8 Disqualification; Conflicting Interests....................................................50
SECTION 6.9 Corporate Trustee Required; Eligibility....................................................50
SECTION 6.10 Resignation and Removal; Appointment of Successor.........................................51
SECTION 6.11 Acceptance of Appointment by Successor....................................................53
SECTION 6.12 Merger, Conversion, Consolidation or Succession to Business...............................54
SECTION 6.13 Preferential Collection of Claims Against Company.........................................54
SECTION 6.14 Appointment of Authenticating Agent.......................................................54
</TABLE>
iv
<PAGE> 6
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ARTICLE 7 HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY .....................................................56
SECTION 7.1 Company to Furnish Trustee Names and Addresses of Holders..................................56
SECTION 7.2 Preservation of Information, Communications to Holders.....................................56
SECTION 7.3 Reports by Trustee.........................................................................57
SECTION 7.4 Reports by Company.........................................................................57
ARTICLE 8 CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE...................................................58
SECTION 8.1 Company May Consolidate, Etc., Only on Certain Terms.......................................58
SECTION 8.2 Successor Corporation Substituted. ........................................................58
SECTION 8.3 Opinion of Counsel to be Given to the Trustee. ............................................59
ARTICLE 9 SUPPLEMENTAL INDENTURES ...............................................................................59
SECTION 9.1 Supplemental Indentures without Consent of Holders.........................................59
SECTION 9.2 Supplemental Indentures with Consent of Holders............................................61
SECTION 9.3 Execution of Supplemental Indentures.......................................................62
SECTION 9.4 Effect of Supplemental Indentures..........................................................62
SECTION 9.5 Conformity with Trust Indenture Act........................................................63
SECTION 9.6 Reference in Securities to Supplemental Indentures.........................................63
SECTION 9.7 Notice of Supplemental Indentures..........................................................63
ARTICLE 10 COVENANTS.............................................................................................63
SECTION 10.1 Payment of Principal, Premium and Interest................................................63
SECTION 10.2 Maintenance of Office or Agency...........................................................63
SECTION 10.3 Money for Security Payments to be Held in Trust...........................................64
SECTION 10.4 Statement as to Compliance................................................................65
SECTION 10.5 Waiver of Certain Covenants...............................................................66
SECTION 10.6 Payment of Trust Costs and Expenses.......................................................66
SECTION 10.7 Additional Covenants......................................................................66
SECTION 10.8 Calculation of Original Issue Discount....................................................67
ARTICLE 11 REDEMPTION OF SECURITIES .............................................................................68
SECTION 11.1 Applicability of This Article.............................................................68
SECTION 11.2 Election to Redeem; Notice to Trustee.....................................................68
SECTION 11.3 Selection of Securities to be Redeemed....................................................68
SECTION 11.4 Notice of Redemption......................................................................69
SECTION 11.5 Deposit of Redemption Price...............................................................69
SECTION 11.6 Payment of Securities Called for Redemption...............................................70
SECTION 11.7 Right of Redemption of Securities Initially Issued to a Trust.............................70
</TABLE>
v
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ARTICLE 12 SINKING FUNDS.........................................................................................71
SECTION 12.1 Applicability of Article..................................................................71
SECTION 12.2 Satisfaction of Sinking Fund Payments with Securities.....................................71
SECTION 12.3 Redemption of Securities for Sinking Fund.................................................72
ARTICLE 13 SUBORDINATION OF SECURITIES...........................................................................73
SECTION 13.1 Securities Subordinate to Senior Debt. ...................................................73
SECTION 13.2 Payment Over of Proceeds Upon Dissolution, Etc............................................73
SECTION 13.3 Prior Payment to Senior Debt Upon Acceleration of Securities..............................75
SECTION 13.4 No Payment When Senior Debt in Default....................................................75
SECTION 13.5 Payment Permitted If No Default...........................................................76
SECTION 13.6 Subrogation to Rights of Holders of Senior Debt...........................................77
SECTION 13.7 Provisions Solely to Define Relative Rights...............................................77
SECTION 13.8 Trustee to Effectuate Subordination.......................................................78
SECTION 13.9 No Waiver of Subordination Provisions.....................................................78
SECTION 13.10 Notice to Trustee........................................................................78
SECTION 13.11 Reliance on Judicial Order or Certificate of Liquidating Agent...........................79
SECTION 13.12 Trustee Not Fiduciary for Holders of Senior Debt.........................................79
SECTION 13.13 Rights of Trustee as Holder of Senior Debt;
Preservation of Trustee's Rights......................................................80
SECTION 13.14 Article Applicable to Paying Agents......................................................80
SECTION 13.15 Certain Conversions or Exchanges Deemed Payment..........................................80
SECTION 13.16 Trust Moneys Not Subordinated............................................................80
</TABLE>
ANNEXES
Annex A Form of Declaration of Trust
Annex B Form of Amended and Restated Declaration of Trust
vi
<PAGE> 8
INDENTURE
This INDENTURE, dated as of ___________ __, 1999, is entered
into by and between PROVIDENT FINANCIAL GROUP, INC., an Ohio corporation
(hereinafter called the "Company") having its principal office at One East
Fourth Street, Cincinnati, Ohio 45202, and [THE CHASE MANHATTAN BANK], a New
York banking corporation, as Trustee (hereinafter called the "Trustee").
RECITALS OF THE COMPANY
WHEREAS, the Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its unsecured
junior subordinated debt securities in one or more series (the "Securities") of
substantially the tenor hereinafter provided, including, without limitation,
Securities issued to evidence loans made to the Company of the proceeds from the
issuance from time to time by one or more Delaware statutory business trusts
(each a "Trust," and, collectively, the "Trusts") of preferred interests in such
Trusts (the "Capital Securities") and common interests in such Trusts (the
"Common Securities" and, collectively with the Capital Securities, the "Trust
Securities"), and to provide the terms and conditions upon which the Securities
are to be authenticated, issued and delivered; and
WHEREAS, all things necessary to make the Securities, when executed by
the Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company, and to make this Indenture a
valid agreement of the Company, in accordance with their and its terms, have
been done;
NOW THEREFORE, THIS INDENTURE WITNESSETH: for and in consideration of
the premises and the purchase of the Securities by the holders thereof, it is
mutually covenanted and agreed, for the equal and proportionate benefit of all
holders of the Securities or of any series thereof, as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1 Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(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;
<PAGE> 9
2
(2) All other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) All accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles,
and the term "generally accepted accounting principles" with respect to any
computation required or permitted hereunder shall mean such accounting
principles which are generally accepted at the date or time of such computation;
provided that when two or more principles are so generally accepted, it shall
mean that set of principles consistent with those in use by the Company; and
(4) The words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Act" when used with respect to any Holder has the meaning assigned to
it in Section 1.4.
"Additional Interest" means the interest, if any, that shall accrue on
any interest on the Securities of any series the payment of which has not been
made on the applicable Interest Payment Date and which shall accrue at the rate
per annum specified or determined as specified in such Security from the
applicable Interest Payment Date.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person; provided, however, no Trust to which
Securities have been issued shall be deemed to be an Affiliate of the Company.
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 6.14 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Board of Directors" means the board of directors of the Company or any
duly authorized committee of the board or any director or directors and/or
officer or officers of the Company to whom either of such boards or committees
shall have duly delegated its authority.
"Board Resolution" means (1) a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors or the Executive Committee of the Board of Directors and
to be in full force and effect on the date of such certification, or (2) a
certificate signed by the director or directors or officer or officers to whom
the Board of Directors shall have duly delegated its authority, and delivered to
the Trustee.
<PAGE> 10
3
"Business Day" means any day other than (i) a Saturday or Sunday, (ii)
a day on which banking institutions in The City of New York are authorized or
required by law or executive order to remain closed or (iii) a day on which the
Corporate Trust Office of the Trustee, or, with respect to the Securities of a
series initially issued to a Trust, the principal office of the Property Trustee
under the related Trust Agreement, is closed for business.
"Capital Securities" has the meaning specified in the first recital of
this Indenture.
"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 Indenture such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Common Securities" has the meaning specified in the first recital of
this Indenture.
"Common Stock" means the common stock, without par value, of the
Company.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" and "Company Order" mean, respectively, a written
request or order signed in the name of the Company by (1) the Chairman of the
Board, a Vice Chairman of the Board, Chief Executive Officer, the President or a
Vice President and by the Treasurer, an Assistant Treasurer, an Assistant
Controller, the Secretary or an Assistant Secretary of the Company, or (2) by
any two Persons designated in a Company Order previously delivered to the
Trustee for the Debt Securities of any series by any two of the foregoing
officers and delivered to the Trustee for the Debt Securities of such series.
"Corporate Trust Office" means the principal office of the Trustee at
which at any particular time its corporate trust business shall be administered,
which at the date hereof is located at ]250 West Huron Road, Suite 220,
Cleveland, Ohio 44113, Attention: Corporate Trust Department].
"Corporation" includes a corporation, association, company, joint-stock
company or business trust.
"Defaulted Interest" has the meaning assigned to it in Section 3.7.
"Depositary" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more Global
Securities, the Person designated as Depositary by the Company pursuant to
Section 3.1 with respect to such series (or any successor thereto).
<PAGE> 11
4
"Discount Security" means any security which provides for an amount
less than the principal amount thereof to be due and payable upon a declaration
of acceleration of the Maturity thereof pursuant to Section 5.2.
"Distributions" means, with respect to the Trust Securities issued by a
Trust, amounts payable in respect of such Trust Securities as provided in the
related Trust Agreement and referred to therein as "Distributions."
"Dollar" means the currency of the United States of America that, as at
the time of payment, is legal tender for the payment of public and private
debts.
"Event of Default," unless otherwise specified in the supplemental
indenture creating a series of Securities has the meaning assigned to it in
Section 5.1.
"Exchange Act" means the Securities Exchange Act of 1934 and any
statute successor thereto, in each case as amended from time to time.
"Expiration Date" has the meaning assigned to it in Section 1.4(f).
"Extension Period" has the meaning assigned to it in Section 3.11.
"Federal Reserve" means the Board of Governors of the Federal Reserve
System, as from time to time constituted, or if at any time after the execution
of this Indenture the Federal Reserve is not existing and performing the duties
now assigned to it, then the body performing such duties at such time.
"Global Security" means a Security in the form prescribed in Section
2.4 evidencing all or part of a series of Securities, issued to the Depositary
or its nominee for such series, and registered in the name of such Depositary or
its nominee.
"Guarantee" means, with respect to the Trust Securities issued by a
Trust, the guarantee by the Company of Distributions on such Trust Securities to
the extent provided in the Guarantee Agreement.
"Guarantee Agreement" means, with respect to the Trust Securities
issued by a Trust, the Guarantee Agreement substantially in the form attached
hereto as Annex C, or substantially in such form as may be specified as
contemplated by Section 3.1 with respect to the Securities of any series, in
each case as amended from time to time.
"Holder" means a Person in whose name a Security is registered in the
Securities Register.
<PAGE> 12
5
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of each particular series of Securities established
as contemplated by Section 3.1.
"Interest Payment Date" means as to each series of Securities the
Stated Maturity of an installment of interest on such Securities.
"Investment Company Act" means the Investment Company Act of 1940, as
amended from time to time, or any successor legislation.
"Investment Company Event" means, with respect to a Trust, the receipt
by the Trust of an opinion of a nationally recognized independent counsel to the
effect that, as a result of the occurrence of a change in law or regulation or a
written change in interpretation or application of law or regulation by any
legislative body, court, governmental agency or regulatory authority (a "Change
in 1940 Act Law"), there is more than an insubstantial risk that the Trust is or
will be considered an "investment company" that is required to be registered
under the Investment Company Act, which Change in 1940 Act Law becomes effective
on or after the date of issuance of the Capital Securities of such Trust.
"Junior Subordinated Payment" has the meaning assigned to it in Section
13.2.
"Maturity" means, when used with respect to any Security, 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.
"Moody's" means Moody's Investors Service, Inc.
"Notice of Default" means a written notice of the kind specified in
Section 5.1(3).
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, a Vice Chairman of the Board, a Co-President or a Vice President (any
reference to a Vice President of the Company herein shall be deemed to include
any Vice President of the Company whether or not designated by a number or a
word or words added before or after the title "Vice President"), and by the
Treasurer, an Assistant Treasurer, the Controller, an Assistant Controller, the
Secretary or an Assistant Secretary of the Company, and delivered to the Trustee
for the Debt Securities of any series.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of or counsel to the Company, or other counsel satisfactory to the
Trustee for the Debt Securities of any series. An Opinion of Counsel may rely on
certificates as to matters of fact.
<PAGE> 13
6
"Original Issue Date" means the date of issuance specified as such in
each Security.
"Outstanding" means, when used in reference to any Securities, as of
the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(ii) Securities for whose payment or redemption price money in the
necessary amount has been theretofore deposited with the Trustee or any Paying
Agent in trust for the Holders of such Securities; and
(iii) Securities in substitution for or in lieu of which other
Securities have been authenticated and delivered or which have been paid
pursuant to Section 3.6, unless proof satisfactory to the Trustee is presented
that any such Securities are held by Holders in whose hands such Securities are
valid, binding and legal obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or 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 actually 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 Company or any other obligor upon the
Securities or any Affiliate of the Company or such other obligor. Upon the
written request of the Trustee, the Company shall furnish to the Trustee
promptly an Officers' Certificate listing and identifying all Securities, if
any, known by the Company to be owned or held by or for the account of the
Company or any other obligor on the Securities or any Affiliate of the Company
or such obligor, and, subject to the provisions of Section 6.1, the Trustee
shall be entitled to accept such Officers' Certificate as conclusive evidence of
the facts therein set forth and of the fact that all Securities not listed
therein are Outstanding for the purpose of any such determination.
"Paying Agent" means the Trustee or any Person authorized by the
Company to pay the principal of (or premium, if any) or interest on any
Securities on behalf of the Company. The Company may act as its own paying
agent.
<PAGE> 14
7
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment" means, with respect to the Securities of any series,
the place or places where the principal of (and premium, if any) and interest on
the Securities of such series are payable pursuant to Sections 3.1 and 3.11.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.6 in lieu of a lost, destroyed or
stolen Security shall be deemed to evidence the same debt as the lost, destroyed
or stolen Security.
"Proceeding" has the meaning assigned to it in Section 13.2.
"Property Trustee" means, in respect of any Trust, the commercial bank
or trust company identified as the "Property Trustee" in the related Trust
Agreement, solely in its capacity as Property Trustee of such Trust under such
Trust Agreement and not in its individual capacity, or its successor in interest
in such capacity, or any successor property trustee appointed as therein
provided.
"Redemption Date" means, when used with respect to any Security to be
redeemed, the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price" means, when used with respect to any Security to be
redeemed, the price at which it is to be redeemed pursuant to this Indenture.
"Regulatory Capital Event" means the receipt by the Trust of an opinion
of independent bank regulatory counsel experienced in such matters to the effect
that, as a result of (a) any amendment to or change (including any announced
prospective change) in the laws (or any regulations thereunder) of the United
States or any rules, guidelines or policies of the Federal Reserve or (b) any
official administrative pronouncement or judicial decision for interpreting or
applying such laws or regulations which amendment or change is effective or such
pronouncement or decision is announced on or after the date of original issuance
of the Capital Securities, the Capital Securities do not constitute, or within
90 days of the date thereof, will not constitute Tier I capital (or its then
equivalent); provided, however, that the distribution of the Securities in
connection with the liquidation of the Trust by the Debenture Issuer shall not
in and of itself constitute a Regulatory Capital Event unless such liquidation
shall have occurred in connection with a Tax Event or an Investment Company
Event.
<PAGE> 15
8
"Regular Record Date" for the interest payable on any Interest Payment
Date with respect to the Securities of a series means, unless otherwise provided
pursuant to Section 3.1 with respect to Securities of a series, (i) in the case
of Securities of a series represented by one or more Global Securities, the
Business Day next preceding such Interest Payment Date and (ii) in the case of
Securities of a series not represented by one or more Global Securities, the
date which is fifteen days next preceding such Interest Payment Date (whether or
not a Business Day).
"Regular Trustee" means, in respect of any Trust, each Person
identified as an "Regular Trustee" in the related Trust Agreement, solely in
such Person's capacity as Regular Trustee of such Trust under such Trust
Agreement and not in such Person's individual capacity, or any successor Regular
Trustee appointed as therein provided.
"Responsible Officer" means, when used with respect to the Trustee, (i)
any officer of the Trustee with direct responsibility for the administration of
this Indenture and (ii), with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his or her
knowledge of and familiarity with the particular subject.
"Rights Plan" means a plan of the Company providing for the issuance by
the Company to all holders of its Common Stock of rights entitling the holders
thereof to subscribe for or purchase shares of Common Stock or any class or
series of preferred stock of the Company, which rights (i) are deemed to be
transferred with such shares of Common Stock, (ii) are not exercisable and (iii)
are also issued in respect of future issuances of Common Stock, in each case
until the occurrence of a specified event or events.
"S&P" means Standard & Poor's Ratings Services, a division of the
McGraw Hill Companies, Inc.
"Securities" or "Security" means any debt securities or debt security,
as the case may be, authenticated and delivered under this Indenture.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 3.5.
"Senior Debt" means with respect to any Person, whether recourse is to
all or a portion of the assets of such Person and whether or not contingent, (i)
every obligation of such Person for money borrowed, (ii) every obligation of
such Person evidenced by bonds, debentures, notes or other similar instruments
of such Person, including obligations incurred in connection with the
acquisition of property, assets or businesses, (iii) every reimbursement
obligation of such Person with respect to letters of credit, bankers'
acceptances or similar facilities issued for the account of such Person, (iv)
every obligation of such Person issued or assumed as the deferred purchase price
of property or services, (v) every capital lease obligation of such Person, (vi)
every obligation of such Person for
<PAGE> 16
9
claims (as defined in Section 101(4) of the United States Bankruptcy Code of
1978, as amended) in respect of derivative products such as interest and foreign
exchange rate contracts, commodity contracts, options and swaps and similar
arrangements and (vii) every obligation of the type referred to in clauses (i)
through (vi) of another Person and all dividends of another Person the payment
of which, in either case, such Person has guaranteed or is responsible or
liable, directly or indirectly, as obligor or otherwise; provided that "Senior
Debt" shall not include (a) any obligations which, by their terms, are expressly
stated to rank pari passu in right of payment with, or to not be superior in
right of payment to, the Securities, (b) any obligations of the Company which
when incurred and without respect to any election under Section 1111(b) of the
United States Bankruptcy Code of 1978, as amended, was without recourse to the
Company, (c) any obligations of the Company to any of its subsidiaries, (d)
obligations of the Company to any employee or (e) any obligations in respect of
debt securities issued to any trust, or a trustee of such trust, partnership or
other entity affiliated with the Company that is a financing entity of the
Company in connection with the issuance by such financing entity of securities
that are similar to the Capital Securities, or (f) trade accounts payable or
accrued liabilities arising in the ordinary course of business.
"Special Record Date" means, for the payment of any Defaulted Interest,
a date fixed by the Trustee pursuant to Section 3.7.
"Stated Maturity" when used with respect to any Security or any
installment of principal thereof or interest thereon means the date specified
pursuant to the terms of such Security as the date on which the principal of
such Security or such installment of interest is due and payable, in the case of
such principal, as such date may be shortened as provided pursuant to the terms
of such Security and this Indenture.
"Subsidiary" means any corporation of which at least a majority of all
outstanding stock having ordinary voting power in the election of directors of
such corporation is at the time, directly or indirectly, owned by the Company or
by one or more Subsidiaries or by the Company and one or more Subsidiaries.
"Tax Event" means the receipt by the Trust of an opinion of independent
tax counsel experienced in such matters, to the effect that, as a result of (a)
any amendment to, change in or announced proposed change in the laws (or any
regulations thereunder) of the United States or any political subdivision or
taxing authority thereof or therein, or (b) any official administrative
pronouncement, action or judicial decision interpreting or applying such laws or
regulations, which such amendment or change becomes effective or proposed
change, pronouncement, action or decision is announced on or after the closing
date, there is more than an insubstantial risk that (i) the Trust is, or will be
within 90 days of the date of such opinion, subject to the United States federal
income tax with respect to income received or accrued on the Securities, (ii)
interest payable by the Company on the Securities is not, or within 90 days of
the date of such opinion, will not be, deductible by the Company, in whole or in
part, by the Company for United States federal income
<PAGE> 17
10
tax purposes, or (iii) the Trust is, or will be within 90 days of the date of
such opinion, subject to more than a de minimis amount of other taxes, duties or
other governmental charges.
"Trust" has the meaning specified in the first recital of this
Indenture.
"Trust Agreement" means, with respect to a Trust, a Declaration of
Trust substantially in the form attached hereto as Annex A, as amended by the
form of Amended and Restated Declaration of Trust substantially in the form
attached hereto as Annex B, or substantially in such form as may be specified as
contemplated by Section 3.1 with respect to the Securities of any series, in
each case as amended from time to time.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder and,
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 (15 U.S.C.
Section 77aaa-77bbb), as amended and as in effect on the date as of this
Indenture, except as provided in Section 9.5.
"Trust Securities" has the meaning specified in the first recital of
this Indenture.
"Vice President" means, when used with respect to the Company or the
Trustee, any duly appointed vice president, whether or not designated by a
number or a word or words added before or after the title "vice president."
SECTION 1.2 Compliance Certificate and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent
(including covenants, compliance with which constitutes a condition precedent),
if any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent (including covenants compliance with which
constitute a condition precedent), if any, have been complied with, except that
in the case of any such application or request as to which the furnishing of
such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than the
certificates provided pursuant to Section 10.5) shall include:
<PAGE> 18
11
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein relating
thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made or caused to be made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 1.3 Forms of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer or counsel 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 or her certificate or
opinion is based are erroneous. Any certificate or Opinion of Counsel may be
based, insofar as it relates to factual matters, upon a certificate or opinion
of, or representations by, an officer or officers of the Company stating that
the information with respect to such factual matters is in the possession of the
Company, unless such counsel rendering such Opinion of Counsel knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions, or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.4 Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given to or taken by
Holders may be embodied in and evidenced
<PAGE> 19
12
by one or more instruments of substantially similar tenor signed by such Holders
in person or by an agent or proxy duly appointed by such Holder in writing; and,
except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments is or are delivered to the
Trustee, and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent or proxy shall be sufficient for any purpose
of this Indenture and (subject to Section 6.1) conclusive in favor of the
Trustee and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any 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 Person acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority.
(c) The fact and date of the execution by any Person of any such
instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner which the Trustee deems sufficient and in
accordance with such reasonable rules as the Trustee may determine.
(d) The Securities Register shall be conclusive proof of the ownership
of Securities by a Holder.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon the
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
(f) The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities entitled to give, make or take
any request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted by this Indenture to be given, made or taken by
Holders of Securities of such series, provided that the Company may not set a
record date for, and the provisions of this paragraph shall not apply with
respect to, the giving or making of any notice, declaration, request or
direction referred to in the next paragraph. If any record date is set pursuant
to this paragraph, the Holders of the relevant Outstanding Securities on such
record date, and no other Holders, shall be entitled to take the relevant
action, whether or not such Holders remain Holders after such record date,
provided that no such action shall be effective hereunder unless taken on or
prior to the applicable Expiration Date by Holders of the requisite
<PAGE> 20
13
principal amount of the relevant Outstanding Securities on such record date.
Nothing in this paragraph shall be construed to prevent the Company from setting
a new record date for any action for which a record date has previously been set
pursuant to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be canceled and of no effect),
and nothing in this paragraph shall be construed to render ineffective any
action taken by Holders of the requisite principal amount of the relevant
Outstanding Securities on the date such action is taken. Promptly after any
record date is set pursuant to this paragraph, the Company, at its own expense,
shall cause notice of such record date, the proposed action by Holders and the
applicable Expiration Date to be given to the Trustee in writing and to each
Holder of the relevant Securities in the manner set forth in Section 1.6.
The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities entitled to join in the giving
or making of (i) any Notice of Default, (ii) any declaration of acceleration
referred to in Section 5.2, (iii) any request to institute proceedings referred
to in Section 5.7(2) or (iv) any direction referred to in Section 5.12, in each
case with respect to the relevant Securities. If any record date is set pursuant
to this paragraph, the Holders of the relevant Outstanding Securities on such
record date, and no other Holders, shall be entitled to join in such notice,
declaration, request or direction, whether or not such Holders remain Holders
after such record date, provided that no such action shall be effective
hereunder unless taken on or prior to the applicable Expiration Date by Holders
of the requisite principal amount of the relevant Outstanding Securities on such
record date. Nothing in this paragraph shall be construed to prevent the Trustee
from setting a new record date for any action for which a record date has
previously been set pursuant to this paragraph (whereupon the record date
previously set shall automatically and with no action by any Person be canceled
and of no effect), and nothing in this paragraph shall be construed to render
ineffective any action taken by Holders of the requisite principal amount of the
relevant Outstanding Securities on the date such action is taken. Promptly after
any record date is set pursuant to this paragraph, the Trustee, at the Company's
expense, shall cause notice of such record date, the proposed action by Holders
and the applicable Expiration Date to be given to the Company in writing and to
each Holder of the relevant Securities in the manner set forth in Section 1.6.
With respect to any record date set pursuant to this Section, the party
hereto which sets such record dates may designate any day as the "Expiration
Date" and from time to time may change the Expiration Date to any earlier or
later day, provided that no such change shall be effective unless notice of the
proposed new Expiration Date is given to the other party hereto in writing, and
to each Holder of the relevant Outstanding Securities in the manner set forth in
Section 1.6, on or prior to the existing Expiration Date. If an Expiration Date
is not designated with respect to any record date set pursuant to this Section,
the party hereto which set such record date shall be deemed to have initially
designated the 180th day after such record date as the Expiration Date with
respect thereto, subject to its right to change the Expiration Date as provided
in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be
later than the 180th day after the applicable record date.
<PAGE> 21
14
(g) Without limiting the foregoing, a Holder entitled hereunder to take
any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or by one or
more duly appointed agents each of which may do so pursuant to such appointment
with regard to all or any part of such principal amount.
SECTION 1.5 Notices, Etc. to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder, any holder of Capital Securities or the
Company shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Trustee at its Corporate Trust
Office or such other office or agency designated by the Trustee pursuant hereto,
or
(2) the Company by the Trustee, any Holder or any holder of Capital
Securities shall be sufficient for every purpose (except as otherwise provided
in Section 5.1) hereunder if in writing and mailed, first class, postage
prepaid, to the Company addressed to it at the address of its principal office
specified in the first paragraph of this instrument or at any other address
previously furnished in writing to the Trustee by the Company.
SECTION 1.6 Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first class postage prepaid, to each Holder affected
by such event, at the address of such Holder as it appears in the Securities
Register, not later than the latest date, and not earlier than the earliest
date, 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.
SECTION 1.7 Conflict with Trust Indenture Act.
If any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by any of Sections 310 to 317, inclusive, of the Trust
Indenture Act through operation of Section 318(c) thereof, such imposed duties
shall control.
<PAGE> 22
15
SECTION 1.8 Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 1.9 Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 1.10 Separability Clause.
In case any provision of this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 1.11 Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors and
assigns, the holders of Senior Debt, the Holders of the Securities and, to the
extent expressly provided in Sections 5.2, 5.8, 5.9, 5.11, 5.13, 9.1 and 9.2,
the holders of Capital Securities, any benefit or any legal or equitable right,
remedy or claim under this Indenture.
SECTION 1.12 Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 1.13 Non-Business Days.
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 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 (and no interest shall accrue for the period
from and after such Interest Payment Date, Redemption Date or Stated Maturity,
as the case may be, until such next succeeding Business Day) except that, if
such Business Day is in the next succeeding calendar year, such payment shall be
made on the immediately preceding Business Day (in each case with the same force
and effect as if made on the Interest Payment Date or Redemption Date or at the
Stated Maturity).
<PAGE> 23
16
ARTICLE 2
SECURITY FORMS
SECTION 2.1 Forms Generally.
The Securities of each series and the Trustee's certificate of
authentication shall be in substantially the forms set forth in this Article, or
in such other form or forms as shall be established by or pursuant to a Board
Resolution or in one or more indentures supplemental hereto, in each case with
such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture and may have such letters, numbers
or other marks of identification and such legends or endorsements placed thereon
as may be required to comply with applicable tax laws or the rules of any
securities exchange or automated quotation system on which the Securities may be
listed or traded or as may, consistently herewith, be determined by the officers
executing such Securities, as evidenced by their execution of the Securities. If
the form of Securities of any series is established by action taken pursuant to
a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 3.3 with respect to the authentication and delivery of
such Securities.
The Trustee's certificates of authentication shall be substantially in
the form set forth in this Article.
The definitive Securities shall be typewritten, printed, lithographed
or engraved or produced by any combination of these methods, if required by any
securities exchange or automated quotation system on which the Securities may be
listed or traded, on a steel engraved border or steel engraved borders or may be
produced in any other manner permitted by the rules of any securities exchange
or automated quotation system on which the Securities may be listed or traded,
all as determined by the officers executing such Securities, as evidenced by
their execution of such Securities.
SECTION 2.2 Form of Face of Security.
PROVIDENT FINANCIAL GROUP, INC.
___% JUNIOR SUBORDINATED DEBENTURES DUE ____
No. ____________________ CUSIP _________
$___________
PROVIDENT FINANCIAL GROUP, INC., a corporation organized and existing
under the laws of the State of Ohio (hereinafter called the "Company", which
term includes any successor corporation under the Indenture hereinafter referred
to), for value received, hereby promises to pay
<PAGE> 24
17
to [THE CHASE MANHATTAN BANK], as Property Trustee (the "Property Trustee") for
Provident Capital Trust II (the "Trust") at [250 West Huron Road, Suite 220,
Cleveland, Ohio 44113], or registered assigns, the principal sum of
___________________ on _______ __, ____; provided that the Company may, subject
to certain conditions set forth in Section 3.14 of the Indenture, shorten the
Stated Maturity of the principal of this Security to a date not earlier than
____ __, ____. The Company further promises to pay interest on said principal
sum from ____ __, ____ or from the most recent interest payment date (each such
date, an "Interest Payment Date") on which interest has been paid or duly
provided for, quarterly (subject to deferral as set forth herein) in arrears on
March 31, June 30, September 30 and December 31 of each year, commencing
September 30, 1999, at the rate of __% per annum, until the principal hereof
shall have become due and payable, plus Additional Interest, if any, until the
principal hereof is paid or duly provided for or made available for payment and
on any overdue principal and (without duplication and to the extent that payment
of such interest is enforceable under applicable law) on any overdue installment
of interest at the rate of __% per annum, compounded quarterly. The amount of
interest payable for any period shall be computed on the basis of twelve 30-day
months and a 360-day year. The amount of interest payable for any partial period
shall be computed on the basis of the number of days elapsed in a 360-day year
of twelve 30-day months. In the event that any date on which interest is payable
on this Security is not a Business Day, then a payment of the interest payable
on such date will be made on the next succeeding day which is a Business Day
(and without any interest or other payment in respect of any such delay), except
that, if such Business Day is in the next succeeding calendar year, such payment
shall be made on the immediately preceding Business Day, in each case with the
same force and effect as if made on the date the payment was originally payable.
A "Business Day" shall mean any day other than (i) a Saturday or Sunday, (ii) a
day on which banking institutions in The City of New York are authorized or
required by law or executive order to remain closed or (iii) a day on which the
Corporate Trust Office of the Trustee or the principal office of the Property
Trustee under the Trust Agreement hereinafter referred to for the Trust, is
closed for business. The interest installment so payable, and punctually paid or
duly provided for, on any Interest Payment Date will, as provided in the
Indenture, be paid to the Person in whose name this Security (or one or more
Predecessor Securities is registered at the close of business on the Regular
Record Date for such interest installment, which shall be (i) in the case of
Securities of a series represented by one or more Global Securities, the
Business Day next preceding such Interest Payment Date and (ii) in the case of
Securities of a series not represented by one or more Global Securities, the
date which is fifteen days next preceding such Interest Payment Date (whether or
not a Business Day). Any such interest installment not so punctually paid or
duly provided for shall forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose name this
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
of this series 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 or automated quotation system on
<PAGE> 25
18
which the Securities of this series may be listed or traded, and upon such
notice as may be required by such exchange or self-regulatory organization, all
as more fully provided in said Indenture.
So long as no Event of Default has occurred and is continuing, the
Company shall have the right at any time during the term of this Security to
defer payment of interest on this Security, at any time or from time to time,
for up to twenty consecutive quarterly interest payment periods with respect to
each deferral period (each an "Extension Period"), during which Extension
Periods the Company shall have the right to make partial payments of interest on
any Interest Payment Date, and at the end of which the Company shall pay all
interest then accrued and unpaid (together with Additional Interest thereon to
the extent permitted by applicable law); provided, however, that no Extension
Period shall extend beyond the Stated Maturity of the principal of this
Security; provided, further, that during any such Extension Period, the Company
shall not, and shall not permit any Subsidiary of the Company to, (i) declare or
pay any dividends or distributions on or redeem, purchase, acquire or make a
liquidation payment with respect to, any of the Company's capital stock or (ii)
make any payment of principal of or interest or premium, if any, on or repay,
repurchase or redeem any debt security of the Company that ranks pari passu with
or junior in interest to this Security or (iii) make any guarantee payments with
respect to any guarantee by the Company of the debt securities of any Subsidiary
of the Company if such guarantee ranks pari passu with or junior in interest to
this Security (other than (a) dividends or distributions in the Company's
capital stock, (b) any declaration of a dividend in connection with the
implementation of a Rights Plan or the redemption or repurchase of any rights
distributed pursuant to a Rights Plan, (c) payments under the Guarantee with
respect to this Security, and (d) purchases of Common Stock related to the
issuance of Common Stock or rights under any of the Company's benefit plans for
its directors, officers or employees, related to the issuance of Common Stock or
rights under a dividend reinvestment and stock purchase plan, or related to the
issuance of Common Stock (or securities convertible or exchangeable for Common
Stock) as consideration in an acquisition transaction that was entered into
prior to the commencement of such Extension Period. Prior to the termination of
any such Extension Period, the Company may further defer the payment of
interest, provided that no Extension Period shall exceed twenty consecutive
quarterly periods or extend beyond the Stated Maturity of the principal of this
Security. Upon the termination of any such Extension Period and upon the payment
of all accrued and unpaid interest and any Additional Interest then due, the
Company may elect to begin a new Extension Period, subject to the above
requirements. No interest shall be due and payable during an Extension Period
except at the end thereof. The Company shall give the Holder of this Security
and the Trustee notice of its election to begin any Extension Period at least
one Business Day prior to the next succeeding Interest Payment Date on which
interest on this Security would be payable but for such deferral or, with
respect to the Securities issued to a Trust, so long as such Securities are held
by such Trust, prior to the earlier of (i) the next succeeding date on which
Distributions on the Capital Securities would be payable but for such deferral
or (ii) the date the Administrative Trustees are required to give notice to any
securities exchange or other applicable self-regulatory organization or to
holders of such Capital Securities of the record date or the date such
Distributions are payable, but in any event not less than one Business Day prior
to such record date.
<PAGE> 26
19
Payment of principal of (and premium, if any) and interest on this
Security will be made at the office or agency of the Company maintained for that
purpose in the United States, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts; provided, however, that at the option of the Company payment of
interest may be made (i) by check mailed to the address of the Person entitled
thereto as such address shall appear in the Securities Register or (ii) by wire
transfer in immediately available funds at such place and to such account as may
be designated in writing at least 15 days before the relevant Interest Payment
Date by the Person entitled thereto as specified in the Securities Register.
The indebtedness evidenced by this Security is, to the extent provided
in the Indenture, subordinate and subject in right of payments to the prior
payment in full of all Senior Debt, and this Security is issued subject to the
provisions of the Indenture with respect thereto. Each Holder of this Security,
by accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Trustee on his behalf to take such actions as may be
necessary or appropriate to effectuate the subordination so provided and (c)
appoints the Trustee his attorney-in-fact for any and all such purposes. Each
Holder hereof, by his acceptance hereof, waives all notice of the acceptance of
the subordination provisions contained herein and in the Indenture by each
holder of Senior Debt, whether now outstanding or hereafter incurred, and waives
reliance by each such holder upon said provisions.
Reference is hereby made to the further provisions of 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.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
PROVIDENT FINANCIAL GROUP, INC.
By:
--------------------------------
Christopher J. Carey
Executive Vice President and
Chief Financial Officer
<PAGE> 27
20
Attest:
- -------------------------------------
Mark E. Magee
Corporate Secretary
SECTION 2.3 Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of _____ __, ____ (herein called the
"Indenture"), between the Company and [THE CHASE MANHATTAN BANK], as Trustee
(herein called the "Trustee", which term includes any successor trustee under
the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Trustee, the Company and the
Holders of the Securities, and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof, limited in aggregate principal amount to
$__________.
All terms used in this Security that are defined in the Indenture or in
the Amended and Restated Declaration of Trust, dated as of ____ __, ____, as
amended (the "Trust Agreement"), for Provident Capital Trust II (the "Trust"),
among the Company, as Depositor, and the Trustees named therein, shall have the
meanings assigned to them in the Indenture or in the Trust Agreement, as the
case may be.
The Company may at any time, at its option, on or after ____ __, ____,
and subject to the terms and conditions of Article 11 of the Indenture, redeem
this Security in whole at any time or in part from time to time, without premium
or penalty, at a redemption price equal to 100% of the principal amount thereof
plus accrued and unpaid interest including Additional Interest, if any to the
Redemption Date.
Upon the occurrence and during the continuation of a Tax Event,
Investment Company Event or a Regulatory Capital Event in respect of a Trust,
the Company may, at its option, at any time within 90 days of the occurrence of
such Tax Event, Investment Company Event or Regulatory Capital Event redeem this
Security, in whole but not in part, subject to the provisions of Section 11.7
and the other provisions of Article 11 of the Indenture, at a redemption price
equal to 100% of the principal amount thereof plus accrued and unpaid interest,
including Additional Interest, if any, to the Redemption Date.
In the event of redemption of this Security in part only, a new
Security or Securities of this series for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.
<PAGE> 28
21
The Indenture contains provisions for satisfaction and discharge of the
entire indebtedness of this Security upon compliance by the Company with certain
conditions set forth in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
Company and the Trustee at any time to enter into a supplemental indenture or
indentures for the purpose of modifying in any manner the rights and obligations
of the Company and of the Holders of the Securities, with the consent of the
Holders of not less than a majority in principal amount of the Outstanding
Securities of all series to be affected by such supplemental indenture. The
Indenture also contains provisions permitting Holders of specified percentages
in principal amount of the Securities of all series at the time Outstanding, on
behalf of the Holders of all Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Security shall be conclusive and binding upon such Holder and
upon all future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof, whether
or not notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, if an
Event of Default with respect to the Securities of this series at the time
Outstanding occurs and is continuing, then and in every such case the Trustee or
the Holders of not less than 25% in principal amount of the Outstanding
Securities of this series may declare the principal amount of all the Securities
of this series to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by Holders), provided that, in the case of
the Securities of this series issued to a Trust, if upon an Event of Default,
the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of this series fails to declare the principal of all the
Securities of this series to be immediately due and payable, the holders of at
least 25% in aggregate Liquidation Amount of the Capital Securities then
outstanding shall have such right by a notice in writing to the Company and the
Trustee; and upon any such declaration the principal amount of and the accrued
interest (including any Additional Interest) on all the Securities of this
series shall become immediately due and payable, provided that the payment of
principal and interest (including any Additional Interest) on such Securities
shall remain subordinated to the extent provided in Article 13 of the Indenture.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of (and 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 Securities
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company maintained under Section 10.2 of the Indenture
duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Securities Registrar duly executed by, the
Holder hereof or his attorney duly
<PAGE> 29
22
authorized in writing, and thereupon one or more new Securities of this series,
of authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees. No service charge shall be
made for any such registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Securities of this series are issuable only in registered form
without coupons in denominations of $100 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of such series of a different authorized denomination, as
requested by the Holder surrendering the same.
The Company and, by its acceptance of this Security or a beneficial
interest therein, the Holder of, and any Person that acquires a beneficial
interest in, this Security agree that for United States federal, state and local
tax purposes it is intended that this Security constitute indebtedness.
THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF OHIO.
SECTION 2.4 Additional Provisions Required in Global Security.
Any Global Security issued hereunder shall, in addition to the
provisions contained in Sections 2.2 and 2.3, bear a legend in substantially the
following form:
"This Security is a Global Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depositary or a
nominee of a Depositary. This Security is exchangeable for Securities registered
in the name of a person other than the Depositary or its nominee only in the
limited circumstances described in the Indenture and 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."
<PAGE> 30
23
SECTION 2.5 Form of Trustee's Certificate of Authentication.
This is one of the Securities referred to in the mentioned Indenture.
Dated: ____ __, ____
[THE CHASE MANHATTAN BANK,]
as Trustee
By:
----------------------------------
Authorized Signatory
ARTICLE 3
THE SECURITIES
SECTION 3.1 Title and Terms.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued from time to time in one or more series.
The following matters shall be established in or pursuant to a Board Resolution,
and set forth in an Officers' Certificate, or established in one or more
indentures supplemental hereto, prior to the issuance of Securities of a series:
(a) the title of the Securities of such series, which shall distinguish
the Securities of the series from all other Securities;
(b) the limit, if any, upon the aggregate principal amount of the
Securities of such series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 3.4, 3.5, 3.6, 9.6 or 11.6 and except for any
Securities which, pursuant to the last paragraph of Section 3.3, are deemed
never to have been authenticated and delivered hereunder); provided, however,
that the authorized aggregate principal amount of such series may be increased
above such amount by a Board Resolution to such effect;
(c) the Stated Maturity or Maturities on which the principal of the
Securities of such series is payable or the method of determination thereof;
<PAGE> 31
24
(d) the rate or rates, if any, at which the Securities of such series
shall bear interest, if any, the rate or rates and extent to which Additional
Interest, if any, shall be payable in respect of any Securities of such series,
the Interest Payment Dates on which such interest shall be payable, the right,
pursuant to Section 3.11 or as otherwise set forth therein, of the Company to
defer or extend an Interest Payment Date, and the Regular Record Date for the
interest payable on any Interest Payment Date or the method by which any of the
foregoing shall be determined;
(e) the place or places where the principal of (and premium, if any)
and interest on the Securities of such series shall be payable, the place or
places where the Securities of such series may be presented for registration of
transfer or exchange, and the place or places where notices and demands to or
upon the Company in respect of the Securities of such series may be made;
(f) the period or periods within which, or the date or dates on which,
if any, the price or prices at which and the terms and conditions upon which the
Securities of such series may be redeemed, in whole or in part, at the option of
the Company;
(g) the obligation or the right, if any, of the Company to redeem,
repay or purchase the Securities of such series pursuant to any sinking fund,
amortization or analogous provisions or upon the happening of a specified event,
or at the option of a Holder thereof, and the period or periods within which,
the price or prices at which, the currency or currencies (including currency
unit or units) in which and the other terms and conditions upon which Securities
of the series shall be redeemed, repaid or purchased, in whole or in part,
pursuant to such obligation;
(h) the denominations in which any Securities of such series shall be
issuable, if other than denominations of $25 and any integral multiple thereof;
(i) if other than Dollars, the currency or currencies (including
currency unit or units) in which the principal of (and premium, if any) and
interest, if any, on the Securities of the series shall be payable, or in which
the Securities of the series shall be denominated;
(j) the additions, modifications or deletions, if any, in the Events of
Default or covenants of the Company set forth herein with respect to the
Securities of such series;
(k) if other than the principal amount thereof, the portion of the
principal amount of Securities of such series that shall be payable upon
declaration of acceleration of the Maturity thereof;
(l) the additions or changes, if any, to this Indenture with respect to
the Securities of such series as shall be necessary to permit or facilitate the
issuance of the Securities of such series in bearer form, registrable or not
registrable as to principal, and with or without interest coupons;
<PAGE> 32
25
(m) any index or indices used to determine the amount of payments of
principal of and premium, if any, on the Securities of such series or the manner
in which such amounts will be determined;
(n) whether the Securities of the series, or any portion thereof, shall
initially be issuable in the form of a temporary Global Security representing
all or such portion of the Securities of such series and provisions for the
exchange of such temporary Global Security for definitive Securities of such
series;
(o) if applicable, that any Securities of the series shall be issuable
in whole or in part in the form of one or more Global Securities and, in such
case, the respective Depositaries for such Global Securities, the form of any
legend or legends which shall be borne by any such Global Security in addition
to or in lieu of that set forth in Section 2.4 and any circumstances in addition
to or in lieu of those set forth in Section 3.5 in which any such Global
Security may be exchanged in whole or in part for Securities registered, and any
transfer of such Global Security in whole or in part may be registered, in the
name or names of Persons other than the Depositary for such Global Security or a
nominee thereof;
(p) the appointment of any Paying Agent or Agents for the Securities of
such series;
(q) the terms of any right to convert or exchange Securities of such
series into any other securities or property of the Company, and the additions
or changes, if any, to this Indenture with respect to the Securities of such
series to permit or facilitate such conversion or exchange;
(r) the form or forms of the Trust Agreement, Amended and Restated
Trust Agreement and Guarantee Agreement, if different from the forms attached
hereto as Annexes A, B and C, respectively;
(s) the relative degree, if any, to which the Securities of the series
shall be senior to or be subordinated to other series of Securities in right of
payment, whether such other series of Securities are Outstanding or not; and
(t) any other terms of the Securities of such series (which terms shall
not be inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided herein or in
or pursuant to such Board Resolution and set forth in such Officers' Certificate
or in any such indenture supplemental hereto.
If any of the terms of the Securities of any series are established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary
<PAGE> 33
26
or an Assistant Secretary of the Company and delivered to the Trustee at or
prior to the delivery of the Officers' Certificate setting forth the terms of
the series.
The Securities shall be subordinated in right of payment to Senior Debt
as provided in Article 13.
SECTION 3.2 Denominations.
The Securities of each series shall be in registered form without
coupons and shall be issuable in denominations of $25 and any integral multiple
thereof, unless otherwise specified as contemplated by Section 3.1.
SECTION 3.3 Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
President or one of its Vice Presidents under its corporate seal reproduced or
impressed thereon and attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Securities may be
manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities. At any time and from time to
time after the execution and delivery of this Indenture, the Company may deliver
Securities of any series executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee in accordance with the Company
Order shall authenticate and make such Securities available for delivery. If the
form or terms of the Securities of the series have been established by or
pursuant to one or more Board Resolutions as permitted by Sections 2.1 and 3.1,
in authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to Section 6.1) shall be fully protected in
relying upon conclusively, an Opinion of Counsel stating,
(1) if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by Section 2.1, that such
form has been established in conformity with the provisions of this
Indenture;
(2) if the terms of such Securities have been established by
or pursuant to Board Resolution as permitted by Section 3.1, that such
terms have been established in conformity with the provisions of this
Indenture;
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(3) that such Securities, when authenticated and delivered by
the Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid
and legally binding obligations of the Company enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to
general equity principles; and
(4) that all laws and requirements in respect of the execution
and delivery by the Company of such Securities have been complied with.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.1 and of the
preceding paragraph, if all Securities of a series are not to be originally
issued at one time, it shall not be necessary to deliver the Officers'
Certificate otherwise required pursuant to Section 3.1 or the Company Order and
Opinion of Counsel otherwise required pursuant to such preceding paragraph at or
prior to the authentication of each Security of such series if such documents
are delivered at or prior to the authentication upon original issuance of the
Security of such series to be issued.
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 the manual signature of one of its authorized
signatories, and such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly authenticated
and delivered hereunder. Notwithstanding the foregoing, if any Security shall
have been authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 3.9, for all purposes of this Indenture such
Security shall be deemed never to have been authenticated and delivered
hereunder and shall not be entitled to the benefits of this Indenture.
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SECTION 3.4 Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
make available for delivery, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities of such
series 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.
If temporary Securities of any series are issued, the Company will
cause definitive Securities of such series 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 the office or agency of the Company designated for that purpose
without charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities, the Company shall execute and the Trustee shall
authenticate and make available for delivery in exchange therefor one or more
definitive Securities of the same series, of any authorized denominations having
the same Original Issue Date and Stated Maturity and having the same terms as
such temporary Securities. Until so exchanged, the temporary Securities of any
series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series.
SECTION 3.5 Registration, Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Securities and of
transfers of Securities. Such register is herein sometimes referred to as the
"Securities Register." The Trustee is hereby appointed "Securities 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
office or agency of the Company designated for that purpose the Company shall
execute, and the Trustee shall authenticate and make available for delivery, in
the name of the designated transferee or transferees, one or more new Securities
of the same series of any authorized denominations, of a like aggregate
principal amount, of the same Original Issue Date and Stated Maturity and having
the same terms.
At the option of the Holder, Securities may be exchanged for other
Securities of the same series of any authorized denominations, of a like
aggregate principal amount, of the same Original Issue Date and Stated Maturity
and having the same terms, upon surrender of the Securities to be exchanged at
such office or agency. Whenever any Securities are so surrendered for exchange,
the
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Company shall execute, and the Trustee shall authenticate and make available for
delivery, the Securities which the Holder making the exchange is entitled to
receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
exchange shall (if so required by the Company or the Securities Registrar) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Securities Registrar, duly executed by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made to a Holder for any registration of
transfer or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities.
The provisions of Clauses (1), (2), (3) and (4) below shall
apply only to Global Securities:
(1) Each Global Security authenticated under this Indenture
shall be registered in the name of the Depositary designated for such
Global Security or a nominee thereof and delivered to such Depositary
or a nominee thereof or custodian therefor, and each such Global
Security shall constitute a single Security for all purposes of this
Indenture.
(2) Notwithstanding any other provision in this Indenture, no
Global Security may be exchanged in whole or in part for Securities
registered, and no transfer of a Global Security in whole or in part
may be registered, in the name of any Person other than the Depositary
for such Global Security or a nominee thereof unless (A) such
Depositary (i) has notified the Company that it is unwilling or unable
to continue as Depositary for such Global Security or (ii) has ceased
to be a clearing agency registered under the Exchange Act at a time
when the Depositary is required to be so registered to act as
depositary, in either case unless the Company has approved a successor
Depositary within 90 days, (B) there shall have occurred and be
continuing an Event of Default with respect to such Global Security,
(C) the Company in its sole discretion determines that such Global
Security will be so exchangeable or transferable or (D) there shall
exist such circumstances, if any, in addition to or in lieu of the
foregoing as have been specified for this purpose as contemplated by
Section 3.1.
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(3) Subject to Clause (2) above, any exchange of a Global
Security for other Securities may be made in whole or in part, and all
Securities issued in exchange for a Global Security or any portion
thereof shall be registered in such names as the Depositary for such
Global Security shall direct.
(4) Every Security authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu of, a Global
Security or any portion thereof, whether pursuant to this Section,
Section 3.4, 3.6, 9.6 or 11.6 or otherwise, shall be authenticated and
delivered in the form of, and shall be, a Global Security, unless such
Security is registered in the name of a Person other than the
Depositary for such Global Security or a nominee thereof.
Neither the Company nor the Trustee shall be required, pursuant to the
provisions of this Section, (a) to issue, register the transfer of or exchange
any Security of any series during a period beginning at the opening of business
15 days before the day of selection for redemption of Securities pursuant to
Article 11 and ending at the close of business on the day of mailing of notice
of redemption or (b) to register the transfer of or exchange any Security so
selected for redemption in whole or in part, except, in the case of any Security
to be redeemed in part, any portion thereof not to be redeemed.
SECTION 3.6 Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee together with
such security or indemnity as may be required by the Company or the Trustee to
save each of them harmless, the Company shall execute and the Trustee shall
authenticate and make available for delivery in exchange therefor a new Security
of the same issue and series of like tenor and principal amount, having the same
Original Issue Date and Stated Maturity and bearing the same interest rate as
such mutilated Security, and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and to 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 harmless, then, in the absence of notice to the Company or the
Trustee that such Security has been acquired by a protected purchaser, the
Company shall execute and upon its request the Trustee shall authenticate and
make available for delivery, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same issue and series of like tenor and
principal amount, having the same Original Issue Date and Stated Maturity and
bearing the same interest rate as such destroyed, lost or stolen Security, and
bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
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Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) 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 Company, 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 of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 3.7 Payment of Interest; Interest Rights Preserved.
Interest on any Security of any series 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 in respect of Securities of such series, except that, unless
otherwise provided in the Securities of such series, interest payable on the
Stated Maturity of the principal of a Security shall be paid to the Person to
whom principal is paid. The initial payment of interest on any Security of any
series which is issued between a Regular Record Date and the related Interest
Payment Date shall be payable as provided in such Security or in the Board
Resolution pursuant to Section 3.1 with respect to the related series of
Securities. At the option of the Company, interest on any series of Securities
may be paid (i) by check mailed to the address of the Person entitled thereto as
it shall appear on the Securities Register of such series or (ii) by wire
transfer in immediately available funds at such place and to such account as
designated by the Person entitled thereto as specified in the Securities
Register of such series.
Any interest on any Security which is payable, but is not timely paid
or duly provided for, on any Interest Payment Date for Securities of such series
(herein called "Defaulted Interest"), shall forthwith cease to be payable to the
registered Holder on the relevant Regular Record Date by virtue of having been
such Holder, and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities of such series in respect of which
interest is in default (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
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Company shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to be held
in trust for the benefit of the Persons entitled to such Defaulted Interest as
in this Clause provided. Thereupon the Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed payment and not less
than 10 days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such Special Record
Date and, in the name and at the expense of the Company, shall cause notice of
the proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first class, postage prepaid, to each Holder of a
Security of such series at the address of such Holder as it appears in the
Securities Register not less than 10 days prior to such Special Record Date. The
Trustee may, in its discretion, in the name and at the expense of the Company,
cause a similar notice to be published at least once in a newspaper, customarily
published in the English language on each Business Day and of general
circulation in the Borough of Manhattan The City of New York, but such
publication shall not be a condition precedent to the establishment of such
Special Record Date. Notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the Persons in whose names the Securities of
such series (or their respective Predecessor Securities) are registered on such
Special Record Date and shall no longer be payable pursuant to the following
Clause (2).
(2 The Company may make payment of any Defaulted Interest in any other
lawful manner not inconsistent with the requirements of any securities exchange
or automated quotation system on which the Securities of the series in respect
of which interest is in default may be listed or traded and, upon such notice as
may be required by such exchange (or by the Trustee if the Securities are not
listed), if, after notice given by the Company to the Trustee of the proposed
payment pursuant to this Clause, such payment shall be deemed practicable by the
Trustee.
Any interest on any Security which is deferred or extended pursuant to
Section 3.11 shall not be Defaulted Interest for the purposes of this Section
3.7.
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.
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SECTION 3.8 Persons Deemed Owners.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name any Security is registered as the owner of
such Security for the purpose of receiving payment of principal of and (subject
to Section 3.7) any interest on such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and neither the Company,
the Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
SECTION 3.9 Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee, and any such Securities and Securities surrendered
directly to the Trustee for any such purpose shall be promptly canceled by it.
The Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever, and all Securities so delivered
shall be promptly canceled by the Trustee. No Securities shall be authenticated
in lieu of or in exchange for any Securities canceled as provided in this
Section, except as expressly permitted by this Indenture. Upon written request,
all canceled Securities shall be returned by the Trustee to the Company and
destroyed by the Company.
SECTION 3.10 Computation of Interest.
Except as otherwise specified as contemplated by Section 3.1 for
Securities of any series, interest on the Securities of each series for any
period shall be computed on the basis of a 360-day year of twelve 30-day months
and interest on the Securities of each series for any partial period shall be
computed on the basis of the number of days elapsed in a 360-day year of twelve
30-day months.
SECTION 3.11 Deferrals of Interest Payment Dates.
If specified as contemplated by Section 2.1 or Section 3.1 with respect
to the Securities of a particular series, so long as no Event of Default has
occurred and is continuing, the Company shall have the right, at any time during
the term of such series, from time to time to defer the payment of interest on
such Securities for such period or periods as may be specified as contemplated
by Section 3.1 (each, an "Extension Period") during which Extension Periods the
Company shall have the right to make partial payments of interest on any
Interest Payment Date. No Extension Period shall end on a date other than an
Interest Payment Date. At the end of any such Extension Period, the Company
shall pay all interest then accrued and unpaid on the Securities (together with
Additional Interest thereon, if any, at the rate specified for the Securities of
such series to the extent permitted by applicable law) to the Persons in whose
names that Securities are registered at the close of business on the Regular
Record Date with respect to the Interest Payment Date at the end of such
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Extension Period; provided, however, that no Extension Period shall exceed the
period or periods specified in such securities or extend beyond the Stated
Maturity of the principal of the Securities of such series; provided, further,
that during any such Extension Period, the Company shall not, and shall not
permit any Subsidiary to, (i) declare or pay any dividends or distributions on,
or redeem, purchase, acquire or make a liquidation payment with respect to, any
of the Company's capital stock, (ii) make any payment of principal of or
interest or premium, if any, on or repay, repurchase or redeem any debt security
of the Company that ranks pari passu with or junior in interest to the
Securities of such series or (iii) make any guarantee payments with respect to
any guarantee by the Company of the debt securities of any Subsidiary of the
Company that by their terms rank pari passu with or junior in interest to the
securities of such series (other than (a) dividends or distributions in the
Company's capital stock, (b) any declaration of a dividend in connection with
the implementation of a Rights Plan, or the redemption or repurchase of any
rights distributed pursuant to a Rights Plan, (c) payments under the Guarantee
with respect to such Security, and (d) purchases of Common Stock related to the
issuance of Common Stock or rights under any of the Company's benefit plans for
its directors, officers or employees, related to the issuance of Common Stock or
rights under a dividend reinvestment and stock purchase plan, or related to the
issuance of Common Stock (or securities convertible or exchangeable for Common
Stock) as consideration in an acquisition transaction that was entered into
prior to the commencement of such Extension Period). Prior to the termination of
any such Extension Period, the Company may further defer the payment of
interest, provided that no Extension Period shall exceed the period or periods
specified in such Securities or extend beyond the Stated Maturity of the
principal of such Securities. Upon termination of any Extension Period and upon
the payment of all accrued and unpaid interest and any Additional Interest then
due on any Interest Payment Date, the Company may elect to begin a new Extension
Period, subject to the above requirements. No interest shall be due and payable
during an Extension Period, except at the end thereof. The Company shall give
the Holders of the Securities of such series and the Trustee written notice of
its election to begin any such Extension Period at least one Business Day prior
to the next succeeding Interest Payment Date on which interest on Securities of
such series would be payable but for such deferral or, with respect to the
Securities of a series issued to a Trust, so long as such Securities are held by
such Trust, prior to the earlier of (i) the next succeeding date on which
Distributions on the Capital Securities of such Trust would be payable but for
such deferral or (ii) the date the Regular Trustees of such Trust are required
to give notice to any securities exchange or other applicable self-regulatory
organization or to holders of such Capital Securities of the record date or the
date such Distributions are payable, but in any event not less than one Business
Day prior to such record date.
The Trustee shall promptly give notice, in the name and at the expense
of the Company, of the Company's election to begin any such Extension Period to
the Holders of the Outstanding Securities of such series.
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SECTION 3.12 Right of Set-Off.
With respect to the Securities of a series issued to a Trust,
notwithstanding anything to the contrary in this Indenture, the Company shall
have the right to set-off any payment it is otherwise required to make
thereunder in respect of any such Security to the extent the Company has
theretofore made, or is concurrently on the date of such payment making, a
payment under the Guarantee relating to such Security or under Section 5.8 of
this Indenture.
SECTION 3.13 Agreed Tax Treatment.
Each Security issued hereunder shall provide that the Company and, by
its acceptance of a Security or a beneficial interest therein, the Holder of,
and any Person that acquires a beneficial interest in, such Security intend that
such Security constitutes indebtedness and agree to treat such Security as
indebtedness for United States federal, local and state tax purposes.
SECTION 3.14 Shortening or Extension of Stated Maturity.
If specified as contemplated by Section 2.1 or Section 3.1 with respect
to the Securities of a particular series, the Company shall have the right to
shorten the Stated Maturity of the principal of the Securities of such series at
any time to any date not earlier than the first date on which the Company has
the right to redeem the Securities of such series. In the event the Company
elects to shorten the Stated Maturity of the Subordinated Debentures, it shall
give written notice to the Trustee, and the Trustee shall give notice of such
shortening to the Holders, no less than 30 and no more than 60 days prior to the
effectiveness thereof. The Company's right to shorten the Stated Maturity of the
principal of the Securities of such series pursuant to clause (i) above is
subject to the Company having received (A) prior approval of the Federal Reserve
if required under applicable capital guidelines or policies and (B) an opinion
of nationally recognized independent counsel experienced in such matters to the
effect that after the shortening of maturity, interest paid on the Junior
Subordinated Debentures will be deductible by Provident for United States
federal income tax purposes; the holders of Capital Securities will not
recognize income, gain or loss for United States federal income tax purposes as
a result of the shortening of maturity, and will be taxed under United States
federal income tax law in the same amount, in the manner and at the same times
as would have been the case if the shortening of maturity had not occurred; and
the shortening of maturity will not cause the Trust to be classified as other
than a grantor trust for United States federal income tax purposes.
SECTION 3.15 CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to
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Holders; provided that any such notice may state that no representation is made
as to the correctness of such numbers either as printed on the Securities or as
contained in any notice of a redemption and that reliance may be placed only on
the other identification numbers printed on the Securities, and any such
redemption shall not be affected by any defect in or omission of such numbers.
The Company will promptly notify the Trustee of any change in the CUSIP numbers.
ARTICLE 4
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Indenture.
This Indenture shall, upon Company Request, cease to be of further
effect (except as to any surviving rights of registration of transfer or
exchange of Securities herein expressly provided for and as otherwise provided
in this Section 4.1) and the Trustee, on demand of and at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered
(other than (i) Securities which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 3.6 and
(ii) Securities for whose payment money has theretofore been deposited
in trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in
Section 10.3) 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 of the date of
deposit, or
(iii) are to be called for redemption within one
year under arrangements satisfactory to the
Trustee for the giving of notice of
redemption by the Trustee in the name, and
at the expense, of the Company,
and the Company, in the case of Clause (B) (i), (ii) or (iii) above,
has deposited or caused to be deposited with the Trustee as trust funds
in trust for such purpose an amount in the currency or currencies in
which the Securities of such series are payable sufficient to pay and
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discharge the entire indebtedness on such Securities not theretofore
delivered to the Trustee for cancellation, for principal (and premium,
if any) and interest (including any Additional Interest) to the date of
such deposit (in the case of Securities which have become due and
payable) or to the Stated Maturity or Redemption Date, as the case may
be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an 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 Company to the Trustee under Section 6.7, the obligations of
the Company to any Authenticating Agent under Section 6.14 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of clause (1) of
this Section, the obligations of the Trustee under Section 4.2 and the last
paragraph of Section 10.3 shall survive.
SECTION 4.2 Application of Trust Money.
Subject to the provisions of the last paragraph of Section 10.3, all
money deposited with the Trustee pursuant to Section 4.1 shall be held in trust
and applied by the Trustee, in accordance with the provisions of the Securities
and this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for the payment of which such money or obligations have been
deposited with or received by the Trustee.
ARTICLE 5
REMEDIES
SECTION 5.1 Events of Default.
"Event of Default", wherever used herein with respect to the Securities
of any series, means any one of the following events (whatever the reason for
such Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body):
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(1) default in the payment of any interest upon any Security of that
series, including any Additional Interest in respect thereof, when it becomes
due and payable, and continuance of such default for a period of 30 days
(subject to the deferral of any Interest Payment Date in the case of an
Extension Period); or
(2) default in the payment of the principal of (or premium, if any, on)
any Security of that series at its Maturity; or
(3) default in the performance, or breach, in any material respect, of
any covenant or warranty of the Company in this Indenture with respect to that
series (other than a covenant or warranty a default in the performance of which
or the breach of which is elsewhere in this Section specifically dealt with),
and continuance of such default or breach for a period of 90 days after there
has been given, by registered or certified mail, to the Company by the Trustee
or to the Company and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities of that series a written notice specifying
such default or breach and requiring it to be remedied; or
(4) the entry of a decree or order by a court having jurisdiction in
the premises adjudging the Company a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company under any applicable federal or
state bankruptcy, insolvency, reorganization or other similar law, or appointing
a receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Company or of any substantial part of its property or ordering
the winding up or liquidation of its affairs, and the continuance of any such
decree or order unstayed and in effect for a period of 60 consecutive days; or
(5) the institution by the Company of proceedings to be adjudicated a
bankrupt or insolvent, or the consent by it to the institution of bankruptcy or
insolvency proceedings against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under any applicable federal or
state bankruptcy, insolvency, reorganization or other similar law, or the
consent by it to the filing of any such petition or to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Company or of any substantial part of its property, or the
making by it of an assignment for the benefit for creditors, or the admission by
it in writing of its inability to pay its debts generally as they become due and
its willingness to be adjudicated a bankrupt, or the taking of corporate action
by the Company in furtherance of any such action; or
(6) any other Event of Default provided with respect to Securities of
that series.
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in
Section 5.1(4) or 5.1(5)) with respect to Securities of any series at the time
Outstanding occurs and is continuing, then and in every such case the Trustee or
the Holders of not less than 25% in principal amount of the
<PAGE> 46
39
Outstanding Securities of that series may declare the principal amount (or, if
the Securities of that series are Discount Securities, such portion of the
principal amount as may be specified in the terms of that series) of all the
Securities of that series to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by Holders), provided that,
in the case of the Securities of a series issued to a Trust, if, upon an Event
of Default, the Trustee or the Holders of not less than 25% in principal amount
of the Outstanding Securities of that series fail to declare the principal
amount (or, if the Securities of that series are Discount Securities, such
portion of the principal amount as may be specified in the terms of that series)
of all the Securities of that series to be immediately due and payable, the
holders of at least 25% in aggregate liquidation amount of the corresponding
series of Capital Securities then outstanding shall have such right by a notice
in writing to the Company and the Trustee; and upon any such declaration such
principal amount (or specified portion thereof) of and the accrued interest
(including any Additional Interest) on all the Securities of such series shall
become immediately due and payable. Payment of principal and interest (including
any Additional Interest) on such Securities shall remain subordinated to the
extent provided in Article 13 notwithstanding that such amount shall become
immediately due and payable as herein provided. If an Event of Default specified
in Section 5.1(4) or 5.1(5) with respect to Securities of any series at the time
Outstanding occurs, the principal amount of all the Securities of that series
(or, if the Securities of that series are Discount Securities, such portion of
the principal amount of such Securities as may be specified by the terms of that
series) shall automatically, and without any declaration or other action on the
part of the Trustee or any Holder, become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum sufficient
to pay:
(A) all overdue installments of interest (including any
Additional Interest) on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities
of that series which have become due otherwise than by such declaration
of acceleration and interest thereon at the rate borne by the
Securities, and
(C) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
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(2) all Events of Default with respect to Securities of that series,
other than the non-payment of the principal of Securities of that series which
has become due solely by such acceleration, have been cured or waived as
provided in Section 5.13;
provided that, in the case of Securities of a series held by a Trust, if the
Holders of at least a majority in principal amount of the Outstanding Securities
of that series fails to rescind and annul such declaration and its consequences,
the holders of a majority in aggregate Liquidation Amount (as defined in the
Trust Agreement under which such Trust is formed) of the related series of
Capital Securities then outstanding shall have such right by written notice to
the Company and the Trustee, subject to the satisfaction of the conditions set
forth in Clauses (1) and (2) above of this Section 5.2.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if:
(1) default is made in the payment of any installment of interest
(including any Additional Interest) on any Security when such interest becomes
due and payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (and premium, if
any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities, the whole amount then due and payable
on such Securities for principal, including any sinking fund payment or
analogous obligations (and premium, if any) and interest (including any
Additional Interest); and, in addition thereto, all amounts owing the Trustee
under Section 6.7.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company 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 Company or any other obligor upon the Securities, wherever
situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
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SECTION 5.4 Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors,
(a) the Trustee (irrespective of whether the principal of the
Securities of any series shall then be due and payable as therein expressed or
by declaration of acceleration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Company for the payment of overdue
principal (and premium, if any) or interest (including any Additional Interest))
shall be entitled and empowered, by intervention in such proceeding or
otherwise,
(i) to file and prove a claim for the whole amount of
principal (or, if the Securities of that series are Discount
Securities, such portion of the principal amount as may be due and
payable pursuant to a declaration in accordance with Section 5.2) (and
premium, if any) and interest (including any Additional Interest) owing
and unpaid in respect to the Securities and to file such other papers
or documents as may be necessary or advisable and to take any and all
actions as are authorized under the Trust Indenture Act in order to
have the claims of the Holders and any predecessor to the Trustee under
Section 6.7 allowed in any such judicial proceedings; and
(ii) in particular, the Trustee shall be authorized to collect
and receive any moneys or other property payable or deliverable on any
such claims and to distribute the same in accordance with Section 5.6;
and
(b) 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 for
distribution in accordance with Section 5.6, 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 to it and any predecessor Trustee under Section 6.7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the 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; provided, however,
that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditors' or
other similar committee.
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SECTION 5.5 Trustee May Enforce Claims Without Possession of
Securities.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of all the amounts owing the Trustee and any
predecessor Trustee under Section 6.7, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 5.6 Application of Money Collected.
Any money or property collected or to be applied by the Trustee with
respect to a series of Securities 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 or property on account of principal (or premium,
if any) or interest (including any Additional 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 and any
predecessor Trustee under Section 6.7;
SECOND: Subject to Article 13, to the payment of the amounts then due
and unpaid upon such series of Securities for principal (and premium, if any),
interest (including any Additional Interest), in respect of which or for the
benefit of which such money has been collected, ratably, without preference or
priority of any kind, according to the amounts due and payable on such series of
Securities for principal (and premium, if any) and interest (including any
Additional Interest), respectively; and
THIRD: The balance, if any, to the Person or Persons entitled thereto.
SECTION 5.7 Limitation on Suits.
No Holder of any Securities of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture
or for the appointment of a receiver, assignee, trustee, liquidator,
sequestrator (or other similar official) or for any other remedy hereunder,
unless:
(1) such Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to the Securities of that series;
<PAGE> 50
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(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities to be incurred
in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of security or indemnity has failed to institute any such proceeding;
and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing itself of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other Holders of Securities, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all such Holders.
SECTION 5.8 Unconditional Right of Holders to Receive Principal,
Premium and Interest; Direct Action by Holders of Capital Securities.
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 3.7)
interest (including any Additional Interest) on such Security on the respective
Stated Maturities expressed in such Security (or, in the case of redemption, on
the Redemption Date) and to institute suit for the enforcement of any such
payment, and such right shall not be impaired without the consent of such
Holder. In the case of Securities of a series held by a Trust, any holder of the
corresponding series of Capital Securities held by such Trust shall have the
right, upon the occurrence of an Event of Default described in Section 5.1(1) or
5.1(2), to institute a suit directly against the Company for enforcement of
payment to such holder of principal of (premium, if any) and (subject to Section
3.7) interest (including any Additional Interest) on the Securities having a
principal amount equal to the aggregate Liquidation Amount (as defined in the
Trust Agreement under which such Trust is formed) of such Capital Securities of
the corresponding series held by such Holder.
SECTION 5.9 Restoration of Rights and Remedies.
If the Trustee, any Holder or any holder of Capital Securities has
instituted any proceeding to enforce any right or remedy under this Indenture
and such proceeding has been discontinued or
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44
abandoned for any reason, or has been determined adversely to the Trustee, such
Holder or such holder of Capital Securities, then and in every such case the
Company, the Trustee, the Holders and such holder of Capital Securities shall,
subject to any determination in such proceeding, be restored severally and
respectively to their former positions hereunder, and thereafter all rights and
remedies of the Trustee, the Holders and the holders of Capital Securities shall
continue as though no such proceeding had been instituted.
SECTION 5.10 Rights and Remedies Cumulative.
Except as otherwise provided in the last paragraph of Section 3.6, 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.
SECTION 5.11 Delay or Omission Not Waiver.
No delay or omission of the Trustee, any Holder of any Security or any
holder of any Capital Security to exercise any right or remedy accruing upon any
Event of Default shall impair any such right or remedy or constitute a waiver of
any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee
or to the Holders and the right and remedy given to the holders of Capital
Securities by Section 5.8 may be exercised from time to time, and as often as
may be deemed expedient, by the Trustee, the Holders or the holders of Capital
Securities, as the case may be.
SECTION 5.12 Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that:
(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction, and
(3) subject to the provisions of Section 6.1, the Trustee shall have
the right to decline to follow such direction if a Responsible Officer or
Officers of the Trustee shall, in good faith,
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determine that the proceeding so directed would be unjustly prejudicial to the
Holders not joining in any such direction or would involve the Trustee in
personal liability.
SECTION 5.13 Waiver of Past Defaults.
Subject to Sections 5.2 and 9.2, the Holders of not less than a
majority in principal amount of the Outstanding Securities of any series and, in
the case of any Securities of a series issued to a Trust, the holders of a
majority in Liquidation Amount (as defined in the relevant Trust Agreement) of
Capital Securities issued by such Trust may waive any past default hereunder and
its consequences with respect to such series except a default:
(1) in the payment of the principal of (or premium, if any) or interest
(including any Additional Interest) on any Security of such series (unless all
Events of Default with respect to Securities of that series, other than the
non-payment of the principal of Securities of that series which has become due
solely by such acceleration, have been cured or annulled as provided in Section
5.3 and the Company has paid or deposited with the Trustee a sum sufficient to
pay all overdue installments of interest (including any Additional Interest) on
all Securities of that series, the principal of (and premium, if any, on) any
Securities of that series which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate borne by the
Securities, and all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel), or
(2) in respect of a covenant or provision hereof which under Article 9
cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected.
Any such waiver shall be deemed to be on behalf of the Holders of all
the Securities of such series or, in the case of a waiver by holders of Capital
Securities issued by such Trust, by all holders of Capital Securities issued by
such Trust.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 5.14 Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees and
expenses, against any party litigant in such suit, having due
<PAGE> 53
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regard to the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than 10% in principal amount of the
Outstanding Securities of any series, or to any suit instituted by any Holder
for the enforcement of the payment of the principal of (or premium, if any) or
interest (including any Additional Interest) on any Security on or after the
respective Stated Maturities expressed in such Security.
SECTION 5.15 Waiver of Usury, Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE 6
THE TRUSTEE
SECTION 6.1 Certain Duties and Responsibilities.
(1) Except during the continuance of an Event of Default,
(a) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(b) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture; but in the case of any such certificates or opinions
which by any provisions hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the requirements
of this Indenture.
(2) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
his own affairs.
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(3 No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct except that
(a) this Subsection shall not be construed to limit the effect
of Subsection (a) of this Section;
(b) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of Holders pursuant to Section 5.12 relating to the time,
method and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred upon the
Trustee, under this Indenture with respect to the Securities of such
series.
(4) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if there shall be reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(5) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
SECTION 6.2 Notice of Defaults.
Within 90 days after actual knowledge by a Responsible Officer of the
Trustee of the occurrence of any default hereunder with respect to the
Securities of any series, the Trustee shall transmit by mail to all Holders of
Securities of such series, as their names and addresses appear in the Securities
Register, notice of such default, unless such default shall have been cured or
waived; provided, however, that, except in the case of a default in the payment
of the principal of (or premium, if any) or interest (including any Additional
Interest) on any Security of such series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee or a trust committee of directors and/or Responsible Officers of the
Trustee in good faith determines that the withholding of such notice is in the
interests of the Holders of Securities of such series; and provided, further,
that, in the case of any default of the character specified in Section 5.1(3),
no such notice to Holders of Securities of such series 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 with respect to Securities of such
series.
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SECTION 6.3 Certain Rights of Trustee.
Subject to the provisions of Section 6.1:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, Security or
other paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, indenture,
Security or other paper or document, but the Trustee in its discretion may make
such inquiry or investigation into such facts or matters as it may see fit, and,
if the Trustee shall determine to make such inquiry or investigation, it shall
be entitled to examine the books, records and premises of the Company,
personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder; and
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(h) the Trustee shall not be liable for any action taken, suffered, or
omitted to be taken by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Indenture.
(i) the Trustee shall not be charged with knowledge of any default or
Event of Default with respect to the Securities unless either (i) a Responsible
Officer assigned to the Corporate Trust Department of the Trustee (or any
successor division or department of the Trustee) shall have actual knowledge of
such default or Event of Default or (ii) written notice of such default or Event
of Default shall have been given to the Trustee by the Company or by any Holder
of the Securities.
SECTION 6.4 Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities. Neither the
Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of the Securities or the proceeds thereof.
SECTION 6.5 May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Securities
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
6.8 and 6.13, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Securities
Registrar or such other agent.
SECTION 6.6 Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed in writing with the Company.
SECTION 6.7 Compensation and Reimbursement.
The Company agrees
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(1) to pay to the Trustee from time to time such compensation as shall
be agreed in writing between the Company and the Trustee 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) 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 the
Trustee's negligence or bad faith; and
(3) to indemnify each of the Trustee and any predecessor Trustee for,
and to hold it harmless against, any and all loss, liability, damage, claim or
expense (including the reasonable compensation and the expenses and
disbursements of its agents and counsel) incurred without negligence or bad
faith, arising out of or in connection with the acceptance or administration of
this trust or the performance of its duties hereunder, including the costs and
expenses of defending itself against any claim or liability in connection with
the exercise or performance of any of its powers or duties hereunder. This
indemnification shall survive the resignation or removal of the Trustee and the
termination of this Agreement.
To secure the Company's payment obligations in this Section, the
Company and the Holders agree that the Trustee shall have a lien prior to the
Securities on all money or property held or collected by the Trustee. Such lien
shall survive the satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 5.1(4) or (5) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under the Bankruptcy Reform Act of 1978 or any successor statute.
SECTION 6.8 Disqualification; Conflicting Interests.
The Trustee for the Securities of any series issued hereunder shall be
subject to the provisions of Section 310(b) of the Trust Indenture Act. Nothing
herein shall prevent the Trustee from filing with the Commission the application
referred to in the second to last paragraph of said Section 310(b).
SECTION 6.9 Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be
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(a) a corporation organized and doing business under the laws of the
United States of America or of any state or territory or the District of
Columbia, authorized under such laws to exercise corporate trust powers and
subject to supervision or examination by federal, state, territorial or District
of Columbia authority, or
(b) a corporation or other Person organized and doing business under
the laws of a foreign government that is permitted to act as Trustee pursuant to
a rule, regulation or order of the Commission, authorized under such laws to
exercise corporate trust powers, and subject to supervision or examination by
authority of such foreign government or a political subdivision thereof
substantially equivalent to supervision or examination applicable to United
States institutional trustees,
in either case having a combined capital and surplus of at least $50,000,000,
subject to supervision or examination by federal or state authority. If such
corporation publishes reports of condition at least annually, pursuant to law or
to the requirements of the aforesaid supervising or examining authority, then,
for the purposes of this Section, 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 this Article. Neither the Company nor any Person directly or indirectly
controlling, controlled by or under common control with the Company shall serve
as Trustee for the Securities of any series issued hereunder.
SECTION 6.10 Resignation and Removal; Appointment of Successor.
(1) 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 6.11.
(2) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If an
instrument of acceptance by a successor Trustee shall not have been delivered to
the Trustee within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(3) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company. If an instrument of acceptance by a successor Trustee shall not
have been delivered to the Trustee within 30 days after such removal, the
Trustee being removed may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
<PAGE> 59
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(4) If at any time:
(a) the Trustee shall fail to comply with Section 6.8 after
written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Security for at least six months, or
(b) the Trustee shall cease to be eligible under Section 6.9
and shall fail to resign after written request therefor by the Company
or by any such Holder, or
(c) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company, acting pursuant to the authority of a
Board Resolution, may remove the Trustee with respect to all Securities, or (ii)
subject to Section 5.14, any Holder who has been a bona fide Holder of a
Security for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the removal
of the Trustee with respect to all Securities and the appointment of a successor
Trustee or Trustees.
(5) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause with
respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee with respect to the
Securities of that or those series. If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a successor Trustee
with respect to the Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities of such
series delivered to the Company and the retiring Trustee, the successor Trustee
so appointed shall, forthwith upon its acceptance of such appointment, become
the successor Trustee with respect to the Securities of such series and
supersede the successor Trustee appointed by the Company. If no successor
Trustee with respect to the Securities of any series shall have been so
appointed by the Company or the Holders and accepted appointment in the manner
hereinafter provided, any Holder who has been a bona fide Holder of a Security
for at least six months may, subject to Section 5.14, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series.
(6) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series by mailing
written notice of such event by first-class mail, postage prepaid, to the
Holders of Securities of such series as their names and addresses appear in the
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Securities Register. Each notice shall include the name of the successor Trustee
with respect to the Securities of such series and the address of its Corporate
Trust Office.
SECTION 6.11 Acceptance of Appointment by Successor.
(1) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
(2) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts, and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates.
<PAGE> 61
54
(3) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all rights, powers and trusts referred to
in paragraph (a) or (b) of this Section, as the case may be.
(4) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
SECTION 6.12 Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any 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, and in case any
Securities shall not have been authenticated, any successor to the Trustee may
authenticate such Securities either in the name of any predecessor Trustee or in
the name of such successor Trustee, and in all cases the certificate of
authentication shall have the full force which it is provided anywhere in the
Securities or in this Indenture that the certificate of the Trustee shall have.
SECTION 6.13 Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
SECTION 6.14 Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect
to one or more series of Securities which shall be authorized to act on behalf
of the Trustee to authenticate Securities of such series issued upon original
issue and upon exchange, registration of transfer or partial redemption thereof
or pursuant to Section 3.6, 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. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, or of any
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state or territory or the District of Columbia, authorized under such laws to
act as Authenticating Agent, having a combined capital and surplus of not less
than $50,000,000 and subject to supervision or examination by federal or state
authority. If such Authenticating Agent publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section the combined capital
and surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, such Authenticating Agent shall
resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all of
the corporate trust business of an Authenticating Agent shall be the successor
Authenticating Agent hereunder, provided such corporation shall be otherwise
eligible under this Section, without the execution or filing of any paper or any
further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give notice of such
appointment in the manner provided in Section 1.6 to all Holders of Securities
of the series with respect to which such Authenticating Agent will serve. 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
provision of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series 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.
<PAGE> 63
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Dated:
THE CHASE MANHATTAN BANK,
As Trustee
By:
-------------------------------------
As Authenticating Agent
By:
-------------------------------------
Authorized Officer
ARTICLE 7
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1 Company to Furnish Trustee Names and Addresses of
Holders.
The Company will furnish or cause to be furnished to the Trustee:
(1) semi-annually, not more than 15 days after January 15 and July 15
in each year, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders as of such January 1 and July 1, and
(2) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished,
excluding from any such list names and addresses received by the Trustee in its
capacity as Securities Registrar.
SECTION 7.2 Preservation of Information, Communications to
Holders.
(1) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 7.1 and the names and
addresses of Holders received by the Trustee in its capacity as Securities
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 7.1 upon receipt of a new list so furnished.
<PAGE> 64
57
(2) 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 privileges of the Trustee, shall be as provided in the
Trust Indenture Act.
(3) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of the
disclosure of information as to the names and addresses of the Holders made
pursuant to the Trust Indenture Act.
SECTION 7.3 Reports by Trustee.
(1) 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. If
required by Section 313(a) of the Trust Indenture Act, the Trustee shall, within
sixty days after each May 15 following the date of this Indenture deliver to
Holders a brief report, dated as of such May 15, which complies with the
provisions of such Section 313(a).
(2) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed and also with the Commission. The Company will promptly
notify the Trustee when any Securities are listed on any stock exchange.
SECTION 7.4 Reports by Company.
The Company shall file with the Trustee and with 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 in the Trust Indenture Act; provided that any
such information, documents or reports required to be filed with the Commission
pursuant to Section 13 or Section 15(d) of the Exchange Act shall be filed with
the Trustee within 15 days after the same is required to be filed with the
Commission. Notwithstanding that the Company may not be required to remain
subject to the reporting requirements of Section 13 or 15(d) of the Exchange
Act, the Company shall continue to file with the Commission and provide the
Trustee with the annual reports and the information, documents and other reports
which are specified in Sections 13 and 15(d) of the Exchange Act. The Company
also shall comply with the other provisions of Trust Indenture Act Section
314(a). Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein, including
the Company's compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers' Certificates).
<PAGE> 65
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ARTICLE 8
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1 Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person
or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, and no Person shall consolidate with or merge into the
Company or convey, transfer or lease its properties and assets substantially as
an entirety to the Company, unless:
(1) in case the Company shall consolidate with or merge into another
Person or convey, transfer or lease its properties and assets substantially as
an entirety to any Person, the Person formed by such consolidation or into which
the Company is merged or the Person which acquires by conveyance or transfer, or
which leases, the properties and assets of the Company substantially as an
entirety shall be a corporation, partnership or trust organized and existing
under the laws of the United States of America or any State 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
(including any Additional Interest) on all the Securities and the performance of
every covenant of this Indenture on the part of the Company to be performed or
observed;
(2) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time, or both, would
become an Event of Default, shall have happened and be continuing;
(3) in the case of the Securities of a series held by a Trust, such
consolidation, merger, conveyance, transfer or lease is permitted under the
related Trust Agreement and Guarantee and does not give rise to any breach or
violation of the related Trust Agreement or Guarantee; and
(4) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and any such supplemental indenture complies with
this Article and that all conditions precedent herein provided for relating to
such transaction have been complied with; and the Trustee, subject to Section
6.1, may rely upon such Officers' Certificate and Opinion of Counsel as
conclusive evidence that such transaction complies with this Section 8.1.
SECTION 8.2 Successor Corporation Substituted.
Upon any consolidation or merger by the Company with or into any other
Person, or any conveyance, transfer or lease by the Company of its properties
and assets substantially as an entirety
<PAGE> 66
59
to any Person in accordance with Section 8.1, the successor Person formed by
such consolidation or into which the Company is merged or to which such
conveyance, transfer or lease is made shall succeed to, and be substituted for,
and may exercise every right and power of, the Company under this Indenture with
the same effect as if such successor Person had been named as the Company
herein; and in the event of any such conveyance, transfer or lease the Company
shall be discharged from all obligations and covenants under the Indenture and
the Securities and may be dissolved and liquidated.
Such successor Person may cause to be signed, and may issue either in
its own name or in the name of the Company, any or all of the Securities
issuable hereunder which theretofore shall not have been signed by the Company
and delivered to the Trustee; and, upon the written order of such successor
Person instead of the Company and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and
shall make available for delivery any Securities which previously shall have
been signed and delivered by the officers of the Company to the Trustee for
authentication pursuant to such provisions and any Securities which such
successor Person thereafter shall cause to be signed and delivered to the
Trustee on its behalf for the purpose pursuant to such provisions. All the
Securities so issued shall in all respects have the same legal rank and benefit
under this Indenture as the Securities theretofore or thereafter issued in
accordance with the terms of this Indenture as though all of such Securities had
been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, conveyance or lease,
such changes in phraseology and form may be made in the Securities thereafter to
be issued as may be appropriate.
SECTION 8.3 Opinion of Counsel to be Given to the Trustee.
The Trustee shall be entitled to receive and, subject to Sections 6.1
and 6.2, shall be fully protected in relying upon an Opinion of Counsel as
conclusive evidence that any such consolidation, merger, sale, conveyance or
lease and any such assumption complies with the provisions of this Article 8.
ARTICLE 9
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form reasonably satisfactory
to the Trustee, for any of the following purposes:
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60
(1) to evidence the succession of another Person to the Company, and
the assumption by any such successor of the covenants of the Company herein and
in the Securities contained; or
(2) to convey, transfer, assign, mortgage or pledge any property to or
with the Trustee or to surrender any right or power herein conferred upon the
Company; or
(3) to establish the form or terms of Securities of any series as
permitted by Sections 2.1 or 3.1; or
(4) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be for
the benefit of less than all series of Securities, stating that such covenants
are expressly being included solely for the benefit of such series) or to
surrender any right or power herein conferred upon the Company; or
(5) to add any additional Events of Default for the benefit of the
Holders of all or any series of Securities (and if such additional Events of
Default are to be for the benefit of less than all series of Securities, stating
that such additional Events of Default are expressly being included solely for
the benefit of such series); or
(6) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only when
there is no Security Outstanding of any series created prior to the execution of
such supplemental indenture which is entitled to the benefit of such provision;
or
(7) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision herein,
or to make any other provisions with respect to matters or questions arising
under this Indenture, provided that such action pursuant to this clause (7)
shall not adversely affect the interest of the Holders of Securities of any
series in any material respect or, in the case of the Securities of a series
issued to a Trust and for so long as any of the corresponding series of Capital
Securities issued by such Trust shall remain outstanding, the holders of such
Capital Securities; or
(8) to evidence and provide for the acceptance of appointment hereunder
by a successor Trustee with respect to the Securities of one or more series and
to add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of Section
6.11(2); or
(9) to comply with the requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the Trust Indenture
Act.
<PAGE> 68
61
SECTION 9.2 Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(1) except to the extent permitted by Section 3.11 or as otherwise
specified as contemplated by Section 2.1 or Section 3.1 with respect to the
deferral of the payment of interest on the Securities of any series, change the
Stated Maturity of the principal of, or any installment of interest (including
any Additional Interest) on, any Security, or reduce the principal amount
thereof or the rate of interest thereon or reduce any premium payable upon the
redemption thereof, or reduce the amount of principal of a Discount Security
that would be due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 5.2, or change the place of payment where, or the
coin or currency in which, any Security or 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 of any series, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section 5.13 or
Section 10.5, 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 Security affected thereby; or
(4) modify the provisions in Article 13 of this Indenture with respect
to the subordination of Outstanding Securities of any series in a manner adverse
to the Holders thereof;
provided, further, that, in the case of the Securities of a series issued to a
Trust, so long as any of the corresponding series of Capital Securities issued
by such Trust remains outstanding, (i) no such amendment shall be made that
adversely affects the holders of such Capital Securities in any material
respect, and no termination of this Indenture shall occur, and no waiver of any
Event of Default or compliance with any covenant under this Indenture shall be
effective, without the prior consent of the holders of at least a majority of
the aggregate Liquidation Amount (as defined in the Trust
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62
Agreement under which such Trust is organized) of such Capital Securities then
outstanding unless and until the principal (and premium, if any) of the
Securities of such series and all accrued and, subject to Section 3.7, unpaid
interest (including any Additional Interest) thereon have been paid in full and
(ii) no amendment shall be made to Section 5.8 of this Indenture that would
impair the rights of the holders of Capital Securities provided therein without
the prior consent of the holders of each Capital Security then outstanding
unless and until the principal (and premium, if any) of the Securities of such
series and all accrued and (subject to Section 3.7) unpaid interest (including
any Additional Interest) thereon have been paid in full.
A supplemental indenture that changes or eliminates any covenant or
other provision of this Indenture that has expressly been included solely for
the benefit of one or more particular series of Securities or Capital
Securities, or which modifies the rights of the Holders of Securities or holders
of Capital Securities of such series with respect to such covenant or other
provision, shall be deemed not to affect the rights under this Indenture of the
Holders of Securities or holders of Capital Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 9.3 Execution of Supplemental Indentures.
In executing or accepting the additional trusts created by any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be provided, and
(subject to Section 6.1) shall be fully protected in relying upon, an Officers'
Certificate and an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture, and that
all conditions precedent have been complied with. The Trustee may, but shall not
be obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 9.4 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
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SECTION 9.5 Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 9.6 Reference in 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 Company, bear a notation in form approved by the Company as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities of such series.
SECTION 9.7 Notice of Supplemental Indentures.
Promptly after the execution by the Company and the appropriate Trustee
of any supplemental indenture pursuant to Section 9.2, the Company shall
transmit by mail to all Holders of any series of the securities affected
thereby, as their name and addresses appear in the Securities Register, a notice
setting forth in general terms the substance of each supplemental indenture.
ARTICLE 10
COVENANTS
SECTION 10.1 Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any) and interest (including Additional Interest) on the Securities of that
series in accordance with the terms of such Securities and this Indenture.
SECTION 10.2 Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Securities, an office or agency where Securities of that series may be presented
or surrendered for payment and an office or agency where Securities of that
series may be surrendered for transfer or exchange and where notices and demands
to or upon the Company in respect of the Securities of that series and this
Indenture may be served. The Company initially appoints the Trustee, acting
through its Corporate Trust Office, as its agent for said purposes. The Company
will give prompt written notice to the
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Trustee of any change in the location of any such office or agency. If at any
time the Company shall fail to maintain such office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee, and the Company hereby appoints the Trustee as its agent to receive all
such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for any
or all of such purposes, and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in each
Place of Payment for Securities of any series for such purposes. The Company
will give prompt written notice to the Trustee of any such designation and any
change in the location of any such office or agency.
SECTION 10.3 Money for Security Payments to be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest on any of the Securities of such
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal (and premium, if any) or interest
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
failure so to act.
Whenever the Company shall have one or more Paying Agents, it will,
prior to 10:00 a.m. New York City time, on each due date of the principal of or
interest on any Securities, deposit with a Paying Agent a sum sufficient to pay
the principal (and premium, if any) or interest so becoming due, such sum to be
held in trust for the benefit of the Persons entitled to such principal and
premium (if any) or interest, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its failure so to act.
The Company will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest (including Additional Interest) on Securities in
trust for the benefit of the Persons entitled thereto until such sums shall be
paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any other
obligor upon the Securities) in the making of any payment of principal (and
premium, if any) or interest (including Additional Interest);
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(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held in
trust by such Paying Agent; and
(4) comply with the provisions of the Trust Indenture Act applicable to
it as a Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by the Company or any Paying Agent to
the Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and premium, if
any) or interest (including Additional Interest) on any Security and remaining
unclaimed for two years after such principal (and premium, if any) or interest
has become due and payable shall (unless otherwise required by mandatory
provision of applicable escheat or abandoned or unclaimed property law) be paid
on Company Request to the Company, or (if then held by the Company) shall
(unless otherwise required by mandatory provision of applicable escheat or
abandoned or unclaimed property law) be discharged from such trust; and the
Holder of such Security shall thereafter, as an unsecured general creditor, look
only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in a newspaper
published in the English language, customarily published on each Business Day
and of general circulation in the Borough of Manhattan, The City of New York,
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication,
any unclaimed balance of such money then remaining will be repaid to the
Company.
SECTION 10.4 Statement as to Compliance.
The Company shall deliver to the Trustee, within 120 days after the end
of each calendar year of the Company ending after the date hereof, an Officers'
Certificate, one of the signatories of which shall be the principal executive,
principal financial or principal accounting officer of the Company, covering the
preceding calendar year, stating whether or not to the best knowledge of the
signers thereof the Company is in default in the performance, observance or
fulfillment of or compliance with any of the terms, provisions, covenants and
conditions of this Indenture, and if the Company shall be in default, specifying
all such defaults and the nature and status thereof of which they may
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have knowledge. For the purpose of this Section 10.4, compliance shall be
determined without regard to any grace period or requirement of notice provided
pursuant to the terms of this Indenture.
SECTION 10.5 Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
covenant or condition provided pursuant to Section 3.1, 9.1(3) or 9.1(4) with
respect to the Securities of any series, if before or after the time for such
compliance the Holders of at least a majority in principal amount of the
Outstanding Securities of such series shall, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with such
covenant or condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company in respect of any
such covenant or condition shall remain in full force and effect.
SECTION 10.6 Payment of Trust Costs and Expenses.
Since each Trust is being formed solely to facilitate an investment in
the Securities, the Company, in its capacity as the issuer of the Securities,
hereby covenants to pay all debts and obligations (other than with respect to
the Capital Securities and Common Securities) and all costs and expenses of each
Trust (including, but not limited to, all costs and expenses relating to the
organization of the Trust, the fees and expenses of the Trustees and all costs
and expenses relating to the operation of the Trust) and to pay any and all
taxes, duties, assessments or governmental charges of whatever nature (other
than withholding taxes) imposed on the Trust by the United States, or any other
taxing authority, so that the net amounts received and retained by the Trust and
the Property Trustee after paying any such debts, obligations, costs, expenses,
taxes, duties, assessments or other governmental charges will be equal to the
amounts the Trust and the Property Trustee would have received had no such
debts, obligations, costs, expenses, taxes, duties, assessments or other
governmental charges been incurred by or imposed on the Trust. The obligations
of the Company to pay all debts, obligations, costs, expenses, taxes, duties,
assessments or other governmental charges of each Trust (other than with respect
to the Capital Securities and Common Securities) shall constitute additional
indebtedness hereunder and shall survive the satisfaction and discharge of this
Indenture.
SECTION 10.7 Additional Covenants.
The Company covenants and agrees with each Holder of Securities of each
series that it shall not, and it shall not permit any Subsidiary of the Company
to, (i) declare or pay any dividends or distributions on, or redeem purchase,
acquire or make a liquidation payment with respect to, any shares of the
Company's capital stock, or (ii) make any payment of principal of or interest or
premium, if any, on or repay, repurchase or redeem any debt securities of the
Company that rank pari passu with or junior in interest to the Securities of
such series or (iii) make any guarantee
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payments with respect to any guarantee by the Company of debt securities of any
subsidiary of the Company if such guarantee ranks pari passu with or junior in
interest to the Securities (other than (a) dividends or distributions in the
Company's capital stock, (b) any declaration of a dividend in connection with
the implementation of a Rights Plan or the redemption or repurchase of any
rights distributed pursuant to a Rights Plan, (c) payments under the Guarantee
with respect to the Securities of such Series, and (d) purchases of Common Stock
related to the issuance of Common Stock or rights under any of the Company's
benefit plans for its directors, officers or employees, related to the issuance
of Common Stock or rights under a dividend reinvestment and stock purchase plan,
or related to the issuance of Common Stock (or securities convertible or
exchangeable for Common Stock) as consideration in an acquisition transaction
that was entered into prior to the commencement of such Extension Period) if at
such time (x) there shall have occurred any event of which the Company has
actual knowledge that (A) with the giving of notice or the lapse of time or
both, would constitute an Event of Default with respect to the Securities of
such series and (B) in respect of which the Company shall not have taken
reasonable steps to cure, (y) if the Securities of such series are held by a
Trust, the Company shall be in default with respect to its payment of any
obligations under the Guarantee relating to the Capital Securities issued by
such Trust or (z) the Company shall have given notice of its election to begin
an Extension Period with respect to the Securities of such series as provided
herein and shall not have rescinded such notice, or such Extension Period, or
any extension thereof, shall be continuing.
The Company also covenants with each Holder of Securities of a series
issued to a Trust (i) to maintain directly 100% ownership of the Common
Securities of such Trust; provided, however, that any permitted successor of the
Company hereunder may succeed to the Company's ownership of such Common
Securities, (ii) not to voluntarily terminate, wind-up or liquidate such Trust,
except (a) in connection with a distribution of the Securities of such series to
the holders of the Trust Securities of such Trust in liquidation of such Trust
or (b) in connection with certain mergers, consolidations or amalgamations
permitted by the related Trust Agreement and (iii) to use its reasonable
efforts, consistent with the terms and provisions of such Trust Agreement, to
cause such Trust to remain classified as a grantor trust and not an association
taxable as a corporation for United States federal income tax purposes.
SECTION 10.8 Calculation of Original Issue Discount.
The Company shall file with the Trustee promptly at the end of each
calendar year a written notice specifying the amount of original issue discount
(including daily rates and accrual periods) accrued on Outstanding Securities as
of the end of such year, if any.
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ARTICLE 11
REDEMPTION OF SECURITIES
SECTION 11.1 Applicability of This Article.
Redemption of Securities of any series (whether by operation of a
sinking fund or otherwise) as permitted or required by any form of Security
issued pursuant to this Indenture shall be made in accordance with such form of
Security and this Article; provided, however, that if any provision of any such
form of Security shall conflict with any provision of this Article, the
provision of such form of Security shall govern. Except as otherwise set forth
in the form of Security for such series, each Security of such series shall be
subject to partial redemption only in the amount of $25 or, in the case of the
Securities of a series issued to a Trust, $25, or integral multiples thereof.
SECTION 11.2 Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced
by or pursuant to a Board Resolution. In case of any redemption at the election
of the Company of the Securities, the Company shall, not less than 45 nor more
than 60 days prior to the Redemption Date (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such date and of the
principal amount of Securities of that series to be redeemed. In the case of any
redemption of Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Securities, the Company shall furnish
the Trustee with an Officers' Certificate and an Opinion of Counsel evidencing
compliance with such restriction.
SECTION 11.3 Selection of Securities to be Redeemed.
If less than all the Securities of any series are to be redeemed
(unless all the Securities of such series and of a specified tenor are to be
redeemed or unless such redemption affects only a single Security), the
Securities will be redeemed on a pro rata basis, provided that the unredeemed
portion of the principal amount of any Security shall be in an authorized
denomination (which shall not be less than the minimum authorized denomination)
for such Security. If less than all the Securities of such series and of a
specified tenor are to be redeemed (unless such redemption affects only a single
Security), the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series and specified tenor not previously called for
redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of the
Securities selected for partial redemption and 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
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Securities shall relate, in the case of any Security redeemed or to be redeemed
only in part, to the portion of the principal amount of such Security which has
been or is to be redeemed. If the Company shall so direct, Securities registered
in the name of the Company, any Affiliate or any Subsidiary thereof shall not be
included in the Securities selected for redemption.
SECTION 11.4 Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not later than the thirtieth day, and not earlier than the
sixtieth day, prior to the Redemption Date, to each Holder of Securities to be
redeemed, at the address of such Holder as it appears in the Securities
Register.
With respect to Securities of each series to be redeemed, each notice
of redemption shall identify the Securities to be redeemed (including CUSIP
number, if a CUSIP number has been assigned to such Securities of such Series)
and shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all Outstanding Securities of such particular series
and having the same terms are to be redeemed, the identification (and, in the
case of partial redemption, the respective principal amounts) of the particular
Securities to be redeemed;
(d) that on the Redemption Date, the Redemption Price will become due
and payable upon each such Security or portion thereof, and that interest
thereon, if any, shall cease to accrue on and after said date;
(e) the place or places where such Securities are to be surrendered for
payment of the Redemption Price; and
(f) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company and shall not be
irrevocable. The notice if mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the Holder
receives such notice. In any case, a failure to give such notice by mail or any
defect in the notice to the Holder of any Security designated for redemption as
a whole or in part shall not affect the validity of the proceedings for the
redemption of any other Security.
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SECTION 11.5 Deposit of Redemption Price.
Prior to 10:00 a.m. New York City time, on the Redemption Date
specified in the notice of redemption given as provided in Section 11.4, the
Company will deposit with the Trustee or with one or more Paying Agents (or if
the Company is acting as its own Paying Agent, the Company will segregate and
hold in trust as provided in Section 10.3) an amount of money sufficient to pay
the Redemption Price of, and any accrued interest (including Additional
Interest) on, all the Securities which are to be redeemed on that date.
SECTION 11.6 Payment of Securities Called for Redemption.
If any notice of redemption has been given as provided in Section 11.4,
the Securities or portion of Securities with respect to which such notice has
been given shall become due and payable on the date and at the place or places
stated in such notice at the applicable Redemption Price. On presentation and
surrender of such Securities at a Place of Payment in said notice specified, the
said securities or the specified portions thereof shall be paid and redeemed by
the Company at the applicable Redemption Price, together with accrued interest
(including any Additional Interest) to the Redemption Date; provided, however,
that, unless otherwise specified as contemplated by Section 3.1, installments of
interest whose Stated Maturity is on or prior to the Redemption Date will 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 3.7.
Upon presentation of any Security redeemed in part only, the Company
shall execute and the Trustee shall authenticate and make available for delivery
to the Holder thereof, at the expense of the Company, a new Security or
Securities of the same series, of authorized denominations, in aggregate
principal amount equal to the unredeemed portion of the Security so presented
and having the same Original Issue Date, Stated Maturity and terms. If a Global
Security is so surrendered, such new Security will also be a new Global
Security.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal of and premium, if any, on such
Security shall, until paid, bear interest from the Redemption Date at the rate
prescribed therefor in the Security.
SECTION 11.7 Right of Redemption of Securities Initially Issued to a
Trust.
In the case of the Securities of a series initially issued to a Trust,
except as otherwise established pursuant to Section 3.1 for the Securities of a
Series, the Company, at its option, may redeem such Securities (i) on or after
the date five years after the Original Issue Date of such Securities, in whole
at any time or in part from time to time, or (ii) upon the occurrence and during
the continuation of a Tax Event, an Investment Company Event or a Regulatory
Capital Event, at any time within 90 days following the occurrence of such Tax
Event, an Investment Company Event or Regulatory Capital Event in respect of
such Trust, in whole (but not in part), in each case at a
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Redemption Price equal to 100% of the principal amount thereof; provided that
the Company's right to redeem such Securities pursuant to clause (i) or (ii)
above is subject to the Company having received the prior approval of the
Federal Reserve if required under applicable capital guidelines or policies of
the Federal Reserve.
ARTICLE 12
SINKING FUNDS
SECTION 12.1 Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of any series except as otherwise specified as
contemplated by Section 3.1 for such Securities.
The minimum amount of any sinking fund payment provided for by the
terms of any Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any sinking fund payment in excess of such minimum
amount which is permitted to be made by the terms of such Securities of any
series is herein referred to as an "optional sinking fund payment". If provided
for by the terms of any Securities of any series, the cash amount of any sinking
fund payment may be subject to reduction as provided in Section 12.2. Each
sinking fund payment shall be applied to the redemption of Securities of any
series as provided for by the terms of such Securities.
SECTION 12.2 Satisfaction of Sinking Fund Payments with Securities.
In lieu of making all or any part of a mandatory sinking fund payment
with respect to any Securities of a series in cash, the Company may at its
option, at any time no more than 16 months and no less than 30 days prior to the
date on which such sinking fund payment is due, deliver to the Trustee
Securities of such series (together with the unmatured coupons, if any,
appertaining thereto) theretofore purchased or otherwise acquired by the
Company, except Securities of such series that have been redeemed through the
application of mandatory or optional sinking fund payments pursuant to the terms
of the Securities of such series, accompanied by a Company Order instructing the
Trustee to credit such obligations and stating that the Securities of such
series were originally issued by the Company by way of bona fide sale or other
negotiation for value; provided that the Securities to be so credited have not
been previously so credited. The Securities to be so credited shall be received
and credited for such purpose by the Trustee at the redemption price for such
Securities, as specified in the Securities so to be redeemed, for redemption
through operation of the sinking fund and the amount of such sinking fund
payment shall be reduced accordingly.
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SECTION 12.3 Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
such Securities pursuant to the terms of such Securities, the portion thereof,
if any, which is to be satisfied by payment of cash in the currency in which the
Securities of such series are payable (except as provided pursuant to Section
3.1) and the portion thereof, if any, which is to be satisfied by delivering and
crediting Securities pursuant to Section 12.2 and will also deliver to the
Trustee any Securities to be so delivered. Such Officers' Certificate shall be
irrevocable and upon its delivery the Company shall be obligated to make the
cash payment or payments therein referred to, if any, on or before the
succeeding sinking fund payment date. In the case of the failure of the Company
to deliver such Officers' Certificate (or, as required by this Indenture, the
Securities and coupons, if any, specified in such Officers' Certificate), the
sinking fund payment due on the succeeding sinking fund payment date for such
series shall be paid entirely in cash and shall be sufficient to redeem the
principal amount of the Securities of such series subject to a mandatory sinking
fund payment without the right to deliver or credit securities as provided in
Section 12.2 and without the right to make the optional sinking fund payment
with respect to such series at such time.
Any sinking fund payment or payments (mandatory or optional) made in
cash plus any unused balance of any preceding sinking fund payments made with
respect to the Securities of any particular series shall be applied by the
Trustee (or by the Company if the Company is acting as its own Paying Agent) on
the sinking fund payment date on which such payment is made (or, if such payment
is made before a sinking fund payment date, on the sinking fund payment date
immediately following the date of such payment) to the redemption of Securities
of such series at the Redemption Price specified in such Securities with respect
to the sinking fund. Any sinking fund moneys not so applied or allocated by the
Trustee (or, if the Company is acting as its own Paying Agent, segregated and
held in trust by the Company as provided in Section 10.3) for such series and
together with such payment (or such amount so segregated) shall be applied in
accordance with the provisions of this Section 12.3. Any and all sinking fund
moneys with respect to the Securities of any particular series held by the
Trustee (or if the Company is acting as its own Paying Agent, segregated and
held in trust as provided in Section 10.3) on the last sinking fund payment date
with respect to Securities of such series and not held for the payment or
redemption of particular Securities of such series shall be applied by the
Trustee (or by the Company if the Company is acting as its own Paying Agent),
together with other moneys, if necessary, to be deposited (or segregated)
sufficient for the purpose, to the payment of the principal of the Securities of
such series at Maturity. The Trustee shall select the Securities to be redeemed
upon such sinking fund payment date in the manner specified in Section 11.3 and
cause notice of the redemption thereof to be given in the name of and at the
expense of the Company in the manner provided in Section 11.4. Such notice
having been duly given, the redemption of such Securities shall be made upon the
terms and in the manner stated in
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Section 11.6. On or before each sinking fund payment date, the Company shall pay
to the Trustee (or, if the Company is acting as its own Paying Agent, the
Company shall segregate and hold in trust as provided in Section 10.3) in cash a
sum in the currency in which Securities of such series are payable (except as
provided pursuant to Section 3.1) equal to the principal and any interest
accrued to the Redemption Date for Securities or portions thereof to be redeemed
on such sinking fund payment date pursuant to this Section 12.3.
Neither the Trustee nor the Company shall redeem any Securities of a
series with sinking fund moneys or mail any notice of redemption of Securities
of such series by operation of the sinking fund for such series during the
continuance of a default in payment of interest, if any, on any Securities of
such series or of any Event of Default (other than an Event of Default occurring
as a consequence of this paragraph) with respect to the Securities of such
series, except that if the notice of redemption shall have been provided in
accordance with the provisions hereof, the Trustee (or the Company, if the
Company is then acting as its own Paying Agent) shall redeem such Securities if
cash sufficient for that purpose shall be deposited with the Trustee (or
segregated by the Company) for that purpose in accordance with the terms of this
Article 12. Except as aforesaid, any moneys in the sinking fund for such series
at the time when any such default or Event of Default shall occur and any moneys
thereafter paid into such sinking fund shall, during the continuance of such
default or Event of Default, be held as security for the payment of the
Securities and coupons, if any, of such series; provided, however, that in case
such default or Event of Default shall have been cured or waived herein, such
moneys shall thereafter be applied on the next sinking fund payment date for the
Securities of such series on which such moneys may be applied pursuant to the
provisions of this Section 12.3.
ARTICLE 13
SUBORDINATION OF SECURITIES
SECTION 13.1 Securities Subordinate to Senior Debt.
The Company covenants and agrees, and each Holder of a Security, by its
acceptance thereof, likewise covenants and agrees, that, to the extent and in
the manner hereinafter set forth in this Article, the payment of the principal
of (and premium, if any) and interest (including any Additional Interest) on
each and all of the Securities are hereby expressly made subordinate and subject
in right of payment to the prior payment in full of all Senior Debt.
SECTION 13.2 Payment Over of Proceeds Upon Dissolution, Etc.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company (each such event, if any, herein
sometimes referred to as a "Proceeding"), then the holders
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of Senior Debt shall be entitled to receive payment in full of all amounts due
or to become due on such Senior Debt, or provision shall be made for such
payment in cash or cash equivalents or otherwise in a manner satisfactory to the
holders of Senior Debt, before the Holders of the Securities are entitled to
receive or retain any payment or distribution of any kind or character, whether
in cash, property or securities (including any payment or distribution which may
be payable or deliverable by reason of the payment of any other Debt of the
Company (including any series of the Securities) subordinated to the payment of
the Securities, such payment or distribution being hereinafter referred to as a
"Junior Subordinated Payment"), on account of principal of (or premium, if any)
or interest (including any Additional Interest) on the Securities or on account
of the purchase or other acquisition of Securities by the Company or any
Subsidiary and to that end the holders of Senior Debt shall be entitled to
receive, for application to the payment thereof, any payment or distribution of
any kind or character, whether in cash, property or securities, including any
Junior Subordinated Payment, which may be payable or deliverable in respect of
the Securities in any such Proceeding; provided, however, that holders of Senior
Debt shall not be entitled to receive payment of any such amounts to the extent
that such holders would be required by the subordination provisions of such
Senior Debt to pay such amounts over to the obligees on trade accounts payable
or other liabilities arising in the ordinary course of the Company's business.
In the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or the Holder of any Security shall have received any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, including any Junior Subordinated
Payment, before all amounts due or to become due on all Senior Debt are paid in
full or payment thereof is provided for in cash or cash equivalents or otherwise
in a manner satisfactory to the holders of Senior Debt, and if such fact shall,
at or prior to the time of such payment or distribution, have been made known to
the Trustee or, as the case may be, such Holder, then and in such event such
payment or distribution shall be paid over or delivered forthwith to the trustee
in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or
other Person making payment or distribution of assets of the Company for
application to the payment of all amounts due or to become due on all Senior
Debt remaining unpaid, to the extent necessary to pay all amounts due or to
become due on all Senior Debt in full, after giving effect to any concurrent
payment or distribution to or for the holders of Senior Debt; provided, however,
that holders of Senior Debt shall not be entitled to receive payment of any such
amounts to the extent that such holders would be required by the subordination
provisions of such Senior Debt to pay such amounts over to the obligees on trade
accounts payable or other liabilities arising in the ordinary course of the
Company's business.
For purposes of this Article only, the words "any payment or
distribution of any kind or character, whether in cash, property or securities"
shall not be deemed to include shares of stock of the Company as reorganized or
readjusted, or securities of the Company or any other corporation provided for
by a plan of reorganization or readjustment which securities are subordinated in
right of payment to all then outstanding Senior Debt to substantially the same
extent as the Securities are so subordinated as provided in this Article. The
consolidation of the Company with, or the merger
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of the Company into, another Person or the liquidation or dissolution of the
Company following the sale of all or substantially all of its properties and
assets as an entirety to another Person upon the terms and conditions set forth
in Article 8 shall not be deemed a Proceeding for the purposes of this Section
if the Person formed by such consolidation or into which the Company is merged
or the Person which acquires by sale such properties and assets as an entirety,
as the case may be, shall, as a part of such consolidation, merger, or sale
comply with the conditions set forth in Article 8.
SECTION 13.3 Prior Payment to Senior Debt Upon Acceleration of
Securities.
In the event that any Securities are declared due and payable before
their Stated Maturity, then and in such event the holders of the Senior Debt
outstanding at the time such Securities so become due and payable shall be
entitled to receive payment in full of all amounts due on or in respect of such
Senior Debt (including any amounts due upon acceleration), or provision shall be
made for such payment in cash or cash equivalents or otherwise in a manner
satisfactory to the holders of Senior Debt, before the Holders of the Securities
are entitled to receive any payment or distribution of any kind or character,
whether in cash, properties or securities (including any Junior Subordinated
Payment) by the Company on account of the principal of (or premium, if any) or
interest (including any Additional Interest) on the Securities or on account of
the purchase or other acquisition of Securities by the Company or any
Subsidiary; provided, however, that nothing in this Section shall prevent the
satisfaction of any sinking fund payment in accordance with this Indenture or as
otherwise specified as contemplated by Section 3.1 for the Securities of any
series by delivering and crediting pursuant to Section 12.2 or as otherwise
specified as contemplated by Section 3.1 for the Securities of any series
Securities which have been acquired (upon redemption or otherwise) prior to such
declaration of acceleration; provided, however, that holders of Senior Debt
shall not be entitled to receive payment of any such amounts to the extent that
such holders would be required by the subordination provisions of such Senior
Debt to pay such amounts over to the obligees on trade accounts payable or other
liabilities arising in the ordinary course of the Company's business.
In the event that, notwithstanding the foregoing, the Company shall
make any payment to the Trustee or the Holder of any Security prohibited by the
foregoing provisions of this Section, and if such fact shall, at or prior to the
time of such payment, have been made known to the Trustee or, as the case may
be, such Holder, then and in such event such payment shall be paid over and
delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment with
respect to which Section 13.2 would be applicable.
SECTION 13.4 No Payment When Senior Debt in Default.
(a) In the event and during the continuation of any default in the
payment of principal of (or premium, if any) or interest on any Senior Debt, or
in the event that any event of default with respect
<PAGE> 83
76
to any Senior Debt shall have occurred and be continuing and shall have resulted
in such Senior Debt becoming or being declared due and payable prior to the date
on which it would otherwise have become due and payable, unless and until such
event of default shall have been cured or waived or shall have ceased to exist
and such acceleration shall have been rescinded or annulled, or (b) in the event
any judicial proceeding shall be pending with respect to any such default in
payment or such event or default, then no payment or distribution of any kind or
character, whether in cash, properties or securities (including any Junior
Subordinated Payment) shall be made by the Company on account of principal of
(or premium, if any) or interest (including any Additional Interest), if any, on
the Securities or on account of the purchase or other acquisition of Securities
by the Company or any Subsidiary, in each case unless and until all amounts due
or to become due on such Senior Debt are paid in full; provided, however, that
nothing in this Section shall prevent the satisfaction of any sinking fund
payment in accordance with this Indenture or as otherwise specified as
contemplated by Section 3.1 for the Securities of any series by delivering and
crediting pursuant to Section 12.2 or as otherwise specified as contemplated by
Section 3.1 for the Securities of any series Securities which have been acquired
(upon redemption or otherwise) prior to such default in payment or event of
default; provided, however, that holders of Senior Debt shall not be entitled to
receive payment of any such amounts to the extent that such holders would be
required by the subordination provisions of such Senior Debt to pay such amounts
over to the obligees on trade accounts payable or other liabilities arising in
the ordinary course of the Company's business.
In the event that, notwithstanding the foregoing, the Company shall
make any payment to the Trustee or the Holder of any Security prohibited by the
foregoing provisions of this Section, and if such fact shall, at or prior to the
time of such payment, have been made known to the Trustee or, as the case may
be, such Holder, then and in such event such payment shall be paid over and
delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment with
respect to which Section 13.2 would be applicable.
SECTION 13.5 Payment Permitted If No Default.
Nothing contained in this Article or elsewhere in this Indenture or in
any of the Securities shall prevent (a) the Company, at any time except during
the pendency of any Proceeding referred to in Section 13.2 or under the
conditions described in Sections 13.3 and 13.4, from making payments at any time
of principal of (and premium, if any) or interest (including Additional
Interest) on the Securities, or (b) the application by the Trustee of any money
deposited with it hereunder to the payment of or on account of the principal of
(and premium, if any) or interest (including any Additional Interest) on the
Securities or the retention of such payment by the Holders, if, at the time of
such application by the Trustee, it did not have knowledge that such payment
would have been prohibited by the provisions of this Article.
<PAGE> 84
77
SECTION 13.6 Subrogation to Rights of Holders of Senior Debt.
Subject to the payment in full of all amounts due or to become due on
all Senior Debt, or the provision for such payment in cash or cash equivalents
or otherwise in a manner satisfactory to the holders of Senior Debt, the Holders
of the Securities shall be subrogated to the extent of the payments or
distributions made to the holders of such Senior Debt pursuant to the provisions
of this Article (equally and ratably with the holders of all indebtedness of the
Company which by its express terms is subordinated to Senior Debt of the Company
to substantially the same extent as the Securities are subordinated to the
Senior Debt and is entitled to like rights of subrogation by reason of any
payments or distributions made to holders of such Senior Debt) to the rights of
the holders of such Senior Debt to receive payments and distributions of cash,
property and securities applicable to the Senior Debt until the principal of
(and premium, if any) and interest on the Securities shall be paid in full. For
purposes of such subrogation, no payments or distributions to the holders of the
Senior Debt of any cash, property or securities to which the Holders of the
Securities or the Trustee would be entitled except for the provisions of this
Article, and no payments over pursuant to the provisions of this Article to the
holders of Senior Debt by Holders of the Securities or the Trustee, shall, as
among the Company, its creditors other than holders of Senior Debt, and the
Holders of the Securities, be deemed to be a payment or distribution by the
Company to or on account of the Senior Debt.
SECTION 13.7 Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended solely for the
purpose of defining the relative rights of the Holders of the Securities on the
one hand and the holders of Senior Debt on the other hand. Nothing contained in
this Article or elsewhere in this Indenture or in the Securities is intended to
or shall (a) impair, as between the Company and the Holders of the Securities,
the obligations of the Company, which are absolute and unconditional, to pay to
the Holders of the Securities the principal of (and premium, if any) and
interest (including any Additional Interest) on the Securities as and when the
same shall become due and payable in accordance with their terms; or (b) affect
the relative rights against the Company of the Holders of the Securities and
creditors of the Company other than their rights in relation to the holders of
Senior Debt; or (c) prevent the Trustee or the Holder of any Security from
exercising all remedies otherwise permitted by applicable law upon default under
this Indenture including, without limitation, filing and voting claims in any
Proceeding, subject to the rights, if any, under this Article of the holders of
Senior Debt to receive cash, property and securities otherwise payable or
deliverable to the Trustee or such Holder.
<PAGE> 85
78
SECTION 13.8 Trustee to Effectuate Subordination.
Each Holder of a Security by his or her acceptance thereof authorizes
and directs the Trustee on his or her behalf to take such action as may be
necessary or appropriate to acknowledge or effectuate the subordination provided
in this Article and appoints the Trustee his or her attorney-in-fact for any and
all such purposes.
SECTION 13.9 No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior Debt to enforce
subordination as herein provided shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the Company or by any act
or failure to act, in good faith, by any such holder, or by any noncompliance by
the Company with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof that any such holder may have or be
otherwise charged with.
Without in any way limiting the generality of the immediately preceding
paragraph, the holders of Senior Debt may, at any time and from to time, without
the consent of or notice to the Trustee or the Holders of the Securities,
without incurring responsibility to the Holders of the Securities and without
impairing or releasing the subordination provided in this Article or the
obligations hereunder of the Holders of the Securities to the holders of Senior
Debt, do any one or more of the following: (i) change the manner, place or terms
of payment or extend the time of payment of, or renew or alter, Senior Debt, or
otherwise amend or supplement in any manner Senior Debt or any instrument
evidencing the same or any agreement under which Senior Debt is outstanding;
(ii) sell, exchange, release or otherwise deal with any property pledged,
mortgaged or otherwise securing Senior Debt; (iii) release any Person liable in
any manner for the collection of Senior Debt; and (iv) exercise or refrain from
exercising any rights against the Company and any other Person.
SECTION 13.10 Notice to Trustee.
The Company shall give prompt written notice to the Trustee of any fact
known to the Company which would prohibit the making of any payment to or by the
Trustee in respect of the Securities. Notwithstanding the provisions of this
Article or any other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which would prohibit the
making of any payment to or by the Trustee in respect of the Securities, unless
and until the Trustee shall have received written notice thereof from the
Company or a holder of Senior Debt or from any trustee, agent or representative
therefor; provided, however, that if the Trustee shall not have received the
notice provided for in this Section at least two Business Days prior to the date
upon which by the terms hereof any monies may become payable for any purpose
(including, without limitation, the payment of the principal of (and premium, if
any) or interest (including any
<PAGE> 86
79
Additional Interest) on any Security), then, anything herein contained to the
contrary notwithstanding, the Trustee shall have full power and authority to
receive such monies and to apply the 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 within two Business Days prior to such date.
Subject to the provisions of Section 6.1, the Trustee shall be entitled
to rely conclusively on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Debt (or a trustee therefor) to
establish that such notice has been given by a holder of Senior Debt (or a
trustee therefor). In the event that the Trustee determines in good faith that
further evidence is required with respect to the right of any Person as a holder
of Senior Debt to participate in any payment or distribution pursuant to this
Article, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Debt held by
such Person, the extent to which such Person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of such
Person under this Article, and if such evidence is not furnished, the Trustee
may defer any payment to such Person pending judicial determination as to the
right of such Person to receive such payment.
SECTION 13.11 Reliance on Judicial Order or Certificate of Liquidating
Agent.
Upon any payment or distribution of assets of the Company referred to
in this Article, the Trustee, subject to the provisions of Section 6.1, and the
Holders of the Securities shall be entitled to rely upon any order or decree
entered by any court of competent jurisdiction in which such Proceeding is
pending, or a certificate of the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee for the benefit of creditors, agent or other Person
making such payment or distribution, delivered to the Trustee or to the Holders
of Securities, for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of the Senior Debt and
other indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article.
SECTION 13.12 Trustee Not Fiduciary for Holders of Senior Debt.
The Trustee, in its capacity as trustee under this Indenture, shall not
be deemed to owe any fiduciary duty to the holders of Senior Debt and shall not
be liable to any such holders if it shall in good faith mistakenly pay over or
distribute to Holders of Securities or to the Company or to any other Person
cash, property or securities to which any holders of Senior Debt shall be
entitled by virtue of this Article or otherwise. With respect to the holders of
Senior Debt, the Trustee undertakes to perform or to observe only such of its
covenants or obligations as are specifically set forth in this Article and no
implied covenants or obligations with respect to holders of Senior Debt shall be
read into this Indenture against the Trustee.
<PAGE> 87
80
SECTION 13.13 Rights of Trustee as Holder of Senior Debt; Preservation
of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article with respect to any Senior Debt which may at
any time be held by it, to the same extent as any other holder of Senior Debt,
and nothing in this Indenture shall deprive the Trustee of any of its rights as
such holder. Nothing in this Article shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 6.7.
SECTION 13.14 Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article shall in such case (unless the context otherwise
requires) be construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article in addition to or in place of the Trustee.
SECTION 13.15 Certain Conversions or Exchanges Deemed Payment.
For the purposes of this Article only, (a) the issuance and delivery of
junior securities upon conversion or exchange of Securities shall not be deemed
to constitute a payment or distribution on account of the principal of (or
premium, if any) or interest (including any Additional Interest) on Securities
or on account of the purchase or other acquisition of Securities, and (b) the
payment, issuance or delivery of cash, property or securities (other than junior
securities) upon conversion or exchange of a Security shall be deemed to
constitute payment on account of the principal of such security. For the
purposes of this Section, the term "junior securities" means (i) shares of any
stock of any class of the Company and (ii) securities of the Company which are
subordinated in right of payment to all Senior Debt which may be outstanding at
the time of issuance or delivery of such securities to substantially the same
extent as, or to a greater extent than, the Securities are so subordinated as
provided in this Article.
SECTION 13.16 Trust Moneys Not Subordinated.
Notwithstanding anything contained herein to the contrary, payments
from money held in trust under Article 4 by the Trustee for the payment of
principal of, premium, if any, and interest on the Securities shall not be
subordinated to the prior payment of any Senior Debt of the Company or subject
to the restrictions set forth in this Article 13 and none of the Holders shall
be obligated to pay over any such amount to the Company or any holder of Senior
Debt of the Company or any other creditor of the Company.
[The remainder of this page left blank intentionally;
The signature page follows.]
<PAGE> 88
81
* * * *
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the day and year first above written.
PROVIDENT FINANCIAL GROUP, INC.,
By:
--------------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
as Trustee
By:
--------------------------------------
Name:
Title:
<PAGE> 89
ANNEX A
<PAGE> 90
ANNEX B
<PAGE> 1
EXHIBIT 4.21
------------
================================================================================
AMENDED AND RESTATED DECLARATION OF TRUST
Dated as of ____________
By and Among
PROVIDENT FINANCIAL GROUP, INC.,
as Sponsor
CHRISTOPHER J. CAREY,
as Regular Trustee
MARK E. MAGEE, ESQ.
as Regular Trustee
TAYFUN TUZUN,
as Regular Trustee
THE CHASE MANHATTAN BANK,
as Property Trustee
And
CHASE MANHATTAN BANK DELAWARE,
as Delaware Trustee
================================================================================
<PAGE> 2
CROSS REFERENCE TABLE*
Section of Trust
Indenture Act of Section of
1939, as amended Agreement
- ---------------- ---------
310(a).......................................................................6.3
310(b)............................................................6.3(c); 6.3(d)
310(c)..............................................................Inapplicable
311(a)....................................................................2.2(b)
311(b)....................................................................2.2(b)
311(c)..............................................................Inapplicable
312(a)....................................................................2.2(a)
312(b)....................................................................2.2(b)
312(c)..............................................................Inapplicable
313(a).......................................................................2.3
313(b).......................................................................2.3
313(c).......................................................................2.3
313(d).......................................................................2.3
314(a).......................................................................2.4
314(b)..............................................................Inapplicable
314(c).......................................................................2.5
314(d)..............................................................Inapplicable
314(e).......................................................................2.5
314(f)..............................................................Inapplicable
315(a)...........................................................3.9(b); 3.10(a)
315(b)....................................................................2.7(a)
315(c)....................................................................3.9(a)
315(d)....................................................................3.9(b)
316(a).......................................................2.6; 7.5(b); 7.6(c)
316(b)..............................................................Inapplicable
316(c)..............................................................Inapplicable
317(a)......................................................................3.16
317(b)..............................................................Inapplicable
318(a)....................................................................2.1(c)
- -------------
* This Cross-Reference Table does not constitute part of the Agreement and
shall not have any bearing upon the interpretation of any of its terms or
provisions.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
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ARTICLE 1 INTERPRETATION AND DEFINITIONS..........................................................................2
SECTION 1.1 Interpretation and Definitions...............................................................2
Affiliate.......................................................................................2
Authorized Officer..............................................................................2
Beneficial Owners...............................................................................2
Business Day ...................................................................................2
Business Trust Act..............................................................................3
Certificate.....................................................................................3
Certificate of Trust............................................................................3
Closing Date....................................................................................3
Code............................................................................................3
Commission......................................................................................3
Common Securities Holder........................................................................3
Common Security.................................................................................3
Common Security Certificate.....................................................................3
Corporate Trust Office..........................................................................3
Covered Person..................................................................................3
Debenture Issuer................................................................................3
Debenture Issuer Indemnified Person.............................................................4
Debenture Trustee...............................................................................4
Debentures......................................................................................4
Delaware Trustee................................................................................4
Depositary......................................................................................4
Depositary Participant..........................................................................4
Direct Action...................................................................................4
Distribution....................................................................................4
Exchange Act....................................................................................4
Fiduciary Indemnified Person....................................................................4
Fiscal Year.....................................................................................4
Global Security.................................................................................4
Guarantee.......................................................................................4
Holder..........................................................................................5
Indemnified Person..............................................................................5
Indenture.......................................................................................5
Indenture Event of Default......................................................................5
Investment Company..............................................................................5
Investment Company Act..........................................................................5
Investment Company Event........................................................................5
</TABLE>
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<TABLE>
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Legal Action....................................................................................5
List of Holders.................................................................................5
Majority in Liquidation Amount..................................................................5
New York Stock Exchange.........................................................................6
Officers' Certificate...........................................................................6
Paying Agent....................................................................................6
Payment Amount..................................................................................6
Preferred Security..............................................................................6
Preferred Security Certificate..................................................................6
Person..........................................................................................6
Property Account................................................................................7
Property Trustee................................................................................7
Pro Rata........................................................................................7
Quorum..........................................................................................7
Redemption/Distribution Notice..................................................................7
Redemption Price................................................................................7
Regular Trustee.................................................................................7
Regulatory Capital Event........................................................................7
Related Party...................................................................................8
Responsible Officer.............................................................................8
Securities......................................................................................8
Securities Act..................................................................................8
Special Event...................................................................................8
Sponsor.........................................................................................8
Successor Delaware Trustee......................................................................8
Successor Entity................................................................................8
Successor Property Trustee......................................................................8
Successor Security..............................................................................8
Super Majority..................................................................................8
Tax Event.......................................................................................8
10% in Liquidation Amount.......................................................................9
Treasury Regulations............................................................................9
Trust Enforcement Event.........................................................................9
Trust Indenture Act.............................................................................9
Trustee.........................................................................................9
ARTICLE 2 TRUST INDENTURE ACT.....................................................................................9
SECTION 2.1 Trust Indenture Act; Application.............................................................9
SECTION 2.2 Lists of Holders of Securities..............................................................10
</TABLE>
ii
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<TABLE>
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SECTION 2.3 Reports by the Property Trustee.............................................................10
SECTION 2.4 Periodic Reports to the Property Trustee....................................................11
SECTION 2.5 Evidence of Compliance with Conditions Precedent............................................11
SECTION 2.6 Trust Enforcement Events; Waiver............................................................11
SECTION 2.7 Trust Enforcement Event; Notice.............................................................13
ARTICLE 3 ORGANIZATION...........................................................................................14
SECTION 3.1 Name and Organization.......................................................................14
SECTION 3.2 Office......................................................................................14
SECTION 3.3 Purpose.....................................................................................14
SECTION 3.4 Authority...................................................................................14
SECTION 3.5 Title to Property of the Trust..............................................................15
SECTION 3.6 Powers and Duties of the Regular Trustees...................................................15
SECTION 3.7 Prohibition of Actions by the Trust and the Trustees........................................18
SECTION 3.8 Powers and Duties of the Property Trustee...................................................19
SECTION 3.9 Certain Duties and Responsibilities of the Property Trustee.................................22
SECTION 3.10 Certain Rights of Property Trustee.........................................................24
SECTION 3.11 Delaware Trustee...........................................................................27
SECTION 3.12 Execution of Documents.....................................................................27
SECTION 3.13 Not Responsible for Recitals or Issuance of Securities.....................................28
SECTION 3.14 Duration of Trust..........................................................................28
SECTION 3.15 Mergers....................................................................................28
SECTION 3.16 Property Trustee May File Proofs of Claim..................................................30
ARTICLE 4 SPONSOR ...............................................................................................31
SECTION 4.1 Responsibilities of the Sponsor.............................................................31
SECTION 4.2 Indemnification and Fees and Expenses of the Trustees.......................................31
SECTION 4.3 Compensation of the Trustees................................................................32
ARTICLE 5 TRUST COMMON SECURITIES HOLDER.........................................................................32
SECTION 5.1 Debenture Issuer's Purchase of Common Securities............................................32
SECTION 5.2 Covenants of the Common Securities Holder...................................................32
ARTICLE 6 TRUSTEES...............................................................................................33
SECTION 6.1 Number of Trustees..........................................................................33
SECTION 6.2 Delaware Trustee; Eligibility...............................................................33
SECTION 6.3 Property Trustee; Eligibility...............................................................34
SECTION 6.4 Qualifications of Regular Trustees and Delaware Trustee Generally...........................34
SECTION 6.5 Initial Regular Trustees....................................................................35
</TABLE>
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SECTION 6.6 Appointment, Removal and Resignation of Trustees............................................35
SECTION 6.7 Vacancies among Trustees....................................................................36
SECTION 6.8 Effect of Vacancies.........................................................................37
SECTION 6.9 Meetings....................................................................................37
SECTION 6.10 Delegation of Power........................................................................37
SECTION 6.11 Merger, Conversion, Consolidation or Succession to Business................................38
ARTICLE 7 TERMS OF SECURITIES....................................................................................38
SECTION 7.1 General Provisions Regarding Securities.....................................................38
SECTION 7.2 Distributions...............................................................................40
SECTION 7.3 Redemption of Securities....................................................................42
SECTION 7.4 Redemption Procedures.......................................................................42
SECTION 7.5 Voting Rights of Preferred Securities.......................................................44
SECTION 7.6 Voting Rights of Common Securities..........................................................46
SECTION 7.7 Paying Agent................................................................................47
SECTION 7.8 Listing.....................................................................................48
SECTION 7.9 Transfer of Securities......................................................................48
SECTION 7.10 Mutilated, Destroyed, Lost or Stolen Certificates..........................................49
SECTION 7.11 Deemed Security Holders....................................................................50
SECTION 7.12 Global Securities..........................................................................50
ARTICLE 8 DISSOLUTION AND TERMINATION OF TRUST...................................................................52
SECTION 8.1 Dissolution and Termination of Trust........................................................52
SECTION 8.2 Liquidation Distribution Upon Dissolution of the Trust......................................53
ARTICLE 9 LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES,
DELAWARE TRUSTEES OR OTHERS............................................................................54
SECTION 9.1 Liability ..................................................................................54
SECTION 9.2 Exculpation.................................................................................54
SECTION 9.3 Fiduciary Duty..............................................................................55
SECTION 9.4 Indemnification.............................................................................56
SECTION 9.5 Outside Businesses..........................................................................59
ARTICLE 10 ACCOUNTING............................................................................................60
SECTION 10.1 Fiscal Year................................................................................60
SECTION 10.2 Certain Accounting Matters.................................................................60
SECTION 10.3 Banking....................................................................................61
SECTION 10.4 Withholding................................................................................61
</TABLE>
iv
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ARTICLE 11 AMENDMENTS AND MEETINGS...............................................................................62
SECTION 11.1 Amendments.................................................................................62
SECTION 11.2 Meetings of the Holders of Securities; Action by Written Consent...........................64
ARTICLE 12 REPRESENTATIONS OF PROPERTY TRUSTEE AND DELAWARE TRUSTEE..............................................66
SECTION 12.1 Representations and Warranties of the Property Trustee.....................................66
SECTION 12.2 Representations and Warranties of the Delaware Trustee.....................................67
ARTICLE 13 MISCELLANEOUS.........................................................................................68
SECTION 13.1 Notices....................................................................................68
SECTION 13.2 Governing Law..............................................................................69
SECTION 13.3 Intention of the Parties...................................................................69
SECTION 13.4 Headings...................................................................................69
SECTION 13.5 Successors and Assigns.....................................................................69
SECTION 13.6 Partial Enforceability.....................................................................69
SECTION 13.7 Counterparts...............................................................................69
</TABLE>
EXHIBITS
Exhibit A Form of Preferred Security Certificate
Exhibit B Form of Common Security Certificate
v
<PAGE> 8
AMENDED AND RESTATED DECLARATION OF TRUST
This AMENDED AND RESTATED DECLARATION OF TRUST (the
"Declaration"), dated as of _______________, is entered into by and among
PROVIDENT FINANCIAL GROUP, INC., an Ohio corporation, as sponsor (the
"Sponsor"), CHRISTOPHER J. CAREY, MARK E. MAGEE, ESQ. AND TAYFUN TUZUN, as the
initial regular trustees (collectively, the "Regular Trustees"), THE CHASE
MANHATTAN BANK, a New York banking corporation, as the initial property trustee
(the "Property Trustee") and CHASE MANHATTAN BANK DELAWARE, a Delaware
corporation, as the initial Delaware trustee (the "Delaware Trustee" and,
together with the Regular Trustees and the Property Trustee, the "Trustees"),
not in their individual capacities but solely as Trustees, and the holders, from
time to time, of undivided beneficial ownership interests in the assets of the
Trust to be issued pursuant to this Declaration.
RECITALS
WHEREAS, the Trustees and the Sponsor created Provident
Capital Trust __ (the "Trust"), a business trust under the Business Trust Act
(as defined, together with other capitalized terms, herein) pursuant to a
Declaration of Trust dated as of ____________ (the "Original Declaration"), and
a Certificate of Trust (the "Certificate of Trust") filed with the Secretary of
State of the State of Delaware on ___________;
WHEREAS, the sole purpose of the Trust shall be to issue and
sell certain securities representing undivided beneficial ownership interests in
the assets of the Trust, to invest the proceeds from such sales in the
Debentures issued by the Debenture Issuer and to engage in only those activities
necessary or incidental thereto; and
WHEREAS, the parties hereto, by this Declaration, amend and
restate each and every term and provision of the Original Declaration;
NOW, THEREFORE, it being the intention of the parties hereto
to continue the Trust as a business trust under the Business Trust Act and that
this Declaration constitute the governing instrument of such business trust, the
Trustees hereby declare that all assets contributed to the Trust be held in
trust for the benefit of the Holders of the Securities representing undivided
beneficial ownership interests in the assets of the Trust issued hereunder,
subject to the provisions of this Declaration.
<PAGE> 9
2
ARTICLE 1
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Interpretation and Definitions.
Unless the context otherwise requires:
(a) capitalized terms used in this Declaration but not defined
in the preamble above have the meanings assigned to them in this Section 1.1;
(b) a term defined anywhere in this Declaration has the same
meaning throughout;
(c) all references to "the Declaration" or "this Declaration"
are to this Declaration as modified, supplemented or amended from time to time;
(d) all references in this Declaration to Articles, Sections,
Recitals and Exhibits are to Articles and Sections of, or Recitals and Exhibits
to, this Declaration unless otherwise specified;
(e) unless otherwise defined in this Declaration, a term
defined in the Trust Indenture Act has the same meaning when used in this
Declaration; and
(f) a reference to the singular includes the plural and vice
versa and a reference to any masculine form of a term shall include the feminine
form of a term, as applicable.
(g) the following terms have the following meanings:
"Affiliate" has the same meaning as given to that term in Rule
405 of the Securities Act or any successor rule thereunder.
"Authorized Officer" of a Person means any Person that is
authorized to bind such Person.
"Beneficial Owners" means, for Preferred Securities
represented by a Global Security, the Person who acquires an interest in the
Preferred Securities which is reflected on the records of the Depositary through
the Depositary Participants.
"Business Day" means any day other than (i) a Saturday or
Sunday, (ii) a day on which banking institutions in the Borough of Manhattan,
The City of New York are authorized or required by law or executive order to
remain closed or (iii) a day on which the Corporate Trust
<PAGE> 10
3
Office of the Trustee, or, with respect to the Securities of a series initially
issued to a Trust, the principal office of the Property Trustee under the
related Trust Agreement, is closed for business.
"Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code Section 3801 et seq., as it may be amended from time
to time, or any successor legislation.
"Certificate" means a Common Security Certificate or a
Preferred Security Certificate.
"Certificate of Trust" has the meaning specified in the
Recitals hereto.
"Closing Date" means the date on which the Preferred
Securities are issued and sold.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time, or any successor legislation. A reference to a specific
section of the Code refers not only to such specific section but also to any
corresponding provision of any federal tax statute enacted after the date of
this Declaration, as such specific section or corresponding provision is in
effect on the date of application of the provisions of this Declaration
containing such reference.
"Commission" means the Securities and Exchange Commission or
any successor thereto.
"Common Securities Holder" means Provident Financial Group,
Inc., or any successor thereto, in its capacity as purchaser and holder of all
of the Common Securities issued by the Trust.
"Common Security" has the meaning specified in Section 7.1
"Common Security Certificate" means a definitive certificate
in fully registered form representing a Common Security, substantially in the
form of Exhibit B hereto.
"Corporate Trust Office" means the principal office of the
Property Trustee at which at any particular time its corporate trust business
shall be administered, which office at the date of execution of this Declaration
is located at 250 West Huron Road, Suite 220, Cleveland, Ohio 44113, Attention:
Corporate Trust Department.
"Covered Person" means (a) any officer, director, shareholder,
partner, member, representative, employee or agent of (i) the Trust or (ii) the
Trust's Affiliates; and (b) any Holder.
"Debenture Issuer" means Provident Financial Group, Inc., or
any successor thereto under the Indenture, in its capacity as issuer of the
Debentures under the Indenture.
<PAGE> 11
4
"Debenture Issuer Indemnified Person" means (a) any Regular
Trustee; (b) any Affiliate of any Regular Trustee; (c) any officers, directors,
shareholders, members, partners, employees, representatives or agents of any
Regular Trustee or any Affiliate thereof; or (d) any officer, employee or agent
of the Trust or its Affiliates.
"Debenture Trustee" means The Chase Manhattan Bank, in its
capacity as trustee under the Indenture until a successor is appointed
thereunder, and thereafter means such successor trustee.
"Debentures" means the series of debentures to be issued by
the Debenture Issuer under the Indenture and held by the Property Trustee.
"Delaware Trustee" has the meaning specified in Section 6.2.
"Depositary" means, with respect to Securities issuable in
whole or in part in the form of one or more Global Securities, a clearing agency
registered under the Exchange Act that is designated to act as Depositary for
such Securities.
"Depositary Participant" means a member of, or participant in,
the Depositary.
"Direct Action" has the meaning specified in Section 3.8(e).
"Distribution" means a distribution payable to Holders of
Securities in accordance with Section 7.2.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, or any successor legislation.
"Federal Reserve" means the Board of Governors of the Federal
Reserve System, or any successor thereto.
"Fiduciary Indemnified Person" has the meaning set forth in
Section 9.4(b).
"Fiscal Year" has the meaning specified in Section 10.1.
"Global Security" means a fully registered, global Preferred
Security Certificate.
"Guarantee" means the Guarantee Agreement, dated as of
___________, of the Sponsor in respect of the Securities.
<PAGE> 12
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"Holder" means any holder of Securities, as registered on the
books and records of the Trust; provided, however, that in determining whether
the Holders of the requisite liquidation amount of Preferred Securities have
voted on any matter provided for in this Declaration, then for the purpose of
such determination only (and not for any other purpose hereunder), if the
Preferred Securities remain in the form of one or more Global Securities and if
the Depositary which is the holder of such Global Securities has sent an omnibus
proxy to the Trust assigning voting rights to Depositary Participants to whose
accounts the Preferred Securities are credited on the record date, the term
"Holders" shall mean such Depositary Participants acting at the direction of the
Beneficial Owners.
"Indemnified Person" means a Debenture Issuer Indemnified
Person or a Fiduciary Indemnified Person.
"Indenture" means the Indenture, dated as of _________,
between the Debenture Issuer and The Chase Manhattan Bank, as Trustee, pursuant
to which the Debentures are to be issued.
"Indenture Event of Default" has the meaning given to the term
"Event of Default" in the Indenture.
"Investment Company" means an investment company as defined in
the Investment Company Act and the regulations promulgated thereunder.
"Investment Company Act" means the Investment Company Act of
1940, as amended from time to time, or any successor legislation.
"Investment Company Event" means the receipt by the Trust of
an opinion of a nationally recognized independent counsel, to the effect that,
as a result of the occurrence of a change in law or regulation or a written
change in interpretation or application of law or regulation by any legislative
body, court, governmental agency or regulatory authority (a "Change in 1940 Act
Law"), there is more than an insubstantial risk that the Trust is or will be
considered an "investment company" that is required to be registered under the
Investment Company Act, which Change in 1940 Act Law becomes effective on or
after the Closing Date.
"Legal Action" has the meaning specified in Section 3.6(g).
"List of Holders" has the meaning specified in Section 2.2(a).
"Majority in Liquidation Amount" means, except as provided in
the terms of the Preferred Securities or by the Trust Indenture Act, Holder(s)
of outstanding Securities, voting together as a single class, or, as the context
may require, Holders of outstanding Preferred Securities
<PAGE> 13
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or Holders of outstanding Common Securities, voting separately as a class, who
are the record owners of more than 50% of the aggregate liquidation amount
(including the stated amount that would be paid on redemption, liquidation or
otherwise, plus accumulated and unpaid Distributions to the date upon which the
voting percentages are determined) of all outstanding Securities of the relevant
class.
"New York Stock Exchange" means the New York Stock Exchange,
Inc. or any successor thereto.
"Officers' Certificate" means, with respect to any Person, a
certificate signed on behalf of such Person by two Authorized Officers of such
Person. Any Officers' Certificate delivered with respect to compliance with a
condition or covenant provided for in this Declaration shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definitions relating
thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer on behalf of such Person
in rendering the Officers' Certificate;
(c) a statement that each such officer has made such
examination or investigation as, in such officer's opinion, is necessary to
enable such officer on behalf of such Person to express an informed opinion as
to whether or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
officer acting on behalf of such Person, such condition or covenant has been
complied with; provided, that the term "Officers' Certificate", when used with
reference to Regular Trustees who are natural persons shall mean a certificate
signed by two or more of the Regular Trustees which otherwise satisfies the
foregoing requirements.
"Paying Agent" has the meaning specified in Section 3.8(h).
"Payment Amount" has the meaning specified in Section 7.2(c).
"Preferred Security" has the meaning specified in Section 7.1.
"Preferred Security Certificate" means a definitive
certificate in fully registered form representing a Preferred Security,
substantially in the form of Exhibit A.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust,
<PAGE> 14
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unincorporated association, or government or any agency or political subdivision
thereof, or any other entity of whatever nature.
"Property Account" has the meaning specified in Section
3.8(c).
"Property Trustee" means the Trustee meeting the eligibility
requirements set forth in Section 6.3.
"Pro Rata" means pro rata to each Holder of Securities
according to the aggregate liquidation amount of the Securities held by the
relevant Holder in relation to the aggregate liquidation amount of all
Securities outstanding.
"Quorum" means a majority of the Regular Trustees or, if there
are only two Regular Trustees, both of them.
"Redemption/Distribution Notice" has the meaning specified in
Section 7.4(a) hereto.
"Redemption Price" means the amount for which the Securities
will be redeemed, which amount will equal (i) the redemption price paid by the
Debenture Issuer to repay or redeem, in whole or in part, the Debentures held by
the Trust plus an amount equal to accumulated and unpaid Distributions on such
Securities through the date of their redemption or (ii) such lesser amount as
will be received by the Trust in respect of the Debentures so repaid or
redeemed.
"Regular Trustee" means any Trustee other than the Property
Trustee and the Delaware Trustee.
"Regulatory Capital Event" means the receipt by the Trust of
an opinion of independent bank regulatory counsel experienced in such matters to
the effect that, as a result of (a) any amendment to or change (including any
announced prospective change) in the laws (or any regulations thereunder) of the
United States or any rules, guidelines or policies of the Federal Reserve or (b)
any official administrative pronouncement or judicial decision for interpreting
or applying such laws or regulations, which amendment or change is effective or
such pronouncement or decision is announced on or after the date of original
issuance of the Preferred Securities, the Preferred Securities do not
constitute, or within 90 days of the date thereof will not constitute, Tier 1
capital (or its then equivalent); PROVIDED, HOWEVER, that the distribution of
the Securities in connection with the liquidation of the Trust by the Debenture
Issuer shall not in and of itself constitute a Regulatory Capital Event unless
such liquidation shall have occurred in connection with a Tax Event or an
Investment Company Event.
<PAGE> 15
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"Related Party" means, with respect to the Sponsor, any direct
or wholly owned subsidiary of the Sponsor or any Person that owns, directly or
indirectly, 100% of the outstanding voting securities of the Sponsor.
"Responsible Officer" means, with respect to the Property
Trustee, any officer with direct responsibility for the administration of this
Declaration and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of that officer's
knowledge of and familiarity with the particular subject.
"Securities" means the Common Securities and the Preferred
Securities.
"Securities Act" means the Securities Act of 1933, as amended
from time to time, or any successor legislation.
"Special Event" means a Tax Event, a Regulatory Capital Event
or an Investment Company Event.
"Sponsor" means Provident Financial Group, Inc., an Ohio
corporation, or any successor entity in a merger, consolidation, amalgamation or
replacement by or conveyance, transfer or lease of its properties substantially
as an entirety, in its capacity as sponsor of the Trust.
"Successor Delaware Trustee" has the meaning specified in
Section 6.6(b).
"Successor Entity" has the meaning specified in Section
3.15(b)(i).
"Successor Property Trustee" has the meaning specified in
Section 6.6(b).
"Successor Security" has the meaning specified in Section
3.15(b)(i)b.
"Super Majority" has the meaning specified in Section
2.6(a)(ii).
"Tax Event" means the receipt by the Trust of an opinion of
independent tax counsel experienced in such matters, to the effect that, as a
result of (a) any amendment to, change in or announced proposed change in the
laws (or any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein, or (b) any official
administrative pronouncement, action or judicial decision interpreting or
applying such laws or regulations, which amendment or change becomes effective
or proposed change, pronouncement, action or decision is announced on or after
the Closing Date, there is more than an insubstantial risk that (i) the Trust
is, or will be within 90 days of the date of such opinion, subject to the United
States federal income tax with respect to income received or accrued on the
Debentures, (ii) interest payable by the Debenture Issuer on the Debentures is
not, or within 90 days of the date of such opinion will not be, deductible,
<PAGE> 16
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in whole or in part, by the Debenture Issuer for United States federal income
tax purposes, or (iii) the Trust is, or will be within 90 days of the date of
such opinion, subject to more than a de minimis amount of other taxes, duties or
other governmental charges.
"10% in Liquidation Amount" means, except as provided in the
terms of the Preferred Securities or by the Trust Indenture Act, Holder(s) of
outstanding Securities, voting together as a single class, or, as the context
may require, Holders of outstanding Preferred Securities or Holders of
outstanding Common Securities, voting separately as a class, who are the record
owners of 10% or more of the aggregate liquidation amount (including the stated
amount that would be paid on redemption, liquidation or otherwise, plus accrued
and unpaid Distributions to the date upon which the voting percentages are
determined) of all outstanding Securities of the relevant class.
"Treasury Regulations" means the income tax regulations,
including temporary and proposed regulations, promulgated under the Code by the
United States Treasury, as such regulations may be amended from time to time
(including corresponding provisions of succeeding regulations).
"Trust Enforcement Event" in respect of the Securities means
an Indenture Event of Default has occurred and is continuing in respect of the
Debentures.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended from time to time, or any successor legislation.
"Trustee" or "Trustees" means each Person who has signed this
Declaration as a trustee, so long as such Person shall continue as a trustee in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with the
provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees hereunder.
ARTICLE 2
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.
(a) This Declaration is subject to the provisions of the Trust
Indenture Act that are required to be part of this Declaration and shall, to the
extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a
Trustee for the purposes of the Trust Indenture Act.
<PAGE> 17
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(c) If and to the extent that any provision of this
Declaration conflicts with the duties imposed by Sections 310 to 317, inclusive,
of the Trust Indenture Act, such imposed duties shall control.
(d) The application of the Trust Indenture Act to this
Declaration shall not affect the Trust's classification as a grantor trust for
United States federal income tax purposes and shall not affect the nature of the
Securities as equity securities representing undivided beneficial ownership
interests in the assets of the Trust.
SECTION 2.2 Lists of Holders of Securities.
(a) Each of the Sponsor and the Regular Trustees on behalf of
the Trust shall provide the Property Trustee (i), except while the Preferred
Securities are represented by one or more Global Securities, at least five
Business Days prior to the date for payment of Distributions, a list, in such
form as the Property Trustee may reasonably require, of the names and addresses
of the Holders of the Securities ("List of Holders") as of the record date
relating to the payment of such Distributions, and (ii) at any other time,
within 30 days of receipt by the Trust of a written request from the Property
Trustee for a List of Holders, as of a date no more than 15 days before such
List of Holders is given to the Property Trustee; provided that neither the
Sponsor nor the Regular Trustees on behalf of the Trust shall be obligated to
provide such List of Holders at any time the List of Holders does not differ
from the most recent List of Holders given to the Property Trustee by the
Sponsor and the Regular Trustees on behalf of the Trust. The Property Trustee
shall preserve, in as current a form as is reasonably practicable, all
information contained in Lists of Holders given to it or which it receives in
the capacity as Paying Agent (if acting in such capacity), provided that the
Property Trustee may destroy any List of Holders previously given to it on
receipt of a new List of Holders.
(b) The Property Trustee shall comply with its obligations
under, and shall be entitled to the benefits of, Sections 311(a), 311(b) and
312(b) of the Trust Indenture Act.
SECTION 2.3 Reports by the Property Trustee.
Within 60 days after May 15 of each year (commencing with the
year of the first anniversary of the issuance of the Preferred Securities), the
Property Trustee shall provide to the Holders of the Preferred Securities such
reports as are required by Section 313 of the Trust Indenture Act, if any, in
the form and in the manner provided by Section 313 of the Trust Indenture Act.
The Property Trustee shall also comply with the requirements of Section 313(d)
of the Trust Indenture Act.
<PAGE> 18
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SECTION 2.4 Periodic Reports to the Property Trustee.
Each of the Sponsor and the Regular Trustees on behalf of the
Trust shall provide to the Property Trustee such documents, reports and
information as required by Section 314 of the Trust Indenture Act (if any) and
the compliance certificate required by Section 314 of the Trust Indenture Act in
the form, in the manner and at the times required by Section 314 of the Trust
Indenture Act, but in no event later than 120 days after the end of each
calendar year.
SECTION 2.5 Evidence of Compliance with Conditions Precedent.
Each of the Sponsor and the Regular Trustees on behalf of the
Trust shall provide to the Property Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Declaration that relate to
any of the matters set forth in Section 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given by an officer pursuant to Section
314(c)(1) may be given in the form of an Officers' Certificate.
SECTION 2.6 Trust Enforcement Events; Waiver.
(a) The Holders of a Majority in Liquidation Amount of the
Preferred Securities may, by vote or written consent, on behalf of the Holders
of all of the Preferred Securities, waive any past Trust Enforcement Event in
respect of the Preferred Securities and its consequences, provided that, if the
underlying Indenture Event of Default:
(i) is not waivable under the Indenture, the
Trust Enforcement Event under the
Declaration shall also not be waivable; or
(ii) requires the consent or vote of the Holders
of greater than a majority in principal
amount of the Debentures (a "Super
Majority") to be waived under the Indenture,
the related Trust Enforcement Event under
the Declaration may only be waived by the
vote or written consent of the Holders of at
least the proportion in liquidation amount
of the Preferred Securities that the
relevant Super Majority represents of the
aggregate principal amount of the Debentures
outstanding.
The foregoing provisions of this Section 2.6(a) shall be in
lieu of Section 316(a)(1)(B) of the Trust Indenture Act and such Section
316(a)(1)(B) of the Trust Indenture Act is hereby expressly excluded from this
Declaration and the Securities, as permitted by the Trust Indenture Act. Upon
such waiver, any such default shall cease to exist, and any Trust Enforcement
Event with respect to the Preferred Securities arising therefrom shall be deemed
to have been cured, for every purpose of this Declaration and the Preferred
Securities, but no such waiver shall extend to any
<PAGE> 19
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subsequent or other Trust Enforcement Event with respect to the Preferred
Securities or impair any right consequent thereon. Any waiver by the Holders of
the Preferred Securities of a Trust Enforcement Event with respect to the
Preferred Securities shall also be deemed to constitute a waiver by the Holders
of the Common Securities of any such Trust Enforcement Event with respect to the
Common Securities for all purposes of this Declaration without any further act,
vote, or consent of the Holders of the Common Securities.
(b) The Holders of a Majority in Liquidation Amount of the
Common Securities may, by vote or written consent, on behalf of the Holders of
all of the Common Securities, waive any past Trust Enforcement Event in respect
of the Common Securities and its consequences, provided that, if the underlying
Indenture Event of Default:
(i) is not waivable under the Indenture, except
where the Holders of the Common Securities
are deemed to have waived such Trust
Enforcement Event under the Declaration as
provided below in this Section 2.6(b), the
Trust Enforcement Event under the
Declaration shall also not be waivable; or
(ii) requires the consent or vote of a Super
Majority to be waived under the Indenture,
except where the Holders of the Common
Securities are deemed to have waived such
Trust Enforcement Event under the
Declaration as provided below in this
Section 2.6(b), the Trust Enforcement Event
under the Declaration may only be waived by
the vote or written consent of the Holders
of at least the proportion in liquidation
amount of the Common Securities that the
relevant Super Majority represents of the
aggregate principal amount of the Debentures
outstanding;
provided further, each Holder of Common Securities will be deemed to have waived
any Trust Enforcement Event and all Trust Enforcement Events with respect to the
Common Securities and the consequences thereof until all Trust Enforcement
Events with respect to the Preferred Securities have been cured, waived or
otherwise eliminated, and until such Trust Enforcement Events with respect to
the Preferred Securities have been so cured, waived or otherwise eliminated, the
Property Trustee will be deemed to be acting solely on behalf of the Holders of
the Preferred Securities and only the Holders of the Preferred Securities will
have the right to direct the Property Trustee in accordance with the terms of
the Securities. The foregoing provisions of this Section 2.6(b) shall be in lieu
of Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act and such
Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act are hereby
expressly excluded from this Declaration and the Securities, as permitted by the
Trust Indenture Act. Subject to the foregoing provisions of this Section 2.6(b),
upon such cure, waiver or other elimination, any such default shall cease to
exist and any Trust Enforcement Event with respect to the Common Securities
arising
<PAGE> 20
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therefrom shall be deemed to have been cured for every purpose of this
Declaration, but no such waiver shall extend to any subsequent or other Trust
Enforcement Event with respect to the Common Securities or impair any right
consequent thereon.
(c) A waiver of an Indenture Event of Default by the Property
Trustee at the direction of the Holders of the Preferred Securities constitutes
a waiver of the corresponding Trust Enforcement Event with respect to the
Preferred Securities under this Declaration. The foregoing provisions of this
Section 2.6(c) shall be in lieu of Section 316(a)(1)(B) of the Trust Indenture
Act and such Section 316(a)(1)(B) of the Trust Indenture Act is hereby expressly
excluded from this Declaration and the Securities, as permitted by the Trust
Indenture Act.
SECTION 2.7 Trust Enforcement Event; Notice.
(a) The Property Trustee shall, within 90 days after the
occurrence of a Trust Enforcement Event actually known to a Responsible Officer
of the Property Trustee, transmit by mail, first class postage prepaid, to the
Holders of the Securities, notices of all such defaults with respect to the
Securities, unless such defaults have been cured before the giving of such
notice (the term "defaults" for the purposes of this Section 2.7(a) being hereby
defined to be an Indenture Event of Default, not including any periods of grace
provided for therein and irrespective of the giving of any notice provided
therein); provided that, except for a default in the payment of principal of (or
premium, if any) or interest on any of the Debentures, the Property Trustee
shall be protected fully in withholding such notice if and so long as a
Responsible Officer of the Property Trustee in good faith determines that the
withholding of such notice is in the interests of the Holders of the Securities.
(b) The Property Trustee shall not be deemed to have knowledge
of any default except:
(i) a default under Sections 501(1) and 501(2)
of the Indenture; or
(ii) any default as to which the Property Trustee
shall have received written notice or of
which a Responsible Officer of the Property
Trustee charged with the administration of
this Declaration shall have actual
knowledge.
<PAGE> 21
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ARTICLE 3
ORGANIZATION
SECTION 3.1 Name and Organization.
The Trust hereby continued is named "Provident Capital Trust
__" as such name may be modified from time to time by the Regular Trustees
following written notice to the Holders of Securities, the Property Trustee and
the Delaware Trustee. The Trust's activities may be conducted under the name of
the Trust or any other name deemed advisable by the Regular Trustees.
SECTION 3.2 Office.
The address of the principal office of the Trust is c/o
Provident Financial Group, Inc., One East Fourth Street, Cincinnati, Ohio 45202.
On 10 Business Days' written notice to the Holders of Securities, the Property
Trustee and the Delaware Trustee, the Regular Trustees may designate another
principal office.
SECTION 3.3 Purpose.
The exclusive purposes and functions of the Trust are (a) to
issue and sell Securities and use the gross proceeds from such sale to acquire
the Debentures, and (b) except as otherwise limited herein, to engage in only
those other activities necessary or incidental thereto. The Trust shall not
borrow money, issue debt or reinvest proceeds derived from investments, pledge
any of its assets or otherwise undertake (or permit to be undertaken) any
activity that would cause the Trust not to be classified as a grantor trust for
United States federal income tax purposes.
By the acceptance of this Trust, none of the Trustees, the
Sponsor, the Holders of the Preferred Securities or Common Securities or the
Preferred Securities Beneficial Owners will take any position for United States
federal income tax purposes which is contrary to the classification of the Trust
as a grantor trust.
SECTION 3.4 Authority.
Subject to the limitations provided in this Declaration and to
the specific duties of the Property Trustee, the Regular Trustees shall have
exclusive authority to carry out the purposes of the Trust. An action taken by
the Regular Trustees in accordance with their powers shall constitute the act of
and serve to bind the Trust and an action taken by the Property Trustee on
behalf of the Trust in accordance with its powers shall constitute the act of
and serve to bind the Trust. In dealing with the Trustees acting on behalf of
the Trust, no Person shall be required to inquire into the
<PAGE> 22
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authority of the Trustees to bind the Trust. Persons dealing with the Trust are
entitled to rely conclusively on the power and authority of the Trustees as set
forth in this Declaration.
(a) Except as expressly set forth in this Declaration and
except if a meeting of the Regular Trustees is called with respect to any matter
over which the Regular Trustees have power to act, any power of the Regular
Trustees may be exercised by, or with the consent of, any one such Regular
Trustee.
(b) Unless otherwise determined by the Regular Trustees, and
except as otherwise required by the Business Trust Act or applicable law, any
Regular Trustee is authorized to execute on behalf of the Trust any documents
which the Regular Trustees have the power and authority to cause the Trust to
execute pursuant to Section 3.6(b), provided, that the registration statements
referred to in Section 3.6(b)(i), including any amendments thereto, shall be
signed by or on behalf of a majority of the Regular Trustees; and
(c) a Regular Trustee may, by power of attorney consistent
with applicable law, delegate to any other natural person over the age of 21 his
or her power for the purposes of signing any documents which the Regular
Trustees have power and authority to cause the Trust to execute pursuant to
Section 3.6.
SECTION 3.5 Title to Property of the Trust.
Except as provided in Section 3.8 with respect to the
Debentures and the Property Account or as otherwise provided in this
Declaration, legal title to all assets of the Trust shall be vested in the
Trust. The Holders shall not have legal title to any part of the assets of the
Trust, but shall have an undivided beneficial ownership interest in the assets
of the Trust.
SECTION 3.6 Powers and Duties of the Regular Trustees.
The Regular Trustees shall have the exclusive power, duty and
authority to cause the Trust to engage in the following activities:
(a) to establish the terms and form of the Preferred
Securities and the Common Securities in the manner specified in Section 7.1 and
issue and sell the Preferred Securities and the Common Securities in accordance
with this Declaration; provided, however, that the Trust may issue no more than
one series of Preferred Securities and no more than one series of Common
Securities, and, provided further, that there shall be no interests in the Trust
other than the Securities, and the issuance of Securities shall be limited to a
one-time, simultaneous issuance of both Preferred Securities and Common
Securities on the Closing Date;
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(b) in connection with the issue and sale of the Preferred
Securities, at the direction of the Sponsor, to:
(i) execute and file an application, prepared by
the Sponsor, to the New York Stock Exchange
or any other national stock exchange or
automated quotation system for listing of
any Preferred Securities, the Guarantee and
the Debentures;
(ii) execute and file with the Commission one or
more registration statements on the
applicable forms prepared by the Sponsor,
including any amendments thereto, pertaining
to the Preferred Securities, the Guarantee
and the Debentures;
(iii) execute and file any documents prepared by
the Sponsor, or take any acts as determined
by the Sponsor to be necessary, in order to
qualify or register all or part of the
Preferred Securities in any State in which
the Sponsor has determined to qualify or
register such Preferred Securities for sale;
and
(iv) negotiate the terms of and execute an
underwriting agreement and other related
agreements providing for the sale of the
Preferred Securities;
(c) to acquire the Debentures with the proceeds of the sale of
the Preferred Securities and the Common Securities; provided, however, that the
Regular Trustees shall cause legal title to the Debentures to be held of record
in the name of the Property Trustee for the benefit of the Holders of the
Preferred Securities and the Holders of the Common Securities;
(d) to give the Sponsor and the Property Trustee prompt
written notice of the occurrence of a Special Event; provided that the Regular
Trustees shall consult with the Sponsor and the Property Trustee before taking
or refraining from taking any action in relation to any such Special Event;
(e) to establish a record date with respect to all actions to
be taken hereunder that require a record date be established, including and with
respect to, for the purposes of Section 316(c) of the Trust Indenture Act,
Distributions, voting rights, redemptions and exchanges, and to issue relevant
notices to the Holders of Preferred Securities and Holders, of Common Securities
as to such actions and applicable record dates;
(f) to take all actions and perform such duties as may be
required of the Regular Trustees pursuant to the terms of this Declaration and
the Securities;
<PAGE> 24
17
(g) to bring or defend, pay, collect, compromise, arbitrate,
resort to legal action or otherwise adjust claims or demands of or against the
Trust ("Legal Action"), unless pursuant to Section 3.8(e), the Property Trustee
has the exclusive power to bring such Legal Action;
(h) to employ or otherwise engage employees and agents (who
may be designated as officers with titles) and managers, contractors, advisors
and consultants to conduct only those services that the Regular Trustees have
authority to conduct directly, and to pay reasonable compensation for such
services;
(i) to cause the Trust to comply with the Trust's obligations
under the Trust Indenture Act;
(j) to give the certificate required by Section 314(a)(4) of
the Trust Indenture Act to the Property Trustee, which certificate may be
executed by any Regular Trustee;
(k) to incur expenses that are necessary or incidental to
carry out any of the purposes of the Trust;
(l) to act as, or appoint another Person to act as, registrar
and transfer agent for the Securities;
(m) to give prompt written notice to the Holders of the
Securities of any notice received from the Debenture Issuer of its election to
defer payments of interest on the Debentures by extending the interest payment
period under the Debentures as authorized by the Indenture;
(n) to take all action that may be necessary or appropriate
for the preservation and the continuation of the Trust's valid existence,
rights, franchises and privileges as a statutory business trust under the laws
of the State of Delaware and of each other jurisdiction in which such existence
is necessary to protect the limited liability of the Holders of the Preferred
Securities and the Holders of the Common Securities or to enable the Trust to
effect the purposes for which the Trust was created;
(o) to take any action, not inconsistent with applicable law,
that the Regular Trustees determine in their discretion to be necessary or
desirable in carrying out the purposes and functions of the Trust as set out in
Section 3.3 or the activities of the Trust as set out in this Section 3.6,
including, but not limited to:
(i) causing the Trust not to be deemed to be an
Investment Company required to be registered
under the Investment Company Act;
<PAGE> 25
18
(ii) causing the Trust to be classified as a
grantor trust for United States federal
income tax purposes; and
(iii) cooperating with the Debenture Issuer to
ensure that the Debentures will be treated
as indebtedness of the Debenture Issuer for
United States federal income tax purposes.
(p) to take all action necessary to cause all applicable tax
returns and tax information reports that are required to be filed with respect
to the Trust to be duly prepared and filed by the Regular Trustees, on behalf of
the Trust; and
(q) to execute and deliver all documents or instruments,
perform all duties and powers, and do all things for and on behalf of the Trust
in all matters necessary or incidental to the foregoing.
The Regular Trustees shall exercise the powers set forth in
this Section 3.6 in a manner that is consistent with the purposes and functions
of the Trust set out in Section 3.3, and the Regular Trustees shall have no
power to, and shall not, take any action that is inconsistent with the purposes
and functions of the Trust set forth in Section 3.3.
Subject to this Section 3.6, the Regular Trustees shall have
none of the powers or the authority of the Property Trustee set forth in Section
3.8.
Any expenses incurred by the Regular Trustees pursuant to this
Section 3.6 shall be reimbursed by the Debenture Issuer.
SECTION 3.7 Prohibition of Actions by the Trust and the
Trustees.
(a) The Trust shall not, and none of the Trustees (including
the Property Trustee) shall cause the Trust to, engage in any activity other
than as required or authorized by this Declaration. In particular, the Trust
shall not and none of the Trustees (including the Property Trustee) shall cause
the Trust to:
(i) invest any proceeds received by the Trust
from holding the Debentures, but shall
distribute all such proceeds to Holders of
Securities pursuant to the terms of this
Declaration and of the Securities;
(ii) acquire any assets other than as expressly
provided herein;
(iii) possess Trust property for other than a
Trust purpose;
<PAGE> 26
19
(iv) make any loans or incur any indebtedness;
(v) possess any power or otherwise act in such a
way as to vary the Trust assets;
(vi) possess any power or otherwise act in such a
way as to vary the terms of the Securities
in any way whatsoever (except to the extent
expressly authorized in this Declaration or
by the terms of the Securities);
(vii) issue any securities or other evidences of
beneficial ownership of, or beneficial
interest in, the Trust other than the
Securities;
(viii) other than as provided in this Declaration
or by the terms of the Securities, (A)
direct the time, method and place of
exercising any trust or power conferred upon
the Debenture Trustee with respect to the
Debentures, (B) waive any past default that
is waivable under the Indenture, (C)
exercise any right to rescind or annul any
declaration that the principal of all the
Debentures shall be due and payable, or (D)
consent to any amendment, modification or
termination of the Indenture or the
Debentures where such consent shall be
required unless the Trust shall have
received an opinion of counsel to the effect
that such modification will not cause more
than an insubstantial risk that the Trust
will be deemed an Investment Company
required to be registered under the
Investment Company Act, or the Trust will
not be classified as a grantor trust for
United States federal income tax purposes;
(ix) take any action inconsistent with the status
of the Trust as a grantor trust for United
States federal income tax purposes; or
(x) revoke any action previously authorized or
approved by vote of the Holders of the
Preferred Securities.
SECTION 3.8 Powers and Duties of the Property Trustee.
(a) The legal title to the Debentures shall be owned by and
held of record in the name of the Property Trustee for the benefit of the Trust
and the Holders of the Securities. The right, title and interest of the Property
Trustee to the Debentures shall vest automatically in each Person who may
hereafter be appointed as Property Trustee in accordance with Section 6.6. Such
vesting
<PAGE> 27
20
and cessation of title shall be effective whether or not conveyancing documents
with regard to the Debentures have been executed and delivered.
(b) The Property Trustee shall not transfer its right, title
and interest in the Debentures to the Regular Trustees or to the Delaware
Trustee (if the Property Trustee does not also act as Delaware Trustee).
(c) The Property Trustee shall:
(i) establish and maintain a segregated
non-interest bearing trust account (the
"Property Account") in the name of and under
the exclusive control of the Property
Trustee on behalf of the Holders of the
Securities and, upon the receipt of payments
of funds made in respect of the Debentures
held by the Property Trustee, deposit such
funds into the Property Account and make
payments to the Holders of the Preferred
Securities and Holders of the Common
Securities from the Property Account in
accordance with Section 7.2. Funds in the
Property Account shall be held uninvested
until disbursed in accordance with this
Declaration. The Property Account shall be
an account that is maintained with a banking
institution the rating on whose long-term
unsecured indebtedness is at least equal to
the rating assigned to the Preferred
Securities by a "nationally recognized
statistical rating organization", within the
meaning of Rule 436(g)(2) under the
Securities Act;
(ii) engage in such ministerial activities as
shall be necessary or appropriate to effect
the redemption of the Preferred Securities
and the Common Securities to the extent the
Debentures are redeemed or mature; and
(iii) upon written notice of distribution issued
by the Regular Trustees in accordance with
the terms of the Securities, engage in such
ministerial activities as so directed and as
shall be necessary or appropriate to effect
the distribution of the Debentures to
Holders of Securities upon the occurrence of
a Special Event.
(d) The Property Trustee shall take all actions and perform
such duties as may be specifically required of the Property Trustee pursuant to
the terms of this Declaration and the Securities.
<PAGE> 28
21
(e) The Property Trustee shall take any Legal Action which
arises out of or in connection with a Trust Enforcement Event of which a
Responsible Officer of the Property Trustee has actual knowledge or the Property
Trustee's duties and obligations under this Declaration or the Trust Indenture
Act; PROVIDED, HOWEVER, that if a Trust Enforcement Event has occurred and is
continuing and such event is attributable to the failure of the Debenture Issuer
to pay interest, principal or other required payments on the Debentures on the
date such interest, principal or other required payments are otherwise payable
(or in the case of redemption, on the redemption date), then a Holder of
Preferred Securities may directly institute a proceeding against the Debenture
Issuer for enforcement of payment to such Holder of the principal of or interest
on Debentures having a principal amount equal to the aggregate liquidation
amount of the Preferred Securities of such Holder (a "Direct Action") on or
after the respective due date specified in the Debentures. Notwithstanding
anything to the contrary in this Declaration or the Indenture, the Debenture
Issuer shall have the right to set-off any payment it is otherwise required to
make under the Indenture in respect of any Preferred Security to the extent the
Debenture Issuer has heretofore made, or is currently on the date of such
payment making, a payment under the Guarantee relating to such Preferred
Security or under Section 5.8 of the Indenture.
(f) The Property Trustee shall continue to serve as a Trustee
until either:
(i) the Trust has been completely liquidated and
the proceeds of the liquidation distributed
to the Holders of Securities pursuant to the
terms of the Securities; or
(ii) a Successor Property Trustee has been
appointed and has accepted that appointment
in accordance with Section 6.6.
(g) The Property Trustee shall have the legal power to
exercise all of the rights, powers and privileges of a holder of Debentures
under the Indenture and, if a Trust Enforcement Event actually known to a
Responsible Officer of the Property Trustee occurs and is continuing, the
Property Trustee shall, for the benefit of Holders of the Securities, enforce
its rights as holder of the Debentures subject to the rights of the Holders
pursuant to the terms of such Securities.
(h) The Property Trustee may authorize one or more Persons
(each, a "Paying Agent") to pay Distributions, redemption payments or
liquidation payments on behalf of the Trust with respect to all Securities and
any such Paying Agent shall comply with Section 317(b) of the Trust Indenture
Act. Any Paying Agent may be removed by the Property Trustee at any time and a
successor Paying Agent or additional Paying Agents may be appointed at any time
by the Property Trustee.
(i) Subject to this Section 3.8, the Property Trustee shall
have none of the duties, liabilities, powers or the authority of the Regular
Trustees set forth in Section 3.6.
<PAGE> 29
22
The Property Trustee shall exercise the powers set forth in
this Section 3.8 in a manner that is consistent with the purposes and functions
of the Trust set out in Section 3.3, and the Property Trustee shall have no
power to, and shall not, take any action that is inconsistent with the purposes
and functions of the Trust set out in Section 3.3.
SECTION 3.9 Certain Duties and Responsibilities of the
Property Trustee.
(a) The Property Trustee, before the occurrence of any Trust
Enforcement Event and after the curing of all Trust Enforcement Events that may
have occurred, shall undertake to perform only such duties as are specifically
set forth in this Declaration and no implied covenants shall be read into this
Declaration against the Property Trustee. In case a Trust Enforcement Event has
occurred (that has not been cured or waived pursuant to Section 2.6) of which a
Responsible Officer of the Property Trustee has actual knowledge, the Property
Trustee shall exercise such of the rights and powers vested in it by this
Declaration, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
his or her own affairs.
(b) No provision of this Declaration shall be construed to
relieve the Property Trustee from liability for its own negligent action, its
own negligent failure to act or its own willful misconduct, except that:
(i) prior to the occurrence of a Trust
Enforcement Event and after the curing or
waiving of all such Trust Enforcement Events
that may have occurred:
a. the duties and obligations of the
Property Trustee shall be determined
solely by the express provisions of
this Declaration and the Property
Trustee shall not be liable except
for the performance of such duties
and obligations as are specifically
set forth in this Declaration, and
no implied covenants or obligations
shall be read into this Declaration
against the Property Trustee; and
b. in the absence of bad faith on the
part of the Property Trustee, the
Property Trustee may conclusively
rely, as to the truth of the
statements and the correctness of
the opinions expressed therein, upon
any certificates or opinions
furnished to the Property Trustee
and conforming to the requirements
of this Declaration; but in the case
of any such certificates or opinions
that by any provision hereof are
specifically required to be
furnished to the Property Trustee,
the Property Trustee
<PAGE> 30
23
shall be under a duty to examine the
same to determine whether or not
they conform to the requirements of
this Declaration;
(ii) the Property Trustee shall not be liable for
any error of judgment made in good faith by
a Responsible Officer of the Property
Trustee, unless it shall be proved that the
Property Trustee was negligent in
ascertaining the pertinent facts;
(iii) the Property Trustee shall not be liable
with respect to any action taken or omitted
to be taken by it without negligence, in
good faith in accordance with the direction
of the Holders of not less than a Majority
in Liquidation Amount of the Securities
relating to the time, method and place of
conducting any proceeding for any remedy
available to the Property Trustee, or
exercising any trust or power conferred upon
the Property Trustee under this Declaration;
(iv) no provision of this Declaration shall
require the Property Trustee to expend or
risk its own funds or otherwise incur
personal financial liability in the
performance of any of its duties or in the
exercise of any of its rights or powers, if
it shall have reasonable grounds for
believing that the repayment of such funds
or liability is not reasonably assured to it
under the terms of this Declaration or
indemnity reasonably satisfactory to the
Property Trustee against such risk or
liability is not reasonably assured to it;
(v) the Property Trustee's sole duty with
respect to the custody, safe- keeping and
physical preservation of the Debentures and
the Property Account shall be to deal with
such property in a similar manner as the
Property Trustee deals with similar property
for its own account, subject to the
protections and limitations on liability
afforded to the Property Trustee under this
Declaration and the Trust Indenture Act;
(vi) the Property Trustee shall have no duty or
liability for or with respect to the value,
genuineness, existence or sufficiency of the
Debentures or the payment of any taxes or
assessments levied thereon or in connection
therewith;
(vii) the Property Trustee shall not be liable for
any interest on any money received by it
except as it may otherwise agree with the
Sponsor. Money held by the Property Trustee
need not be segregated from
<PAGE> 31
24
other funds held by it except in relation to
the Property Account maintained by the
Property Trustee pursuant to Section
3.8(c)(i) and except to the extent otherwise
required by law; and
(viii) the Property Trustee shall not be
responsible for monitoring the compliance by
the Regular Trustees or the Sponsor with
their respective duties under this
Declaration, nor shall the Property Trustee
be liable for any default or misconduct of
the Regular Trustees or the Sponsor.
SECTION 3.10 Certain Rights of Property Trustee.
(a) Subject to the provisions of Section 3.9:
(i) the Property Trustee may conclusively rely
and shall be fully protected in acting or
refraining from acting upon any resolution,
certificate, statement, instrument, opinion,
report, notice, request, direction, consent,
order, bond, debenture, note, other evidence
of indebtedness or other paper or document
believed by it to be genuine and to have
been signed, sent or presented by the proper
party or parties;
(ii) any direction or act of the Sponsor or the
Regular Trustees contemplated by this
Declaration shall be sufficiently evidenced
by an Officers' Certificate;
(iii) whenever in the administration of this
Declaration, the Property Trustee shall deem
it desirable that a matter be proved or
established before taking, suffering or
omitting any action hereunder, the Property
Trustee (unless other evidence is herein
specifically prescribed) may, in the absence
of bad faith on its part, request and
conclusively rely upon an Officers'
Certificate which, upon receipt of such
request, shall be promptly delivered by the
Sponsor or the Regular Trustees;
(iv) the Property Trustee shall have no duty to
see to any recording, filing or registration
of any instrument (including any financing
or continuation statement or any filing
under tax or securities laws) or any
rerecording, refiling or registration
thereof;
<PAGE> 32
25
(v) the Property Trustee may consult with
counsel of its choice or other experts and
the advice or opinion of such counsel and
experts with respect to legal matters or
advice within the scope of such experts'
area of expertise 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 accordance
with such advice or opinion, such counsel
may be counsel to the Sponsor or any of its
Affiliates, and may include any of its
employees. The Property Trustee shall have
the right at any time to seek instructions
concerning the administration of this
Declaration from any court of competent
jurisdiction;
(vi) the Property Trustee shall be under no
obligation to exercise any of the rights or
powers vested in it by this Declaration at
the request or direction of any Holder,
unless such Holder shall have provided to
the Property Trustee security and indemnity,
reasonably satisfactory to the Property
Trustee, against the costs, expenses
(including attorneys' fees and expenses and
the expenses of the Property Trustee's
agents, nominees or custodians) and
liabilities that might be incurred by it in
complying with such request or direction,
including such reasonable advances as may be
requested by the Property Trustee; provided
that, nothing contained in this Section
3.10(a) shall be taken to relieve the
Property Trustee, upon the occurrence of a
Trust Enforcement Event, of its obligation
to exercise the rights and powers vested in
it by this Declaration;
(vii) the Property 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 Property Trustee, in its discretion,
may make such further inquiry or
investigation into such facts or matters as
it may see fit;
(viii) the Property Trustee may execute any of the
trusts or powers hereunder or perform any
duties hereunder either directly or by or
through agents, custodians, nominees or
attorneys and the Property 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;
<PAGE> 33
26
(ix) any action taken by the Property Trustee or
its agents hereunder shall bind the Trust
and the Holders of the Securities, and the
signature of the Property Trustee or its
agents alone shall be sufficient and
effective to perform any such action and no
third party shall be required to inquire as
to the authority of the Property Trustee to
so act or as to its compliance with any of
the terms and provisions of this
Declaration, both of which shall be
conclusively evidenced by the Property
Trustee's or its agent's taking such action;
(x) whenever in the administration of this
Declaration the Property Trustee shall deem
it desirable to receive instructions with
respect to enforcing any remedy or right or
taking any other action hereunder, the
Property Trustee (i) may request
instructions from the Holders of the
Securities which instructions may only be
given by the Holders of the same proportion
in liquidation amount of the Securities as
would be entitled to direct the Property
Trustee under the terms of the Securities in
respect of such remedy, right or action,
(ii) may refrain from enforcing such remedy
or right or taking such other action until
such instructions are received, and (iii)
shall be protected in conclusively relying
on or acting in or accordance with such
instructions;
(xi) except as otherwise expressly provided by
this Declaration, the Property Trustee shall
not be under any obligation to take any
action that is discretionary under the
provisions of this Declaration;
(xii) the Property Trustee shall not be liable for
any action taken, suffered or omitted to be
taken by it without negligence, in good
faith and reasonably believed by it to be
authorized or within the discretion, rights
or powers conferred upon it by this
Declaration;
(xiii) without prejudice to any other rights
available to the Property Trustee under
applicable law, when the Property Trustee
incurs expenses or renders services in
connection with a bankruptcy, such expenses
(including the fees and expenses of its
counsel) and the compensation for such
services are intended to constitute expenses
of administration under any bankruptcy law
or law relating to creditors rights
generally;
(xiv) the Property Trustee shall not be charged
with knowledge of a Trust Enforcement Event
unless a Responsible Officer of the Property
Trustee obtains actual knowledge of such
event or the Property
<PAGE> 34
27
Trustee receives written notice of such
event from Holders holding more than a
Majority in Liquidation Amount of the
Preferred Securities; and
(xv) any action taken by the Property Trustee or
its agents hereunder shall bind the Trust
and the Holders of such Securities, and the
signature of the Property Trustee or one of
its agents shall by itself be sufficient and
effective to perform any such action and no
third party shall be required to inquire as
to the authority of the Property Trustee to
so act or as to its compliance with any of
the terms and provisions of this
Declaration, both of which shall be
conclusively evidenced by the Property
Trustee's or its agent's taking such action.
(b) No provision of this Declaration shall be deemed to impose
any duty or obligation on the Property Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it, in any
jurisdiction in which it shall be illegal, or in which the Property Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts, or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Property Trustee
shall be construed to be a duty.
SECTION 3.11 Delaware Trustee.
Notwithstanding any other provision of this Declaration other
than Section 6.2, the Delaware Trustee shall not be entitled to exercise any
powers, nor shall the Delaware Trustee have any of the duties and
responsibilities of the Regular Trustees or the Property Trustee described in
this Declaration. Except as set forth in Section 6.2, the Delaware Trustee shall
be a Trustee for the sole and limited purpose of fulfilling the requirements of
Section 3807(a) of the Business Trust Act. In the event the Delaware Trustee
shall at any time be required to take any action or perform any duty hereunder
with respect to the Trust, the Delaware Trustee shall be entitled to all of the
same rights as the Property Trustee listed in Section 3.9(b) and Section 3.10.
SECTION 3.12 Execution of Documents.
Unless otherwise determined by the Regular Trustees, and
except as otherwise required by the Business Trust Act or applicable law, any
Regular Trustee is authorized to execute on behalf of the Trust any documents
that the Regular Trustees have the power and authority to execute pursuant to
Section 3.6; provided that, the registration statements referred to in Section
3.6(b)(ii), including any amendments thereto, shall be signed by or on behalf of
a majority of the Regular Trustees.
<PAGE> 35
28
SECTION 3.13 Not Responsible for Recitals or Issuance of
Securities.
The recitals contained in this Declaration and the Securities
shall be taken as the statements of the Sponsor, and the Trustees do not assume
any responsibility for their correctness. The Trustees make no representations
as to the value or condition of the property of the Trust or any part thereof.
The Trustees make no representations as to the validity or sufficiency of this
Declaration, the Securities, the Debentures or the Indenture.
SECTION 3.14 Duration of Trust.
The Trust shall exist until dissolved pursuant to the
provisions of Article 8 hereof.
SECTION 3.15 Mergers.
(a) The Trust may not consolidate, amalgamate, merge with or
into, or be replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, except as described in Section
3.15(b) and (c) or Section 8.2.
(b) The Trust may, at the request of the Sponsor and with the
consent of the Regular Trustees or, if there are more than two, a majority of
the Regular Trustees and without the consent of the Holders of the Securities,
the Delaware Trustee or the Property Trustee, consolidate, amalgamate, merge
with or into, or be replaced by or convey, transfer or lease its properties
substantially as an entirety to a trust organized as such under the laws of any
State; provided, that:
(i) if the Trust is not the successor, such
successor entity (the "Successor Entity")
either:
a. expressly assumes all of the
obligations of the Trust with
respect to the Securities; or
b. substitutes for the Preferred
Securities other securities having
substantially the same terms as the
Preferred Securities (the "Successor
Securities") so long as the
Successor Securities rank the same
as the Preferred Securities rank in
priority with respect to
Distributions and payments upon
liquidation, redemption and
otherwise;
(ii) the Debenture Issuer expressly appoints a
trustee of such Successor Entity that
possesses the same powers and duties as the
Property Trustee as the holder of the
Debentures;
<PAGE> 36
29
(iii) the Preferred Securities or any Successor
Securities are listed, or any Successor
Securities will be listed upon notification
of issuance, on any national securities
exchange or with any other or organization
on which the Preferred Securities are then
listed or quoted;
(iv) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease
does not cause the Preferred Securities
(including any Successor Securities) to be
downgraded by any nationally recognized
statistical rating organization;
(v) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease
does not adversely affect the rights,
preferences and privileges of the Holders of
the Preferred Securities (including any
Successor Securities) in any material
respect;
(vi) such Successor Entity has a purpose
substantially identical to that of the
Trust;
(vii) prior to such merger, consolidation,
amalgamation, replacement, conveyance,
transfer or lease the Sponsor has received
an opinion of independent counsel to the
Trust experienced in such matters to the
effect that:
a. such merger, consolidation,
amalgamation, replacement,
conveyance, transfer or lease does
not adversely affect the rights,
preferences and privileges of the
Holders of the Preferred Securities
(including any Successor Securities)
in any material respect;
b. following such merger,
consolidation, amalgamation,
replacement, conveyance, transfer or
lease neither the Trust nor the
Successor Entity will be required to
register as an Investment Company;
and
c. following such merger,
consolidation, amalgamation or
replacement, the Trust (or the
Successor Entity) will continue to
be classified as a grantor trust for
United States federal income tax
purposes;
(viii) the Sponsor or any permitted successor or
assignee owns all of the common securities
and guarantees the obligations of such
Successor
<PAGE> 37
30
Entity under the Successor Securities at
least to the extent provided by the
Securities Guarantee; and
(ix) such Successor Entity expressly assumes all
of the obligations of the Trust with respect
to the Trustees.
(c) Notwithstanding Section 3.15(b), the Trust shall not,
except with the consent of Holders of 100% in aggregate liquidation amount of
the Securities, consolidate, amalgamate, merge with or into, or be replaced by
or convey, transfer or lease its properties and assets substantially as an
entirety to, any other entity or permit any other entity to consolidate,
amalgamate, merge with or into, or replace it, if such consolidation,
amalgamation, merger, replacement, conveyance, transfer or lease would cause the
Trust or Successor Entity to be classified as other than a grantor trust for
United States federal income tax purposes and each Holder of the Securities not
to be treated as owning an undivided interest in the Debentures.
SECTION 3.16 Property Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other similar judicial proceeding relative to the Trust or any other obligor
upon the Securities or the property of the Trust or of such other obligor or
their creditors, the Property Trustee (irrespective of whether any Distributions
on the Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Property Trustee shall
have made any demand on the Trust for the payment of any past due Distributions)
shall be entitled and empowered, to the fullest extent permitted by law, by
intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of any
Distributions owing and unpaid in respect of the Securities (or, if the
Securities are original issue discount Securities, such portion of the
liquidation amount as may be specified in the terms of such Securities) and to
file such other papers or documents as may be necessary or advisable in order to
have the claims of the Property Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Property Trustee, its
and counsel) and of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Property Trustee and, in the event the
Property Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Property Trustee any amount due it for the reasonable
compensation,
<PAGE> 38
31
expenses, disbursements and advances of the Property Trustee, its agents and
counsel, and any other amounts due the Property Trustee.
Nothing herein contained shall be deemed to authorize the
Property Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement adjustment or compensation
affecting the Securities or the rights of any Holder thereof or to authorize the
Property Trustee to vote in respect of the claim of any Holder in any such
proceeding.
ARTICLE 4
SPONSOR
SECTION 4.1 Responsibilities of the Sponsor.
In connection with the issue and sale of the Preferred
Securities, the Sponsor shall have the exclusive right and responsibility to
engage in the following activities:
(a) to prepare for filing by the Trust with the Commission
under the Securities Act or the Exchange Act one or more registration statements
on the applicable forms, including any amendments thereto, pertaining to the
Preferred Securities, the Guarantee and the Debentures;
(b) to determine the States in which to take appropriate
action to qualify or register for sale all or part of the Preferred Securities
and to do any and all such acts, other than actions which must be taken by the
Trust, and advise the Trust of actions it must take, and prepare for execution
and filing any documents to be executed and filed by the Trust, as the Sponsor
deems necessary or advisable in order to comply with the applicable laws of any
such States;
(c) to prepare for filing by the Trust an application to the
New York Stock Exchange or any other national stock exchange or the NASDAQ Stock
Market for listing upon notice of issuance of any Preferred Securities, the
Guarantee and the Debentures; and
(d) to negotiate the terms of and to execute on behalf of the
Trust an underwriting agreement and other related agreements providing for the
sale of the Preferred Securities.
SECTION 4.2 Indemnification and Fees and Expenses of the
Trustees.
The Sponsor, in its capacity as Debenture Issuer, agrees to
indemnify the Property Trustee and the Delaware Trustee for, and to hold each of
them harmless against, any loss, liability or expense incurred without
negligence or bad faith on the part of the Property Trustee or the
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Delaware Trustee, as the case may be, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder, including the
costs and expenses of defending either of them against any claim or liability in
connection with the exercise or performance of any of their respective powers or
duties hereunder; the provisions of this Section 4.2 shall survive the
resignation or removal of the Delaware Trustee or the Property Trustee or the
termination of this Declaration.
SECTION 4.3 Compensation of the Trustees.
The Sponsor agrees to pay the Property Trustee and the
Delaware Trustee from time to time such compensation for all services rendered
by the Property Trustee and the Delaware Trustee hereunder as may be mutually
agreed upon in writing by the Sponsor and the Property Trustee or the Delaware
Trustee, as the case may be, and, except as otherwise expressly provided herein,
to reimburse the Property Trustee and the Delaware Trustee upon its or their
request for all reasonable expenses, disbursements and advances incurred or made
by the Property Trustee or the Delaware Trustee, as the case may be, in
accordance with the provisions of this Declaration, except any such expense,
disbursement or advance as may be attributable to its or their negligence or bad
faith.
ARTICLE 5
TRUST COMMON SECURITIES HOLDER
SECTION 5.1 Debenture Issuer's Purchase of Common Securities.
On the Closing Date, the Debenture Issuer will purchase all of
the Common Securities issued by the Trust on the Closing Date, for an amount at
least equal to 3% of the capital of the Trust at such time, at the same time as
Preferred Securities are sold.
The aggregate stated liquidation amount of Common Securities
outstanding at any time shall not be less than 3% of the capital of the Trust.
SECTION 5.2 Covenants of the Common Securities Holder.
For so long as the Preferred Securities remain outstanding,
the Common Securities Holder will covenant (i) (subject to Section 7.9(b))to
maintain directly 100% ownership of the Common Securities, (ii) to cause the
Trust to remain a statutory business trust and not to voluntarily dissolve, wind
up, liquidate or be terminated, except as permitted by this Declaration, (iii)
to use its commercially reasonable efforts to ensure that the Trust will not be
an investment company for purposes of the Investment Company Act, and (iv) to
take no action which would be reasonably
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likely to cause the Trust to be classified as an association or a publicly
traded partnership taxable as a corporation for United States federal income tax
purposes.
ARTICLE 6
TRUSTEES
SECTION 6.1 Number of Trustees.
The number of Trustees initially shall be five, and:
(a) at any time before the issuance of any Securities, the
Sponsor may, by written instrument, increase or decrease the number of Trustees;
and
(b) after the issuance of any Securities, the number of
Trustees may be increased or decreased by vote of the Holders of a Majority in
Liquidation Amount of the Common Securities voting as a class at a meeting of
the Holders of the Common Securities or by written consent in lieu of such
meeting; provided that the number of Trustees shall be at least three; and
provided further that (1) the Delaware Trustee, in the case of a natural person,
shall be a person who is a resident of the State of Delaware or that, if not a
natural person, is an entity which has its principal place of business in the
State of Delaware and otherwise meets the requirements of applicable law; (2) at
least one Regular Trustee is an employee or officer of, or is affiliated with,
the Sponsor; and (3) one Trustee shall be the Property Trustee for so long as
this Declaration is required to qualify as an indenture under the Trust
Indenture Act, and such Trustee may also serve as Delaware Trustee if it meets
the applicable requirements.
SECTION 6.2 Delaware Trustee; Eligibility.
If required by the Business Trust Act, one Trustee (which may
be the Property Trustee) (the "Delaware Trustee") shall be:
(a) a natural person who is a resident of the State of
Delaware; or
(b) if not a natural person, an entity which has its principal
place of business in the State of Delaware, and otherwise meets the requirements
of applicable law,
provided that, if the Property Trustee has its principal place of business in
the State of Delaware and otherwise meets the requirements of applicable law,
then the Property Trustee shall also be the Delaware Trustee and Section 3.11
shall have no application.
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SECTION 6.3 Property Trustee; Eligibility.
(a) There shall at all times be one Trustee (which may be the
Delaware Trustee) which shall act as Property Trustee which shall:
(i) not be an Affiliate of the Sponsor; and
(ii) be a corporation organized and doing
business under the laws of the United States
of America or any State or Territory thereof
or of the District of Columbia, or a
corporation or other Person permitted by the
Commission to act as an institutional
trustee under the Trust Indenture Act,
authorized under such laws to exercise
corporate trust owners, having a combined
capital and surplus of at least 50 million
U.S. dollars ($50,000,000), and subject to
supervision or examination by federal,
State, Territorial or District of Columbia
authority. If such corporation publishes
reports of condition at least annually,
pursuant to law or to the requirements of
the supervising or examining authority
referred to above, then for the purposes of
this Section 6.3(a)(ii), 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.
(b) If at any time the Property Trustee shall cease to be
eligible to so act under Section 6.3(a), the Property Trustee shall immediately
resign in the manner and with the effect set forth in Section 6.6(c).
(c) If the Property Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Property Trustee and the Holder of the Common Securities (as
if it were the obligor referred to in Section 310(b) of the Trust Indenture Act)
shall in all respects comply with the provisions of Section 310(b) of the Trust
Indenture Act.
(d) The Guarantee shall be deemed to be specifically described
in this Declaration for purposes of clause (i) of the first proviso contained in
Section 310(b) of the Trust Indenture Act.
SECTION 6.4 Qualifications of Regular Trustees and Delaware
Trustee Generally.
Each Regular Trustee and the Delaware Trustee (unless the
Property Trustee also acts as Delaware Trustee) shall be either a natural person
who is at least 21 years of age or a legal entity that shall act through one or
more Authorized Officers.
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SECTION 6.5 Initial Regular Trustees.
The initial Regular Trustees shall be:
Christopher J. Carey, Mark E. Magee, Esq. and Tayfun Tuzun,
the business address of all of whom is c/o Provident Financial Group, Inc., One
East Fourth Street, Cincinnati, Ohio 45202.
SECTION 6.6 Appointment, Removal and Resignation of Trustees.
(a) Subject to Section 6.6(b), Trustees may be appointed or
removed without cause at any time:
(i) until the issuance of any Securities, by
written instrument executed by the Sponsor;
(ii) after the issuance of any Securities (but
prior to the occurrence of an Indenture
Event of Default), by vote of the Holders of
a Majority in Liquidation Amount of the
Common Securities voting as a class at a
meeting of the Holders of the Common
Securities; and
(iii) after the issuance of the Preferred
Securities and the occurrence of an
Indenture Event of Default, by vote of the
Holders of a majority in Liquidation Amount
of the Preferred Securities.
(b) The Trustee that acts as Property Trustee shall not be
removed in accordance with Section 6.6(a) until a successor Trustee possessing
the qualifications to act as Property Trustee under Section 6.3(a) (a "Successor
Property Trustee") has been appointed and has accepted such appointment by
written instrument executed by such Successor Property Trustee and delivered to
the Regular Trustees and the Sponsor. The Trustee that acts as Delaware Trustee
shall not be removed in accordance with Section 6.6(a) until a successor Trustee
possessing the qualifications to act as Delaware Trustee under Sections 6.2 and
6.4 (a "Successor Delaware Trustee") has been appointed and has accepted such
appointment by written instrument executed by such Successor Delaware Trustee
and delivered to the Regular Trustees and the Sponsor.
(c) A Trustee appointed to office shall hold office until his
or its successor shall have been appointed, until his death or its dissolution
or until his or its removal or resignation. Any Trustee may resign from office
(without need for prior or subsequent accounting) by an instrument in writing
signed by the Trustee and delivered to the Sponsor and the Trust, which
resignation shall take effect upon such delivery or upon such later date as is
specified therein; provided, however, that:
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(i) No such resignation of the Trustee that acts
as the Property Trustee shall be effective:
a. until a Successor Property Trustee
has been appointed and has accepted
such appointment by instrument
executed by such Successor Property
Trustee and delivered to the Trust,
the Sponsor and the resigning
Property Trustee; or
b. until the assets of the Trust have
been completely liquidated and the
proceeds thereof distributed to the
Holders of the Securities; and
(ii) no such resignation of the Trustee that acts
as the Delaware Trustee shall be effective
until a Successor Delaware Trustee has been
appointed and has accepted such appointment
by instrument executed by such Successor
Delaware Trustee and delivered to the Trust,
the Sponsor and the resigning Delaware
Trustee.
(d) The Holders of the Common Securities shall use their best
efforts to promptly appoint a Successor Delaware Trustee or Successor Property
Trustee, as the case may be, if the Property Trustee or the Delaware Trustee
delivers an instrument of resignation in accordance with this Section 6.6.
(e) If no Successor Property Trustee or Successor Delaware
Trustee, as the case may be, shall have been appointed and accepted appointment
as provided in this Section 6.6 within 60 days after delivery to the Sponsor and
the Trust of an instrument of resignation or removal, the resigning or removed
Property Trustee or Delaware Trustee, as applicable, may petition any court of
competent jurisdiction for appointment of a Successor Property Trustee or
Successor Delaware Trustee, as applicable. Such court may thereupon, after
prescribing such notice, if any, as it may deem proper, appoint a Successor
Property Trustee or Successor Delaware Trustee, as the case may be.
(f) No Property Trustee or Delaware Trustee shall be liable
for the acts or omissions to act of any Successor Property Trustee or Successor
Delaware Trustee, as the case may be.
SECTION 6.7 Vacancies among Trustees.
If a Trustee ceases to hold office for any reason and the
number of Trustees is not reduced pursuant to Section 6.1, or if the number of
Trustees is increased pursuant to Section 6.1, a vacancy shall occur. A
resolution certifying the existence of such vacancy by the Regular Trustees
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or, if there are more than two, a majority of the Regular Trustees shall be
conclusive evidence of the existence of such vacancy. The vacancy shall be
filled with a Trustee appointed in accordance with Section 6.6.
SECTION 6.8 Effect of Vacancies.
The death, resignation, retirement, removal, bankruptcy,
dissolution, liquidation, incompetence or incapacity to perform the duties of a
Trustee shall not operate to annul, dissolve or terminate the Trust. Whenever a
vacancy in the number of Regular Trustees shall occur, until such vacancy is
filled by the appointment of a Regular Trustee in accordance with Section 6.6,
the Regular Trustees in office, regardless of their number, shall have all the
powers granted to the Regular Trustees and shall discharge all the duties
imposed upon the Regular Trustees by this Declaration.
SECTION 6.9 Meetings.
If there is more than one Regular Trustee, meetings of the
Regular Trustees shall be held from time to time upon the call of any Regular
Trustee. Regular meetings of the Regular Trustees may be held at a time and
place fixed by resolution of the Regular Trustees. Notice of any in-person
meetings of the Regular Trustees shall be hand delivered or otherwise delivered
in writing (including by facsimile, with a hard copy by overnight courier) not
less than 48 hours before such meeting. Notice of any telephonic meetings of the
Regular Trustees shall be hand delivered or otherwise delivered in writing
(including by facsimile, with a hard copy by overnight courier) not less than 24
hours before a meeting. Notices shall contain a brief statement of the time,
place and anticipated purposes of the meeting. The presence (whether in person
or by telephone) of a Regular Trustee at a meeting shall constitute a waiver of
notice of such meeting except where a Regular Trustee attends a meeting for the
express purpose of objecting to the transaction of any activity on the ground
that the meeting has not been lawfully called or convened. Unless provided
otherwise in this Declaration, any action of the Regular Trustees may be taken
at a meeting by vote of a majority of the Regular Trustees present (whether in
person or by telephone) and eligible to vote with respect to such matter,
provided that a Quorum is present, or without a meeting by the unanimous written
consent of the Regular Trustees. In the event there is only one Regular Trustee,
any and all action of such Regular Trustee shall be evidenced by a written
consent of such Regular Trustee.
SECTION 6.10 Delegation of Power.
(a) Any Regular Trustee may, by power of attorney consistent
with applicable law, delegate to any natural person over the age of 21 his, her
or its power for the purpose of executing any documents contemplated in Section
3.6, including any registration statement or amendment thereto filed with the
Commission, or making any other governmental filing.
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(b) The Regular Trustees shall have power to delegate from
time to time to such of their number or to officers of the Trust the doing of
such things and the execution of such instruments either in the name of the
Trust or the names of the Regular Trustees or otherwise as the Regular Trustees
may deem expedient, to the extent such delegation is not prohibited by
applicable law or contrary to the provisions of the Trust, as set forth herein.
SECTION 6.11 Merger, Conversion, Consolidation or Succession
to Business.
Any corporation into which the Property Trustee, the Delaware
Trustee or any Regular Trustee that is not a natural person may be merged or
converted or with such Trustee may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Trustee shall be a
party, or any corporation succeeding to all or substantially all the corporate
trust business of such Trustee shall be the successor of such 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.
ARTICLE 7
TERMS OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities.
(a) The Regular Trustees shall on behalf of the Trust issue
one class of preferred securities representing undivided beneficial ownership
interests in the assets of the Trust and one class of common securities
representing undivided beneficial ownership interests in the assets of the
Trust.
(i) Preferred Securities. The Preferred
Securities of the Trust have an aggregate
liquidation amount with respect to the
assets of the Trust of ____________________
($___________) with respect to the closing
of the sale of Preferred Securities. The
Preferred Securities are hereby designated
for identification purposes only as "__%
Preferred Securities" (the "Preferred
Securities"). The Preferred Security
Certificates evidencing the Preferred
Securities shall be substantially in the
form of Exhibit A to this Declaration, with
such changes and additions thereto or
deletions therefrom as may be required by
ordinary usage, custom or practice or to
conform to the rules of any stock exchange
on which the Preferred Securities are listed
or quoted.
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(ii) Common Securities. The Common Securities of
the Trust have an aggregate liquidation
amount with respect to the assets of the
Trust of _______________________________
($_________) with respect to the closing of
the sale of Common Securities. The Common
Securities are hereby designated for
identification purposes only as "__% Common
Securities" (the "Common Securities" and,
together with the Preferred Securities, the
"Securities"). The Common Security
Certificates evidencing the Common
Securities shall be substantially in the
form of Exhibit B to this Declaration, with
such changes and additions thereto or
deletions therefrom as may be required by
ordinary usage, custom or practice.
(b) Payment of Distributions on, and payment of the Redemption
Price upon a redemption of, the Preferred Securities and the Common Securities,
as applicable, shall be made Pro Rata based on the liquidation amount of such
Preferred Securities and Common Securities; provided, however, that if on any
date on which amounts payable on distribution or redemption, an Indenture Event
of Default shall have occurred and be continuing, no payment of any Distribution
on, or Redemption Price of, any of the Common Securities, and no other payment
on account of the redemption, liquidation or other acquisition of such Common
Securities, shall be made unless payment in full in cash of all accumulated and
unpaid Distributions on all of the outstanding Preferred Securities for all
Distribution periods terminating on or prior thereto, or, in the case of amounts
payable on redemption, the full amount of the Redemption Price for all of the
outstanding Preferred Securities then called for redemption, shall have been
made or provided for, and all funds available to the Property Trustee shall
first be applied to the payment in full in cash of all Distributions on, or the
Redemption Price of, the Preferred Securities then due and payable. The Trust
shall issue no securities or other interests in the assets of the Trust other
than the Preferred Securities and the Common Securities.
(c) The Certificates shall be signed on behalf of the Trust by
a Regular Trustee. Such signature shall be the manual or facsimile signature of
any present or any future Regular Trustee. In case a Regular Trustee of the
Trust who shall have signed any of the Certificates shall cease to be such
Regular Trustee before the Certificates so signed shall be delivered by the
Trust, such Certificates nevertheless may be delivered as though the person who
signed such Certificates had not ceased to be such Regular Trustee; and any
Certificate may be signed on behalf of the Trust by such persons who, at the
actual date of execution of such Certificate, shall be the Regular Trustees of
the Trust, although at the date of the execution and delivery of the Declaration
any such person was not such a Regular Trustee. Certificates shall be printed,
lithographed or engraved or may be produced in any other manner as is reasonably
acceptable to the Regular Trustees, as evidenced by their execution thereof, and
may have such letters, numbers or other marks of identification or designation
and such legends or endorsements as the Regular Trustees may deem appropriate,
or as
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may be required to comply with any law or with any rule or regulation of any
stock exchange on which Securities may be listed, or to conform to usage.
A Certificate representing Preferred Securities shall not be
valid until authenticated by the manual signature of an authorized officer of
the Property Trustee. Such signature shall be conclusive evidence that such
Certificate has been authenticated under this Declaration.
Upon a written order of the Trust signed by one Regular
Trustee, the Property Trustee shall authenticate the Certificates representing
Preferred Securities for original issue. The aggregate number of Preferred
Securities outstanding at any time shall not exceed the liquidation amount set
forth in Section 7.1(a)(i).
The Property Trustee may appoint an authenticating agent
acceptable to the Trust to authenticate Certificates. An authenticating agent
may authenticate Certificates whenever the Property Trustee may do so. Each
reference in this Declaration to authentication by the Property Trustee includes
authentication by such agent. An authenticating agent has the same rights as the
Property Trustee to deal with the Sponsor or an Affiliate of the Sponsor.
(d) The consideration received by the Trust for the issuance
of the Securities shall constitute a contribution to the capital of the Trust
and shall not constitute a loan to the Trust.
(e) Upon issuance of the Securities as provided in this
Declaration, subject to Section 9.1(b), the Securities so issued shall be deemed
to be validly issued, fully paid and non-assessable undivided beneficial
ownership interests in the assets of the Trust.
(f) Every Person, by virtue of having become a Holder or a
Preferred Security Beneficial Owner in accordance with the terms of this
Declaration, shall be deemed to have expressly assented and agreed to the terms
of, and shall be bound by, this Declaration and the terms of the Securities, the
Guarantee, the Indenture and the Debentures.
(g) The holders of the Securities shall have no preemptive or
similar rights.
SECTION 7.2 Distributions.
(a) Holders of Securities shall be entitled to receive
cumulative cash Distributions at the rate per annum of __% of the stated
liquidation amount of $25 per Security. The amount of Distributions payable for
any period shall be computed on the basis of a 360-day year of twelve 30- day
months. The amount of distributions payable for any period shorter than a full
quarterly distribution period shall be computed on the basis of a 30-day month
and for periods of less than a month, the actual number of days elapsed per
30-day month. Subject to Section 7.1(b), Distributions shall be made on the
Preferred Securities and the Common Securities on a Pro Rata
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basis. Distributions on the Securities shall, from the date of original issue,
accumulate and be cumulative and shall be payable quarterly, in arrears, on each
March 31, June 30, September 30 and December 31, commencing __________________,
when, as and if available for payment, by the Property Trustee, except as
otherwise described below. Distributions are payable only to the extent that
payments are made in respect of the Debentures held by the Property Trustee and
to the extent that the Trust has funds available for the payment of such
Distributions in the Property Account.
(b) Distributions not paid on the scheduled payment date will
accumulate and compound quarterly at the rate of ____% per annum ("Compounded
Distributions"). "Distributions" shall mean ordinary cumulative distributions
together with any Compounded Distributions.
(c) If and to the extent that the Debenture Issuer makes a
payment of interest, premium and/or principal on the Debentures held by the
Property Trustee (the amount of any such payment being a "Payment Amount"), the
Property Trustee shall and is directed, to the extent funds are available for
that purpose, make a Pro Rata distribution of the Payment Amount to Holders,
subject to Section 7.1(b).
(d) Distributions on the Securities shall be payable to the
Holders thereof as they appear on the register of the Trust as of the close of
business on the relevant record dates. While the Preferred Securities are
represented by one or more Global Securities, the relevant record dates shall be
the close of business on the Business Day next preceding such Distribution
payment date, unless a different regular record date is established or provided
for the corresponding interest payment date on the Debentures. The relevant
record dates for the Common Securities shall be the same as for the Preferred
Securities. If the Preferred Securities shall not continue to remain represented
by one or more Global Securities, the relevant record dates for the Preferred
Securities shall be selected by the Regular Trustees and shall be at least one
Business Day prior to the relevant payment dates. At all times, the Distribution
payment dates shall correspond to the interest payment dates on the Debentures.
Distributions payable on any Securities that are not punctually paid on any
Distribution payment date, as a result of the Debenture Issuer having failed to
make a payment under the Debentures, shall cease to be payable to the Person in
whose name such Securities are registered on the relevant record date, and such
defaulted Distribution will instead be payable to the Person in whose name such
Securities are registered on the special record date or other specified date
determined in accordance with this Declaration. If any date on which
Distributions are payable on the Securities is not a Business Day, then payment
of the Distribution payable on such date will be made on the next succeeding day
that is a Business Day (and without any interest or other payment in respect of
any such delay), except that, if such Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately preceding Business
Day, with the same force and effect as if made on such payment date.
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(e) In the event that there is any money or other property
held by or for the Trust that is not accounted for hereunder, such property
shall be distributed Pro Rata among the Holders of the Securities.
SECTION 7.3 Redemption of Securities.
(a) Upon the repayment or redemption, in whole or in part, of
the Debentures held by the Trust, whether at the stated maturity of the
Debentures or upon earlier redemption as provided in the Indenture, the proceeds
from such repayment or redemption shall be simultaneously applied Pro Rata
(subject to Section 7.1(b)) to redeem Securities having an aggregate liquidation
amount equal to the aggregate principal amount of the Debentures so repaid or
redeemed at the Redemption Price. Holders shall be given not less than 30 nor
more than 60 days notice of such redemption in accordance with Section 7.4.
(b) On the date fixed for any distribution of Debentures, upon
dissolution of the Trust, (i) the Securities will no longer be deemed to be
outstanding and (ii) certificates representing Securities will be deemed to
represent the Debentures having an aggregate principal amount equal to the
stated liquidation amount of, and bearing accrued and unpaid interest equal to
accrued and unpaid distributions on, such Securities until such certificates are
presented to the Sponsor or its agent for transfer or reissuance.
SECTION 7.4 Redemption Procedures.
(a) Notice of any redemption of, or notice of distribution of
Debentures in exchange for, the Securities (a "Redemption/Distribution Notice"),
which notice shall be irrevocable, will be given by the Trust by mail to each
Holder of Securities to be redeemed or exchanged not fewer than 30 nor more than
60 days before the date fixed for redemption or exchange thereof which, in the
case of a redemption, will be the date fixed for redemption of the Debentures.
For purposes of the calculation of the date of redemption or exchange and the
dates on which notices are given pursuant to this Section 7.4(a), a
Redemption/Distribution Notice shall be deemed to be given on the day such
notice is first mailed by first-class mail, postage prepaid, to Holders of
Securities. Each Redemption/Distribution Notice shall be addressed to the
Holders of Securities at the address of each such Holder appearing in the
register of the Trust. No defect in the Redemption/Distribution Notice or in the
mailing of either thereof with respect to any Holder shall affect the validity
of the redemption or exchange proceedings with respect to any other Holder.
(b) If fewer than all the outstanding Securities are to be so
redeemed, the Common Securities and the Preferred Securities will be redeemed
Pro Rata (subject to Section 7.1(b)) and the Preferred Securities to be redeemed
will be redeemed as described in Section 7.4(c) below. The Trust may not redeem
the Securities in part unless all accumulated and unpaid Distributions to the
date of redemption have been paid in full on all Securities then outstanding.
For
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all purposes of this Declaration, unless the context otherwise requires, all
provisions relating to the redemption of Preferred Securities shall relate, in
the case of any Preferred Security redeemed or to be redeemed only in part, to
the portion of the aggregate liquidation amount of Preferred Securities which
has been or is to be redeemed.
(c) Subject to the Trust's fulfillment of the notice
requirements set forth in Section 7.4(a) above, if Securities are to be
redeemed, then (i) with respect to Preferred Securities represented by one or
more Global Securities, by 12:00 noon, New York City time, on the redemption
date, provided that the Debenture Issuer has paid the Property Trustee a
sufficient amount of cash in connection with the related redemption or maturity
of the Debentures, the Property Trustee will deposit irrevocably with the
Depositary or its nominee (or successor Clearing Agency or its nominee) funds
sufficient to pay the applicable Redemption Price with respect to the Preferred
Securities and will give the Depositary irrevocable instructions and authority
to pay the Redemption Price to the Holders of the Preferred Securities and (ii)
with respect to Securities not represented by one or more Global Securities,
provided that the Debenture Issuer has paid the Property Trustee a sufficient
amount of cash in connection with the related redemption or maturity of the
Debentures, the Paying Agent will pay the relevant Redemption Price to the
Holders of such Securities by check mailed to the address of the relevant Holder
appearing on the register of the Trust on the redemption date. If any date fixed
for redemption of Securities is not a Business Day, then payment of the
Redemption Price payable on such date will be made on the next succeeding day
that is a Business Day (and without any interest or other payment in respect of
any such delay) except that, if such Business Day falls in the next calendar
year, such payment will be made on the immediately preceding Business Day, in
each case with the same force and effect as if made on such date fixed for
redemption. If payment of the Redemption Price in respect of any Securities is
improperly withheld or refused and not paid either by the Property Trustee or by
the Sponsor as guarantor pursuant to the Guarantee, Distributions on such
Securities will continue to accrue at the then applicable rate from the original
redemption date to the actual date of payment, in which case the actual payment
date will be considered the date fixed for redemption for purposes of
calculating the Redemption Price. For these purposes, the applicable Redemption
Price shall not include Distributions which are being paid to Holders who were
Holders on a relevant record date. If a Redemption/Distribution Notice shall
have been given and funds deposited or paid as required, then immediately prior
to the close of business on the date of such deposit or payment, Distributions
will cease to accrue on the Securities called for redemption and all rights of
Holders of such Securities so called for redemption will cease, except the right
of the Holders to receive the Redemption Price, but without interest on such
Redemption Price, and from and after the date fixed for redemption, such
Securities will cease to be outstanding.
Neither the Regular Trustees nor the Trust shall be required
to register or cause to be registered the transfer of any Securities that have
been called for redemption, except in the case of any Securities being redeemed
in part, any portion thereof not to be redeemed.
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(d) Subject to the foregoing and applicable law (including,
without limitation, United States federal securities laws), the Debenture Issuer
or its subsidiaries may at any time and from time to time purchase outstanding
Preferred Securities by tender, in the open market or by private agreement.
SECTION 7.5 Voting Rights of Preferred Securities.
(a) Except as provided under Section 11.1, Section 6.6 and
this Article 7 and as otherwise required by the Business Trust Act, the Trust
Indenture Act and other applicable law, the Holders of the Preferred Securities
shall have no voting rights.
(b) Subject to the requirement of the Property Trustee
obtaining a tax opinion in certain circumstances set forth in Section 7.5(d)
below, the Holders of a Majority in Liquidation Amount of the Preferred
Securities voting separately as a class have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Property Trustee, or to direct the exercise of any trust or power conferred upon
the Property Trustee under the Declaration, including the right to direct the
Property Trustee, as Holder of the Debentures, to (i) exercise the remedies
available to it under the Indenture as a Holder of the Debentures; (ii) consent
to any amendment or modification of the Indenture or the Debentures where such
consent shall be required or (iii) waive any past default and its consequences
that is waivable under Section 5.13 of the Indenture; provided, however, that if
an Indenture Event of Default has occurred and is continuing, then the Holders
of 25% of the aggregate liquidation amount of the Preferred Securities may
direct the Property Trustee to declare the principal of and interest on the
Debentures due and payable; provided, further, that where a consent or action
under the Indenture would require the consent or act of the Holders of more than
a majority of the aggregate principal amount of Debentures affected thereby,
only the Holders of the percentage of the aggregate stated liquidation amount of
the Preferred Securities which is at least equal to the percentage required
under the Indenture may direct the Property Trustee to give such consent to take
such action.
(c) If the Property Trustee fails to enforce its rights under
the Debentures after a Holder of Preferred Securities has made a written
request, such Holder of Preferred Securities may, to the extent permitted by
applicable law, institute a legal proceeding directly against the Debenture
Issuer to enforce the Property Trustee's rights under the Indenture without
first instituting any legal proceeding against the Property Trustee or any other
Person. In addition, if a Trust Enforcement Event has occurred and is continuing
and such event is attributable to the failure of the Debenture Issuer to make
any interest, principal or other required payments when due under the Indenture,
then a Holder of Preferred Securities may directly institute a Direct Action
against the Debenture Issuer on or after the respective due date specified in
the Debentures.
(d) The Property Trustee shall notify all Holders of the
Preferred Securities of any notice of any Indenture Event of Default received
from the Debenture Issuer with respect to the
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45
Debentures. Such notice shall state that such Indenture Event of Default also
constitutes a Trust Enforcement Event. Except with respect to directing the
time, method, and place of conducting a proceeding for a remedy, the Property
Trustee shall be under no obligation to take any of the actions described in
clause 7.5(b)(i) and (ii) above unless the Property Trustee has obtained an
opinion of independent tax counsel to the effect that the Trust will not fail to
be classified as a grantor trust for United States federal income tax purposes
as a result of such action, and each Holder will be treated as owning an
undivided beneficial ownership interest in the Debentures.
(e) In the event the consent of the Property Trustee, as the
Holder of the Debentures, is required under the Indenture with respect to any
amendment or modification of the Indenture, the Property Trustee shall request
the direction of the Holders of the Securities with respect to such amendment or
modification and shall vote with respect to such amendment or modification as
directed by not less than 66-2/3% of the aggregate liquidation amount of the
Securities voting together as a single class; provided, however, that where a
consent under the Indenture would require the consent of the Holders of more
than a 66-2/3%of the aggregate principal amount of the Debentures, the Property
Trustee may only give such consent at the direction of the Holders of at least
the same proportion in aggregate stated liquidation amount of the Securities.
The Property Trustee shall not take any such action in accordance with the
directions of the Holders of the Securities unless the Property Trustee has
obtained an opinion of independent tax counsel to the effect that the Trust will
not be classified as other than a grantor trust for United States federal income
tax purposes as a result of such action, and each Holder will be treated as
owning an undivided beneficial ownership interest in the Debentures.
(f) A waiver of an Indenture Event of Default with respect to
the Debentures will constitute a waiver of the corresponding Trust Enforcement
Event.
(g) Any required approval or direction of Holders of Preferred
Securities may be given at a separate meeting of Holders of Preferred Securities
convened for such purpose, at a meeting of all of the Holders of Securities or
pursuant to written consent. The Regular Trustees will cause a notice of any
meeting at which Holders of Preferred Securities are entitled to vote to be
mailed to each Holder of record of Preferred Securities. Each such notice will
include a statement setting forth (i) the date of such meeting, (ii) a
description of any resolution proposed for adoption at such meeting on which
such Holders are entitled to vote and (iii) instructions for the delivery of
proxies.
(h) No vote or consent of the Holders of Preferred Securities
shall be required for the Trust to redeem and cancel Preferred Securities or
distribute Debentures in accordance with this Declaration and the terms of the
Securities.
(i) Notwithstanding that Holders of Preferred Securities are
entitled to vote or consent under any of the circumstances described above, any
of the Securities that are owned at such
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46
time by the Debenture Issuer, any Regular Trustee or any entity directly or
indirectly controlled by, or under direct or indirect common control with, the
Debenture Issuer or any Regular Trustee, shall not be entitled to vote or
consent and shall, for purposes of such vote or consent, be treated as if such
Securities were not outstanding; provided, however, that Persons otherwise
eligible to vote to whom the Debenture Issuer or any of its subsidiaries have
pledged Preferred Securities may vote or consent with respect to such pledged
Preferred Securities under any of the circumstances described herein.
(j) Subject to Sections 6.6(a) and 7.5(k), Holders of the
Preferred Securities shall have no rights to appoint or remove the Trustees, who
may be appointed, removed or replaced solely by the Common Securities Holder.
(k) If an Indenture Event of Default has occurred and is
continuing, the Trustees may be removed at such time only by a Majority in
Liquidation Amount of the Preferred Securities.
SECTION 7.6 Voting Rights of Common Securities.
(a) Except as provided under Section 6.1(b), this Section 7.6
or Section 11.1 or as otherwise required by the Business Trust Act, the Trust
Indenture Act or other applicable law or provided by the Declaration, the
Holders of the Common Securities will have no voting rights.
(b) Subject to Sections 6.6(a) and 7.5(k), the Holders of the
Common Securities shall be entitled, in accordance with Article VI of this
Declaration, to vote to appoint, remove or replace any Trustee or to increase or
decrease the number of Trustees.
(c) Subject to Section 2.6 and only after all Trust
Enforcement Events with respect to the Preferred Securities have been cured,
waived, or otherwise eliminated and subject to the requirement of the Property
Trustee obtaining a tax opinion in certain circumstances set forth in this
paragraph (c), the Holders of a Majority in Liquidation Amount of the Common
Securities have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Property Trustee, or direct the
exercise of any trust or power conferred upon the Property Trustee under this
Declaration, including the right to direct the Property Trustee, as Holder of
the Debentures, to (i) exercise the remedies available to it under the Indenture
as a Holder of the Debentures, (ii) consent to any amendment or modification of
the Indenture or the Debentures where such consent shall be required or (iii)
waive any past default and its consequences that is waivable under Section 5.13
of the Indenture; provided, however, that where a consent or action under the
Indenture would require the consent or act of the Holders of more than a
majority of the aggregate principal amount of Debentures affected thereby, only
the Holders of the percentage of the aggregate stated liquidation amount of the
Common Securities which is at least equal to the percentage required under the
Indenture may direct the Property Trustee to have such consent or take such
action. Except with respect to directing the time, method, and place of
conducting a proceeding for a remedy, the Property Trustee shall be under no
obligation to take any of the actions described in
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47
clause 7.6(c)(i) and (ii) above unless the Property Trustee has obtained an
opinion of independent tax counsel to the effect that, as a result of such
action, for United States federal income tax purposes the Trust will not fail to
be classified as a grantor trust and each Holder will be treated as owning an
undivided beneficial ownership interest in the Debentures.
(d) If the Property Trustee fails to enforce its rights under
the Debentures after a Holder of Common Securities has made a written request,
such Holder of Common Securities may, to the extent permitted by applicable law,
directly institute a legal proceeding directly against the Debenture Issuer to
enforce the Property Trustee's rights under the Debentures without first
instituting any legal proceeding against the Property Trustee or any other
Person.
(e) A waiver of an Indenture Event of Default with respect to
the Debentures will constitute a waiver of the corresponding Trust Enforcement
Event.
(f) Any required approval or direction of Holders of Common
Securities may be given at a separate meeting of Holders of Common Securities
convened for such purpose, at a meeting of all of the Holders of Securities or
pursuant to written consent. The Regular Trustees will cause a notice of any
meeting at which Holders of Common Securities are entitled to vote to be mailed
to each Holder of record of Common Securities. Each such notice will include a
statement setting forth (i) the date of such meeting, (ii) a description of any
resolution proposed for adoption at such meeting on which such Holders are
entitled to vote and (iii) instructions for the delivery of proxies.
(g) No vote or consent of the Holders of the Common Securities
will be required for the Trust to redeem and cancel Common Securities or to
distribute Debentures in accordance with the Declaration and the terms of the
Securities.
SECTION 7.7 Paying Agent.
In the event that any Preferred Securities are not in
book-entry only form, the Trust shall maintain in the Borough of Manhattan, City
of New York, State of New York, an office or agency where the Preferred
Securities may be presented for payment ("Paying Agent"). The Trust may appoint
the paying agent and may appoint one or more additional paying agents in such
other locations as it shall determine. The term "Paying Agent" includes any
additional paying agent. The Trust may change any Paying Agent without prior
notice to the Holders. The Trust shall notify the Property Trustee of the name
and address of any Paying Agent not a party to this Declaration. If the Trust
fails to appoint or maintain another entity as Paying Agent, the Property
Trustee shall act as such. The Trust or any of its Affiliates may act as Paying
Agent. The Property Trustee shall initially act as Paying Agent for the
Securities. In the event the Property Trustee shall no longer be the Paying
Agent, the Regular Trustees shall appoint a successor (which shall be a bank or
trust company acceptable to the Debenture Issuer) to act as Paying Agent. The
Paying Agent shall be
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permitted to resign as Paying Agent upon 30 days' written notice to the Property
Trustee and the Debenture Issuer.
SECTION 7.8 Listing
The Sponsor shall use its best efforts to cause the Preferred
Securities to be listed for quotation on the New York Stock Exchange.
SECTION 7.9 Transfer of Securities.
(a) Securities may only be transferred, in whole or in part,
in accordance with the terms and conditions set forth in this Declaration and in
the terms of the Securities. To the fullest extent permitted by law, any
transfer or purported transfer of any Security not made in accordance with this
Declaration shall be null and void.
(b) (i) Subject to this Article 7, Preferred
Securities shall be freely transferable.
(ii) The Holder of the Common Securities may not
transfer the Common Securities except (A) in
compliance with a consolidation, merger,
sale, conveyance or lease of the Sponsor in
compliance with Article VIII of the
Indenture or (B) to the Sponsor or an
Affiliate thereof in compliance with
applicable law, including the Securities Act
and applicable state securities and blue sky
laws. To the fullest extent permitted by
law, any attempted transfer of the Common
Securities other than as set forth in the
immediately preceding sentence shall be null
and void.
(c) The Trust shall cause to be kept at the Corporate Trust
Office of the Property Trustee a register (the register maintained in such
office being herein sometimes referred to as the "Security Register") in which,
subject to such reasonable regulations as it may prescribe, the Trust shall
provide for the registration of Preferred Securities and of transfers of
Preferred Securities. The Property Trustee is hereby appointed "Security
Registrar" for the purpose of registering Preferred Securities and transfers of
Preferred Securities as herein provided.
(d) Upon surrender for registration of transfer of any
Security at an office or agency of the Trust designated for such purpose, the
Trust shall execute, and the Property 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.
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(e) 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
Trust shall execute, and in the case of Preferred Securities the Property
Trustee shall authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive.
(f) Every Security presented or surrendered for registration
of transfer or for exchange shall (if so required by the Trust or the Property
Trustee) be duly endorsed, or be accompanied by a written instrument of transfer
in form satisfactory to the Trust and the Security Registrar duly executed, by
the Holder thereof or his attorney duly authorized in writing.
(g) No service charge shall be made for any registration of
transfer or exchange of Securities, but the Trust 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.
(h) If the Securities are to be redeemed in part, the Trust
shall not be required (A) to issue, register the transfer of or exchange any
Securities during a period beginning at the opening of business 15 days before
the day of the mailing of a notice of redemption of any such Securities selected
for redemption under Section 7.4 and ending at the close of business on the day
of such mailing, or (B) to register the transfer or exchange of any Security so
selected for redemption in whole or in part, except the unredeemed portion of
any Security being redeemed in part.
SECTION 7.10 Mutilated, Destroyed, Lost or Stolen
Certificates.
If:
(a) any mutilated Certificates should be surrendered to the
Regular Trustees, or if the Regular Trustees shall receive evidence to their
satisfaction of the destruction, loss or theft of any Certificate; and
(b) there shall be delivered to the Regular Trustees such
security or indemnity as may be required by them to keep each of the Trustees,
the Sponsor and the Trust harmless,
then, in the absence of notice that such Certificate shall have been acquired by
a bona fide purchaser, any Regular Trustee on behalf of the Trust shall execute
and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost
or stolen Certificate, a new Certificate of like denomination. In connection
with the issuance of any new Certificate under this Section 7.10, the Regular
Trustees may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith. Any duplicate
Certificate issued pursuant to this Section shall
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50
constitute conclusive evidence of an ownership interest in the relevant
Securities, as if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time.
SECTION 7.11 Deemed Security Holders.
The Trustees may treat the Person in whose name any
Certificate shall be registered on the register of the Trust as the sole holder
of such Certificate and of the Securities represented by such Certificate for
purposes of receiving Distributions and for all other purposes whatsoever and,
accordingly, shall not be bound to recognize any equitable or other claim to or
interest in such Certificate or in the Securities represented by such
Certificate on the part of any Person, whether or not the Trust shall have
actual or other notice thereof.
SECTION 7.12 Global Securities.
The Preferred Securities may be issued in the form of one or
more Global Securities. If the Preferred Securities are to be issued in the form
of one or more Global Securities, then a Regular Trustee on behalf of the Trust
shall execute and the Property Trustee shall authenticate and deliver one or
more Global Securities that (i) shall represent and shall be denominated in an
amount equal to the aggregate liquidation amount of all of the Preferred
Securities to be issued in the form of Global Securities and not yet canceled,
(ii) shall be registered in the name of the Depositary for such Global Security
or the nominee of such Depositary, and (iii) shall be delivered by the Property
Trustee to such Depositary or pursuant to such Depositary's instructions. Global
Securities shall bear a legend substantially to the following effect:
"This Preferred Security is a Global Security within
the meaning of the Declaration hereinafter referred to and is
registered in the name of The Depository Trust Company, a New York
corporation (the "Depositary"), or a nominee of the Depositary. This
Preferred Security is exchangeable for Preferred Securities registered
in the name of a person other than the Depositary or its nominee only
in the limited circumstances described in the Declaration and no
transfer of this Preferred Security (other than a transfer of this
Preferred Security 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) may be registered except in limited
circumstances.
Unless this Preferred Security Certificate is
presented by an authorized representative of the Depositary to
Provident Capital Trust __ or its agent for registration of transfer,
exchange or payment, and any Preferred Security Certificate issued is
registered in the name of Cede & Co. or such other name as requested by
an authorized representative of the Depositary (and any payment hereon
is made to Cede & Co. or to such other entity as is requested by an
authorized
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representative of the Depositary), 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."
Preferred Securities not represented by a Global Security
issued in exchange for all or a part of a Global Security pursuant to this
Section 7.12 shall be registered in such names and in such authorized
denominations as the Depositary, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Property Trustee. Upon
execution and authentication, the Property Trustee shall deliver such Preferred
Securities not represented by a Global Security to the Persons in whose names
such definitive Preferred Securities are so registered.
At such time as all interests in Global Securities have been
redeemed, repurchased or cancelled, such Global Securities shall be, upon
receipt thereof, cancelled by the Property Trustee in accordance with standing
procedures of the Depositary. At any time prior to such cancellation, if any
interest in Global Securities is exchanged for Preferred Securities not
represented by a Global Security, redeemed, cancelled or transferred to a
transferee who receives Preferred Securities not represented by a Global
Security therefor or any Preferred Security not represented by a Global Security
is exchanged or transferred for part of Global Securities, the principal amount
of such Global Securities shall, in accordance with the standing procedures of
the Depositary, be reduced or increased, as the case may be, and an endorsement
shall be made on such Global Securities by the Property Trustee to reflect such
reduction or increase.
The Trust and the Property Trustee may for all purposes,
including the making of payments due on the Preferred Securities, deal with the
Depositary as the authorized representative of the Holders for the purposes of
exercising the rights of Holders hereunder. The rights of the owner of any
beneficial interest in a Global Security shall be limited to those established
by law and agreements between such owners and depository participants provided,
that no such agreement shall give any rights to any Person against the Trust or
the Property Trustee without the written consent of the parties so affected.
Multiple requests and directions from and votes of the Depositary as holder of
Preferred Securities in global form with respect to any particular matter shall
not be deemed inconsistent to the extent they do not represent an amount of
Preferred Securities in excess of those held in the name of the Depositary or
its nominee.
If at any time the Depositary for any Preferred Securities
represented by one or more Global Securities notifies the Trust that it is
unwilling or unable to continue as Depositary for such Preferred Securities or
if at any time the Depositary for such Preferred Securities shall no longer be
eligible under this Section 7.12, the Trust shall appoint a successor Depositary
with respect to such Preferred Securities. If a successor Depositary for such
Preferred Securities is not appointed by the Trust within 90 days after the
Trust receives such notice or becomes aware of such ineligibility, the Trust's
election that such Preferred Securities be represented by one or more Global
Securities shall
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no longer be effective and the Trust shall execute, and the Property Trustee
will authenticate and deliver, Preferred Securities in definitive registered
form, in any authorized denominations, in an aggregate liquidation amount equal
to the principal amount of the Global Security representing such Preferred
Securities in exchange for such Global Security.
The Trust may at any time and in its sole discretion determine
that the Preferred Securities issued in the form of one or more Global
Securities shall no longer be represented by a Global Security. In such event
the Trust shall execute, and the Property Trustee, shall authenticate and
deliver, Preferred Securities in definitive registered form, in any authorized
denominations, in an aggregate liquidation amount equal to the principal amount
of the Global Security representing such Preferred Securities, in exchange for
such Global Security.
Notwithstanding any other provisions of this Declaration
(other than the provisions set forth in Section 7.9), Global Securities may not
be transferred as a whole except 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 or a nominee of such successor Depositary.
Interests of Beneficial Owners in a Global Security may be
transferred or exchanged for Preferred Securities not represented by a Global
Security and Preferred Securities not represented by a Global Security may be
transferred or exchange for Global Securities in accordance with rules of the
Depositary and the provisions of Section 7.9.
ARTICLE 8
DISSOLUTION AND TERMINATION OF TRUST
SECTION 8.1 Dissolution and Termination of Trust.
(a) The Trust shall dissolve upon the earliest of:
(i) the bankruptcy of the Holder of the Common
Securities or the Sponsor;
(ii) the filing of a certificate of dissolution
or its equivalent with respect to the
Sponsor; the dissolution of the Trust after
obtaining the consent of the Holders of at
least a Majority in Liquidation Amount of
the Securities to dissolve the Trust; or the
revocation of the Sponsor's charter and the
expiration of 90 days after the date of
revocation without a reinstatement thereof;
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(iii) the entry of a decree of judicial
dissolution of the Sponsor or the Trust;
(iv) the time when all of the Securities shall
have been called for redemption and the
amounts then due shall have been paid to the
Holders in accordance with this Agreement;
(v) at the Sponsor's election by notice and
direction to the Property Trustee to
distribute the Debentures to the Holders of
the Securities in exchange for all of the
Securities, subject to the receipt of any
necessary approvals by the Federal Reserve
that may then be required under the
applicable capital guidelines or policies of
the Federal Reserve; provided that the
Sponsor will be required to obtain an
opinion of an independent counsel that the
distribution of the Debentures will not be
taxable to the Holders of the Preferred
Securities for United States federal income
tax purposes; or
(vi) the time when all of the Regular Trustees
and the Sponsor shall have consented to
dissolution of the Trust provided such
action is taken before the issuance of any
Securities.
(b) As soon as is practicable after the occurrence of an event
referred to in Section 8.1(a) and upon completion of the winding up and
liquidation of the Trust, the Trustees shall terminate the Trust by filing a
certificate of cancellation with the Secretary of State of the State of
Delaware.
(c) The provisions of Section 4.2,4.3 and Article 9 shall
survive the termination of the Trust.
SECTION 8.2 Liquidation Distribution Upon Dissolution of the
Trust.
(a) In the event of any voluntary or involuntary liquidation,
dissolution, or winding-up of the Trust (each a "Liquidation"), the Holders of
the Securities on the date of the Liquidation will be entitled to receive, out
of the assets of the Trust available for distribution to Holders of Securities
after satisfaction of the Trusts' liabilities to creditors, if any,
distributions in cash or other immediately available funds in an amount equal to
the aggregate of the stated liquidation amount of $25 per Security plus
accumulated and unpaid Distributions thereon to the date of payment (such amount
being the "Liquidation Distribution"), unless, in connection with such
Liquidation, Debentures in an aggregate stated principal amount equal to the
aggregate stated liquidation amount of, with an interest rate identical to the
distribution rate of, and accrued and
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unpaid interest equal to accumulated and unpaid Distributions on, such
Securities shall be distributed on a Pro Rata basis to the Holders of the
Securities in exchange for such Securities.
(b) If, upon any such Liquidation, the Liquidation
Distribution can be paid only in part because the Trust has insufficient assets
available to pay in full the aggregate Liquidation Distribution, then the
amounts payable directly by the Trust on the Securities shall be paid on a Pro
Rata basis. The Holders of the Common Securities will be entitled to receive
distributions upon any such Liquidation Pro Rata with the Holders of the
Preferred Securities except that if an Indenture Event of Default has occurred
and is continuing, the Preferred Securities shall have a preference over the
Common Securities with regard to such distributions.
ARTICLE 9
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, DELAWARE TRUSTEES OR OTHERS
SECTION 9.1 Liability.
(a) Except as expressly set forth in this Declaration, the
Guarantee and the terms of the Securities, the Sponsor:
(i) shall not be personally liable for the
return of any portion of the capital
contributions (or any return thereon) of the
Holders of the Securities which shall be
made solely from assets of the Trust; and
(ii) shall not be required to pay to the Trust or
to any Holder of Securities any deficit upon
dissolution of the Trust or otherwise.
(b) Pursuant to Section 3803(a) of the Business Trust Act, the
Holder of the Common Securities shall be entitled to the same limitation of
personal liability extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware; provided,
however, the Holders of the Common Securities shall be liable for all of the
debts and obligations of the Trust (other than with respect to the Securities)
to the extent not satisfied out of the Trust's assets.
(c) Pursuant to Section 3803(a) of the Business Trust Act, the
Holders of the Preferred Securities shall be entitled to the same limitation of
personal liability extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware.
SECTION 9.2 Exculpation.
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(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Trust or any Covered Person for any
loss, damage or claim incurred by reason of any act or omission performed or
omitted by such Indemnified Person in good faith on behalf of the Trust and in a
manner such Indemnified Person reasonably believed to be within the scope of the
authority conferred on such Indemnified Person by this Declaration or by law,
except that an Indemnified Person shall be liable for any such loss, damage or
claim incurred by reason of such Indemnified Person's negligence or willful
misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying
in good faith upon the records of the Trust and upon such information, opinions,
reports or statements presented to the Trust by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Trust, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses or any other facts pertinent to the existence and amount of assets from
which Distributions to Holders of Securities might properly be paid.
SECTION 9.3 Fiduciary Duty.
(a) To the extent that, at law or in equity, an Indemnified
Person has duties (including fiduciary duties) and liabilities relating thereto
to the Trust or to any other Covered Person, an Indemnified Person acting under
this Declaration shall not be liable to the Trust or to another Covered Person
for its good faith reliance on the provisions of this Declaration. The
provisions of this Declaration, to the extent that they restrict the duties and
liabilities of an Indemnified Person otherwise existing at law or in equity
(other than the duties imposed on the Property Trustee under the Trust Indenture
Act), are agreed by the parties hereto to replace such other duties and
liabilities of such Indemnified Person.
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or
arises between any Covered Person and any
Indemnified Person; or
(ii) whenever this Declaration or any other
agreement contemplated herein or therein
provides that an Indemnified Person shall
act in a manner that is, or provides terms
that are, fair and reasonable to the Trust
or any Holder of Securities,
the Indemnified Person shall resolve such conflict of interest, take such action
or provide such terms, considering in each case the relative interest of each
party (including its own interest) to such conflict, agreement, transaction or
situation and the benefits and burdens relating to such interests, any customary
or accepted industry practices and any applicable generally accepted accounting
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practices or principles. In the absence of bad faith by the Indemnified Person,
the resolution, action or term so made, taken or provided by the Indemnified
Person shall not constitute a breach of this Declaration or any other agreement
contemplated herein or of any duty or obligation of the Indemnified Person at
law or in equity or otherwise.
(c) Whenever in this Declaration an Indemnified Person is
permitted or required to make a decision:
(i) in its "discretion" or under a grant of
similar authority, the Indemnified Person
shall be entitled to consider such interests
and factors as it desires, including its own
interests, and shall have no duty or
obligation to give any consideration to any
interest of or factors affecting the Trust
or any other Person; or
(ii) in its "good faith" or under another express
standard, the Indemnified Person shall act
under such express standard and shall not be
subject to any other or different standard
imposed by this Declaration or by applicable
law.
SECTION 9.4 Indemnification.
(a)(i) The Debenture Issuer shall indemnify, to the full
extent permitted by law, any Debenture Issuer Indemnified Person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Trust) by reason
of the fact that he is or was a Debenture Issuer Indemnified Person against
expenses (including attorney fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Trust,
and, with respect to any criminal action or proceeding, had no reasonable cause
to believe his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that
the Debenture Issuer Indemnified Person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the Trust, and, with respect to any criminal action or proceeding,
had reasonable cause to believe that his conduct was unlawful.
(ii) The Debenture Issuer shall indemnify, to the
full extent permitted by law, any Debenture
Issuer Indemnified Person who was or is a
party or is threatened to be made a party to
any threatened, pending or completed action
or suit by or in the right of the Trust to
procure a judgment in its favor by reason of
the fact that he is or was a
<PAGE> 64
57
Debenture Issuer Indemnified Person against
expenses (including attorneys' fees)
actually and reasonably incurred by him in
connection with the defense or settlement of
such action or suit if he acted in good
faith and in a manner he reasonably believed
to be in or not opposed to the best
interests of the Trust and except that no
such indemnification shall be made in
respect of any claim, issue or matter as to
which such Debenture Issuer Indemnified
Person shall have been adjudged to be liable
to the Trust unless and only to the extent
that the Court of Chancery of Delaware or
the court in which such action or suit was
brought shall determine upon application
that, despite the adjudication of liability
but in view of all the circumstances of the
case, such person is fairly and reasonably
entitled to indemnity for such expenses
which such Court of Chancery or such other
court shall deem proper.
(iii) Any indemnification under paragraphs (i) and
(ii) of this Section 9.4(a) (unless ordered
by a court) shall be made by the Debenture
Issuer only as authorized in the specific
case upon a determination that
indemnification of the Debenture Issuer
Indemnified Person is proper in the
circumstances because he has met the
applicable standard of conduct set forth in
paragraphs (i) and (ii). Such determination
shall be made (1) by the Regular Trustees by
a majority vote of a quorum consisting of
such Regular Trustees who were not parties
to such action, suit or proceeding, (2) if
such a quorum is not obtainable, or, even if
obtainable, if a quorum of disinterested
Regular Trustees so directs, by independent
legal counsel in a written opinion, or (3)
by the Common Security Holder of the Trust.
(iv) Expenses (including attorneys' fees)
incurred by a Debenture Issuer Indemnified
Person in defending a civil, criminal,
administrative or investigative action, suit
or proceeding referred to in paragraphs (i)
and (ii) of this Section 9.4(a) shall be
paid by the Debenture Issuer in advance of
the final disposition of such action, suit
or proceeding upon receipt of an undertaking
by or on behalf of such Debenture Issuer
Indemnified Person to repay such amount if
it shall ultimately be determined that he is
not entitled to be indemnified by the
Debenture Issuer as authorized in this
Section 9.4(a). Notwithstanding the
foregoing, no advance shall be made by the
Debenture Issuer if a determination is
reasonably and promptly made (i) by the
Regular Trustees by a majority vote of a
quorum of disinterested Regular Trustees,
(ii) if such a quorum is not obtainable,
<PAGE> 65
58
or, even if obtainable, if a quorum of
disinterested Regular Trustees so directs,
by independent legal counsel in a written
opinion or (iii) the Common Security Holder
of the Trust, that, based upon the facts
known to the Regular Trustees, counsel or
the Common Security Holder at the time such
determination is made, such Debenture Issuer
Indemnified Person acted in bad faith or in
a manner that such person did not believe to
be in or not opposed to the best interests
of the Trust, or, with respect to any
criminal proceeding, that such Debenture
Issuer Indemnified Person believed or had
reasonable cause to believe his conduct was
unlawful. In no event shall any advance be
made in instances where the Regular
Trustees, independent legal counsel or
Common Security Holder reasonably determine
that such person deliberately breached his
duty to the Trust or its Common or Preferred
Security Holders.
(v) The indemnification and advancement of
expenses provided by, or granted pursuant
to, the other paragraphs of this Section
9.4(a) shall not be deemed exclusive of any
other rights to which those seeking
indemnification and advancement of expenses
may be entitled under any agreement, vote of
stockholders or disinterested directors of
the Debenture Issuer or Preferred Security
Holders of the Trust or otherwise, both as
to action in his official capacity and as to
action in another capacity while holding
such office. All rights to indemnification
under this Section 9.4(a) shall be deemed to
be provided by a contract between the
Debenture Issuer and each Debenture Issuer
Indemnified Person who serves in such
capacity at any time while this Section
9.4(a) is in effect. Any repeal or
modification of this Section 9.4(a) shall
not affect any rights or obligations then
existing.
(vi) The Debenture Issuer or the Trust may
purchase and maintain insurance on behalf of
any person who is or was a Debenture Issuer
Indemnified Person against any liability
asserted against him and incurred by him in
any such capacity, or arising out of his
status as such, whether or not the Debenture
Issuer would have the power to indemnify him
against such liability under the provisions
of this Section 9.4(a).
(vii) For purposes of this Section 9.4(a),
references to "the Trust" shall include, in
addition to the resulting or surviving
entity, any constituent entity (including
any constituent of a constituent)
<PAGE> 66
59
absorbed in a consolidation or merger, so
that any person who is or was a director,
trustee, officer or employee of such
constituent entity, or is or was serving at
the request of such constituent entity as a
director, trustee, officer, employee or
agent of another entity, shall stand in the
same position under the provisions of this
Section 9.4(a) with respect to the resulting
or surviving entity as he would have with
respect to such constituent entity if its
separate existence had continued.
(viii) The indemnification and advancement of
expenses provided by, or granted pursuant
to, this Section 9.4(a) shall, unless
otherwise provided when authorized or
ratified, continue as to a person who has
ceased to be a Debenture Issuer Indemnified
Person and shall inure to the benefit of the
heirs, executors and administrators of such
a person. The obligation to indemnify as set
forth in this Section 9.4(a) shall survive
the resignation or removal of the Delaware
Trustee or the Property Trustee or the
termination of this Declaration.
(b) The Debenture Issuer agrees to indemnify the (i) Property
Trustee, (ii) the Delaware Trustee, (iii) any Affiliate of the Property Trustee
or the Delaware Trustee, and (iv) any officers, directors, shareholders,
members, partners, employees, representatives, custodians, nominees or agents of
the Property Trustee or the Delaware Trustee (each of the Persons in (i) through
(iv) being referred to as a "Fiduciary Indemnified Person") for, and to hold
each Fiduciary Indemnified Person harmless against, any loss, liability or
expense incurred without negligence or bad faith on its part, arising out of or
in connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses (including reasonable legal fees and
expenses) of defending itself against or investigating any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder. The obligation to indemnify as set forth in this Section 9.4(b) shall
survive the resignation and removal of the Delaware Trustee or the Property
Trustee and the satisfaction and discharge of this Declaration. In addition, the
Debenture Issuer has agreed in the Indenture to pay the fees and expenses of the
Delaware Trustee and the Property Trustee.
SECTION 9.5 Outside Businesses.
Subject to the provisions of Section 6.3, any Covered Person,
the Sponsor, the Delaware Trustee and the Property Trustee may engage in or
possess an interest in other business ventures of any nature or description,
independently or with others, similar or dissimilar to the activities of the
Trust, and the Trust and the Holders of Securities shall have no rights by
virtue of this Declaration in and to such independent ventures or the income or
profits derived therefrom, and the pursuit of any such venture, even if
competitive with the activities of the Trust, shall not be
<PAGE> 67
60
deemed wrongful or improper. No Covered Person, the Sponsor, the Delaware
Trustee or the Property Trustee shall be obligated to present any particular
investment or other opportunity to the Trust even if such opportunity is of a
character that, if presented to the Trust, could be taken by the Trust, and any
Covered Person, the Sponsor, the Delaware Trustee and the Property Trustee shall
have the right to take for its own account (individually or as a partner or
fiduciary) or to recommend to others any such particular investment or other
opportunity. Any Covered Person, the Delaware Trustee and the Property Trustee
may engage or be interested in any financial or other transaction with the
Sponsor or any Affiliate of the Sponsor, or may act as depositary for, trustee
or agent for, or act on any committee or body of holders of, securities or other
obligations of the Sponsor or its Affiliates.
ARTICLE 10
ACCOUNTING
SECTION 10.1 Fiscal Year.
The fiscal year ("Fiscal Year") of the Trust shall be the
calendar year, or such other year as is required by the Code.
SECTION 10.2 Certain Accounting Matters.
(a) At all times during the existence of the Trust, the
Regular Trustees shall keep, or cause to be kept, full books of account, records
and supporting documents, which shall reflect in reasonable detail, each
transaction of the Trust. The books of account shall be maintained on the
accrual method of accounting, in accordance with generally accepted accounting
principles, consistently applied. The Trust shall use the accrual method of
accounting for United States federal income tax purposes. The books of account
and the records of the Trust shall be examined by and reported upon as of the
end of each Fiscal Year of the Trust by a firm of independent certified public
accountants selected by the Regular Trustees.
(b) The Regular Trustees shall cause to be prepared and
delivered to each of the Holders of Securities, within 90 days after the end of
each Fiscal Year of the Trust, annual financial statements of the Trust,
including a balance sheet of the Trust as of the end of such Fiscal Year, and
the related statements of income or loss.
(c) The Regular Trustees shall cause to be duly prepared and
delivered to each of the Holders of Securities, an annual United States federal
income tax information statement, required by the Code, containing such
information with regard to the Securities held by each Holder as is required by
the Code and the Treasury Regulations. Notwithstanding any right under the Code
<PAGE> 68
61
to deliver any such statement at a later date, the Regular Trustees shall
endeavor to deliver all such statements within 30 days after the end of each
Fiscal Year of the Trust.
(d) The Regular Trustees shall cause to be duly prepared and
filed with the appropriate taxing authority, an annual United States federal
income tax return, on a Form 1041 or such other form required by United States
federal income tax law, and any other annual income tax returns required to be
filed by the Regular Trustees on behalf of the Trust with any state or local
taxing authority.
SECTION 10.3 Banking.
The Trust shall maintain one or more bank accounts in the name
and for the sole benefit of the Trust; provided, however, that all payments of
funds in respect of the Debentures held by the Property Trustee shall be made
directly to the Property Account and no other funds of the Trust shall be
deposited in the Property Account. The sole signatories for such accounts shall
be designated by the Regular Trustees; provided, however, that the Property
Trustee shall designate the signatories for the Property Account.
SECTION 10.4 Withholding.
The Trust and the Regular Trustees shall comply with all
withholding requirements under United States federal, state and local law. The
Trust shall request, and the Holders shall provide to the Trust, such forms or
certificates as are necessary to establish an exemption from withholding with
respect to each Holder, and any representations and forms as shall reasonably be
requested by the Trust to assist it in determining the extent of, and in
fulfilling, its withholding obligations. The Regular Trustees shall file
required forms with applicable jurisdictions and, unless an exemption from
withholding is properly established by a Holder, shall remit amounts withheld
with respect to the Holder to applicable jurisdictions. To the extent that the
Trust is required to withhold and pay over any amounts to any authority with
respect to distributions or allocations to any Holder, the amount withheld shall
be deemed to be a distribution in the amount of the withholding to the Holder.
In the event of any claimed over withholding, Holders shall be limited to an
action against the applicable jurisdiction. If the amount required to be
withheld was not withheld from actual Distributions made, the Trust may reduce
subsequent Distributions by the amount of such withholding.
<PAGE> 69
62
ARTICLE 11
AMENDMENTS AND MEETINGS
SECTION 11.1 Amendments.
(a) Except as otherwise provided in this Declaration or by any
applicable terms of the Securities, this Declaration may only be amended by a
written instrument approved and executed by the Sponsor and (i) the Regular
Trustees (or, if there are more than two Regular Trustees, a majority of the
Regular Trustees) and (ii) the Property Trustee if the amendment affects the
rights, powers, duties, obligations or immunities of the Property Trustee; and
(iii) the Delaware Trustee if the amendment affects the rights, powers, duties,
obligations or immunities of the Delaware Trustee.
(b) No amendment shall be made, and any such purported
amendment shall be void and ineffective:
(i) unless, in the case of any proposed
amendment, the Property Trustee shall have
first received an Officers' Certificate from
each of the Trust and the Sponsor that such
amendment is permitted by, and conforms to,
the terms of this Declaration (including the
terms of the Securities);
(ii) unless, in the case of any proposed
amendment which affects the rights, powers,
duties, obligations or immunities of the
Property Trustee, the Property Trustee shall
have first received:
a. an Officers' Certificate from each
of the Trust and the Sponsor that
such amendment is permitted by, and
conforms to, the terms of this
Declaration (including the terms of
the Securities) and that all
conditions precedent to the
execution and delivery of such
amendment have been satisfied; and
b. an opinion of counsel (who may be
counsel to the Sponsor or the Trust)
that such amendment is permitted by,
and conforms to, the terms of this
Declaration (including the terms of
the Securities) and that all
conditions precedent to the
execution and delivery of such
amendment have been satisfied; and
(iii) to the extent the result of such amendment
would be to:
<PAGE> 70
63
a. cause the Trust to be classified
other than as a grantor trust for
United States federal income tax
purposes;
b. reduce or otherwise adversely affect
the powers of the Property Trustee
in contravention of the Trust
Indenture Act; or
c. cause the Trust to be deemed to be
an Investment Company required to be
registered under the Investment
Company Act.
(c) If the Trust has issued any Securities that remain
outstanding:
(i) any amendment that would (a) change the
amount or timing of any distribution of the
Securities or otherwise adversely affect the
amount of any distribution required to be
made in respect of the Securities as of a
specified date or (b) restrict the right of
a Holder of Securities to institute suit for
the enforcement of any such payment on or
after such date, will entitle the Holders of
such Securities, voting together as a single
class, to vote on such amendment or proposal
and such amendment or proposal shall not be
effective except with the approval of each
of the Holders of the Securities affected
thereby; and
(ii) any amendment that would (a) adversely
affect the powers, preferences or special
rights of the Securities, whether by way of
amendment to this Declaration or otherwise
or (b) result in the dissolution, winding-up
or termination of the Trust other than
pursuant to the terms of this Declaration,
will entitle the holders of the Securities
voting together as a single class to vote on
such amendment or proposal and such
amendment or proposal shall not be effective
except with the approval of 66 b% of the
Securities affected thereby; provided that,
if any amendment or proposal referred to in
clause (a) above would adversely affect only
the Preferred Securities or the Common
Securities, then only the affected class
will be entitled to vote on such amendment
or proposal and such amendment or proposal.
(d) This Section 11.1 shall not be amended without the consent
of all of the Holders of the Securities.
(e) Article 4 shall not be amended without the consent of the
Holders of a Majority in Liquidation Amount of the Common Securities.
<PAGE> 71
64
(f) The rights of the Holders of the Common Securities under
Article 5 to increase or decrease the number of, and appoint and remove Trustees
shall not be amended without the consent of the Holders of a Majority in
Liquidation Amount of the Common Securities.
(g) Notwithstanding Section 11.1(c), this Declaration may be
amended without the consent of the Holders of the Securities, if such amendment
does not adversely affect in any material respect the rights of the Holders of
the Securities, to:
(i) cure any ambiguity;
(ii) correct or supplement any provision in this
Declaration that may be defective or
inconsistent with any other provision of
this Declaration;
(iii) add to the covenants, restrictions or
obligations of the Sponsor;
(iv) to conform to any change in Rule 3a-5 of the
Investment Company Act or written change in
interpretation or application of Rule 3a-5
of the Investment Company Act by any
legislative body, court, government agency
or regulatory authority; or
(v) to modify, eliminate and add to any
provision of this Declaration to ensure that
the Trust will be classified as a grantor
trust for United States federal income tax
purposes at all times that any Securities
are outstanding or to ensure that the Trust
will not be required to register as an
Investment Company under the Investment
Company Act.
SECTION 11.2 Meetings of the Holders of Securities; Action by
Written Consent.
(a) Meetings of the Holders of any class of Securities may be
called at any time by the Regular Trustees (or as provided in the terms of the
Securities) to consider and act on any matter on which Holders of such class of
Securities are entitled to act under the terms of this Declaration, the terms of
the Securities or the rules of any stock exchange on which the Preferred
Securities are listed or admitted for trading. The Regular Trustees shall call a
meeting of the Holders of such class if directed to do so by the Holders of at
least 10% in Liquidation Amount of such class of Securities. Such direction
shall be given by delivering to the Regular Trustees one or more calls in a
writing stating that the signing Holders of Securities wish to call a meeting
and indicating the general or specific purpose for which the meeting is to be
called. Any Holders of Securities calling a meeting shall specify in writing the
Certificates held by the Holders of Securities exercising the right to call a
meeting and only those Securities specified shall be counted for purposes of
determining whether the required percentage set forth in the second sentence of
this paragraph has been met.
<PAGE> 72
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(b) The following provisions shall apply to meetings of
Holders of Securities:
(i) notice of any such meeting shall be given to
all the Holders of Securities having a right
to vote thereat at least 7 days and not more
than 60 days before the date of such
meeting. Whenever a vote, consent or
approval of the Holders of Securities is
permitted or required under this Declaration
or the rules of any stock exchange on which
the Preferred Securities are listed or
admitted for trading, such vote, consent or
approval may be given at a meeting of the
Holders of Securities. Any action that may
be taken at a meeting of the Holders of
Securities may be taken without a meeting
and without prior notice if a consent in
writing setting forth the action so taken is
signed by the Holders of Securities owning
not less than the minimum amount of
Securities in liquidation amount that would
be necessary to authorize or take such
action at a meeting at which all Holders of
Securities having a right to vote thereon
were present and voting. Prompt notice of
the taking of action without a meeting shall
be given to the Holders of Securities
entitled to vote who have not consented in
writing. The Regular Trustees may specify
that any written ballot submitted to the
Security Holders for the purpose of taking
any action without a meeting shall be
returned to the Trust within the time
specified by the Regular Trustees;
(ii) each Holder of a Security may authorize any
Person to act for it by proxy on all matters
in which a Holder of Securities is entitled
to participate, including waiving notice of
any meeting, or voting or participating at a
meeting. No proxy shall be valid after the
expiration of 11 months from the date
thereof unless otherwise provided in the
proxy. Every proxy shall be revocable at the
pleasure of the Holder of Securities
executing such proxy. Except as otherwise
provided herein, all matters relating to the
giving, voting or validity of proxies shall
be governed by the General Corporation Law
of the State of Delaware relating to
proxies, and judicial interpretations
thereunder, as if the Trust were a Delaware
corporation and the Holders of the
Securities were stockholders of a Delaware
corporation;
(iii) each meeting of the Holders of the
Securities shall be conducted by the Regular
Trustees or by such other Person that the
Regular Trustees may designate; and
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66
(iv) unless the Business Trust Act, this
Declaration, the terms of the Securities,
the Trust Indenture Act or the listing rules
of any stock exchange on which the Preferred
Securities are then listed for trading,
otherwise provides, the Regular Trustees, in
their sole discretion, shall establish all
other provisions relating to meetings of
Holders of Securities, including notice of
the time, place or purpose of any meeting at
which any matter is to be voted on by any
Holders of Securities, waiver of any such
notice, action by consent without a meeting,
the establishment of a record date, quorum
requirements, voting in person or by proxy
or any other matter with respect to the
exercise of any such right to vote.
ARTICLE 12
REPRESENTATIONS OF PROPERTY TRUSTEE
AND DELAWARE TRUSTEE
SECTION 12.1 Representations and Warranties of the Property
Trustee.
The Trustee that acts as initial Property Trustee represents
and warrants to the Trust and to the Sponsor at the date of this Declaration,
and each Successor Property Trustee represents and warrants to the Trust and the
Sponsor at the time of the Successor Property Trustee's acceptance of its
appointment as Property Trustee that:
(a) the Property Trustee is a banking corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation or organization, with trust power and
authority to execute and deliver, and to carry out and perform its obligations
under the terms of, this Declaration;
(b) the Property Trustee satisfies the requirements set forth
in Section 6.3(a);
(c) the execution, delivery and performance by the Property
Trustee of this Declaration has been duly authorized by all necessary corporate
action on the part of the Property Trustee. This Declaration has been duly
executed and delivered by the Property Trustee, and it constitutes a legal,
valid and binding obligation of the Property Trustee, enforceable against it in
accordance with its terms, subject to applicable bankruptcy, reorganization,
moratorium, insolvency and other similar laws affecting creditors' rights
generally and to general principles of equity and the discretion of the court
(regardless of whether the enforcement of such remedies is considered in a
proceeding in equity or at law);
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(d) the execution, delivery and performance of this
Declaration by the Property Trustee does not conflict with or constitute a
breach of the articles of association or incorporation, as the case may be, or
the by-laws (or other similar organizational documents) of the Property Trustee;
and
(e) no consent, approval or authorization of, or registration
with or notice to, any State or federal banking authority is required for the
execution, delivery or performance by the Property Trustee of this Declaration.
SECTION 12.2 Representations and Warranties of the Delaware
Trustee.
The Trustee that acts as initial Delaware Trustee represents
and warrants to the Trust and to the Sponsor at the date of this Declaration,
and each Successor Delaware Trustee represents and warrants to the Trust and the
Sponsor at the time of the Successor Delaware Trustee's acceptance of its
appointment as Delaware Trustee that:
(a) the Delaware Trustee satisfies the requirements set forth
in Section 6.2, satisfies Trust Section 3807 of the Business Trust Act and has
the power and authority to execute and deliver, and to carry out and perform its
obligations under the terms of, this Declaration and, if it is not a natural
person, is duly organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation or organization;
(b) the Delaware Trustee has been authorized to perform its
obligations under the Certificate of Trust and this Declaration. This
Declaration under Delaware law constitutes a legal, valid and binding obligation
of the Delaware Trustee, enforceable against it in accordance with its terms,
subject to applicable bankruptcy, reorganization, moratorium, insolvency and
other similar laws affecting creditors' rights generally and to general
principles of equity and the discretion of the court (regardless of whether the
enforcement of such remedies is considered in a proceeding in equity or at law);
and
(c) no consent, approval or authorization of, or registration
with or notice to, any State or federal banking authority is required for the
execution, delivery or performance by the Delaware Trustee of this Declaration.
<PAGE> 75
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ARTICLE 13
MISCELLANEOUS
SECTION 13.1 Notices.
All notices provided for in this Declaration shall be in
writing, duly signed by the party giving such notice, and shall be delivered,
telecopied or mailed by registered or certified mail, as follows:
(a) if given to the Trust, in care of the Regular Trustees at
the Trust's mailing address set forth below (or such other address as the Trust
may give notice of to the Property Trustee, the Delaware Trustee and the Holders
of the Securities):
c/o Provident Financial Group, Inc.
One East Fourth Street
Cincinnati, Ohio 45202
Attention: General Counsel
Facsimile No: (513) 763-8069
(b) if given to the Delaware Trustee, at the mailing address
set forth below (or such other address as the Delaware Trustee may give notice
of to the Regular Trustees, the Property Trustee and the Holders of the
Securities):
Chase Manhattan Bank Delaware
1201 Market Street, 9th Floor
Wilmington, Delaware 19801
Attention: Corporate Trust Department
Facsimile No: (302) 984-4903
(c) if given to the Property Trustee, at its Corporate Trust
Office (or such other address as the Property Trustee may give notice of to the
Regular Trustees, the Delaware Trustee and the Holders of the Securities).
(d) if given to the Holder of the Common Securities, at the
mailing address of the Sponsor set forth below (or such other address as the
Holder of the Common Securities may give notice of to the Property Trustee, the
Delaware Trustee and the Trust):
(e) if given to any other Holder, at the address set forth on
the register of the Trust.
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69
All such notices shall be deemed to have been given when received in person,
telecopied with receipt confirmed or mailed by first class mail, postage prepaid
except that if a notice or other document is refused delivery or cannot be
delivered because of a changed address of which no notice was given, such notice
or other document shall be deemed to have been delivered on the date of such
refusal or inability to deliver.
SECTION 13.2 Governing Law.
This Declaration and the rights of the parties hereunder shall
be governed by and interpreted in accordance with the laws of the State of
Delaware.
SECTION 13.3 Intention of the Parties.
It is the intention of the parties hereto that the Trust be
classified for United States federal income tax purposes as a grantor trust. The
provisions of this Declaration shall be interpreted in a manner consistent with
such classification.
SECTION 13.4 Headings.
Headings contained in this Declaration are inserted for
convenience of reference only and do not affect the interpretation of this
Declaration or any provision hereof.
SECTION 13.5 Successors and Assigns.
Whenever in this Declaration any of the parties hereto is
named or referred to, the successors and assigns of such party shall be deemed
to be included, and all covenants and agreements in this Declaration by the
Sponsor and the Trustees shall bind and inure to the benefit of their respective
successors and assigns, whether so expressed.
SECTION 13.6 Partial Enforceability.
If any provision of this Declaration, or the application of
such provision to any Person or circumstance, shall be held invalid, the
remainder of this Declaration, or the application of such provision to persons
or circumstances other than those to which it is held invalid, shall not be
affected thereby.
SECTION 13.7 Counterparts.
This Declaration may contain more than one counterpart of the
signature page and this Declaration may be executed by the affixing of the
signature of each of the Trustees to one of such counterpart signature pages.
All of such counterpart signature pages shall be read as though
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70
one, and they shall have the same force and effect as though all of the signers
had signed a single signature page.
[The remainder of this page left blank intentionally;
The signature page follows.]
<PAGE> 78
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IN WITNESS WHEREOF, the undersigned have caused these presents
to be executed as of the day and year first above written.
PROVIDENT FINANCIAL GROUP, INC.,
as Sponsor, as Common Securities Holder
and as Debenture Issuer
By:
-----------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
as Property Trustee
By:
-----------------------------------
Name:
Title:
CHASE MANHATTAN BANK DELAWARE,
as Delaware Trustee
By:
-----------------------------------
Name:
Title:
CHRISTOPHER J. CAREY, as Regular Trustee
By:
-----------------------------------
Christopher J. Carey
<PAGE> 79
72
MARK E. MAGEE, ESQ., as Regular Trustee
By:
-----------------------------------
Mark E. Magee
TAYFUN TUZUN, as Regular Trustee
By:
-----------------------------------
Tayfun Tuzun
<PAGE> 80
EXHIBIT A
[IF THE CAPITAL SECURITY IS TO BE A GLOBAL CAPITAL SECURITY,
INSERT THE FOLLOWING: THIS PREFERRED SECURITY IS A GLOBAL PREFERRED SECURITY
WITHIN THE MEANING OF THE DECLARATION HEREINAFTER REFERRED TO AND IS REGISTERED
IN THE NAME OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE
"DEPOSITARY"), OR A NOMINEE OF THE DEPOSITARY. THIS PREFERRED SECURITY IS
EXCHANGEABLE FOR PREFERRED SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER
THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE DECLARATION AND NO TRANSFER OF THIS PREFERRED SECURITY (OTHER THAN A
TRANSFER OF THIS SECURITY 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) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS PREFERRED SECURITY CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY PREFERRED SECURITY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
REGISTERED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), 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.]
CERTIFICATE NO.________________ NUMBER OF PREFERRED SECURITIES: _________
CUSIP NO. __________
CERTIFICATE EVIDENCING __% PREFERRED SECURITIES
OF
PROVIDENT CAPITAL TRUST __
__% PREFERRED SECURITIES
(LIQUIDATION AMOUNT $25 PER PREFERRED SECURITY)
FULLY AND UNCONDITIONALLY
GUARANTEED BY PROVIDENT FINANCIAL GROUP, INC.
PROVIDENT CAPITAL TRUST __, a statutory business trust created
under the laws of the State of Delaware (the "Trust"), hereby certifies that
Cede & Co. (the "Holder") is the registered owner of _________ preferred
securities of the Trust representing undivided beneficial ownership interests in
the assets of the Trust designated the "__% Preferred Security" (liquidation
amount $25 per Preferred Security) (the "Preferred Securities"). The Preferred
Securities are transferable on the register of the Trust, in person or by a duly
authorized attorney, upon surrender of this certificate duly endorsed and in
proper form for transfer as provided in the Declaration (as defined below). The
designation, rights, privileges, restrictions, preferences and other terms and
provisions of the Preferred Securities represented hereby are issued and shall
in all respects be subject to the provisions of the Amended and Restated
Declaration of Trust of the Trust, dated as of _____________, as the same may be
amended from time to time (the "Declaration"), by and
<PAGE> 81
2
among PROVIDENT FINANCIAL GROUP, INC., CHRISTOPHER J. CAREY, MARK E. MAGEE,
ESQ., and TAYFUN TUZUN, as Regular Trustees, THE CHASE MANHATTAN BANK, as
Property Trustee, and CHASE MANHATTAN BANK DELAWARE, as Delaware Trustee and the
Holders. Capitalized terms used herein but not defined shall have the meaning
given them in the Declaration. The Holder is entitled to the benefits of the
Guarantee to the extent described therein. The Sponsor will provide a copy of
the Declaration, the Guarantee and the Indenture to a Holder without charge upon
written request to the Sponsor at its principal place of business.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States
federal income tax purposes, the Debentures as indebtedness and the Preferred
Securities as evidence of undivided indirect beneficial ownership interests in
the Debentures.
IN WITNESS WHEREOF, the Trust has executed this certificate
this ____ day of __________.
PROVIDENT CAPITAL TRUST __
By:
-----------------------------------
Name: Mark E. Magee
Title: Regular Trustee
This is one of the Preferred Securities referred to in the
within-mentioned Declaration.
THE CHASE MANHATTAN BANK,
as Property Trustee
By:
------------------------------------
Authorized Officer
<PAGE> 82
EXHIBIT B
TRANSFER OF THIS CERTIFICATE IS SUBJECT TO THE
CONDITIONS SET FORTH IN THE DECLARATION
REFERRED TO BELOW.
CERTIFICATE NO. _______ NUMBER OF COMMON SECURITIES: _______
CERTIFICATE EVIDENCING COMMON SECURITIES
OF
PROVIDENT CAPITAL TRUST __
__% COMMON SECURITIES
(LIQUIDATION AMOUNT $25 PER COMMON SECURITY)
PROVIDENT CAPITAL TRUST __, a statutory business trust created
under the laws of the State of Delaware (the "Trust"), hereby certifies that
PROVIDENT FINANCIAL GROUP, INC. (the "Holder") is the registered owner of common
securities of the Trust representing an undivided beneficial ownership interest
in the assets of the Trust designated the "__% Common Securities" (liquidation
amount $25 per Common Security) (the "Common Securities"). The Common Securities
are not transferable and any attempted transfer thereof shall be void except as
permitted by applicable law and by Section 7.9(b)(ii) of the Declaration (as
defined below). The designation, rights, privileges, restrictions, preferences
and other terms and provisions of the Common Securities represented hereby are
issued and shall in all respects be subject to the provisions of the Amended and
Restated Declaration of Trust of the Trust, dated as of _________ (as the same
may be amended from time to time, the "Declaration"), by and among Provident
Financial Group, Inc., as Sponsor, CHRISTOPHER J. CAREY, MARK E. MAGEE, ESQ. and
TAYFUN TUZUN, as Regular Trustees, THE CHASE MANHATTAN BANK, as Property
Trustee, and CHASE MANHATTAN BANK DELAWARE, as Delaware Trustee, and the
Holders. The Holder is entitled to the benefits of the Guarantee to the extent
described therein. Capitalized terms used herein but not defined shall have the
meaning given them in the Declaration. The Sponsor will provide a copy of the
Declaration, the Guarantee and the Indenture to the Holder without charge upon
written request to the Sponsor at its principal place of business.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States
federal income tax purposes, the Debentures as indebtedness and the Common
Securities as evidence of an undivided indirect beneficial ownership interest in
the Debentures.
<PAGE> 83
2
IN WITNESS WHEREOF, the Trust has executed this certificate
this ____ day of ___________.
PROVIDENT CAPITAL TRUST __
By:
--------------------------------
Name: Mark E. Magee
Title: Regular Trustee
<PAGE> 1
EXHIBIT 4.22
------------
CERTIFICATE OF TRUST
OF
PROVIDENT CAPITAL TRUST IV
This Certificate of Trust of Provident Capital Trust IV (the "Trust"),
dated December __, 1999, is being duly executed and filed by the undersigned, as
trustees, to form a business trust under the Delaware Business Trust Act (12
DEL. C. Sec. 3801, et seq.) (the "Act").
1. NAME. The name of the business trust formed by this Certificate of
Trust is Provident Capital Trust IV.
2. DELAWARE TRUSTEE. The name and business address of the trustee of
the Trust with its principal place of business in the State of Delaware are
Chase Manhattan Bank Delaware, 1201 Market Street, Wilmington, Delaware 19801,
Attention: Corporate Trust Administration.
3. EFFECTIVE DATE. This Certificate of Trust shall be effective upon
filing with the Secretary of State of the State of Delaware.
4. This Certificate may be executed in one or more counterparts.
[THE SIGNATURE PAGE FOLLOWS]
<PAGE> 2
IN WITNESS WHEREOF, the undersigned, being the trustees of the
Trust, have executed this Certificate of Trust in accordance with Section
3811(a)(1) of the Act.
CHASE MANHATTAN BANK DELAWARE, not in its
individual capacity but solely as trustee of the
Trust
By:
---------------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK, not in its individual
capacity but solely as trustee of the Trust
By:
---------------------------------------
Name:
Title:
CHRISTOPHER J. CAREY, not in his individual
capacity but solely as trustee of the Trust
By:
---------------------------------------
Name:
Title:
MARK E. MAGEE, not in his individual capacity
but solely as trustee of the Trust
By:
---------------------------------------
Name:
Title:
TAYFUN TUZUN, not in his individual capacity but
solely as trustee of the Trust
By:
---------------------------------------
Name:
Title:
-2-
<PAGE> 1
EXHIBIT 4.23
------------
DECLARATION OF TRUST
OF
PROVIDENT CAPITAL TRUST IV
This DECLARATION OF TRUST, dated as of December __, 1999, is entered by
and among PROVIDENT FINANCIAL GROUP, INC., an Ohio corporation, as sponsor (the
"Sponsor"), CHASE MANHATTAN BANK DELAWARE, a Delaware banking corporation, as
trustee (the "Delaware Trustee"), THE CHASE MANHATTAN BANK, a New York banking
corporation, as trustee (the "Property Trustee"), and CHRISTOPHER J. CAREY, MARK
E. MAGEE and TAYFUN TUZUN, as trustees (the "Regular Trustees" and collectively
with the Delaware Trustee and the Property Trustee, the "Trustees"). The Sponsor
and the Trustees hereby agree as follows:
1. The trust created hereby (the "Trust") shall be known as "Provident
Capital Trust IV", in which name the Trustees, or the Sponsor to the extent
provided herein, may conduct the business of the Trust, make and execute
contracts, and sue and be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets over to the
Trust the sum of ten dollars ($10.00). The Trustees hereby acknowledge receipt
of such amount from the Sponsor, which amount shall constitute the initial trust
estate. The Trustees hereby declare that they will hold the trust estate for the
Sponsor. It is the intention of the parties hereto that the Trust created hereby
constitute a business trust under Chapter 38 of Title 12 of the Delaware Code,
12 DEL. C. Sec. 3801 et seq. (the "Business Trust Act"), and that this document
constitutes the governing instrument of the Trust. The Trustees are hereby
authorized and directed to execute and file a certificate of trust with the
Delaware Secretary of State.
3. The Sponsor and the Trustees will enter into an amended and restated
Declaration of Trust, satisfactory to each such party (and substantially in the
form included as an exhibit to the 1933 Act Registration Statement (as defined
below)), to provide for the contemplated operation of the Trust created hereby
and the issuance of preferred securities (the "Preferred Securities") and common
securities by the Trust as such securities will be described therein. Prior to
the execution and delivery of such amended and restated Declaration of Trust,
the Trustees shall not have any duty or obligation hereunder or with respect to
the trust estate, except as otherwise required by applicable law or as may be
necessary to obtain prior to such execution and delivery and licenses, consents
or approvals required by applicable law or otherwise.
4. The Sponsor and the Trustees hereby authorize and direct the
Sponsor, in each case on behalf of the Trust as sponsor of the Trust, (i) to
prepare and file with the Securities and Exchange Commission (the "Commission")
(a) a Registration Statement on Form S-3 (the "1933 Act Registration
Statement"), including any pre-effective or post-effective amendments to the
1933 Act Registration Statement, relating to the registration under the
Securities Act of 1933, as amended, of the Preferred Securities of the Trust and
possibly certain other securities and (b) a Registration Statement on Form 8-A
(the "1934 Act Registration Statement") (including all pre-effective and
post-effective amendments thereto) relating to the registration of the Preferred
Securities of the Trust
<PAGE> 2
under the Securities Exchange Act of 1934, as amended; (ii) to file with the New
York Stock Exchange or any other national stock exchange or The Nasdaq National
Market (each, an "Exchange") and execute on behalf of the Trust one or more
listing applications and all other applications, statements, certificates,
agreements and other instruments as shall be necessary or desirable to cause the
Preferred Securities to be listed on any of the Exchanges; (iii) to negotiate
and execute an underwriting agreement among the Trust, the Sponsor and the
underwriter(s) thereto relating to the offer and sale of the Preferred
Securities, substantially in the form included or to be incorporated as an
exhibit to the 1933 Act Registration Statement, (iv) to execute and file such
applications, reports, surety bonds, irrevocable consents, appointments of
attorneys for service of process and other papers and documents as shall be
necessary or desirable to register the Preferred Securities under the securities
or "Blue Sky" laws of such jurisdictions as the Sponsor, on behalf of the Trust,
may deem necessary or desirable and (v) to execute and deliver letters or
documents to, or instruments for filing with, a depository relating to the
Preferred Securities of the Trust.
It is hereby acknowledged and agreed that in connection with
any document referred to in clauses (i), (ii) and (iv) above, (A) any Regular
Trustee (or his attorneys-in-fact and agents or the Sponsor as permitted herein)
is authorized to execute such document on behalf of the Trust, provided that the
1933 Act Registration Statement and the 1934 Act Registration Statement shall be
signed by all of the Regular Trustees, and (B) Chase Manhattan Bank Delaware and
The Chase Manhattan Bank, in their capacities as Trustees of the Trust, shall
not be required to join in any such filing or execute on behalf of the Trust any
such document unless required by the rules and regulations of the Commission,
the Exchanges or state securities or blue sky laws, and in such case only to the
extent so required. In connection with all of the foregoing, each Regular
Trustee, solely in such Regular Trustee's capacity as Trustee of the Trust,
hereby constitutes and appoints Robert L. Hoverson, Christopher J. Carey and
Mark E. Magee and each of them, as such Regular Trustee's true and lawful
attorneys-in-fact and agent, with full power of substitution and resubstitution,
for such Regular Trustee, in such Regular Trustee's name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to the 1933 Act Registration Statement and the 1934 Act Registration
Statement and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Commission, the Exchanges and administrators
of state securities or blue sky laws, granting unto said attorneys-in-fact and
agents full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as fully to all
intents and purposes as such Regular Trustee might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or any of
them, or their respective substitute or substitutes, shall do or cause to be
done by virtue hereof.
5. This Declaration of Trust may be executed in one or more
counterparts.
6. The number of Trustees initially shall be five (5) and thereafter
the number of Trustees shall be such number as shall be fixed from time to time
by a written instrument signed by the Sponsor which may increase or decrease the
number of Trustees; provided that, to the extent required by the Business Trust
Act, one Trustee shall be an entity that has its principal place of business in
the State of Delaware. Subject to the foregoing, the Sponsor is entitled to
appoint or remove without cause any Trustee at any time. The Trustees may resign
upon thirty days prior notice
-2-
<PAGE> 3
to the Sponsor.
7. Chase Manhattan Bank Delaware, in its capacity as trustee, shall not
have the powers or the duties of the Trustee set forth herein (except as may be
required under the Business trust Act) and shall be a Trustee hereunder for the
sole and limited purpose of fulfilling the requirements of Sec. 3807(a) of the
Business Trust Act.
8. The Trust may be dissolved and terminated before the issuance of the
Preferred Securities at the election of the Sponsor.
9. This Declaration shall be governed by and construed in accordance
with the laws of the State of Delaware.
[The rest of this page has been left blank intentionally; the signature
page follows.]
-3-
<PAGE> 4
IN WITNESS WHEREOF, the parties hereto have caused this
Declaration of Trust to be duly executed as of the day and year first above
written.
PROVIDENT FINANCIAL GROUP, INC.,
as Sponsor
By:
----------------------------------------
Name:
Title:
CHASE MANHATTAN BANK DELAWARE,
as Delaware Trustee
By:
----------------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
as Property Trustee
By:
----------------------------------------
Name:
Title:
---------------------------------------------
CHRISTOPHER J. CAREY, as Regular Trustee
---------------------------------------------
MARK E. MAGEE, as Regular Trustee
---------------------------------------------
TAYFUN TUZUN, as Regular Trustee
-4-
<PAGE> 1
MARK A. WEISS
DIRECT DIAL: (513) 579-6599
FACSIMILE: (513) 579-6956
E-MAIL:[email protected]
EXHIBIT 5.1
December 23, 1999
Provident Financial Group, Inc.
One East Fourth Street
Cincinnati, Ohio 45202
Attention: Mark E. Magee, Esq.
Ladies and Gentlemen:
We have acted as counsel in connection with the registration of Common
Stock, Debt Securities, Preferred Stock, Guarantee, Securities Warrants,
Depositary Shares, Stock Purchase Contracts and Stock Purchase Units
(collectively, the "Offered Securities") with an aggregate initial public
offering price of up to $500,000,000 by Provident Financial Group, Inc. (the
"Company"), covered by the Company's Registration Statement on Form S-3.
We have, as counsel, examined such corporate records, certificates of
public officials and officers of the Company and other documents and reviewed
such questions of law as we have deemed necessary or appropriate to enable us to
render the opinions expressed below. In rendering such opinions, we have assumed
the genuineness of all signatures and the authenticity of all documents examined
by us and the legal capacity of natural persons who are parties to the documents
examined by us. As to various questions of fact material to such opinions, we
have relied upon representations of the Company.
In connection with the opinions expressed below, we have further
assumed that (i) the Board of Directors of the Company or, to the extent
permitted by the Ohio General Corporation Law, a duly constituted and acting
committee thereof (such Board of Directors or Committee being referred to herein
as the "Board") will have duly established the terms of the applicable Offered
Securities and duly authorized the issuance and sale of such Offered Securities
and such authorization will not have been modified or rescinded; (ii) the
Registration Statement, and any amendments thereto (including post-effective
amendments), will have become effective under the Act and will not have been
terminated or rescinded; (iii) a prospectus supplement as contemplated by the
Registration Statement will have been prepared and filed with the Securities and
Exchange Commission describing the Offered Securities offered thereby; (iv) all
Offered Securities will be issued and sold in compliance
<PAGE> 2
Provident Financial Group, Inc.
December 23, 1999
Page 2
with applicable federal and state securities laws and in the manner stated in
the Registration Statement and the appropriate prospectus supplement; (v) there
will not have occurred any change in the law affecting the validity or
enforceability of the Offered Securities; and (vi) a definitive purchase,
underwriting, sales agency or similar agreement with respect to the Offered
Securities will have been duly authorized and validly executed and delivered by
the Company and the other parties thereto.
Based upon the foregoing, and subject to the assumptions,
qualifications, limitations and exceptions set forth herein, we are of the
opinion that:
1. When (i) the Board has taken all necessary corporate action to
approve the issuance and sale of the Common Stock or Preferred Stock, as the
case may be, and (ii) the Common Stock or Preferred Stock, as the case may be,
has been duly issued and sold as contemplated by the Registration Statement and
any prospectus supplement, such shares of Common Stock or Preferred Stock, as
the case may be, will be validly issued, fully paid and nonassessable.
2. When (i) the terms of the Debt Securities and of their issuance and
sale have been duly established in conformity with the applicable Indenture in
substantially the form attached as an exhibit to the Registration Statement so
as not to violate any applicable law or result in a default under or breach of
any agreement or instrument binding upon the Company and so as to comply with
any requirement or restriction imposed by any court or governmental body having
jurisdiction over the Company; and (ii) the Debt Securities have been duly
executed and authenticated in accordance with the applicable Indenture and
issued and sold as contemplated in the Registration Statement and any prospectus
supplement, the Debt Securities will constitute valid and legally binding
obligations of the Company, enforceable in accordance with their terms, except
as the enforceability thereof may be limited by (a) bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium or other similar laws now or
hereafter in effect relating to or affecting the enforcement of creditor's
rights generally and (b) equitable principles of general applicability,
regardless of whether considered in a proceeding at law or in equity.
3. When (i) the Guarantee Agreement has been validly executed and
delivered by the Company and (ii) the Preferred Securities of the Trusts have
been duly issued and delivered by the Trusts as contemplated by the Registration
Statement and any prospectus supplement, the Guarantee will constitute valid and
legally binding obligations of the Company, enforceable in accordance with their
terms, except as the enforceability thereof may be limited by (a) bankruptcy,
insolvency, reorganization, fraudulent transfer, moratorium or other similar
laws now or hereafter in effect relating to or affecting the enforcement of
creditor's rights generally and (b) equitable principles of general
applicability, regardless of whether considered in a proceeding at law or in
equity.
<PAGE> 3
Provident Financial Group, Inc.
December 23, 1999
Page 3
4. When (i) the Board has taken all necessary corporate action to
approve the issuance and sale of the Depositary Shares and the underlying
Preferred Stock and established the terms of such Depositary Shares and
underlying Preferred Stock, (ii) a statement with respect to the underlying
Preferred Stock, if required by law, has been duly filed with the Secretary of
State of Ohio, (iii) a depositary agreement (the "Depositary Agreement") has
been duly executed and delivered by the Company to the Preferred Stock
depositary, (iv) the Depositary Shares have been executed by the Preferred Stock
depositary in the manner set forth in the Depositary Agreement, and (v) the
Depositary Shares have been duly issued and sold as contemplated by the
Registration Statement and any prospectus supplement, such Depositary Shares
will be validly issued, fully paid and nonassessable.
5. When (i) the Board has taken all necessary corporate action to
approve the issuance and sale of the Stock Purchase Units and established the
terms of such Stock Purchase Units and all securities underlying the Stock
Purchase Units, (ii) any filings with respect to the Stock Purchase Units and
any underlying securities, if required by law, have been duly filed with the
Secretary of State of the Ohio, (iii) any agreements required to be executed in
connection with the issuance of the Stock Purchase Units have been duly executed
and delivered by the Company, (iv) the Stock Purchase Units have been executed
in the manner set forth in any applicable agreements, and (v) the Stock Purchase
Units have been duly issued and sold as contemplated by the Registration
Statement and any prospectus supplement, such Stock Purchase Units will be
validly issued, fully paid and nonassessable.
6. When (i) the Board has taken all necessary corporate action to
approve the issuance and sale of the Stock Purchase Contracts and established
the terms of such Stock Purchase Contracts and all securities underlying the
Stock Purchase Contracts, (ii) the Stock Purchase Contracts have been executed
and delivered by the Company, and (iii) the Stock Purchase Contracts have been
duly issued and sold as contemplated by the Registration Statement and any
prospectus supplement, such Stock Purchase Contracts will be validly issued,
fully paid and nonassessable.
7. Assuming (i) the Board has taken all necessary corporate action to
approve the issuance of any Preferred Stock, Common Stock or Debt Securities
upon the exercise of any of the Common Stock Warrants, Preferred Stock Warrants
or Debt Warrants (collectively, the "Securities Warrants"), as the case may
be, (ii) a sufficient number of shares of Preferred Stock or Common Stock is
authorized under the Company's Articles of Incorporation on the date of exercise
of such Securities Warrants, (iii) the Securities Warrants have been duly
executed, delivered, authenticated, issued and exercised in accordance with
their terms and the terms of the applicable warrant agreement in the manner
described in the Registration Statement and any prospectus supplement relating
thereto, and (iv) the Debt Securities, Preferred Stock or Common Stock, as the
case may be, have been duly executed, authenticated and delivered, the Debt
Securities issuable upon the exercise
<PAGE> 4
Provident Financial Group, Inc.
December 23, 1999
Page 4
of any Debt Warrants will constitute legal and valid obligations of the Company,
enforceable in accordance with their respective terms and entitled to the
benefit of the applicable Indenture, and the Preferred Stock or Common Stock, as
the case may be, issuable upon the exercise of any Securities Warrants, will be
duly authorized, validly issued and fully paid and nonassessable.
8. Assuming (i) the Board has taken all necessary corporate action to
approve the issuance of any shares of Preferred Stock or Common Stock upon the
conversion of any convertible Preferred Stock, the conversion or exchange of any
Debt Securities, the exercise of any Stock Purchase Units or the exercise of any
Stock Purchase Contracts, as the case may be, and has established the terms
thereof, as the case may be, (ii) a sufficient number of shares of Preferred
Stock or Common Stock is authorized under the Company's Articles of
Incorporation on the date of such conversion, exercise or exchange, and (iii)
the Preferred Stock, Debt Securities, Stock Purchase Warrants or Stock Purchase
Contracts, as the case may be, have been issued and converted, exercised or
exchanged in accordance with its terms in the manner described in the
Registration Statement and any prospectus supplement relating thereto, the
shares of Common Stock or Preferred Stock, as the case may be, issuable on
conversion, exercise or exchange will be duly authorized, validly issued and
fully paid and nonassessable.
This opinion is rendered solely to you in connection with the matters
described herein. This opinion may not be used or relied upon by you for any
other purpose or relied upon by or furnished to any other person without our
prior written consent, except as set forth below.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the references to this firm under the heading
"Legal Matters" in the prospectus included in the Registration Statement. In
giving such consent, we do not thereby admit that we come within the category of
persons whose consent is required under Section 7 of the Act or the rules and
regulations of the Securities and Exchange Commission thereunder.
Sincerely yours,
KEATING, MUETHING & KLEKAMP, P.L.L.
By: /s/ Mark A. Weiss
-------------------------------------
Mark A. Weiss
<PAGE> 1
Exhibit 5.2
[Letterhead of Richards, Layton & Finger, P.A.]
December 23, 1999
Provident Financial Group, Inc.
One East Fourth Street
Cincinnati, Ohio 45202
Re: Provident Capital Trust III
---------------------------
Ladies and Gentlemen:
We have acted as special Delaware counsel for Provident
Financial Group, Inc., an Ohio corporation (the "Company"), and Provident
Capital Trust III, a Delaware business trust (the "Trust"), in connection with
the matters set forth herein. At your request, this opinion is being furnished
to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated as of May 14,
1999 (the "Certificate"), as filed in the office of the Secretary of State of
the State of Delaware (the "Secretary of State") on May 14, 1999;
(b) The Declaration of Trust of the Trust, dated as of May 14,
1999, among the Company and the trustees of the Trust named therein;
(c) A form of Amended and Restated Declaration of Trust of the
Trust (including Exhibits A and B thereto) (the "Declaration"), to be entered
into among the Company, as sponsor, the trustees of the Trust named therein, and
the holders, from time to time, of undivided beneficial interests in the assets
of the Trust, attached as an exhibit to the Registration Statement (as defined
below);
(d) The Registration Statement on Form S-3 (the "Registration
Statement"), including a prospectus (the "Prospectus"), relating to the trust
preferred securities of the Trust representing undivided beneficial interests in
the assets of the Trust (each, a "Preferred Security" and collectively, the
"Preferred Securities"), as proposed to be filed by the Company, the Trust and
others with the Securities and Exchange Commission on or about December 23,
1999; and
(e) A Certificate of Good Standing for the Trust, dated
December 23, 1999, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise
defined are used as defined in the Declaration.
For purposes of this opinion, we have not reviewed any
documents other
<PAGE> 2
Provident Capital Trust III
December 23, 1999
Page 2
than the documents listed in paragraphs (a) through (e) above. In particular, we
have not reviewed any document (other than the documents listed in paragraphs
(a) through (e) above) that is referred to in or incorporated by reference into
the documents reviewed by us. We have assumed that there exists no provision in
any document that we have not reviewed that is inconsistent with the opinions
stated herein. We have conducted no independent factual investigation of our own
but rather have relied solely upon the foregoing documents, the statements and
information set forth therein and the additional matters recited or assumed
herein, all of which we have assumed to be true, complete and accurate in all
material respects.
With respect to all documents examined by us, we have assumed
(i) the authenticity of all documents submitted to us as authentic originals,
(ii) the conformity with the originals of all documents submitted to us as
copies or forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the
Declaration and the Certificate are in full force and effect and have not been
amended, (ii) except to the extent provided in paragraph 1 below, that each
party to the documents examined by us has been duly created, organized or
formed, as the case may be, and is validly existing in good standing under the
laws of the jurisdiction governing its creation, organization or formation,
(iii) the legal capacity of natural persons who are parties to the documents
examined by us, (iv) that each of the parties to the documents examined by us
has the power and authority to execute and deliver, and to perform its
obligations under, such documents, (v) that each party to the documents examined
by us has duly authorized, executed and delivered such documents, (vi) the
receipt by each Person to whom a Preferred Security is to be issued by the Trust
(collectively, the "Preferred Security Holders") of a Preferred Security
Certificate for such Preferred Security and the payment for the Preferred
Security acquired by it, in accordance with the Declaration and the Registration
Statement, and (vii) that the Preferred Securities are issued and sold to the
Preferred Security Holders in accordance with the Declaration and the
Registration Statement. We have not participated in the preparation of the
Registration Statement and assume no responsibility for its contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder that are currently in effect.
Based upon the foregoing, and upon our examination of such
questions of law and statutes of the State of Delaware as we have considered
necessary or appropriate, and subject to the assumptions, qualifications,
limitations and exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in
good standing as a business trust under the Business Trust Act.
2. The Preferred Securities will represent valid and, subject
to the qualifications set forth in paragraph 3 below, fully paid and
nonassessable undivided beneficial interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial owners of the
Trust, will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of
<PAGE> 3
Provident Capital Trust III
December 23, 1999
Page 3
Delaware. We note that the Preferred Security Holders may be obligated to make
payments as set forth in the Declaration.
We consent to the filing of this opinion with the Securities
and Exchange Commission as an exhibit to the Registration Statement. In
addition, we hereby consent to the use of our name under the heading "Legal
Matters" in the Prospectus. In giving the foregoing consents, we do not thereby
admit that we come within the category of Persons whose consent is required
under Section 7 of the Securities Act of 1933, as amended, or the rules and
regulations of the Securities and Exchange Commission thereunder. Except as
stated above, without our prior written consent, this opinion may not be
furnished or quoted to, or relied upon by, any other Person for any purpose.
Very truly yours,
/s/Richards, Layton & Finger, P.A.
BJK/MKS
<PAGE> 1
Exhibit 5.3
[Letterhead of Richards, Layton & Finger, P.A.]
December 23, 1999
Provident Financial Group, Inc.
One East Fourth Street
Cincinnati, Ohio 45202
Re: Provident Capital Trust IV
--------------------------
Ladies and Gentlemen:
We have acted as special Delaware counsel for Provident
Financial Group, Inc., an Ohio corporation (the "Company"), and Provident
Capital Trust IV, a Delaware business trust (the "Trust"), in connection with
the matters set forth herein. At your request, this opinion is being furnished
to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated as of
December 22, 1999 (the "Certificate"), as filed in the office of the Secretary
of State of the State of Delaware (the "Secretary of State") on December 22,
1999;
(b) The Declaration of Trust of the Trust, dated as of
December 22, 1999, among the Company and the trustees of the Trust named
therein;
(c) A form of Amended and Restated Declaration of Trust of the
Trust (including Exhibits A and B thereto) (the "Declaration"), to be entered
into among the Company, as sponsor, the trustees of the Trust named therein, and
the holders, from time to time, of undivided beneficial interests in the assets
of the Trust, attached as an exhibit to the Registration Statement (as defined
below);
(d) The Registration Statement on Form S-3 (the "Registration
Statement"), including a prospectus (the "Prospectus"), relating to the trust
preferred securities of the Trust representing undivided beneficial interests in
the assets of the Trust (each, a "Preferred Security" and collectively, the
"Preferred Securities"), as proposed to be filed by the Company, the Trust and
others with the Securities and Exchange Commission on or about December 23,
1999; and
(e) A Certificate of Good Standing for the Trust, dated
December 23, 1999, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise
defined are used as defined in the Declaration.
For purposes of this opinion, we have not reviewed any
documents other
<PAGE> 2
Provident Capital Trust IV
December 23, 1999
Page 2
than the documents listed in paragraphs (a) through (e) above. In particular, we
have not reviewed any document (other than the documents listed in paragraphs
(a) through (e) above) that is referred to in or incorporated by reference into
the documents reviewed by us. We have assumed that there exists no provision in
any document that we have not reviewed that is inconsistent with the opinions
stated herein. We have conducted no independent factual investigation of our own
but rather have relied solely upon the foregoing documents, the statements and
information set forth therein and the additional matters recited or assumed
herein, all of which we have assumed to be true, complete and accurate in all
material respects.
With respect to all documents examined by us, we have assumed
(i) the authenticity of all documents submitted to us as authentic originals,
(ii) the conformity with the originals of all documents submitted to us as
copies or forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the
Declaration and the Certificate are in full force and effect and have not been
amended, (ii) except to the extent provided in paragraph 1 below, that each
party to the documents examined by us has been duly created, organized or
formed, as the case may be, and is validly existing in good standing under the
laws of the jurisdiction governing its creation, organization or formation,
(iii) the legal capacity of natural persons who are parties to the documents
examined by us, (iv) that each of the parties to the documents examined by us
has the power and authority to execute and deliver, and to perform its
obligations under, such documents, (v) that each party to the documents examined
by us has duly authorized, executed and delivered such documents, (vi) the
receipt by each Person to whom a Preferred Security is to be issued by the Trust
(collectively, the "Preferred Security Holders") of a Preferred Security
Certificate for such Preferred Security and the payment for the Preferred
Security acquired by it, in accordance with the Declaration and the Registration
Statement, and (vii) that the Preferred Securities are issued and sold to the
Preferred Security Holders in accordance with the Declaration and the
Registration Statement. We have not participated in the preparation of the
Registration Statement and assume no responsibility for its contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder that are currently in effect.
Based upon the foregoing, and upon our examination of such
questions of law and statutes of the State of Delaware as we have considered
necessary or appropriate, and subject to the assumptions, qualifications,
limitations and exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in
good standing as a business trust under the Business Trust Act.
2. The Preferred Securities will represent valid and, subject
to the qualifications set forth in paragraph 3 below, fully paid and
nonassessable undivided beneficial interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial owners of the
Trust, will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of
<PAGE> 3
Provident Capital Trust IV
December 23, 1999
Page 3
Delaware. We note that the Preferred Security Holders may be obligated to make
payments as set forth in the Declaration.
We consent to the filing of this opinion with the Securities
and Exchange Commission as an exhibit to the Registration Statement. In
addition, we hereby consent to the use of our name under the heading "Legal
Matters" in the Prospectus. In giving the foregoing consents, we do not thereby
admit that we come within the category of Persons whose consent is required
under Section 7 of the Securities Act of 1933, as amended, or the rules and
regulations of the Securities and Exchange Commission thereunder. Except as
stated above, without our prior written consent, this opinion may not be
furnished or quoted to, or relied upon by, any other Person for any purpose.
Very truly yours,
/s/Richards, Layton & Finger, P.A.
BJK/MKS
<PAGE> 1
Exhibit 23.1
Consent of Independent Auditors
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and Prospectus of Provident Financial Group,
Inc. and to the incorporation by reference therein of our report dated
January 19, 1999, with respect to the consolidated financial statements of
Provident Financial Group, Inc. included in its Annual Report (Form 10-K) for
the year ended December 31, 1998, filed with the Securities and Exchange
Commission.
/s/ Ernst & Young LLP
Cincinnati, Ohio
December 23, 1999
<PAGE> 1
Exhibit 25.1
-------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-2760086
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
--------------------------------------------
PROVIDENT FINANCIAL GROUP, INC.
(Exact name of obligor as specified in its charter)
OHIO 31-0982792
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
ONE EAST FOURTH STREET
CINCINNATI, OHIO 45202
(Address of principal executive offices) (Zip Code)
-----------------------------------------------------
SENIOR DEBT SECURITIES
(Title of the indenture securities)
------------------------------------------------------
<PAGE> 2
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington, D.C.,
20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
-2-
<PAGE> 3
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-76439, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 16th day of December, 1999.
THE CHASE MANHATTAN BANK
By /s/T. J. Foley
-----------------------------------
T. J. Foley
Vice President
-3-
<PAGE> 4
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business September 30, 1999,
in accordance with a call made by the Federal Reserve
Bank of this District pursuant to the provisions of the Federal Reserve Act.
DOLLAR AMOUNTS
ASSETS IN MILLIONS
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ......................................... $ 13,497
Interest-bearing balances ................................. 6,388
Securities: ...................................................
Held to maturity securities..................................... 798
Available for sale securities................................... 48,655
Federal funds sold and securities purchased under
agreements to resell ...................................... 30,373
Loans and lease financing receivables:
Loans and leases, net of unearned income $132,392
Less: Allowance for loan and lease losses 2,463
Less: Allocated transfer risk reserve ......... 0
--------
Loans and leases, net of unearned income,
allowance, and reserve .................................... 129,929
Trading Assets ................................................. 47,413
Premises and fixed assets (including capitalized
leases).................................................... 3,287
Other real estate owned ........................................ 26
Investments in unconsolidated subsidiaries and
associated companies....................................... 185
Customers' liability to this bank on acceptances
outstanding ............................................... 716
Intangible assets .............................................. 2,693
Other assets ................................................... 15,430
------
TOTAL ASSETS ................................................... $299,390
========
-4-
<PAGE> 5
LIABILITIES
Deposits
In domestic offices ....................................... $100,324
Noninterest-bearing ................................$41,601
Interest-bearing ....................................58,723
-------
In foreign offices, Edge and Agreement
subsidiaries and IBF's .................................... 88,064
Noninterest-bearing .....................................$ 6,363
Interest-bearing ................................... 81,701
Federal funds purchased and securities sold under agree-
ments to repurchase ............................................ 35,773
Demand notes issued to the U.S. Treasury ....................... 892
Trading liabilities ............................................ 33,565
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less ............. 4,434
With a remaining maturity of more than one year
through three years................................. 14
With a remaining maturity of more than three years......... 97
Bank's liability on acceptances executed and outstanding 716
Subordinated notes and debentures .............................. 5,429
Other liabilities .............................................. 11,457
TOTAL LIABILITIES .............................................. 280,765
-------
EQUITY CAPITAL
Perpetual preferred stock and related surplus 0
Common stock ................................................... 1,211
Surplus (exclude all surplus related to preferred stock)....... 11,016
Undivided profits and capital reserves ......................... 7,333
Net unrealized holding gains (losses)
on available-for-sale securities ............................... (951)
Accumulated net gains (losses) on cash flow hedges.............. 0
Cumulative foreign currency translation adjustments ............ 16
TOTAL EQUITY CAPITAL ........................................... 18,625
------
TOTAL LIABILITIES AND EQUITY CAPITAL ........................... $299,390
========
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
WILLIAM B. HARRISON, JR. ) DIRECTORS
SUSAN V. BERRESFORD )
-5-
<PAGE> 1
Exhibit 25.2
-------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-2760086
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
-------------------------------------------------
PROVIDENT FINANCIAL GROUP, INC.
(Exact name of obligor as specified in its charter)
OHIO 31-0982792
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
ONE EAST FOURTH STREET
CINCINNATI, OHIO 45202
(Address of principal executive offices) (Zip Code)
-------------------------------------------------
SUBORDINATED DEBT SECURITIES
(Title of the indenture securities)
-------------------------------------------------
<PAGE> 2
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, State House, Albany,
New York 12110.
Board of Governors of the Federal Reserve System,
Washington, D.C., 20551
Federal Reserve Bank of New York, District No. 2,
33 Liberty Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
- 2 -
<PAGE> 3
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-76439, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 16th day of December, 1999.
THE CHASE MANHATTAN BANK
By /s/ T. J. Foley
--------------------------
T. J. Foley
Vice President
- 3 -
<PAGE> 4
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business September 30, 1999, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
DOLLAR AMOUNTS
ASSETS IN MILLIONS
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ......................................... $ 13,497
Interest-bearing balances ................................. 6,388
Securities:
Held to maturity securities .................................... 798
Available for sale securities .................................. 48,655
Federal funds sold and securities purchased under
agreements to resell ...................................... 30,373
Loans and lease financing receivables:
Loans and leases, net of unearned income ........ $132,392
Less: Allowance for loan and lease losses ....... 2,463
Less: Allocated transfer risk reserve ........... 0
--------
Loans and leases, net of unearned income,
allowance, and reserve .................................... 129,929
Trading Assets ................................................. 47,413
Premises and fixed assets (including capitalized leases)........ 3,287
Other real estate owned ........................................ 26
Investments in unconsolidated subsidiaries and
associated companies ...................................... 185
Customers' liability to this bank on acceptances
outstanding ............................................... 716
Intangible assets .............................................. 2,693
Other assets ................................................... 15,430
--------
TOTAL ASSETS ................................................... $299,390
========
</TABLE>
- 4 -
<PAGE> 5
<TABLE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits
In domestic offices ......................................... $100,324
Noninterest-bearing ............................... $ 41,601
Interest-bearing .................................. 58,723
--------
In foreign offices, Edge and Agreement
subsidiaries and IBF's ...................................... 88,064
Noninterest-bearing .................................... $ 6,363
Interest-bearing .................................. 81,701
Federal funds purchased and securities sold under
agreements to repurchase ......................................... 35,773
Demand notes issued to the U.S. Treasury ......................... 892
Trading liabilities .............................................. 33,565
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less ............... 4,434
With a remaining maturity of more than one year
through three years ....................................... 14
With a remaining maturity of more than three years .......... 97
Bank's liability on acceptances executed and outstanding ......... 716
Subordinated notes and debentures ................................ 5,429
Other liabilities ................................................ 11,457
TOTAL LIABILITIES ................................................ 280,765
--------
EQUITY CAPITAL
Perpetual preferred stock and related surplus .................... 0
Common stock ..................................................... 1,211
Surplus (exclude all surplus related to preferred stock) ........ 11,016
Undivided profits and capital reserves ........................... 7,333
Net unrealized holding gains (losses)
on available-for-sale securities ................................. (951)
Accumulated net gains (losses) on cash flow hedges ............... 0
Cumulative foreign currency translation adjustments .............. 16
TOTAL EQUITY CAPITAL ............................................. 18,625
--------
TOTAL LIABILITIES AND EQUITY CAPITAL ............................. $299,390
========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named
bank, do hereby declare that this Report of Condition has
been prepared in conformance with the instructions issued
by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness
of this Report of Condition and declare that it has been
examined by us, and to the best of our knowledge and
belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory
authority and is true and correct.
WALTER V. SHIPLEY )
WILLIAM B. HARRISON, JR. ) DIRECTORS
SUSAN V. BERRESFORD )
-5-
<PAGE> 1
Exhibit 25.4
-------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-2760086
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
---------------------------------------------------
PROVIDENT CAPITAL TRUST III
(Exact name of obligor as specified in its charter)
OHIO APPLIED FOR
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
ONE EAST FOURTH STREET
CINCINNATI, OHIO 45202
(Address of principal executive offices) (Zip Code)
---------------------------------------------------
PREFERRED SECURITIES
(Title of the indenture securities)
---------------------------------------------------
<PAGE> 2
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, State House, Albany,
New York 12110.
Board of Governors of the Federal Reserve System,
Washington, D.C., 20551
Federal Reserve Bank of New York, District No. 2,
33 Liberty Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
-2-
<PAGE> 3
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-76439, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 16th day of December, 1999.
THE CHASE MANHATTAN BANK
By /s/ T. J. FOLEY
----------------------------
T. J. Foley
Vice President
- 3 -
<PAGE> 4
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business September 30, 1999, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
DOLLAR AMOUNTS
ASSETS IN MILLIONS
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ............................................ $ 13,497
Interest-bearing balances .................................... 6,388
Securities:
Held to maturity securities ....................................... 798
Available for sale securities ..................................... 48,655
Federal funds sold and securities purchased under
agreements to resell ......................................... 30,373
Loans and lease financing receivables:
Loans and leases, net of unearned income ......... $132,392
Less: Allowance for loan and lease losses ........ 2,463
Less: Allocated transfer risk reserve ............ 0
--------
Loans and leases, net of unearned income,
allowance, and reserve ....................................... 129,929
Trading Assets .................................................... 47,413
Premises and fixed assets (including capitalized leases)........... 3,287
Other real estate owned ........................................... 26
Investments in unconsolidated subsidiaries and
associated companies ......................................... 185
Customers' liability to this bank on acceptances
outstanding .................................................. 716
Intangible assets ................................................. 2,693
Other assets ...................................................... 15,430
--------
TOTAL ASSETS ...................................................... $299,390
========
</TABLE>
- 4 -
<PAGE> 5
LIABILITIES
<TABLE>
<CAPTION>
<S> <C>
Deposits
In domestic offices ........................................ $ 100,324
Noninterest-bearing ................ $41,601
Interest-bearing ................... 58,723
-------
In foreign offices, Edge and Agreement
subsidiaries and IBF's ..................................... 88,064
Noninterest-bearing ................. $ 6,363
Interest-bearing ............... 81,701
Federal funds purchased and securities sold under
agreements to repurchase ........................................ 35,773
Demand notes issued to the U.S. Treasury ........................ 892
Trading liabilities ............................................. 33,565
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less .............. 4,434
With a remaining maturity of more than one year
through three years ................................... 14
With a remaining maturity of more than three years ......... 97
Bank's liability on acceptances executed and outstanding ........ 716
Subordinated notes and debentures ............................... 5,429
Other liabilities ............................................... 11,457
TOTAL LIABILITIES ............................................... 280,765
-------
EQUITY CAPITAL
Perpetual preferred stock and related surplus ................... 0
Common stock .................................................... 1,211
Surplus (exclude all surplus related to preferred stock) ....... 11,016
Undivided profits and capital reserves .......................... 7,333
Net unrealized holding gains (losses)
on available-for-sale securities ................................ (951)
Accumulated net gains (losses) on cash flow hedges .............. 0
Cumulative foreign currency translation adjustments ............. 16
TOTAL EQUITY CAPITAL ............................................ 18,625
---------
TOTAL LIABILITIES AND EQUITY CAPITAL ............................ $ 299,390
=========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named
bank, do hereby declare that this Report of Condition has
been prepared in conformance with the instructions issued
by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness
of this Report of Condition and declare that it has been
examined by us, and to the best of our knowledge and
belief has been prepared in conformance with the in-
structions issued by the appropriate Federal regulatory
authority and is true and correct.
WALTER V. SHIPLEY )
WILLIAM B. HARRISON, JR. ) DIRECTORS
SUSAN V. BERRESFORD )
-5-
<PAGE> 1
Exhibit 25.5
-------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-2760086
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
--------------------------------------------------
PROVIDENT CAPITAL TRUST IV
(Exact name of obligor as specified in its charter)
OHIO APPLIED FOR
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
ONE EAST FOURTH STREET
CINCINNATI, OHIO 45202
(Address of principal executive offices) (Zip Code)
--------------------------------------------------
PREFERRED SECURITIES
(Title of the indenture securities)
--------------------------------------------------
<PAGE> 2
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, State House, Albany,
New York 12110.
Board of Governors of the Federal Reserve System,
Washington, D.C., 20551
Federal Reserve Bank of New York, District No. 2,
33 Liberty Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
- 2 -
<PAGE> 3
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-76439, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 16th day of December, 1999.
THE CHASE MANHATTAN BANK
By /s/ T. J. Foley
-------------------------
T. J. Foley
Vice President
- 3 -
<PAGE> 4
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business September 30, 1999, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
DOLLAR AMOUNTS
ASSETS IN MILLIONS
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ........................................... $ 13,497
Interest-bearing balances ................................... 6,388
Securities:
Held to maturity securities ...................................... 798
Available for sale securities .................................... 48,655
Federal funds sold and securities purchased under
agreements to resell ........................................ 30,373
Loans and lease financing receivables:
Loans and leases, net of unearned income ......... $132,392
Less: Allowance for loan and lease losses ........ 2,463
Less: Allocated transfer risk reserve ............ 0
--------
Loans and leases, net of unearned income,
allowance, and reserve ...................................... 129,929
Trading Assets ................................................... 47,413
Premises and fixed assets (including capitalized
leases) ..................................................... 3,287
Other real estate owned .......................................... 26
Investments in unconsolidated subsidiaries and
associated companies ........................................ 185
Customers' liability to this bank on acceptances
outstanding ................................................. 716
Intangible assets ................................................ 2,693
Other assets ..................................................... 15,430
--------
TOTAL ASSETS ..................................................... $299,390
========
</TABLE>
- 4 -
<PAGE> 5
<TABLE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits
In domestic offices ......................................... $100,324
Noninterest-bearing ..................... $41,601
Interest-bearing ........................ 58,723
-------
In foreign offices, Edge and Agreement
subsidiaries and IBF's ...................................... 88,064
Noninterest-bearing ....................... $ 6,363
Interest-bearing ..................... 81,701
Federal funds purchased and securities sold under agree-
ments to repurchase .............................................. 35,773
Demand notes issued to the U.S. Treasury ......................... 892
Trading liabilities .............................................. 33,565
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less ............... 4,434
With a remaining maturity of more than one year
through three years .................................. 14
With a remaining maturity of more than three years ........ 97
Bank's liability on acceptances executed and outstanding ......... 716
Subordinated notes and debentures ................................ 5,429
Other liabilities ................................................ 11,457
TOTAL LIABILITIES ................................................ 280,765
--------
EQUITY CAPITAL
Perpetual preferred stock and related surplus .................... 0
Common stock ..................................................... 1,211
Surplus (exclude all surplus related to preferred stock) ........ 11,016
Undivided profits and capital reserves ........................... 7,333
Net unrealized holding gains (losses)
on available-for-sale securities ................................. (951)
Accumulated net gains (losses) on cash flow hedges ............... 0
Cumulative foreign currency translation adjustments .............. 16
TOTAL EQUITY CAPITAL ............................................. 18,625
--------
TOTAL LIABILITIES AND EQUITY CAPITAL ............................. $299,390
========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named
bank, do hereby declare that this Report of Condition has
been prepared in conformance with the instructions issued
by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness
of this Report of Condition and declare that it has been
examined by us, and to the best of our knowledge and
belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority
and is true and correct.
WALTER V. SHIPLEY )
WILLIAM B. HARRISON, JR. ) DIRECTORS
SUSAN V. BERRESFORD )
-5-
<PAGE> 1
Exhibit 25.7
-------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-2760086
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
--------------------------------------------
PROVIDENT FINANCIAL GROUP, INC.
(Exact name of obligor as specified in its charter)
OHIO 31-0982792
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
ONE EAST FOURTH STREET
CINCINNATI, OHIO 45202
(Address of principal executive offices) (Zip Code)
-------------------------------
GUARANTEES OF PREFERRED SECURITIES
ISSUED BY PROVIDENT CAPITAL TRUST III
(Title of the indenture securities)
<PAGE> 2
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington,
D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
-2-
<PAGE> 3
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-76439, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 16th day of December, 1999.
THE CHASE MANHATTAN BANK
By /s/ T. J. Foley
----------------------------------
T. J. Foley
Vice President
- 3 -
<PAGE> 4
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business September 30, 1999, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Millions
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ........................................ $ 13,497
Interest-bearing balances ................................ 6,388
Securities:
Held to maturity securities ................................... 798
Available for sale securities ................................. 48,655
Federal funds sold and securities purchased under
agreements to resell ..................................... 30,373
Loans and lease financing receivables:
Loans and leases, net of unearned income .........$132,392
Less: Allowance for loan and lease losses ........ 2,463
Less: Allocated transfer risk reserve ............ 0
--------
Loans and leases, net of unearned income,
allowance, and reserve ................................... 129,929
Trading Assets ................................................ 47,413
Premises and fixed assets (including capitalized leases)....... 3,287
Other real estate owned........................................ 26
Investments in unconsolidated subsidiaries and
associated companies ..................................... 185
Customers' liability to this bank on acceptances
outstanding .............................................. 716
Intangible assets ............................................. 2,693
Other assets .................................................. 15,430
--------
TOTAL ASSETS .................................................. $299,390
========
- 4 -
<PAGE> 5
LIABILITIES
Deposits
In domestic offices ..................................... $ 100,324
Noninterest-bearing ........................... $ 41,601
Interest-bearing .............................. 58,723
---------
In foreign offices, Edge and Agreement
subsidiaries and IBF's .................................. 88,064
Noninterest-bearing .................................$ 6,363
Interest-bearing ............................... 81,701
Federal funds purchased and securities sold under agree-
ments to repurchase .......................................... 35,773
Demand notes issued to the U.S. Treasury ..................... 892
Trading liabilities .......................................... 33,565
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less ........... 4,434
With a remaining maturity of more than one year
through three years .............................. 14
With a remaining maturity of more than three years .... 97
Bank's liability on acceptances executed and outstanding ..... 716
Subordinated notes and debentures ............................ 5,429
Other liabilities ............................................ 11,457
TOTAL LIABILITIES ............................................ 280,765
---------
EQUITY CAPITAL
Perpetual preferred stock and related surplus ................ 0
Common stock ................................................. 1,211
Surplus (exclude all surplus related to preferred stock) .... 11,016
Undivided profits and capital reserves ....................... 7,333
Net unrealized holding gains (losses)
on available-for-sale securities ............................. (951)
Accumulated net gains (losses) on cash flow hedges............ 0
Cumulative foreign currency translation adjustments .......... 16
TOTAL EQUITY CAPITAL ......................................... 18,625
_________
TOTAL LIABILITIES AND EQUITY CAPITAL ......................... $ 299,390
=========
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named
bank, do hereby declare that this Report of Condition has
been prepared in conformance with the instructions issued
by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness
of this Report of Condition and declare that it has been
examined by us, and to the best of our knowledge and
belief has been prepared in conformance with the in-
structions issued by the appropriate Federal regulatory
authority and is true and correct.
WALTER V. SHIPLEY )
WILLIAM B. HARRISON, JR. ) DIRECTORS
SUSAN V. BERRESFORD )
-5-
<PAGE> 1
Exhibit 25.8
-------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-2760086
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
---------------------------------------------------
PROVIDENT FINANCIAL GROUP, INC.
(Exact name of obligor as specified in its charter)
OHIO 31-0982792
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
ONE EAST FOURTH STREET
CINCINNATI, OHIO 45202
(Address of principal executive offices) (Zip Code)
---------------------------------------------------
GUARANTEES OF PREFERRED SECURITIES
ISSUED BY PROVIDENT CAPITAL TRUST IV
(Title of the indenture securities)
---------------------------------------------------
<PAGE> 2
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, State House, Albany,
New York 12110.
Board of Governors of the Federal Reserve System,
Washington, D.C., 20551
Federal Reserve Bank of New York, District No. 2,
33 Liberty Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
- 2 -
<PAGE> 3
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-76439, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 16th day of December, 1999.
THE CHASE MANHATTAN BANK
By /s/ T. J. Foley
-------------------------
T. J. Foley
Vice President
- 3 -
<PAGE> 4
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business September 30, 1999, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
DOLLAR AMOUNTS
ASSETS IN MILLIONS
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin .......................................... $ 13,497
Interest-bearing balances .................................. 6,388
Securities:
Held to maturity securities ..................................... 798
Available for sale securities ................................... 48,655
Federal funds sold and securities purchased under
agreements to resell ....................................... 30,373
Loans and lease financing receivables:
Loans and leases, net of unearned income ........ $132,392
Less: Allowance for loan and lease losses ....... 2,463
Less: Allocated transfer risk reserve ........... 0
--------
Loans and leases, net of unearned income,
allowance, and reserve ..................................... 129,929
Trading Assets .................................................. 47,413
Premises and fixed assets (including capitalized
leases) .................................................... 3,287
Other real estate owned ......................................... 26
Investments in unconsolidated subsidiaries and
associated companies ....................................... 185
Customers' liability to this bank on acceptances
outstanding ................................................ 716
Intangible assets ............................................... 2,693
Other assets .................................................... 15,430
--------
TOTAL ASSETS .................................................... $299,390
========
</TABLE>
- 4 -
<PAGE> 5
<TABLE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits
In domestic offices .......................................... $100,324
Noninterest-bearing ....................... $41,601
Interest-bearing .......................... 58,723
------
In foreign offices, Edge and Agreement
subsidiaries and IBF's ....................................... 88,064
Noninterest-bearing ........................ $ 6,363
Interest-bearing ...................... 81,701
Federal funds purchased and securities sold under agree-
ments to repurchase ............................................... 35,773
Demand notes issued to the U.S. Treasury .......................... 892
Trading liabilities ............................................... 33,565
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less ................ 4,434
With a remaining maturity of more than one year
through three years.................................... 14
With a remaining maturity of more than three years.......... 97
Bank's liability on acceptances executed and outstanding........... 716
Subordinated notes and debentures ................................. 5,429
Other liabilities ................................................. 11,457
TOTAL LIABILITIES ................................................. 280,765
--------
EQUITY CAPITAL
Perpetual preferred stock and related surplus...................... 0
Common stock ...................................................... 1,211
Surplus (exclude all surplus related to preferred stock).......... 11,016
Undivided profits and capital reserves ............................ 7,333
Net unrealized holding gains (losses)
on available-for-sale securities .................................. (951)
Accumulated net gains (losses) on cash flow hedges................. 0
Cumulative foreign currency translation adjustments ............... 16
TOTAL EQUITY CAPITAL .............................................. 18,625
-------
TOTAL LIABILITIES AND EQUITY CAPITAL .............................. $299,390
========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named
bank, do hereby declare that this Report of Condition has
been prepared in conformance with the instructions issued
by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness
of this Report of Condition and declare that it has been
examined by us, and to the best of our knowledge and
belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory
authority and is true and correct.
WALTER V. SHIPLEY )
WILLIAM B. HARRISON, JR. ) DIRECTORS
SUSAN V. BERRESFORD )
-5-
<PAGE> 1
Exhibit 25.9
-------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
-------------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-2760086
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
--------------------------------------------------
PROVIDENT FINANCIAL GROUP, INC.
(Exact name of obligor as specified in its charter)
OHIO 31-0982792
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
ONE EAST FOURTH STREET
CINCINNATI, OHIO 45202
(Address of principal executive offices) (Zip Code)
--------------------------------------------------
JUNIOR SUBORDINATED DEBT SECURITIES
(Title of the indenture securities)
--------------------------------------------------
<PAGE> 2
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, State House, Albany,
New York 12110.
Board of Governors of the Federal Reserve System,
Washington, D.C., 20551
Federal Reserve Bank of New York, District No. 2,
33 Liberty Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
- 2 -
<PAGE> 3
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-76439, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 16th day of December, 1999.
THE CHASE MANHATTAN BANK
By /s/ T. J. Foley
---------------------------
T. J. Foley
Vice President
- 3 -
<PAGE> 4
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business September 30, 1999, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
DOLLAR AMOUNTS
ASSETS IN MILLIONS
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ............................................ $ 13,497
Interest-bearing balances .................................... 6,388
Securities:
Held to maturity securities ....................................... 798
Available for sale securities ..................................... 48,655
Federal funds sold and securities purchased under
agreements to resell ......................................... 30,373
Loans and lease financing receivables:
Loans and leases, net of unearned income .......... $132,392
Less: Allowance for loan and lease losses ......... 2,463
Less: Allocated transfer risk reserve ............. 0
--------
Loans and leases, net of unearned income,
allowance, and reserve ........................................ 129,929
Trading Assets ..................................................... 47,413
Premises and fixed assets (including capitalized
leases) ....................................................... 3,287
Other real estate owned ............................................ 26
Investments in unconsolidated subsidiaries and
associated companies .......................................... 185
Customers' liability to this bank on acceptances
outstanding ................................................... 716
Intangible assets .................................................. 2,693
Other assets ....................................................... 15,430
--------
TOTAL ASSETS ....................................................... $299,390
========
</TABLE>
- 4 -
<PAGE> 5
<TABLE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits
In domestic offices .......................................... $100,324
Noninterest-bearing ...................... $41,601
Interest-bearing ......................... 58,723
-------
In foreign offices, Edge and Agreement
subsidiaries and IBF's ....................................... 88,064
Noninterest-bearing ....................... $ 6,363
Interest-bearing ..................... 81,701
Federal funds purchased and securities sold under agree-
ments to repurchase ............................................... 35,773
Demand notes issued to the U.S. Treasury .......................... 892
Trading liabilities ............................................... 33,565
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less ................ 4,434
With a remaining maturity of more than one year
through three years ................................... 14
With a remaining maturity of more than three years ......... 97
Bank's liability on acceptances executed and outstanding .......... 716
Subordinated notes and debentures ................................. 5,429
Other liabilities ................................................. 11,457
TOTAL LIABILITIES ................................................. 280,765
--------
EQUITY CAPITAL
Perpetual preferred stock and related surplus ..................... 0
Common stock ...................................................... 1,211
Surplus (exclude all surplus related to preferred stock) ......... 11,016
Undivided profits and capital reserves ............................ 7,333
Net unrealized holding gains (losses)
on available-for-sale securities .................................. (951)
Accumulated net gains (losses) on cash flow hedges................. 0
Cumulative foreign currency translation adjustments ............... 16
TOTAL EQUITY CAPITAL .............................................. 18,625
--------
TOTAL LIABILITIES AND EQUITY CAPITAL .............................. $299,390
========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named
bank, do hereby declare that this Report of Condition has
been prepared in conformance with the instructions issued
by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness
of this Report of Condition and declare that it has been
examined by us, and to the best of our knowledge and
belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority
and is true and correct.
WALTER V. SHIPLEY )
WILLIAM B. HARRISON, JR. ) DIRECTORS
SUSAN V. BERRESFORD )
-5-
